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Revised Statutes of Newfoundland 1990


CHAPTER A-19

AN ACT RESPECTING THE ASSIGNMENT OF BOOK DEBTS

Analysis

1. Short title

2. Definitions

3. Corporations Act

4. Application

5. Requirements

6. Registration to be effected

7. Discharge of assignment

8. Inspection of records

9. Affidavits

10. Affidavit in case of death

11. Affidavit on behalf of corporation

12. Affidavit of agent or officer

13. Affidavit

14. Power of judge

15. Rectification

16. Defects and irregularities

17. Evidence of records

18. Fees


Short title

1. This Act may be cited as the Assignment of Book Debts Act.

RSN1970 c15 s1

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Definitions

2. In this Act

(a) "assignee" means a person to whom an assignment of book debts is made;

(b) "assignment" includes legal and equitable assignments whether absolute or by way of security, and mortgages or other charges upon book debts;

(c) "assignor" means a person making an assignment of book debts;

(d) "book debts" means all accounts and debts whether existing or future that in the ordinary course of business would be entered in books, whether actually entered or not, and includes a part or class of them;

(e) "creditors" means creditors of the assignor, whether execution creditors or not, who become creditors before the registration of an assignment, and, for the purpose of enforcing the rights of the creditors, includes a creditor suing on behalf of himself or herself and other creditors, an assignee for the general benefit of creditors, a trustee under the Bankruptcy Act (Canada) and a liquidator of a company under the Winding-up Act (Canada) or under the Corporations Act without regard to the time when the creditor so suing becomes a creditor, or when the assignee, trustee or liquidator is appointed;

(f) "proper officer" means the Registrar of Deeds, Companies and Securities for the province;

(g) "registered" means filed in accordance with this Act;

(h) "subsequent purchasers" includes a person who in good faith for valuable consideration and without notice obtains by assignment an interest in book debts which have already been assigned; and

(i) "valuable consideration" includes

(i) consideration sufficient to support a simple contract,

(ii) an antecedent debt or liability.

RSN1970 c14 s2; 1986 c12 Sch

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Corporations Act

3. This Act shall be read with section 453 of the Corporations Act.

1986 c12 Sch

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Application

4. This Act does not apply to

(a) an assignment of book debts, whether by way of specific or floating charge, made by a corporation engaged in a trade or business within the province and contained

(i) in a trust deed or other instrument to secure bonds, debentures or debenture stock of the corporation or of another corporation,

(ii) in bonds, debentures or debenture stock of the corporation as well as in the trust deed or other instrument securing them, or in a trust deed or other instrument securing bonds, debentures or debenture stock of another corporation, or

(iii) in bonds, debentures or debenture stock or a series of bonds or debentures of the corporation not secured by a separate instrument;

(b) an assignment of book debts due at the date of assignment from specified debtors;

(c) an assignment of debts growing due under specified contracts;

(d) an assignment of book debts included in a transfer of a business made in good faith and for value; or

(e) an assignment of book debts included in an authorized assignment under the Bankruptcy Act (Canada).

RSN1970 c15 s3

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Requirements

5. (1) Except as provided in this Act, an assignment of book debts made by a person engaged in a trade or business in the province is absolutely void as against the creditors of the assignor and as against the subsequent purchasers unless the assignment is

(a) in writing;

(b) accompanied by an affidavit of a certifying witness of the execution of it by the assignor identifying the assignment and stating the date of execution by the assignor and a further affidavit of the assignee or of his or her agent stating that the assignment was executed in good faith and for valuable consideration and not for the mere purpose of protecting the book debts mentioned in it against the creditors of the assignor or for the purpose of preventing the creditors from recovering claims which they have against the assignor;

(c) registered as provided in this Act together with the affidavits.

(2) Where there are 2 or more assignors, the date of execution of the assignment shall be considered to be the date of the execution by the assignor who last executes it.

(3) An assignment which is required to be in writing and registered under this Act takes effect as against creditors and subsequent purchasers only from the time of the registration of the assignment.

RSN1970 c15 s4; 1979 c51 s5

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Registration to be effected

6. (1) Registration of an assignment under this Act shall be effected by filing the assignment together with the affidavits that are required by this Act in the Registry of Deeds.

(2) The proper officer shall number assignments filed in his or her office, endorse them with a memorandum of the day, hour and minute of filing, and index them by entering in alphabetical order in a register kept by the officer the names of the parties to the assignment with their descriptions and the dates of execution and registration of the assignment.

(3) Where the time for registration of an assignment or other document expires on a Sunday or other day on which the office in which the registration is to be made is closed, the registration, so far as regards the time of registration, is valid if made on the next day on which the office is open.

(4) The proper officer shall on request of the applicant endorse on a copy of the assignment, to be provided by the applicant, a certificate that the assignment has been registered, with the day, hour and minute of filing.

RSN1970 c15 s5; 1980 c24 s3

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Discharge of assignment

7. (1) An assignment registered under this Act may be discharged in whole or in part by the registration in the office in which the assignment is registered of a certificate of discharge, signed by the assignee, his or her executors, administrators or assigns and accompanied by an affidavit of a certifying witness of the execution of it.

(2) The proper officer in whose office a certificate of discharge accompanied by the affidavit of execution is registered shall note the fact of the discharge against each entry in the books of his or her office respecting the registration of the assignment and shall make an identical notation upon the assignment registered in his or her office.

(3) The proper officer in whose office the certificate of discharge is registered shall on request provide a certificate of the entry of the discharge in the records of his or her office.

