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RULE 43

Sales by the Court

Court May Order Sale

(1) Where in a proceeding it appears necessary or expedient that property be sold, the Court may order the sale and may order a person in possession of the property or in receipt of the rents, profits, or income therefrom to join in the sale and transfer thereof and deliver up the possession or receipt to the purchaser or person designated by the Court. (MR 658, 680; ER 31/1.)

Sale in Debenture-holder's Action

(2) In a debenture-holder's action where the debenture-holder is entitled to a charge on any property, the Court, if it is of the opinion that eventually there must be a sale of the property, may order the sale before or after judgment, whether or not all interested persons are ascertained or served. (MR 680b.)

Conduct of Sale

(3) Where an order is made directing property to be sold, the Court may permit any person having the conduct of the sale to sell the property in such manner as he thinks just or as the Court directs. (ER 31/2.)

Directions for Sale

(4) The Court may give such directions as it thinks just for the purpose of effecting a sale, including directions

(a) appointing the person who is to have conduct of the sale,

(b) fixing the manner of sale, whether by contract conditional on the approval of the Court, private negotiation, public auction, sheriff's sale, tender, or some other manner,

(c) fixing a reserve or minimum price,

(d) defining the rights of a person to bid, make offers, or meet bids,

(e) requiring payment of the purchase price into Court or to trustees or to other persons,

(f) settling the particulars or conditions of sale,

(g) obtaining evidence of the value of the property,

(h) fixing the remuneration to be paid to the person having conduct of the sale and any commission, costs, or the expenses resulting therefrom,

(i) that any conveyance or other document necessary to complete the sale be executed on behalf of any person by a person designated by the Court,

(j) authorizing a person to enter upon any land or building. (MR 666, 682, 683; ER 31/2.)

Application for Directions

(5) A person having conduct of a sale may apply to the Court for further directions. (New.)

Certificate of Sale

(6) The result of a sale by order of the Court shall be certified by the person having the conduct of the sale. The certificate shall be in Form 51, verified by affidavit, and filed forthwith after completion of the sale. (MR 685a; ER 31/3.)

Vesting Order

(7) The person having conduct of the sale may apply to the Court for a vesting order in favour of a purchaser. (New.)

RULE 44

Interlocutory Applications

When Interlocutory Application to Be Brought

(1) Where an application in a proceeding is authorized to be made to the Court, it shall be made by interlocutory application except where subrule (13) applies. (MR 696.)

More Than One Matter May Be Included in an Application

(2) A party may include in an application more than one matter upon which he desires the order of the Court. (MR 742.)

Form of Application

(3) An interlocutory application shall be brought by filing a notice of motion in Form 52, which shall specify any rule or other enactment relied upon. (New.)

Application to Be Supported by Affidavit

(4) An application shall be supported by affidavit as to all the facts on which it is based that do not appear from the record, but an affidavit previously made and read in the same proceeding also may be used. (MR 521, 541.)

Application to List Affidavits

(5) A notice of motion shall contain a statement of the affidavits to be used in support, and the affidavits not already served shall be filed and delivered with the notice. (MR 540, 699a; ER 32/17.)

Time Notice of Motion Returnable

(6) Unless the Court otherwise directs, a notice of motion is returnable at 10 a.m. before the Court in Chambers on any day fixed for that purpose. (MR 759.)

Delivery of Notice of Motion

(7) A copy of the notice of motion shall be delivered to all parties of record whose interests may be affected by the order sought. (MR 696; ER 32/17.)

Ex Parte Order

(8) If satisfied that no notice is necessary or in case of urgency the Court may make an order ex parte and, on the application of a person affected by the order, may set it aside or vary it as it thinks just. (MR 698; ER 8/2, 29/1.)

Delivery of ex Parte Orders

(9) A party obtaining an ex parte order shall deliver the order together with the affidavits upon which it was granted to all parties of record and serve them on such other persons as the Court may direct. (MR 1020a.)

Length of Notice

(10) Unless otherwise ordered, there shall be at least 2 days between the service or delivery of a notice of motion and the day named in the notice for the hearing. (MR 700; ER 8/2.)

Delivery of Notice With Writ, Etc.

(11) A party may serve a notice of motion with the originating process or at any time thereafter but, unless the Court otherwise orders, the day named in the notice for hearing the application shall not be earlier than the last day fixed for entry of appearance. (MR 703, 704; ER 8/4, 29/1.)

Party May File Affidavits

(12) A party of record who may be affected by an order sought in an application may file affidavits and shall forthwith deliver copies of them to all other parties of record. (New.)

Consent Orders

(13) Instead of making application for an interlocutory order, a party to a proceeding, with leave of the Registrar, may file a consent in writing in Form 53 signed by all parties of record, or by their solicitors, and thereupon the consent has the effect of an order made by the Court and shall be entered accordingly, but the Registrar shall refuse leave where he considers an application should be made to the Court respecting the matters contained in the consent. (MR 762a (1).)

Interlocutory Application by Præcipe

(14) Where the nature of an application or the circumstances of a case are such that notice need not be given, an interlocutory application may be made by filing

(a) a præcipe specifying any rule or other enactment relied on and attaching a draft of the order requested, and

(b) the material on which the application is founded,

and on being satisfied that the application is appropriate for proceeding under this rule, the Court may make the order without the application being spoken to. (MR 696.)

Filing Notice of Motion in Another Registry

(15) Any Registrar, if satisfied that the matter is urgent or for the convenience of the parties, may grant leave to file a notice of motion in any Registry. (MR 734.)

Application Returnable at Any Courthouse

(16) A party making an interlocutory application may make it returnable before the Court at some place other than that where the proceeding was commenced, but the Court may dismiss the application or may make a special order as to costs if it is of the opinion that it was unreasonable to make the application returnable at that place. (New.)

