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RULE 38
Depositions
(1) By consent of the parties or by order of the Court, a person may be examined on oath before trial, before an Official Reporter or such other person as the Court may direct, in order that the deposition be available to be tendered as evidence at the trial. (MR 487, 500; ER 39/1.)
(2) In exercising its discretion to order an examination under subrule (1), the Court shall take into account
(a) the convenience of the person sought to be examined,
(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness, or absence,
(c) the possibility that the person will be beyond the jurisdiction of the Court at the time of the trial, and
(d) the expense of bringing the person to the trial. (MR 500; ER 39/1.)
(3) Where a party is entitled to examine a person pursuant to this rule, by serving on that person or a party a subpoena in Form 19, he may require the person or the party to bring to the examination
(a) any document in his possession or power relating to the matters in question in the action, without the necessity of identifying the document, and
(b) any physical object in his possession or power which the examining party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object. (ER 39/4.)
(4) Unless the Court otherwise orders, an examination under this rule shall take place in the county where the person to be examined resides. (ER 39/6.)
(5) (a) So far as is practical this rule applies to the examination of a person residing outside British Columbia, and the Court may order the examination of a person in such place and in such manner as it thinks just and convenient.
(b) If the person to be examined is willing to testify, the order shall be in Form 29 and the instructions to the examiner appointed in the order shall be in Form 30.
(c) If the person to be examined is unwilling to testify, or if for any other reason the assistance of a foreign Court is necessary, the order shall be in Form 31 and the letter of request referred to in the order shall be in Form 32. (MR 488 (a); ER 39/3.)
(6) (a) Where an order is made under subrule (5) (c), the letter of request shall be sent by the party obtaining the order to the Under Secretary of State for External Affairs of Canada (or, if the evidence is to be taken in Canada, to the Deputy Attorney-General for the Province of British Columbia), and shall have attached to it
(i) any interrogatories to be put to the witness,
(ii) a list of the names, addresses and telephone numbers of the solicitors or agents of the parties, both in British Columbia and in the other jurisdiction, and
(iii) a copy of the letter of request and any interrogatories translated into the appropriate official language of the jurisdiction where the examination is to take place and bearing the certificate of the translator that it is a true translation and giving his full name and address.
(b) The solicitor for the party obtaining the order shall file with the Under Secretary of State for External Affairs of Canada (or the Deputy Attorney-General for the Province of British Columbia, as the case may be) his undertaking to be personally responsible for all the charges and expenses incurred by the Under Secretary (or the Deputy Attorney General, as the case may be) in respect of the letter of request and to pay them on receiving notification of the amount. (MR 488a; ER 39/2.)
(7) Notice of examination of a person under this rule shall be given by the examining party delivering copies of the subpoena to the person to be examined and to all parties of record not less than 7 days before the day appointed for the examination. (ER 38/6.)
(8) The examining party shall examine the witness, who shall be subject to cross-examination and re-examination. (MR 493; ER 39/8.)
(9) If an objection is made to a question put to a witness in an examination under this rule, the question and the objection shall be taken down by the Official Reporter and the validity of the objection may be decided by the Court, which may order the witness to submit to further examination. (MR 496, 497; ER 39/10.)
(10) Unless otherwise ordered, the deposition shall be recorded by the Official Reporter in the form of question and answer and may be recorded on videotape or film. (ER 39/11.)
(11) A person who, under the circumstances alleged by him to exist, would become entitled on the happening of any future event to an estate or interest in property, the right or claim to which cannot by him be brought to trial or hearing before the happening of the event, may apply by originating application for an order to perpetuate any testimony which may be material for establishing the right or claim by examination under this rule. (MR 517; ER 39/15.)
RULE 39
Trial
(1) This rule applies to an action and to an originating application transferred to the trial list pursuant to rule 52 (11). (ER 34/1.)
(2) Notice of trial in Form 33 may be delivered by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings. (MR 435, 436, 437; ER 34/8.)
(3) A party may obtain a trial date from the Registry where the trial is to be held. (ER 34/3.)
(4) The Court may direct that an action be set down for trial at a particular time and place and that the notice of trial be issued by the Registry. (ER 33/4.)
