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RULE 27
RECOVERY ORDERS

Analysis



Application for an interlocutory order

27.01. (1) Any party or intervenor in a proceeding may apply for an interlocutory order to recover possession of property that was unlawfully taken or is unlawfully detained from the party or intervenor by any person, or is held by an officer of the Court under any legal process issued in the proceeding.

             (2)  [Rep. by 36/14 s31]

             (3)  When it is sought to enforce an order for the recovery of possession of property, a final recovery order may be obtained as provided in rule 27.13.

1986 c42 Sch D rule 27.01; 36/14 s31

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Affidavit in support of interlocutory recovery order

27.02. The affidavit of an applicant or the applicant's agent in support of an interlocutory recovery order shall

             (a)  sufficiently describe any property claimed and the value thereof;

             (b)  set out facts showing that

                      (i )  the applicant is the owner or lawfully entitled to the possession of the property,

                     (ii)  proceedings have been commenced by the applicant for recovery of possession of the property,

                    (iii)  the property was unlawfully taken or is unlawfully detained from the applicant by the other party or is held by an officer of the Court under any legal process issued in the proceeding, and

                    (iv)  the applicant or the applicant's agent has made a demand for the property which has been refused; and

             (c)  state the applicant was advised by the applicant's solicitor, naming him or her, and verily believes the applicant is lawfully entitled to recover possession of the property.

1986 c42 Sch D rule 27.02

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Bond in support of interlocutory recovery order

27.03. (1) Unless the Court otherwise orders, the applicant shall provide to the Court a bond in Form 27.03A before an interlocutory recovery order is issued.

         (1.1)  Unless the Court otherwise orders, the bond in paragraph (1) shall be an amount equal to one and one quarter times the value of the property sought to be recovered, as stated in the applicant's affidavit, with two sufficient sureties or other form of sufficient security, approved by the Court.

             (2)  Unless the Court otherwise orders, the conditions of bond shall be that the applicant shall

             (a)  obtain, without delay, an order settling who is entitled to the ownership or possession of the property;

             (b)  return the property to the party or person from whom it was taken if the applicant fails to obtain the order referred to in rule 27.03(2)(a), without delay, or when the Court so orders; and

             (c)  pay such damages and costs awarded by the Court against the applicant, resulting from the issuance of the interlocutory recovery order.

             (3)  When a bond is defective or insufficient, or any surety dies or moves out of the jurisdiction or becomes insolvent, or the other form of security is insufficient, or for any other just cause, the Court may, on notice, order another bond or further security to be given and, if the provisions of the order are not complied with within the time prescribed therein, the Court may dissolve the interlocutory recovery order and order the property to be returned to the party or person from whom the property was recovered, and may grant such other order as is just.

             (4)  A bond and any security taken thereunder may, by leave of the Court granted on such terms as are just, be assigned by the Registrar to the party from whom the property was recovered and when so assigned that party may realize on the security and commence a proceeding to enforce the bond in that party's own name against all or any of the persons who executed it.

1986 c42 Sch D rule 27.03; 36/14 s32

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Recovery order

27.04. (1) Unless the Court otherwise orders, an interlocutory recovery order in Form 27.04A shall

             (a)  contain a description of the property sought to be recovered sufficient to describe it, and the value thereof as set out in the applicant's affidavit;

             (b)  direct the sheriff to take immediate possession of the property or any part thereof, to make an inventory of any property so recovered, and to serve a true copy of the order

                      (i )  on the party from whom recovery of the property is sought,

                     (ii)  on any adult person in possession of the property at the time possession is taken, and

                    (iii)  when real property is to be recovered, to post a true copy of the order in a conspicuous place thereon;

             (c)  direct the sheriff to deliver possession of the property recovered to the applicant when the party, from whom the property is recovered, does not deliver to the sheriff, within three days after a true copy of the order is served on that party, a certificate from the Registrar stating that the party has filed with the Court a bond pursuant to rule 27.06;

             (d)  direct the applicant to continue forthwith the proceeding until judgment is entered delivering possession of the property to the applicant or otherwise or a bond is filed as provided by rule 27.04(1)(c); and

             (e)  be endorsed with the name and address of the solicitor of the applicant and Registrar.

             (2)  Any share, bond, debenture or other interest of an applicant in a body corporate is deemed to be property and may be recovered as provided in rule 27.07.

             (3)  Unless the Court otherwise orders, after the expiration of ninety days from the issue of an interlocutory recovery order, no property may be recovered under the order, but nothing herein shall be deemed to limit the validity of the order in respect of anything previously done thereunder or to limit the right of the Court to issue a further recovery order in respect of the same or other property.