Transfer of File

(17) Where a procedure authorized by subrule (15) or (16) is followed, and where practical, the original Registry shall transfer the file to the Registry where the hearing is to take place, and after the hearing the file shall be returned to the original Registry. Where the transfer is not practical, the Registry at the place where the hearing takes place, after the hearing, shall forward all material filed in that Registry and any order made to the original Registry. (New.)

RULE 45

Injunctions

Applications for

(1) An application for an interlocutory injunction may be made by a party whether or not a claim for an injunction was included in the relief claimed. The application shall be made upon notice to all other parties. (ER 29/1.)

Ex Parte Applications for

(2) Notwithstanding subrule (1), in case of urgency an application for an injunction may be made ex parte and the Court may grant an interim injunction. (MR 662, 698; ER 29/1.)

Application for Before Proceeding Commenced

(3) In case of urgency and with leave of the Court, application for an injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of proceedings. (ER 29/1.)

Injunction by Court Order

(4) No writ of injunction shall be issued. An injunction shall be by order of the Court. (MR 667.)

Court May Vary Injunction

(5) Upon application, which may be made ex parte in case of urgency, the Court may rescind, suspend, or vary an order for an injunction. (ER 32/6.)

Undertaking as to Damages

(6) Unless the Court otherwise orders, an order for an interlocutory or interim injunction shall contain the applicant's undertaking to abide by any order which the Court may make as to damages. (New.)

Application for Injunction After Judgment

(7) In a proceeding in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind. (MR 668; ER 29/1.)

RULE 46

Detention, Preservation, and Recovery of Property

Property Which Is the Subject-matter of a Proceeding

(1)  (a) The Court may make an order for the detention, custody, or preservation of any property that is the subject-matter of a proceeding or as to which a question may arise.

(b) For the purpose of enabling an order under this rule to be carried out, the Court may authorize a person to enter upon any land or building. (MR 657, 659; ER 29/2, 29/4.)

Fund Which Is the Subject-matter of a Proceeding

(2) Where the right of a party to a specific fund is in dispute in a proceeding, the Court may order the fund to be paid into Court or otherwise secured. (ER 29/2.)

Recovery of Property Subject to Lien, Etc.

(3) Where a party claims the recovery of specific property other than land and the opposing party does not dispute the title of the claimant but claims to be entitled to retain the property by virtue of a lien or otherwise as security for a sum of money, the Court may order that the claimant pay into Court or otherwise secure the amount of money in respect of which the security is claimed, and any further amount for interest and costs as the Court may direct, and that on the payment being made or other security given, the property claimed be given up to the claimant. (MR 664; ER 29/6.)

Allowance of Income From Property

(4) Where property is the subject-matter of a proceeding and the Court is satisfied that it will be more than sufficient to answer all claims thereon, the Court at any time may allow the whole or part of the income of the property to be paid, during such period as it may direct, to a party who has an interest therein or may direct that part of the personal property be delivered or transferred to a party. (MR 665; ER 29/8.)

RULE 47

Receivers

Appointment of

(1) The Court may appoint a receiver in any proceeding either unconditionally or on terms, and whether or not the appointment of a receiver was included in the relief claimed by the applicant, (MR 671a; ER 30/1.)

Form of Security

(2) Unless the Court otherwise orders, a receiver shall give such security as the Court may direct in either Form 54 or Form 55, and until that security is given the order appointing the receiver shall not be presented for entry. (MR 672; ER 30/2.)

Remuneration of

(3) The Court shall fix any remuneration to be paid to a receiver. (ER 30/3.)

Accounts of

(4) Unless the Court otherwise orders, a receiver shall file and deliver his accounts annually. (MR 674, 678; ER 30/4.)

RULE 48

Interpleader

Entitlement to Relief by Way of Interpleader

(1) Where a person (in this rule called the "applicant") is sued or expects to be sued in respect of property in his possession or under his control or in respect of the proceeds from a disposition of the property, or receives a claim in respect of the property or proceeds by or from 2 or more persons (in this rule called the "claimants") making adverse claims and the applicant claims no beneficial interest in the property, the applicant may apply to the Court for relief by way of interpleader. (MR 850, 853; ER 17/1.)

Claim to Real or Personal Property Taken by Sheriff

(2)  (a) A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any process, or to the proceeds from a disposition of the property, shall deliver to the sheriff written notice of his claim and his address for delivery.

(b) On receipt of a notice of claim, a sheriff shall forthwith deliver a copy to the person who caused the process to issue, and that person within 7 days after receiving the copy shall deliver to the sheriff a written notice stating whether he admits or disputes the claim.

(c) On receipt of a notice admitting a claim, a sheriff shall release any property the claim to which is admitted, and the Court may restrain the bringing of a proceeding against him for or in respect of his having taken possession of the property and, unless the Court otherwise orders, a person who admits a claim is only liable to the sheriff for any costs, fees, and expenses incurred by the sheriff before receipt of the notice admitting the claim.

(d) On receipt of a notice disputing a claim or on the failure of the person who caused the process to issue to give the sheriff the notice within the time required by paragraph (b), the sheriff may apply for interpleader relief. (MR 850, 861, 864a, 864b, 864c; ER 17/2.)

Mode of Application

(3) An application for interpleader relief shall be made by petition, unless it is made in a proceeding already commenced, in which case it may be made by notice of motion. (MR 854; ER 17/3.)

Affidavit

(4) An application for interpleader relief shall be supported by an affidavit stating the names and addresses of the claimants of whom the applicant has knowledge and that the applicant

(a) claims no beneficial interest in the property in dispute, other than for costs, fees, or expenses,

(b) does not collude with any claimant of the property, and

(c) is willing to deliver the property to the Court or to dispose of it as the Court may direct. (MR 851; ER 17/3.)