(5) The notice of trial shall be issued from the Registry where the writ was issued. (New.)
(6) Within 7 days after issue of the notice of trial, and not less than 28 days before trial, the notice of trial shall be delivered by the party obtaining it to all other parties of record. (MR 438; ER 34/8.)
(7) The place of trial shall be the place named in the statement of claim, but the Court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another. (ER 33/4.)
(8) The trial shall be heard on the day appointed by the notice of trial or so soon thereafter as may be convenient. (MR 439b.)
(9) The Court may order the adjournment of a trial or fix the date of trial of an action or issue, or order that a trial shall take precedence over another trial. (MR 440a, 458; ER 35/3.)
(10) Unless the Court otherwise orders, a trial with a jury shall take precedence over a non-jury trial, except a non-jury trial that has been partially heard. (MR 440b.)
(11) Each party to an action entered for trial shall give the Registry without delay all available information as to the settlement of the action or affecting the estimated length of the trial. (MR 443a; ER 34/8.)
(12) The party requesting a trial date shall file a copy of all the pleadings in the form of a record for the use of the Court at the trial and a certificate of readiness in Form 34. The Registrar may direct inclusion in the record of such other documents as he thinks necessary or may reject any record which in his opinion does not contain all the pleadings, contains documents other than pleadings, or is illegible. (MR 454; ER 34/3.)
(13) The party who obtained the notice of trial shall deliver a copy of the record when delivering the notice of trial under subrule (6). (MR 454.)
(14) Where a pleading is amended after delivery of the record, the party who obtained the notice of trial, at least one day prior to the trial, shall file an amended record and deliver a copy to all parties of record. (ER 20/10 (a).)
(15) Where a party fails to submit proof of completion of examinations for discovery in accordance with his certificate of readiness referred to in subrule (12), the Registrar may cancel the notice of trial and strike the proceeding from the trial list; and the party in default shall notify all other parties of record forthwith. (New.)
(16) Where the Court directs that an action be set down for trial under subrule (4), it may also direct one of the parties to prepare, file, and deliver a record. (ER 34/3.)
(17) Subject to subrule (19), a trial shall be heard by the Court without a jury. (MR 426; ER 33/5.)
(18) A trial shall be heard by the Court without a jury where it relates to
(a) the administration of the estate of a deceased person,
(b) the dissolution of a partnership or the taking of partnership or other accounts,
(c) the redemption or foreclosure of a mortgage,
(d) the sale and distribution of the proceeds of property subject to any lien or charge,
(e) the execution of trusts,
(f) the rectification, setting-aside, or cancellation of a deed or other written instrument,
(g) the specific performance of a contract,
(h) the partition or sale of real estate,
(i) the custody or guardianship of an infant or the care of an infant's estate, or
(j) a matter referred to in Rule 10 (1). (MR 427; ER 33/5.)
(19) Subject to subrule (18), a party may require that the trial of an action be heard by the Court with a jury by filing and delivering to all parties of record, within 21 days after delivery of the notice of trial and not later than 30 days before trial, a notice in Form 35. (MR 430; ER 33/5.)
(20) Except in cases of defamation, false imprisonment, and malicious prosecution, a party to whom a notice under subrule (19) has been delivered may apply
(a) within 7 days for an order that the trial or part of it be heard by the Court without a jury on the ground that the issues re- quire prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury or the issues are of an intricate or complex character, or
(b) at any time for an order that the trial be heard by the Court without a jury on the ground that it relates to one of the matters referred to in subrule (18). (MR 426a, 429; ER 33/5.)
(21) The Court may at any time order a trial to be heard wholly or partially by the Court sitting with an assessor. The Court may fix the remuneration for the assessor and the remuneration shall form part of the costs of the action. (MR 426, 467; ER 33/2, 33/6.)
(22) The Court may order that one or more questions of fact or law arising in a trial be tried and determined before the others, and upon the determination a party may move for judgment, and the Court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment. (MR 431, 566; ER 33/3, 33/7.)
(23) The Court may order that different questions of fact arising in a trial be tried by different modes of trial. (MR 431; ER 33/3.)
(24) In an action in which it appears that the amount to be recovered is substantially a matter of calculation, the Court may direct an inquiry, assessment, or accounting under Rule 32. (MR 481, 780; ER 37/4.)
