Rules of the Supreme Court, 1986

Counterclaim against a plaintiff

11.01. (1) Where a defendant has a claim against a plaintiff in respect of any cause of action, whenever and however arising, the defendant may, instead of bringing a separate proceeding, make a counterclaim in respect of the claim.

(2) Unless the Court otherwise orders,

(a) a defendant shall add a counterclaim to the defendant's defence and file and serve it with the defence; and

(b) a plaintiff shall serve and file the plaintiff's defence to the counterclaim within ten days from the service of the defence and counterclaim on the plaintiff.

1986 c42 Sch D rule 11.01

Counterclaim against plaintiff and other person

11.02. (1) Unless the Court otherwise orders, where a defendant has a claim, in respect of the subject matter of the counterclaim or the original proceeding, against a plaintiff and any other person, whether or not a party, the defendant may join that person with the plaintiff as defendants to the counterclaim by

(a) adding both names to the title of the proceedings as in Form 11.02A;

(b) with respect to the plaintiff, complying with the provisions of rule 11.01(2); and

(c) with respect to the other person, by filing and personally serving the counterclaim in Form 11.02(A) on the person within ten days from the service of the originating document in the original proceeding on the defendant, or within such further time as the Court may order.

(2) A person served with a counterclaim in Form 11.02A becomes a party to the counterclaim from the time of service with the same rights in respect of the defence to the counterclaim or otherwise as any defendant.

1986 c42 Sch D rule 11.02

Jurisdiction of Court

11.03. A counterclaim is a separate proceeding and the Court may

(a) proceed with the counterclaim notwithstanding that judgment may be entered for the plaintiff in the original proceeding, or the original proceeding is stayed, discontinued or dismissed;

(b) order that judgment be entered, both on the original claim and counterclaim;

(c) where a counterclaim is established against the claim of a plaintiff and there is a balance in favour of one of the parties, order that judgment be entered for the balance, but nothing herein shall affect the Court's discretion with respect to costs;

(d) where a counterclaim cannot be conveniently disposed of with the original proceeding, order the counterclaim to be excluded or tried separately, or make such other order as is just;

(e) where a defendant does not dispute the claim of a plaintiff in the original proceeding and sets up no defence thereto but sets up a counterclaim, the Court may stay the original proceeding with or without terms until the counterclaim is disposed of; or

(f) make such other order as is just.

1986 c42 Sch D rule 11.03

Application of rules to counterclaim and defence to counterclaim

11.04. The provisions of these rules shall apply, with any necessary modification, to a counterclaim as if the counterclaim were a statement of claim and the defendant making it, the plaintiff, and to the defence to the counterclaim, as if it were a defence and the party making it, a defendant.

1986 c42 Sch D rule 11.04

Form 11.02A

(rule 11.02(1))

19_____ No. _____

In the Supreme Court of Newfoundland and Labrador
Trial Division (General)

BETWEEN A.B . _______________ PLAINTIFF

and

C.D. _______________ DEFENDANT

(original proceeding)

AND BETWEEN C.D. _______________ PLAINTIFF

and

A.B . and E.F. _______________ DEFENDANTS

Counterclaim

1. (Set forth material facts)

DATED at ___________, Newfoundland and Labrador, this _______ day of _______, 19_____.

(Sgd .) (C.D.
Plaintiff (counterclaim))
or
(M.N.
Solicitor for Plaintiff (counterclaim))
whose address for
service is

Newfoundland and Labrador)

ISSUED at _______________, Newfoundland and Labrador this _______ day of _______, 19_____.

Seal of the Court.

Registrar

19_____ No. _____

In the Supreme Court of Newfoundland and Labrador
Trial Division (General)

BETWEEN A.B . _______________ PLAINTIFF

and

C.D. _______________ DEFENDANT

(original proceeding)

AND BETWEEN C.D. _______________ PLAINTIFF

and

A.B . and E.F. _______________ DEFENDANTS

Notice to Defendant(s) (Counterclaim)

You are hereby notified that the plaintiff(s) (counterclaim) may enter judgment in accordance with the counterclaim or such order as, according to the practice of the Court, the plaintiff (counterclaim) is entitled to, without any further notice to you unless within _____ days after service hereof upon you, you cause to be filed in the Registry of the Supreme Court of Newfoundland and Labrador a defence to the counterclaim and unless within the same time a copy of your defence to the counterclaim is served upon the plaintiff(s) (counterclaim) or the plaintiff's solicitor(s) at the plaintiff's solicitor(s) stated address(es ) for service.

If the counterclaim is for a debt or other liquidated demand and you pay the amount claimed in the counterclaim and the sum of $_____ (or such sum as may be allowed on taxation) for costs to the plaintiff(s) (counterclaim) or the plaintiff's solicitor(s) within _____ days from the service of this notice upon you, then this proceeding will be stayed.

Endorsements

RECEIVED on ___________ the _______ day of _______, 19_____.

This counterclaim and attached notice to defendant(s) (counterclaim) was served by me on the defendant(s) (counterclaim), at _______________, on ___________ the _______ day of _______, 19_____, at approximately _____.m.

Endorsed on __________ the _______ day of _______, 19_____.

(Sgd .)
(address )

Affidavit of Service

I, ___________________ of ___________________ Street, (place) Newfoundland and Labrador, (occupation) __________ make oath (or affirm) and say that I did on _________, the _______ day of _______, 19_____, at approximately _____.m., serve ______________, with the within counterclaim by leaving a true copy of the same with _____________ personally at ______________, and that I endorsed the date of service thereon on ______________ the _______ day of _______, 19_____.

SWORN (OR AFFIRMED) to at _______________ in the Province of ___________ this _______ day of _______, 19_____, before me

A COMMISSIONER, etc.

1986 c42 Sch D Form 11.02A; 2001 c42 s45; 30/10 s57

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