Ex Parte Application

(5) An application for interpleader relief may be made ex parte, and the Court may deal with the matter summarily or give directions for service. (New.)

Powers of Court on Hearing Application

(6) On the hearing of an application for interpleader relief the Court may

(a) order a claimant to be made a party in a proceeding already commenced in substitution for or in addition to the applicant,

(b) order an issue between the claimants to be stated and tried and may direct which claimant is to be plaintiff and which defendant,

(c) on the request of the applicant or a claimant, determine the rights of the claimants summarily,

(d) where a claimant fails to appear, or appears and fails or refuses to comply with an order made in the proceeding, make an order declaring the claimant and all persons claiming under him be forever barred from prosecuting his claim against the applicant and all persons claiming under him, without affecting the rights of the claimants as between themselves,

(e) stay any further step in a proceeding,

(f) where there are interpleader applications pending in several proceedings, make an order that shall be binding on all the parties to the various proceedings,

(g) order the costs of the applicant to be paid out of the property or proceeds,

(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and

(i) make such other order as it thinks just. (MR 855, 856, 857, 858, 859, 862, 864; ER 17/5, 17/7, 17/8, 37/9.)

RULE 49

Appeals

Application

(1) Where by an enactment, an appeal or an application in the nature of an appeal from the decision, direction, or order of any person or body is authorized to be made to the Court or to a Judge, the appeal shall be governed by this rule to the extent that it is not inconsistent with any procedure provided in the enactment. (ER 55/1.)

Form

(2) An appeal shall be commenced by filing in a Registry a notice of appeal in Form 56. (New.)

Application for Directions

(3) A notice of appeal shall include an application for directions as to the conduct of the appeal, and shall specify the date on which the application will be made, which shall be not less than 7 days after service of the notice, unless the Court otherwise directs. (New.)

Service of Notice of Appeal

(4) A notice of appeal shall be served upon the person or body which gave the decision or direction or made the order and on all other persons who may be affected by the order sought, unless the Court otherwise directs. (ER 55/4, 58/3.)

Powers of Court

(5) The Court may give such directions as it considers necessary for the proper hearing and determination of the appeal and, without limiting the generality of the foregoing, may make an order

(a) that documents or transcripts or minutes be produced,

(b) that evidence be adduced by way of affidavit, or viva voce,

(c) that the appeal be determined by way of stated case, or argument upon a point of law,

(d) prescribing time limits for taking steps in and for the hearing of the appeal, or

(e) that the appeal be disposed of summarily,

and may exercise the powers of the Court as on an originating application. (ER 55/7.)

RULE 50

Foreclosure and Cancellation

Commencement

(1) A proceeding for foreclosure of the equitable right to redeem mortgaged property or for redemption shall be commenced by petition. (New.)

Service

(2) Only a person whose interest in or claim to the mortgaged property is sought to be extinguished is a person whose interest may be affected within the meaning of Rule 10 (5), and unless the Court otherwise orders it is not necessary to serve the petition on any other person. (ER 18/15, 88/5.)

Person Filing lnterest After Lis Pendens

(3) A person who registers or files in a Land Registry Office an interest, right, or claim in or to the mortgaged property after the petitioner has registered a lis pendens in respect of the proceeding against the mortgaged property need not be served with the petition and is bound by an order made in the proceeding; but the person may enter an appearance in the proceeding.

Delivery of Affidavits, Etc.

(4) A person who files a notice of motion or affidavit in the proceeding shall deliver a copy of the notice or affidavit to all parties of record. (ER 28/3; 88/5.)

Powers of the Court

(5) The Court may

(a) order that a respondent shall within such redemption period as the Court may fix, or forthwith, pay to the petitioner what is due under the mortgage and for costs, and that, in default of payment, he shall be foreclosed of his equity of redemption,

(b) determine summarily, or order that an account be taken of and that the Registrar certify, what will be due to the petitioner or to any person on the expiration of the period of redemption,

(c) determine summarily, or order an inquiry to determine any issues raised between respondents, including priorities,

(d) determine summarily, or order an inquiry to determine whether a person should be served with the petition,

(e) order at what times, on what terms, and in what order of priority respondents may redeem the mortgaged property and that in default they shall be foreclosed of any interest, right, or claim in or to the mortgaged property,

(f) grant judgment for any amount found due, or which may be certified to be due on an accounting,

(g) order a sale of the mortgaged property,

(h) grant further or corollary relief, and

(i) make an order under Rule 52 (11). (New.)

Final Order

(6) In default of payment in accordance with an order made under subrule (5), a final order of foreclosure may be granted against a respondent on application by the petitioner. (New.)

Order for Sale

(7) A party of record may apply at any time for an order that the mortgaged property be sold or be put up for sale. (New.)

Inquiry to Settle Terms of Sale

(8) The Court may order an inquiry to settle the terms of a sale. (New.)

Order Confirming Sale

(9) Notwithstanding that the time for redemption may not have expired, the person having conduct of a sale may apply to the Court for an order confirming the sale and directing the disposition of the proceeds. (New.)

Notice to Tax Costs

(10) A respondent desiring to redeem, upon paying to the petitioner the amount due under the mortgage, may give notice to the petitioner to tax his costs, and if within 14 days of delivery of the notice the petitioner has not filed his bill of costs for taxation, he shall not be entitled to costs. (New.)

Agreement for Sale

(11) This rule applies mutatis mutandis to a proceeding by a vendor on an agreement for sale of land in which a claim is made for cancellation. (New.)

RULE 51

Affidavits

Affidavit to Be Filed

(1) An affidavit used in a proceeding shall be filed. (MR 530; ER 41/9.)

