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12.01. In this rule, "proceeding" includes the proceeding commenced by a plaintiff against a defendant and any further proceeding commenced against a third party.
Third party notice
12.02. (1) Where a defendant claims against any person, who is a co-defendant or who is not a party to the proceeding, that the latter is or may be liable to the defendant for all or any part of the plaintiff's claim against the defendant, the defendant may, before the defendant files a defence or appears on a hearing under an originating application, issue and serve a third party notice without the leave of the Court, and thereafter with leave.
(2) A third party notice shall be in Form 12.02A and contain a statement of the plaintiff's claim against the defendant and a statement of the defendant's claim against the third party.
(3) A third party shall, from the time of service upon the third party of the third party notice, be a party to the proceeding with the same right to oppose any claim made against the third party as if the defendant had commenced a proceeding against the third party in the ordinary way.
Application for leave to issue third party notice
12.03. (1) Unless the court otherwise orders, an application for leave to issue a third party notice shall be made with notice to all existing parties.
(2) An application for leave to issue a third party notice shall be supported by an affidavit stating
(a) the nature of the claim made by the plaintiff in the proceeding;
(b) the stage which the proceeding has reached;
(c) the nature of the claim made by the applicant and the facts on which the third party notice is based; and
(d) the name and address of the person against whom the third party notice is to be issued and served.
(3) The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued and served.
1986 c42 Sch D rule 12.03; 9/00 s2
Issue and service of third party notice
12.04. (1) A third party notice shall be issued in accordance with rule 12.02(1) and served on the third party in accordance with rule 6.02 or 6.03, and a copy of the order, if any, and a copy of the originating document and any pleadings in the proceeding between the plaintiff and the defendant shall be served with the third party notice.
(2) A copy of the third party notice shall be delivered to the plaintiff's solicitor within five days after the issue thereof.
(3) Service of the third party notice outside the jurisdiction may be allowed by the Court, and the provisions of rule 6.07 apply.
1986 c42 Sch D rule 12.04; 9/03 s5
Defence of third party
12.05. (1) Unless the Court otherwise orders, a third party shall deliver a defence within ten days from the service of the third party notice upon the third party, or appear on the hearing under the notice within the time limited therein.
(2) A third party may dispute the liability of the defendant to the plaintiff or the third party's liability to the defendant, or both, in a defence or on the trial or hearing under a third party notice.
(3) When a third party does not dispute the liability of the defendant to the plaintiff in a defence or on the trial or hearing, the third party shall be deemed to admit the validity of any judgment entered against the defendant, whether obtained by consent or otherwise.
(4) When a third party does not dispute liability to the defendant in a defence or on the trial or hearing, the third party shall be deemed to admit liability to the extent claimed in the notice.
(5) When a third party fails to defend or appear on the trial or hearing within the time limited, the Court may grant the third party leave to defend or appear upon such terms as it thinks just.
Third party directions
12.06. (1) Where a third party files a defence, the defendant serving the third party notice or the third party may, on notice to all the parties to the proceeding, apply to the Court for directions and the Court may,
(a) where the liability of the third party to the defendant is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant;
(b) order the proceeding to be tried in such manner as the Court may direct;
(c) give the third party leave to defend the proceeding either alone or jointly with any other defendant or third party, upon such terms as may be just;
(d) give the third party liberty to appear on the trial or hearing of the proceeding and to take such part therein as may be just;
(e) make such other order as may appear to the Court proper for having the rights and liabilities of the parties conveniently determined and enforced, or for determining the extent to which the third party is to be bound by any order in the proceeding;
(f) dismiss or adjourn the application; or
(g ) set aside the third party notice.
(2) Any order made under rule 12.06(1) may be varied or rescinded by the Court at any time.
Default of third party
12.07. Where a third party fails to defend or appear on the hearing under the third party notice, the defendant may,
(a) on filing an affidavit of service of the notice and of the failure of the third party to serve a defence or appear on the hearing under the notice, have the Registrar note in the cause book that the third party is in default, whereupon the third party shall not, without the leave of the Court, file and serve a defence or appear on the hearing under the notice;
(b) if judgment has been entered against the defendant, at any time after satisfaction of the same or with leave of the Court before satisfaction thereof, enter judgment against the third party to the extent of the claim in the notice, but the Court may set aside or vary the judgment entered against the third party upon such terms as it thinks just; or
(c) at or after the trial or hearing of the proceeding or the approval of a settlement by the Court, apply to enter judgment against the third party and the Court may make such order as it thinks just, provided that execution shall not issue thereon without the leave of the Court until after the defendant satisfies the judgment entered against the defendant.
Third party proceeding set aside or heard separately
12.08. The Court may at any time stop the trial or hearing under a third party notice and have each proceeding tried or heard separately or as the Court may order.
Third and subsequent parties
12.09. Where a third party claims that another person, whether or not that person is a party to the proceeding, is or may be liable to the third party for all or any part of the defendant's claim against the third party, the provisions of this rule relating to third parties shall apply mutatis mutandis and similarly where any further person, to whom by virtue of this rule 12.09, this Rule 12 applies as if that person were a third party, makes such a claim.
Counterclaim by defendant
12.10. Where a counterclaim is made by a defendant, the foregoing provisions of Rule 12 shall, with any necessary modification, apply in relation to the counterclaim as if the subject-matter of the counterclaim were the original subject-matter of the proceeding, and the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.
Offer of contribution
12.11. When before the trial or hearing of a proceeding a party, who may be held liable to another party to contribute towards any debt or damages which may be recovered against that other party, makes, without prejudice to the defence, a written offer to that other party to contribute to a specified extent to the debt or damages, then notwithstanding that the party reserves the right to bring the offer to the attention of the Court at the trial or hearing the offer shall not be brought to the attention of the Court until after all questions of liability and amount of debt or damages have been decided.
Application of rules to Third Party Proceedings
12.12. The provisions of these rules shall apply, with any necessary modifications, to a third party proceedings as if the third party notice was a statement of claim; the defendant claiming against the third party, a plaintiff; the defence to the third party notice, a defence; and the party making it a defendant.
1986 c42 Sch D rule 12.12