(25) Where no party appears when the trial of an action is called the action shall be struck off the trial list. (ER 35/1.)
(26) Where a party does not appear when the trial of an action is called, the Court may proceed with the trial, including hearing a counter-claim, in the absence of that party. (MR 455, 456; ER 35/1.)
(27) The Court may set aside a verdict or judgment obtained where a party does not appear at the trial. (MR 457; ER 35/2.)
RULE 40
Evidence and Procedure at Trial
(1) This rule applies to an action and to an originating application transferred to the trial list pursuant to Rule 52 (11). (New.)
(2) Unless otherwise agreed by the parties and subject to any enactment and these rules, a witness at the trial of an action shall testify orally and in open Court. (MR 483; ER 38/1.)
(3) An order made under this rule concerning the mode of proving a fact or document or of adducing evidence may be revoked or varied by a subsequent order made at or before the trial. (MR 483; ER 38/7.)
(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness, or imprisonment or is out of the jurisdiction or his attendance cannot be secured by subpoena, the Court may permit a transcript of any evidence of that witness taken in any proceeding, hearing, or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence; but reasonable notice shall be given of the intention to give that evidence. (MR 485.)
(5) In an action in which evidence or argument is taken down by an Official Reporter, it shall be the duty of the plaintiff, if required by the Court, to furnish it with a certified transcript of the evidence or argument or any portion of it, the costs of which shall form part of the costs of the action. Where payment of the costs of providing a transcript would be a hardship on a party, the Court may order that the transcript be prepared at the expense of the Crown. (MR 454a, 1009; ER 68/2.)
(6) Counsel for a party may use a recording device to record evidence, provided it does not interfere with the trial. (New.)
(7) Where a party omits or fails to prove some fact material to his case, the Court may proceed with the trial, subject to that fact being afterwards proved as the Court shall direct; and, if the case is being tried by a jury, the Court may direct the jury to find a verdict as if that fact had been proved; and, unless the Court otherwise orders, judgment shall be entered according to whether or not that fact is or is not afterwards proved as directed. (MR 457a.)
(8) At the close of the plaintiff's case the defendant may apply for dismissal of the action on the ground that upon the facts and the law no case has been made out, but before hearing the application the Court may call on the defendant to elect not to call evidence if the application is refused. (New.)
(9) By delivering a notice in Form 36 at least 2 days before a trial, a party may require any other party to bring to the trial
(a) any document in his possession or power relating to the matters in question in the action, without the necessity of identifying the document, and
(b) any physical object in his possession or power which the party contemplates tendering at the trial as an exhibit, but the notice shall identify the object. (MR 378; ER 27/5.)
(10) Unless the Court otherwise orders or the parties agree, no plan, photograph, or object shall be received in evidence at the trial of an action unless, at least 7 days before the commencement of the trial, the parties have been given an opportunity to inspect it. (ER 38/5.)
(11) A clerk of the Registry shall take charge of each document or object put in as an exhibit, mark or label each exhibit with a number, and make a list of the exhibits, giving a short description of each and stating by whom it was tendered. (MR 1041b; ER 35/11.)
(12) After the time for appeal from judgment has expired or after the disposition of an appeal, new trial, or further appeal, whichever is latest, the Registry may return an exhibit to the party who tendered it. The parties may agree or the Court may order that an exhibit be returned at an earlier time or to a person other than the party who tendered it. (MR 1041b; ER 35/12.)
(13) Where the return of exhibits has not been applied for within one year from the judgment at trial or on any appeal, new trial, or further appeal, whichever is the latest, the Registry, with the approval of the Deputy Attorney-General, may destroy or otherwise dispose of them. If any money is received as a result of the disposal, it shall be paid to the Minister of Finance. The exhibit list shall be endorsed to indicate the date and method of destruction or disposal and the amount of any money recovered. (MR 1041b; ER 35/13.)
(14) A party who desires to call as a witness at the trial an adverse party, or any director, officer, partner, employee, or agent of an adverse party, may either subpoena him or give him or his solicitor at least 7 days notice in Form 37 of the intention to call him as a witness, tendering at the same time the proper fees. A party may call as a witness a person referred to in this rule without payment of fees or previous notice if the person is in attendance at the trial. (MR 507a.)