Form and Content of Affidavit

(2) An affidavit shall

(a) be expressed in the first person and show the name, address, and occupation of the deponent,

(b) if the deponent is a party or the solicitor, agent, director, officer, or employee of a party, state that fact, and

(c) be divided into paragraphs numbered consecutively. (MR 527, 528; ER 41/1.)

Signing and Swearing Affidavit

(3) An affidavit shall be signed by the deponent and its jurat signed by the person before whom it is sworn. A deponent unable to sign an affidavit may place his mark on it. (ER 41/1, 41/3.)

Jurat Where Deponent Unable to Read

(4) Where it appears to a person before whom an affidavit is sworn that a deponent is unable to read it, he shall certify in the jurat that the affidavit was read in his presence to the deponent who seemed to understand it. (MR 533; ER 41/3.)

Interpretation to Deponent Who Does Not Understand English

(5) Where it appears to a person before whom an affidavit is to be sworn that the deponent does not understand the English language, the affidavit shall be interpreted to the deponent by a competent interpreter who shall certify by endorsement in Form 57 on the affidavit that he has interpreted the affidavit to the deponent. (New.)

Exhibit to Be Marked

(6) An exhibit referred to in an affidavit shall be identified by the person before whom it is sworn by signing a certificate placed on the exhibit in the following form:

"This is Exhibit referred to in the affidavit of ....................................................................................................... sworn before me (date)." (MR 5396; ER 41/11.)

Copies of Documentary Exhibits

(7) An exhibit referred to in an affidavit need not be filed, but shall be made available for the use of the Court and for the prior inspection of a party to the proceeding and, in the case of a documentary exhibit not exceeding 5 pages, a true reproduction shall be attached to the affidavit and to all copies served or delivered. (MR 539d.)

Alterations to Be Initialled

(8) The person before whom an affidavit is sworn shall initial all alterations in the affidavit, and unless so initialled the affidavit shall not be used in a proceeding without leave of the Court. (MR 532; ER 41/7.)

Contents of Affidavit

(9) An affidavit may state only what a deponent would be permitted to state in evidence at a trial, except that an affidavit used in an interlocutory application may contain statements as to the deponent's information and belief, provided the source of his information is given. (MR 523; ER 41/5.)

Use of Defective Affidavit

(10) With leave of the Court an affidavit may be used in evidence notwithstanding an irregularity in form. (MR 534; ER 41/4.)

Affidavit Sworn Before Proceeding Commenced

(11) An affidavit may be used in a proceeding notwithstanding that it was sworn before the proceeding was commenced. (O. 54a, r. 20.)

RULE 52

Chambers

Applications to Be Heard in Chambers

(1) All originating applications and, unless made in the course of trial, all interlocutory applications, shall be heard and disposed of by the Court in Chambers. (MR 7781.)

Particular Applications to Be Heard in Chambers

(2) Without limiting the generality of subrule (1), the following matters shall be heard and disposed of by the Court in Chambers:

(a) appeals from and applications to confirm, vary, or set aside orders, reports, certificates, or recommendations of a Master, Registrar, Special Referee, or other officer of the Court,

(b) actions or issues in actions which have been ordered to be proceeded with by affidavit or on documents before the Court, and special cases and bearings on a point of law,

(c) applications for judgment under Rules 17, 18, 25, and 31,

(d) applications to set aside or vary a judgment, and

(e) matters which being otherwise proceeded with by action are ordered to be disposed of in Chambers. (MR 7781; ER 32/1.)

Definition of "Application"

(3) In this rule, "application" includes all proceedings that may be heard and disposed of in Chambers. (New.)

Failure of Party to Appear

(4) When a party to an application fails to attend, whether on the return of the application or at the time appointed for the consideration of the matter, the Court may proceed ex parte, if, considering the nature of the case, it thinks it expedient so to do, and may require such evidence of service as it thinks necessary. (MR 738, 771a; ER 32/5.)

Reconsideration of ex Parte Proceeding

(5) Where the Court has proceeded ex parte under subrule (4), the proceeding shall not be reconsidered unless the Court is satisfied that the party failing to attend was not guilty of wilful delay or default. (MR 739, 771a; ER 32/6.)

Adjourned Hearing of Application

(6) Where an application is not disposed of upon the return date, the parties shall attend from time to time without further notice at such time as may be appointed. (MR 741; ER 32/4.)

Chambers List

(7) Each application to be spoken to, when set down for hearing, shall be entered in the Registry in a list and, so far as is practical, the solicitor setting down the application shall indicate whether it is of a time-consuming or contentious nature. (MR 760.)

Evidence on an Application

(8) On an application, evidence shall be given by affidavit, but the Court may

(a) order the attendance for cross-examination of a deponent, either before the Court or before such other person as the Court may direct,

(b) order the examination of a party or witness either before the Court or before such other person as the Court may direct,

(c) give such directions as may be required for the discovery, inspection, or production of a document or copy thereof,

(d) order an inquiry, assessment, or accounting under Rule 32, and

(e) permit other forms of evidence to be adduced. (MR 548, 769; ER 32/7, 32/15.)

Hearing of Application in Public

(9) Except in cases of urgency, an application shall be heard in a place open to the public when the application is made, unless the Court in the case of a particular application directs that for special reasons the application ought to be dealt with in private. (ER 32/1.)

Adjournment of Application Returnable on a Holiday

(10) Where an application has been made returnable on a day on which the Court does not hold Chambers, the application will stand adjourned without order to the next day on which the Court holds Chambers. (ER 32/1.)

