Statutes of Newfoundland 1997 Chapter 3

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Statutes of Newfoundland 1997

CHAPTER 3 CHAPTER 3

AN ACT TO AMEND THE JUDGMENT
ENFORCEMENT ACT
(Assented to May 20, 1997)

Analysis

1. S.3 Amdt.
Application

2. S.16 Amdt.
Cause of action

3. S.38 Amdt.
Registration required

4. S.44 Amdt.
Error or omission

5. S.52 Amdt.
Disposition of
goods

6. S.60 R&S
Exceptions to binding

7. S.63 Amdt.
Tracing proceeds

8. S.95 Amdt.
Liquidation procedure
re non-market shares

9. S.110 Amdt.
Definitions

10. S.129 Amdt.
Definitions

11. S.133 Amdt.
Property exceeding
exempted values

12. S.134 R&S
Extension of exemptions

13. S.136 Amdt.
Selection of property

14. S.137 Amdt.
Survival of exemptions

15. S.140 Amdt.
Income exemption certificate

16. S.144 Amdt.
Claim procedure

17. S.146 Amdt.
Instalment order

18. S.147 Amdt.
Default

19. S.154 Amdt.
Distribution of fund

20. S.163 Amdt.
Procedure

21. S.187 R&S
Transitional

22. RSN1990 cJ-1
Rep.

23. RSN1990 cR-10
Amdt.

24. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

SN1996 cJ-1.1

1. (1) Paragraph 3(5)(e) of the Judgment Enforcement Act is amended by adding immediately before the word "an" the phrase "except as provided in paragraphs (g) and (h)".

(2) Paragraphs 3(5)(g) and (h) of the Act are amended by deleting the phrase "notwithstanding paragraph (e)," wherever it occurs.

2. Subsection 16(2) of the Act is repealed and the following substituted:

(2) Notwithstanding subsection (1) and the Proceedings Against the Crown Act, the sheriff or an employee or agent of the sheriff is not personally liable for an error or omission in respect of the discharge or purported discharge of a duty or function under this Act.

3. Subsection 38(2) of the Act is repealed and the following substituted:

(2) The sheriff shall accept as proof of a money judgment a money judgment certified by an officer of the court from which that judgment originated, a certified true copy of that judgment or a facsimile copy of either.

4. Section 44 of the Act is amended by deleting the phrase "that has jurisdiction with respect to the money judgment".

5. Subsection 52(3) of the Act is repealed and the following substituted:

(3) A person who acquires an interest in serial numbered goods takes those goods free of, or in the case of a security interest, in priority to, a notice of judgment that binds the goods, other than a notice of judgment with respect to a money judgment against the person from whom the interest was acquired, if the person

(a) gives value for the interest acquired; and

(b) acquires the serial numbered goods without knowledge that the goods are bound by the notice of judgment.

(4) A sale, lease or acquisition under this section may be for money, by exchange for other property or on credit and includes delivering goods or a document of title to goods under a preexisting contract for sale but does not include a transfer as security for, or in total or partial satisfaction of, a money debt or a past liability.

(5) In subsection (3), "serial numbered goods" means goods that are prescribed by regulation as serial numbered goods.

6. Section 60 of the Act is repealed and the following substituted:

Exceptions to binding

60. (1) A person who acquires an interest in land takes the interest

(a) free of; or

(b) in the case of a security interest, in priority to

a notice of judgment that binds the land if an instrument evidencing that interest is registered in the registry of deeds within 10 days of the registration of the notice of judgment in the registry.

(2) A person who acquires an interest in land takes free of, or in the case of a security interest, in priority to, a notice of judgment that binds the land, if

(a) the person gives value for the interest acquired; and

(b) the person acquires the land without knowledge that the land was bound by the notice of judgment.

(3) For the purpose of subsection (2), a person shall be considered to have knowledge of a notice of judgment if

(a) the notice of judgment would be disclosed in a search of the registry using the name in which the interest was held by the debtor in the registry of deeds; and

(b) it would be reasonable to conclude that the notice of judgment was with respect to the debtor.

7. Subsection 63(1) of the Act is repealed and the following substituted:

Tracing proceeds

63. (1) When money received as a result of enforcement proceedings with respect to property is distributed, a person who does not assert a claim with respect to that property before that money is distributed shall not trace or otherwise follow the money.

8. Paragraph 95(11)(c) of the Act is amended by deleting the word "issue" and substituting the word "issuer".

9. Subparagraph 110(1)(a)(iii) of the Act is amended by deleting the number "124" and substituting the number "123".

10. Paragraph 129(n) of the Act is repealed and the following substituted:

(n) "retirement fund income" means an amount equal to

(i) the total of all money and the value of all property received by the debtor or the sheriff from a retirement fund,

less

(ii) an amount that the debtor would be required to pay as taxes under an Act of the Legislature of a province or the Parliament of Canada on that amount if it were received by the debtor,

but does not include a transfer of a retirement fund to another retirement fund or pension plan;

11. Subsection 133(5) of the Act is amended by deleting the phrase "paragraphs 131(f) and (g)" and substituting the phrase "paragraph 131(f)".