1986 c42 Sch D rule 27.04; 36/14 s33

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Sheriff's duty under interlocutory recovery order

27.05. (1) Upon receipt of an interlocutory order, the sheriff shall forthwith, and not later than ninety days after its issue, or within such further period of time as the Court may order, comply with the provisions of the order.

             (2)  The sheriff shall hold and safely keep any property taken by the sheriff under an interlocutory recovery order for a period of three days after a true copy of the order is served upon the party from whom the recovery of property is sought or other person in possession of the property at the time of taking, and then deliver the property to the applicant unless

             (a)  the party from whom recovery of the property is sought, or other person from whose possession the property was taken, retains or regains possession of the property by filing a bond as provided by rule 27.06;

             (b)  the applicant, subject to the payment of the fees and expenses of the sheriff, authorizes in writing the property to be returned to the other party or person entitled thereto; or

             (c)  the Court orders the property to be returned to the other party or person entitled thereto as provided by rule 27.08.

             (3)  Where personal property is secured or concealed in a building or enclosure and it is not delivered pursuant to the sheriff's demand, the sheriff shall break open or cause the building or enclosure to be broken open and take possession of the property pursuant to the interlocutory recovery order.

             (4)  Before the expiration of ninety days from the date of the issue of an interlocutory recovery order or when directed by the Court, the sheriff shall file the order with the Court with a report of any action taken by the sheriff thereunder.

1986 c42 Sch D rule 27.05; 36/14 s34

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Retention or repossession of property taken under an interlocutory recovery order

27.06. (1) Any party or person, claiming to be the owner or entitled to possession of any property recoverable under an interlocutory recovery order, is entitled to retain or regain possession of the property if the party or person files with the Court not later than three days after a true copy of the order is served on the party or person

             (a)  an affidavit stating that the party or person is entitled to possession of the property by virtue of the facts set forth therein; and

             (b)  unless the Court otherwise orders, a bond in Form 27.06A in an amount equal to one and one-quarter times the value of the property recovered as determined by the sheriff, with two sufficient sureties.

             (2)  Unless the Court otherwise orders, the condition of the bond shall be that the party or other person giving the bond shall deliver the property to the applicant if it is so adjudged, or pay to the applicant when ordered by the Court an amount equal to the value of the property retained or regained under the bond which payment shall not exceed the amount secured by the bond.

             (3)  When a bond is defective or insufficient, or any surety dies or moves out of the jurisdiction or becomes insolvent, or the other form of security is insufficient, or for any other just cause, the Court may, on notice, order another bond or further security to be given and, if the provisions of the order are not complied with within the time prescribed therein, the Court may grant a further interlocutory recovery order on such terms as are just and any property specified therein may be recovered thereunder.

             (4)  A bond and any security taken thereunder may, with the leave of the Court or consent of the parties, be assigned by the Registrar to the applicant, and when so assigned the applicant may realize on the security and commence a proceeding to enforce the bond in the applicant's own name against all or any of the persons who executed it.

             (5)  If more than one party or person files a bond under rule 27.06(1), the sheriff shall retain possession of the property and apply to the Court for an interpleader order under Rule 13.

             (6)  Where the person or party entitled to retain the property under rule 27.06(1) is a public officer, board or government agency, such officer, board or government agency may, in lieu of giving a bond in Form 27.04A, retain possession of any property seized by filing with the Court, within the time limited by the rule, a writing certifying that public health, safety or welfare would be jeopardized or impaired if the applicant acquired possession of the property prior to judgment being entered, but the applicant may apply to the Court to determine whether the public interest requires the property to be so retained.

1986 c42 Sch D rule 27.06; 36/14 s35

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Recovery of shares, bonds, etc., of a body corporate

27.07. (1) The sheriff may recover any share, bond, debenture or other interest of an applicant in a body corporate by serving an interlocutory recovery order upon the body corporate as provided in rule 6.02(1)(b).

             (2)  When an interlocutory recovery order is served upon a body corporate, the body corporate and its transfer agent shall

             (a)  not transfer the title to or deliver possession of any share, bond, debenture or other interest of an applicant therein to any person until the Court otherwise orders; and

             (b)  forthwith file with the Court a certificate setting out

                      (i)  the number and class of any share so retained with the certificate number and the name and address of any registered owner thereof,

                     (ii)  the number, face value and description of any bond or debenture with the serial number thereof and the name and address of any registered owner thereof, and

                    (iii)  a description of any other interest of the defendant in the body corporate so retained.