Power of the Court

(11) On an application the Court may

(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the application,

(b) adjourn the application from time to time, either to a particular date or generally, and when the application is adjourned generally, a party may set it down on 2 days' notice for further hearing,

(c) obtain the assistance of an expert and act upon the certificate or report of that expert and determine his remuneration and direct payment thereof by a party, and

(d) order a trial of the proceeding, either generally or on an issue, and order the affidavits to stand as pleadings, or order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application. (MR 702, 762d, 769, 781; ER 28/5, 28/8, 28/9, 32/4, 32/6, 32/13, 32/16, 32/18, 32/19.)

Power of Court Where Notice Not Given

(12) If on the hearing of an application the Court is of the opinion that a person to whom notice has not been given ought to have had notice, the Court may either dismiss the application or adjourn the hearing. (MR 701 and 768.)

Adjournment

(13) The hearing of an application may from time to time be adjourned by the Registrar. (New.)

Consent Dismissal of Proceeding

(14) An application to dismiss a proceeding by consent, where there are no persons involved under disability, may be made to the Court by filing

(a) a præcipe stating that no party is under disability and attaching a draft of the order requested, and

(b) the evidence that the application is consented to,

and on being satisfied that the application is appropriate for proceeding under this rule, the Court may make the order without the application being spoken to. (MR 696.)

Notes of Proceedings

(15) The Registrar or his clerk shall attend at and keep notes of all proceedings in Chambers with a short statement of the questions or points decided or orders made at every hearing. (MR 835, 895; ER 32/22.)

RULE 53

Masters and Registrars

Powers of a Master

(1) A Master hearing an interlocutory application has the powers of the Court set out in Rules 52 (4) to (12). (ER 32/8, 32/11, 32/14, 32/15, 32/23.)

Master as Registrar

(2) A Master has the powers and jurisdiction of a Registrar under these rules. (New.)

Powers of Registrar

(3) A Registrar dealing with a matter has the power to extend, abridge, or limit the time for any proceeding before him and has the powers set out in Rule 32 (5). (MR 939, O. 65, r. 27, reg. 25, 27, 57.)

Reference by Master to Court

(4) If a matter appears to the Master proper for the decision of the Court, the Master may refer it to the Court, and the Court may either dispose of the matter or refer it back to the Master with directions. (MR 753.)

Appeal From Master or Registrar

(5) A person affected by an order or decision of a Master or Registrar may appeal therefrom to the Court. The appeal may be by way of summary reference from the Master or Registrar at the request of a party or by filing a notice of appeal in Form 58 within 14 days after the decision complained of. Unless otherwise ordered, there shall be at least 2 days between the service of the notice and the hearing. (MR 754, 833.)

Appeal Not to Act as Stay

(6) An appeal from the decision of a Master or Registrar is not a stay of proceeding unless so ordered by the Court or the Master. (MR 755.)

RULE 54

Foreign Judgments

Application Under Reciprocal Enforcement of Judgments Act

(1) An application under section 3 of the Reciprocal Enforcement of Judgments Act to have a judgment registered shall be made by originating application. (MR 578aa.)

Affidavit in Support

(2) The application for registration shall be supported by an affidavit

(a) exhibiting a certified copy of the judgment under the seal of the Court where the judgment was obtained, and

(b) stating to the best of the information and belief of the deponent,

(i) that the judgment creditor is entitled to enforce the judgment,

(ii) that the judgment does not fall within any of the cases in which, under section 3 of the Reciprocal Enforcement of Judgments Act, a judgment cannot be registered,

(iii) the full name, trade or business, and usual or last-known place of abode or business of the judgment creditor and judgment debtor respectively, so far as is known to the deponent, and

(iv) the amount presently owing on the judgment. (MR 578b.)

Form of Order to Register

(3) The order giving leave to register the judgment shall be in Form 59. (MR 578c.)

Stay of Proceeding on Foreign Judgment

(4) A defendant in an action on a foreign judgment, on proof that an appeal or other proceeding in the nature of an appeal is pending, is entitled to an order staying the proceeding until the determination of the appeal or other proceeding on such terms as the Court may impose. (MR 866.)

RULE 55

Local Judges of the Supreme Court

References by

(1) A Local Judge may refer any matter before him to a Judge of the Court, who may dispose of the same in whole or in part or refer the matter back in whole or in part. (MR 1040c.)

RULE 56

Contempt of Court

Power of Court to Punish

(1) The power of the Court to punish contempt of Court shall be exercised by an order of committal or by imposition of a fine or both. (ER 52/1.)

Corporation in Contempt

(2) An order against a corporation wilfully disobeyed may be enforced by one or more of the following:

(a) imposition of a fine upon the corporation,

(b) committal of one or more directors or officers of the corporation, and

(c) imposition of a fine upon one or more directors or officers of the corporation. (MR 609; ER 45/5.)

Security for Good Behaviour

(3) Instead of or in addition to making an order of committal or imposing a fine, the Court may order a person to give security for his good behaviour. (ER 52/9.)

Certain Acts as Contempt

(4) A person who is guilty of an act or omission described in Rule 2 (5) or Rule 40 (16), in addition to being subject to any consequences prescribed by those rules, is guilty of contempt of Court and subject to the Court's power to punish contempt of Court. (MR 779; ER 45/5.)

Apprehension of Person

(5) Where the Court is of the opinion that a person may be guilty of contempt of Court, it may order, by warrant in Form 60 directed to a sheriff or other officer of the Court or to a peace officer, that the person be apprehended and brought before the Court. On the person being brought before the Court, the Court in a summary manner may adjudge his innocence or guilt and punish him for the contempt (if any) or may give such directions as it thinks fit for the determination of his innocence or guilt and punishment. (New.)