12. Section 134 of the Act is repealed and the following substituted:

Extension of exemptions

134. Where a debtor receives or retains property or money

(a) under subsection 133(4) and 135(4); or

(b) from a pension plan which is not income of the debtor,

unless intermingled with other funds or property of the debtor, the property or the money and a deposit account into which it is paid are exempt for a period of

(c) in the case of the proceeds of sale of the debtors principal home, 180 days from the payment to the debtor; or

(d) in any other case, 60 days from receipt of the property or money by the debtor.

13. Subsection 136(3) of the Act is amended by deleting the word, brackets and the letter "or (g)".

14. Subsection 137(1) of the Act is amended by deleting the phrase "entitled to the property on a distribution of the estate" and substituting the words "by operation of law or on a distribution of the estate".

15. Subsection 140(2) of the Act is amended by adding immediately after the word "certificate" a comma and the words "having regard to the family responsibilities and personal situation of the debtor and".

16. Subsection 144(3) of the Act is repealed.

17. Subsection 146(9) of the Act is amended by adding immediately after the word "order" where it first occurs, a comma and the words "having regard to the family responsibilities and personal situation of the debtor and".

18. (1) Subsection 147(5) of the Act is amended by adding immediately after paragraph (a) the word "and", by deleting the semicolon and the word "and" at the end of paragraph (b) and substituting a period and by deleting paragraph (c).

(2) Section 147 of the Act is amended by adding immediately after subsection (6) the following:

(7) Where a debtor defaults in completing a questionnaire or attending an examination required under Part IV, and in the opinion of the sheriff, the default is without just cause, a creditor may instruct the sheriff to issue a garnishee order under Part VIII with respect to the net pay of the debtor.

19. Paragraph 154(1)(d) of the Act is amended by deleting the number "165" and substituting the number "164".

20. Paragraph 163(2)(b) of the Act is amended by deleting the number "165" and substituting the number "164".

21. Section 187 of the Act is repealed and the following substituted:

Transitional

187. (1) An order for

(a) payment by instalments under subsection 11(4) of the Small Claims Act;

(b) a distress warrant under the Small Claims Act; or

made before June 1, 1997, shall cease to have force and effect on June 1, 1997.

(2) Notwithstanding subsection (1), a distress warrant issued under the Small Claims Act and an execution order issued under the Rules of the Supreme Court, 1986 before June 1, 1997 that is filed with the office of the sheriff before that date shall have the same force and effect as immediately before the commencement of this Act until

(a) the registration of a notice of judgment relating to that distress warrant or execution order; or

(b) 3 months after the commencement of this Act,

whichever occurs earlier.

(3) Notwithstanding subsection (2), the sheriff shall not carry out instructions with respect to a distress warrant or an execution order referred to in that subsection where those instructions are received by the sheriff after May 31,1997.

(4) Notwithstanding subsection (1), an order made before June 1, 1997 for the payment of instalments under subsection 11(4) of the Small Claims Act shall have the same force and effect as immediately before the commencement of this Act until

(a) the registration of a notice of judgment relating to that order; or

(b) 3 months after the commencement of this Act,

whichever occurs earlier.

(5) Notwithstanding subsection (4), subsections 146(11) to (14) apply to an order for payment by instalments made before June 1, 1997.

(6) An attachment issued under the Rules of the Supreme Court, 1986 before June 1, 1997 shall, on that date, be considered to have been issued under Part II of this Act.

(7) A creditor, debtor or interested party may apply to the court for relief with respect to

(a) enforcement proceedings relating to a distress warrant or execution order referred to in subsection (2); and

(b) an order for payment by instalments referred to in subsection (4),

and the court may, subject to section 40, make an order that it considers appropriate.

(8) Where a notice of judgment is registered with respect to a judgment and a process or order referred to in subsection (1), other than an instalment order issued under the Judgment Debts Instalments Act, was in effect at the time of the registration, a creditor may apply to the court for an order that an enforcement procedure initiated under this Act have the same priority as against a transferee as did the previous process or order with respect to particular property of the debtor, taking into consideration the effect of that order on the rights of third parties with an interest in the property.

(9) Where a notice of judgment is registered with respect to a judgment and an instalment order issued under the Judgment Debts Instalments Act was in effect at the time, upon delivery of the instalment order to the sheriff, the instalment order shall be considered to be an instalment order issued by the court in accordance with subsection 146(9).

RSN1990 cJ-1 Rep.

22. The Judgment Debts Instalments Act is repealed.

RSN1990 cR-10 Amdt.

23. Section 10 of the Registration of Deeds Act is repealed.

Commencement

24. This Act is considered to have come into force on June 1, 1997.