RSN1970 c15 s6

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Inspection of records

8. Upon payment of the prescribed fees a person shall have access to and be entitled to inspect the books of the proper officer containing records or entries of assignments or documents registered or filed under this Act, and a person shall not be required, as a condition of his or her right to do so, to disclose the name of the person in respect of whom the access or inspection is sought, and the proper officer shall, upon request accompanied by payment of the prescribed fees, produce for inspection an assignment or document registered or filed in his or her office.

RSN1970 c15 s7

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Affidavits

9. (1) Affidavits required by this Act may be taken within the province before

(a) the Registrar of Deeds, Companies and Securities or his or her deputy;

(b) a Provincial Court judge;

(c) a commissioner of the Supreme Court;

(d) a notary public under his or her official seal;

(e) a commissioner for oaths in and for the province;

(f) a justice of the peace.

(2) Affidavits required by this Act may be taken outside the province before

(a) a judge of a court of record, under the seal of the court;

(b) the mayor of a city or town, under the seal of the city or town;

(c) 1 of the Crown's consuls or vice-consuls;

(d) a commissioner of the Supreme Court of the province;

(e) a commissioner for oaths in and for the province;

(f) a commissioner for oaths outside of the province;

(g) a commissioner for oaths appointed under the laws of the province in which the acknowledgment is taken or the oath is administered;

(h) a notary public, under his or her official seal.

(3) It shall not be necessary for the purpose of registration under this Act to prove or certify the seal or signature of the court, city or town, judge, Provincial Court judge, mayor, consul, vice-consul, justice of the peace, commissioner or notary public attached to or signed on the affidavit.

(4) A document registered under this Act shall not be held to be defective or void solely on the ground that an affidavit required by this Act was taken before a solicitor for 1 of the parties to the document or before a partner of that solicitor.

RSN1970 c15 s8; 1979 c51 s5; 1980 c24 s3;
1986 c42 Sch A & Sch B

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Affidavit in case of death

10. An affidavit required by this Act to be made by an assignee may, in the event of his or her death, be made by an executor or administrator or by a next of kin or by the authorized agent of the executor or administrator.

RSN1970 c15 s9

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Affidavit on behalf of corporation

11. Where the assignee is a corporation, an affidavit required or permitted by this Act to be made or given by the corporation as the assignee may be made or given by an officer, employee or agent of the corporation.

RSN1970 c15 s10

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Affidavit of agent or officer

12. An affidavit made for the purposes of this Act by the agent of an assignee or of an executor or administrator or by an officer, employee or agent of a corporation shall state that the deponent is aware of the circumstances connected with the assignment, and that he or she has personal knowledge of the facts deposed to.

RSN1970 c15 s11

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Affidavit

13. Where an assignment or certificate of discharge or other document has been executed by a corporation under this Act an affidavit of a certifying witness is not required.

RSN1970 c15 s12

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Power of judge

14. (1) In case, before the making of an affidavit of execution required by this Act, the certifying witness to an assignment, certificate of discharge or other document dies or leaves the province, or becomes incapable of making, or refuses to make the affidavit, a judge of the Trial Division may make an order permitting the registration of the assignment, certificate of discharge or other document upon the proof of its execution and certification as the judge, by the order, may require and allow.

(2) The order or a copy of it shall be annexed to the assignment, certificate of discharge or other document and filed with the assignment, and the registration of the assignment, certificate of discharge or other document in compliance with the terms of the order has the same effect as the registration of it with the affidavit of execution otherwise required by this Act.

RSN1970 c15 s13; 1974 No57 s38 (264(b));
1986 c42 Sch A

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Rectification

15. Subject to the rights of other persons accrued because of an omission or misstatement referred to in this section, a judge of the Trial Division on being satisfied that the omission to register an assignment within the time prescribed by this Act or an omission or misstatement in a document filed under this Act was accidental or due to inadvertence or impossibility or other sufficient cause may, in his or her discretion, extend the time for registration or order the omission or misstatement to be rectified on the terms and conditions as to security, notice by advertisement or otherwise, or as to another matter that the judge thinks appropriate to direct, and the order or a copy of it shall be annexed to the assignment on file or tendered for registration and appropriate entries shall be made in the register.

RSN1970 c15 s14; 1974 No57 s38 (264(b));
1986 c42 Sch A

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Defects and irregularities

16. A defect or irregularity in the execution or certification of an assignment or other document, a defect, irregularity or omission in an affidavit accompanying an assignment or filed in connection with its registration and an error of a clerical nature or in an immaterial or non-essential part of an assignment does not invalidate or destroy the effect of the assignment or the registration of it unless in the opinion of the court before whom a question relating to the assignment is tried, the defect, irregularity, omission or error has actually misled some person whose interests are affected by the assignment.

RSN1970 c15 s15

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Evidence of records

17. (1) Copies of an assignment, certificate of discharge or other document registered or filed under this Act certified by the proper officer shall be accepted by the court as if they were the original documents.

(2) A copy referred to in subsection (1) shall be accepted by the court as, in the absence of evidence to the contrary, evidence of execution of the original assignment or document according to the purport of the copy and the certificate of the proper officer is also, in the absence of evidence to the contrary, evidence of the date and hour of registration and filing.

RSN1970 c15 s16

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Fees

18. The proper officer shall collect and pay into the Consolidated Revenue Fund the following fees:

(a) for filing and registering an assignment or a certificate of discharge................................................................... $10;

(b) for a general search................................................. $1;

(c) for a certificate of registration or discharge or other certificate for the purpose of this Act..................... $2;

(d) for a copy of a document filed under this Act, including a certificate for every page or part of it................. $1;

(e) for another service for which provision is not made in this section, a sum that the Lieutenant-Governor in Council may prescribe by order.

1981 c72 s1

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