Idem

(6) Where the Court is of the opinion that a corporation may be guilty of contempt of Court, by its warrant in Form 60 directed to a sheriff or other officer of the Court or to a peace officer, it may order any director, officer, or employee of the corporation to be apprehended and brought before the Court. On the person being brought before the Court, the Court in a summary manner may adjudge the innocence or guilt of the corporation and punish the corporation for the contempt (if any) or may give such directions as it thinks fit for the determination of its innocence or guilt and the punishment to be imposed. (ER 52/1.)

Proceeding for Contempt

(7) A party taking proceedings for contempt shall serve the alleged contemnor with a copy of the notice of motion and all affidavits in support thereof at least 7 days before the hearing of the application. (ER 52/2, 52/3, 52/4.)

Idem

(8) An application under subrule (7) shall be supported by affidavit setting out the conduct alleged to be contempt of Court. (New.)

Hearing

(9) The Court may give directions as to the mode of hearing the application, including an order that the matter be transferred to the trial list pursuant to Rule 52 (11). (ER 52/6.)

Service of Order Not Necessary

(10) Where the Court is satisfied that a person has actual notice of the terms of an order of the Court, it may find the person guilty of contempt for disobedience of the order, notwithstanding that the order has not been served on him. (ER 45/7.)

Suspension of Punishment

(11) The Court at any time may direct that the punishment for contempt be suspended for such period or on such terms or conditions as it may specify. (ER 52/7.)

Discharge of Person

(12) The Court, on application by or on behalf of a person committed to prison for contempt may discharge that person, notwithstanding that the period of the committal may not have elapsed. (ER 52/8.)

Weekly Review of Person in Custody

(13) Where the Court orders a person committed without specifying in days, weeks, or months the period of the committal, the sheriff shall bring that person before the Court at intervals of not more than 7 days, in order that the Court may review the committal and determine whether relief as set out in subrule (11) or (12) should be granted. (New.)

RULE 57

Costs

How Costs Taxed

(1) Where costs are payable and are subject to taxation,

(a) where costs are payable between party and party they shall be taxed under Appendix B; but the Court may direct that the costs be taxed as between solicitor and client under Appendix C,

(b) where costs are payable as between solicitor and client, the costs shall be taxed under Appendix C; but where a solicitor is charging his own client he may submit a lump-sum charge in accordance with the Legal Professions Act,

(c) and a solicitor has contracted with his client for the remuneration to be paid for his services, the opposite party is not chargeable therewith. (MR 983, 1002a.)

Taxation Before Registrar

(2) The proper officer for the taxation of costs is the Registrar. (MR 977a; ER 62/12, 62/13.)

Work to Be Necessary or Proper

(3) The Registrar shall consider in the taxation of costs whether the work for which costs are claimed was necessary or proper, and if he is of the opinion that any part of the costs have been unnecessarily or improperly incurred, he shall disallow it. (O. 65, r. 27, reg. 8, 23.)

Disbursements and Expenses

(4) On a taxation, the Registrar shall allow necessary or proper disbursements and expenses but, except as against the party who incurred them, disbursements or expenses shall not be allowed which appear to the Registrar to have been incurred or increased through extravagance, negligence, or mistake, or by payment of unjustified charges or expenses. (O. 65, r. 27, reg. 9, 29.)

Costs to Follow Event

(5) Subject to these rules, the costs of and incidental to a proceeding shall follow the event unless the Court otherwise orders. (MR 976; ER 62/3.)

Lump-sum Costs of Proceeding

(6) With the consent of the parties, the Court may fix a lump sum as the costs of the whole proceeding, either inclusive or exclusive of disbursements and expenses. (MR 992a; ER 62/9.)

Costs Arising From Improper Act or Omission

(7) Where anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the Court or the Registrar may order

(a) that any costs arising from the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission. (MR 317, 345, 740; O. 65, r. 27, reg. 20; MR 1002c; ER 62/7.)

Costs of Part of Proceeding

(8) The Court may award costs which relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding. (MR 977.)

Costs Payable From Estate or Property

(9) Where it is ordered that any costs shall be paid out of an estate or property, the Court may direct out of what portion of the estate or property the costs shall be paid. (MR 989d.)

Set-off of Costs

(10) Where a party entitled to receive costs is liable to pay costs to another party, the Registrar may tax the costs he is liable to pay and may adjust them by way of deduction or set-off or may delay the allowance of the costs he is entitled to receive until he has paid or tendered the costs he is liable to pay. (O. 65, r. 27, reg. 21.)

Costs of One Defendant Payable by Another

(11) Where the costs of one defendant against a plaintiff ought to be paid by another defendant, the Court may order payment to be made by one defendant to the other directly, or the plaintiff to pay the costs of the successful defendant and allow him to include these costs as a disbursement in the costs payable to him by the unsuccessful defendant. (MR 1002e; ER 62/2.)

Unnecessary Expense After Judgment

(12) Where after pronouncement of judgment a party puts another party to unnecessary proceedings or expense, the Registrar may award such costs as he thinks proper against the offending party. (O. 65, r. 27, reg. 55.)

Offer to Settle by Plaintiff

(13)  (a) In an action for damages, the plaintiff, at any time before the commencement of the trial, may deliver an offer to settle in Form 61, specifying the claim or part of the claim in respect of which the offer is made and specifying a sum that the plaintiff is willing to accept in satisfaction of it.

(b) An offer to settle may be revoked at any time prior to a payment into Court under subrule (15) or the filing of a consent to judgment under subrule (18) by delivering a revocation in Form 62. (New.)

Defendant May Pay Into Court in Acceptance

(14) At any time before the commencement of the trial, a defendant to whom an offer to settle is delivered may file a copy of the offer and pay into Court the sum or any of the sums specified in the offer and shall forthwith deliver to the plaintiff a notice of payment into Court in Form 26, specifying the claim or claims in respect of which payment is made. (New.)