             (3)  The Court may order any share, bond, debenture or other interest of an applicant in a body corporate to be held, released, transferred or otherwise disposed of upon such terms and conditions as it may order, and any such holding, release, transfer or disposal pursuant to the terms of the order shall relieve the body corporate from liability to any person claiming the share, bond, debenture or other interest.

1986 c42 Sch D rule 27.07; 9/03 s7; 36/14 s36

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Remedies of any part y or person in relation to an interlocutory recovery order

27.08. Any party or person, claiming an interest in any property taken under an interlocutory recovery order or claiming that the order was wrongfully granted or issued, may

             (a)  give written notice of the party's or person's claim to the sheriff as provided in rule 13.02 and the provisions of Rule 13 shall apply with any necessary modification to any interpleader proceeding taken thereunder;

             (b)  make an application in the proceeding as a party or intervenor , and the court may on the hearing thereof

                      (i )  grant the applicant a reasonable opportunity to amend an affidavit or bond used in support of the grant of the order,

                     (ii)  upon such terms as it thinks just, vary or modify or set aside the order or stay the proceeding,

                    (iii)  order any property taken under the order to be held by the sheriff pending the entry of judgment or further order of the Court or to be returned or disposed of upon such terms as it thinks just, or to grant any other relief with respect to the return, safety, or sale of the property, or any part thereof,

                    (iv)  order any bond to be released or given, or

                     (v)  grant such other order as it thinks just.

1986 c42 Sch D rule 27.08

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Sale or other disposition of property by Court

27.09. (1) When any property, taken by the sheriff under an interlocutory recovery order, is likely to perish or materially depreciate in value before the probable termination of the proceeding, or the keeping of the property could result in unreasonable loss or expense, or for other just cause, the Court may order the sale or other disposal of all or any part of the property in such manner and upon such terms as are just.

             (2)  Unless the Court otherwise orders, the sheriff shall forthwith on the sale of a property file a report thereon with the Court and pay the proceeds, less his or her fees and expenses, into Court to be held pending further order. 

1986 c42 Sch D rule 27.09; 36/14 s37

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Recovery of unique property

27.10. Where any property sought to be recovered under an interlocutory recovery order is unique, the Court may also grant a restraining order providing that the property shall not be removed from the jurisdiction, transferred, sold, pledged, assigned or otherwise disposed of until further order of the Court.

1986 c42 Sch D rule 27.10

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Disclosure

27.11. The Court may, at any time after the granting of a recovery order, order a person to disclose any information that person possesses regarding any property which an applicant seeks to recover under the order.

1986 c42 Sch D rule 27.11

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Final judgment in the proceeding

27.12. (1) In a proceeding or on an application to recover possession of property, final judgment may be entered directing possession of the property to be given to the party or applicant or, where possession cannot be given, ordering the value thereof to be recovered by the party or applicant, and award damages for the wrongful taking or withholding of the same.

             (2)  When in a proceeding or on an application under rule 27.12(1), another party claims the return of any property recovered by an applicant under an interlocutory recovery order, final judgment may be entered directing the property to be returned to the other party or, where the property cannot be returned, may order the value thereof to be paid to the other party, and award damages for the wrongful taking and withholding of the same.

             (3)  Where a party to a proceeding to recover possession of property is entitled to enter judgment by default against any other party, the party may enter judgment to recover possession of the property and apply to have the damages assessed, or enter judgment to recover possession of the property, and the sum of one dollar as damages with costs to be taxed or, when the other party consents to the amount of damages, for that amount of damages and costs to be taxed.

1986 c42 Sch D rule 27.12

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Application for a final recovery order

27.13. (1) Where it is sought to enforce a final order for the recovery of possession of property, the Court may, on an ex parte application supported by affidavit, grant an order in Form 27.13A for the sheriff to deliver possession of the property as provided in the order.

             (2)  The sheriff, upon receipt of an order in Form 27.13A, shall take immediate possession of the property described therein or such part thereof as is available, and the person in possession of the property shall not have the right to retain possession of it by filing a bond or otherwise.

             (3)  When the sheriff is unable to take possession of any property referred to in the order, the sheriff shall forthwith file the order with the Court with the sheriff's report endorsed thereon or attached thereto, and the Court may grant such further order as is just.

1986 c42 Sch D rule 27.13; 36/14 s38

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Granting, etc., of recovery order on holiday

27.14. A recovery order may be granted, issued or served on a Saturday, Sunday or other holiday, if it is set out in an affidavit that the applicant who seeks to recover possession of property may not be able to do so unless the order is granted, issued or served on that day.

1986 c42 Sch D rule 27.14