Payment In to Stay Proceeding

(15) Where money has been paid into Court pursuant to this rule, all further proceedings in respect of the specified claim, or part of the claim, except for recovery of costs, shall be stayed. The plaintiff is entitled on receiving notice of the payment into Court to obtain payment out of Court of the sum paid in by filing a præcipe for that purpose. (New.)

Payment Out

(16) Where in this rule provision is made for payment out to a party, the money may, with the party's written authorization, be paid to his solicitor. (New.)

Consent to Judgment

(17) Instead of making payment into Court pursuant to subrule (14), a defendant to whom an offer to settle has been delivered may file and deliver to the plaintiff a consent to judgment in Form 63, specifying the claim or part of claim in respect of which the defendant consents to judgment, which shall entitle the plaintiff forthwith to enter judgment against that defendant in accordance with the consent and for costs. (New.)

Effect of Offer

(18) Where a defendant fails to pay into Court or to file and deliver a consent to judgment pursuant to this rule and the plaintiff proceeds and recovers an amount equal to or greater than the amount specified in an offer to settle delivered by him, the Court may award full or partial extra costs to the plaintiff for the tariff items covering preparation for trial, trial and proceedings after trial other than appeal, as set out in Appendix B, exclusive of disbursements and expenses. (New.)

Offer Not an Admission

(19) The delivery of an offer to settle is not an admission by the plaintiff that his claim is limited to the sum specified. (ER 62/5.)

No Communication of Offer to Court

(20) The fact that an offer to settle has been delivered shall not be stated in the pleadings and shall not be communicated to the Court or a jury until all questions of liability and amount of the damages have been decided. (New.)

Form of Bill of Costs

(21) A bill of costs shall be in Form 64. (ER 62/21.)

Appointment to Tax Costs

(22) A party wishing to tax costs shall file a bill of costs and obtain an appointment from the Registrar in Form 22, and, subject to subrule (23), shall deliver a copy of the appointment and the bill of costs and any affidavit in support to the party against whom costs are to be taxed at least 2 days before the taxation. (MR 991; ER 62/22.)

Delivery of Appointment

(23) Delivery of an appointment for taxation of costs, the bill of costs, and an affidavit in support is not necessary where the party against whom costs are to be taxed has not entered an appearance. (MR 992; ER 62/27.)

Costs to Be Paid out of Fund

(24) Where a bill of costs is to be paid or raised out of a fund or property, the Registrar, before completing the taxation of the bill of costs, may require a solicitor to deliver or send to any person affected a copy of the bill of costs, accompanied by any statement the Registrar may direct and by a letter informing the person that the bill of costs has been referred to the Registrar for taxation and will be proceeded with at the time and place the Registrar has appointed. (O. 65, r. 27, reg. 56.)

Certificate

(25) On the conclusion of a taxation, the Registrar shall, either by endorsing the original bill of costs or by issuing a certificate, certify in Form 65 the amount of costs awarded, and the party taxing his costs shall file the certificate. (ER 62/33, 62/34, 62/35.)

Appeal

(26) A party who is dissatisfied with a decision of the Registrar on a taxation may, within 14 days of the Registrar certifying the costs, apply to the Court or a Master for a review of the taxation, and the Court or Master may make such order as it or he thinks just. (O. 65, r. 27, reg. 41.)

Lump-sum Solicitor and Client Bill

(27) Where a bill is rendered on a lump-sum basis under the Legal Professions Act, and instead of a bill itemized under Appendix C, the Registrar may allow, on taxation, such lump-sum charge for fees as he considers reasonable, without requiring that the bill be itemized or related to the items of fees contained in Appendix C. (MR 983 (a).)

Description of Services

(28) A lump-sum bill shall contain such description of the nature of the services and of the matter involved as would in the opinion of the Registrar afford any solicitor sufficient information to advise a client on the reasonableness of the charge made. (MR 983b.)

Evidence of Solicitor

(29) A party to a taxation of a lump-sum bill may put in evidence the opinion of a solicitor as to the nature and importance of the services rendered and of the matter involved and the reasonableness of the charges made; but no party shall put in evidence the opinions of more than 2 solicitors, and a solicitor giving an opinion may be required to attend for examination and cross-examination. (MR 983c; ER 62/7, 62/8.)

Disallowance of Solicitor Client Costs

(30) If it appears to the Court that costs have been incurred improperly or without reasonable cause, or that by reason of undue delay in proceeding under an order or of any misconduct or default of the solicitor, any costs properly incurred have proved fruitless to the person incurring them, the Court may order the costs disallowed as between the solicitor and his client, and also that the solicitor repay to his client any costs which the client may have been ordered to pay to any other person, or may make such order as the justice of the case may require. The Court may refer the matter to the Registrar for inquiry and reports and such notice of the proceedings or order shall be given to the solicitor and the client as the Court may direct. (MR 7l8ee, 986.)

Taxation of Costs From Fund or Estate

(31) On the taxation of costs to be borne by a fund or estate the Registrar may direct which parties are to attend before him and may disallow the costs of a party whose attendance he considers unnecessary. (O. 65, reg. 27.)

Refusal or Neglect to Procure Taxation

(32) When a party entitled to costs fails to tax his costs and thereby prejudices another party, the Registrar may certify the costs of the other party and certify the failure and disallow all costs of the party in default. (O. 65, reg. 28.)

Amount Involved

(33) The "amount involved" in the taxation of costs under these rules includes the value of the subject-matter of the proceeding. (MR 983d.)

Determination of Amount Involved

(34) Subject to these rules, or to any rule of law, the amount involved shall be determined against a plaintiff by the claim made, and against a defendant by the judgment or decision. The Registrar may receive evidence to determine the amount involved. (O. 65, r. 10A.)

Idem: In Expropriation

(35) The amount involved in an arbitration or other proceeding arising out of the expropriation of or injurious affection of property shall be the difference between the amount which the expropriating party offered to pay and the owner of the property was willing to accept at the time of the commencement of the arbitration or other proceeding. (MR 983e.)

Idem: In Garnishment and Similar Proceedings

(36) The amount involved in any garnishment, writ of execution, interpleader, or similar proceeding shall be the amount involved in that proceeding. The Registrar may receive evidence to determine the amount involved. (MR 9838.)

Idem: Redemption and Foreclosure

(37) The amount involved in a proceeding for redemption or foreclosure of a mortgage or other security or for the enforcement or cancellation of an agreement for sale of land shall be the amount, exclusive of costs, payable to redeem or to satisfy the petitioner's claim. (MR 983gg.)

Per Diem Increase

(38) Where in Appendix B a fee "per diem" is allowed, the Registrar may at his discretion increase the fee by an amount not exceeding 50 per cent, if the time occupied in a day exceeded 4½ hours. (MR 983h.)

Costs on Settlement

(39) If a proceeding is settled on the basis that a party shall pay or recover costs of the proceeding and the amount of costs is not fixed by the settlement, on filing a copy of the settlement signed by the parties to it, or a consent signed by the parties or their respective solicitors, the Registrar shall tax the costs in the same manner as if the Court had made an order for the taxation, and shall determine the amount involved from the terms of the settlement. (MR 983j.)

Agency Correspondence

(40) Where in Appendix B a fee is allowed for correspondence between solicitor and agent, or between a solicitor and his client or the client's agent, the Registrar may increase the fee allowed, if he is satisfied that the correspondence has been special and extensive. (O. 65, r. 27, reg. 10.)

Referrals

(41) Unless the Court otherwise orders, fees to counsel, accountants, engineers, actuaries, valuators, merchants, and other scientific persons to whom any matter or question is referred by the Court shall be determined by the Registrar, subject to appeal to the Court. (O. 65, r. 27, reg. 36.)

RULE 58

Money in Court

Interpretation

(1) In this rule, unless the context otherwise requires,

"financial institution" means a bank, credit union, or trust company designated by the Minister,

"funds" means any money that has been paid into or deposited in Court, except money paid

(a) under the Attachment of Debts Act,

(b) under the Execution Act,

(c) for security for costs,

(d) in satisfaction of a claim, or

(e) for bail,

"Minister" means the Minister of Finance,

"Registrar" means the Registrar or District Registrar of the Court into whose Registry the funds or securities have been paid or deposited,

"securities" means any bonds, stocks, shares, debentures, or other securities. (MR 778.)

Disposition of Funds

(2) All funds shall be deposited forthwith by the Registrar in a financial institution and shall thereupon be paid by the Registrar to the Minister, accompanied by a certified copy of the order directing payment in, or, if the funds have been paid into Court without an order, with a statement showing the particulars of the payment in. (MR 778a.)

Disposition of Securities

(3) All securities deposited in Court shall be accompanied by a certified copy of the order directing deposit in Court and listing the securities or, if the securities are deposited without an order listing the securities, by a statement listing the securities. The securities shall be transmitted forthwith after deposit by registered mail insured to the extent of their par value, or through a financial institution, by the Registrar to the Minister, together with a certified copy of the order or the statement. (MR 778b.)

Payment out of Court

(4) Funds and securities shall be paid out or delivered on authority of an order of the Court, on production of a certified copy of the order or authorization by the Registrar for payment out, and shall be paid or delivered to the person named in the order or authorization. (MR 778c.)

Interest

(5) All funds held in Court for a period exceeding 3 months shall draw interest, payable by the Minister, from the first day of the month following payment into Court at the annual rate of 8% per cent compounded on June 30 and December 31 in each year; but where money is paid into Court for the benefit of an infant, no interest shall be paid on the money after that infant becomes of age unless an order of the Court specifies a further time for the holding of the money, in which case no interest shall be paid after that time has elapsed. The interest paid under this rule is in lieu of any interest earned upon an investment made by the Minister under subrule (7). (MR 778d.)

Account

(6) For the purpose of segregating the funds from other money held by the Minister, the Minister shall create an account in the Treasury designated "Investments, Supreme Court Act". The funds held in this account shall constitute a trust, and shall at all times be substantially equal to the funds held by the Minister under this rule. (MR 778dd.)

Investments

(7) The Minister may invest as he sees fit all or any part of the funds and convert securities into money. (MR 778e.)

Direction for Payment Out

(8) Where by an order of the Court funds are directed to be dealt with, delivered, or paid out, the order shall be a direction to the Minister to that effect. (MR 778f.)

Disposition of Other Money Paid Into Court

(9) Money paid into Court, other than funds, shall be deposited by the Registrar in the financial institution and be paid out in accordance with the existing practice of the Court; but the Registrar shall pay to the Minister all moneys on deposit for more than one year. Money paid to the Minister under this rule shall be held by the Minister in the same manner as funds deposited under subrule (2), except as to payment of interest. (MR 778g.)

Money for Person Under Disability

(10) In a proceeding in which a sum of money or a security is awarded to a person under a disability, the Court may at or after the trial order that the whole or any part of the sum, or the security, shall be paid into Court to the credit of the person, and after the payment into Court the sum or the security may be paid out of Court as the Court may direct. (MR 265, 269.)

RULE 59

Sittings and Hearings

Under Direction of Chief Justice

(1) The Court shall dispose of the business before it at such times and in such places as the Chief Justice may direct. (MR 940, 941, 948; O. 63, r. 1A.)

Urgency

(2) In case of urgency,

(a) an application may be made personally to the Master or to a judge of the Court, and

(b) the Court may hear an application and make an order by telephone. (MR 949.)

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