(15) For the purpose of subrule (14), "adverse party" means a party who is adverse in interest. (MR 507a.)
(16) If a person required to testify pursuant to subrule (14) refuses or neglects to attend at the trial or to remain in attendance at the trial or refuses to be sworn or to answer a proper question put to him or to produce a document which he is required to produce, the Court may pronounce judgment in favour of the party calling that witness or may adjourn the trial. (MR 507a.)
(17) A party calling a witness pursuant to subrule (14) is entitled to treat him as hostile. Cross-examination of the witness by counsel for the adverse party shall be confined to explanation of matters brought out in the examination-in-chief. Cross-examination of the witness by other parties may be general or limited, as the Court may direct. Re-examination shall be confined to new matters brought out in cross-examination. (MR 507a.)
(18) Where a witness appears unwilling or unable to give responsive answers or is hostile, the Court may permit the party calling the witness to interrogate him by means of leading questions. (New.)
(19) A party may contradict or impeach the testimony of any witness. (ER 31/1.)
(20) A transcript, videotape, or film of a deposition under Rule 38 may be given in evidence at the trial by any party. Notwithstanding that the deposition of a witness has or may be given in evidence, the witness may be called to testify viva voce at the trial. (MR 500; ER 38/9.)
(21) Where a videotape or film of a deposition is given in evidence pursuant to subrule (20), a transcript of the deposition may also be given. (New.)
(22) A transcript of a deposition may be given in evidence if certified as an accurate transcription by the person taking the deposition, without proof of the signature of that person. A videotape or film of a deposition may be presented as evidence without proof of its accuracy or completeness, but the Court may order such investigation as it thinks fit to verify the accuracy or completeness. A videotape or film given in evidence shall become an exhibit at the trial. (MR 370nnn, 500; ER 38/9.)
(23) Subject to subrule (28), where a deposition is given in evidence, it shall be presented in full. (New.)
(24) Subject to these rules or any enactment, a party may give in evidence at the trial any part of an examination for discovery of a person examined by him under Rule 27 in the action; but the Court may look at the whole of the examination and if it is of the opinion that any other part is so connected with the part given that the last-mentioned part ought not to be used without the other part, it may direct the other part to be put in as evidence. (MR 370r, 370rr, 370s; ER 26/7.)
(25) The examination of an infant or of a mentally incompetent person shall not be given in evidence without the leave of the Court. (New.)
(26) A transcript of an examination for discovery may be given in evidence if certified as an accurate transcription by the Official Reporter without proof of his signature. (MR 370nnn.)
(27) A party may give in evidence at the trial part or all of the examination of a person taken under Rule 28
(a) to contradict or impeach the testimony of the deponent at trial, or
(b) where the deponent is dead or is unable to attend and testify because of age, infirmity, sickness, or imprisonment or is out of the jurisdiction or his attendance cannot be secured by subpoena and where it is necessary in the interests of justice,
but where part only of the examination is given in evidence, the Court may look at the whole of the examination and if it is of the opinion that any other part is so connected with the part given that the last-mentioned part ought not to be used without the other part it may direct the other part to be put in as evidence. (ER 38/9.)
(28) At the trial a party may object to the admissibility of any question and answer in a transcript, videotape, or film given in evidence, although no objection thereto was taken at the examination. (MR 370nn; ER 39/10.)
(29) If a transcription of an examination for discovery, a pre-trial examination of a witness, or a deposition examination is made, the party at whose instance the examination was held shall keep the original transcript unmarked and shall have it available at the trial. (New.)
(30) At the trial of an action a party may give in evidence an answer, or part of an answer, to interrogatories, but the Court may look at the whole of the answers and, where it is of the opinion that any other answer or part of an answer is so connected with an answer or part thereof given in evidence that the one ought not to be used without the other, it may direct that the other answer or part thereof be put in as evidence. (MR 366; ER 26/7.)
(31) A subpoena shall be in Form 19 and may contain any number of names. (MR 509, 511; ER 38/15.)
(32) A party may prepare a subpoena and serve it on any person. (New.)
(33) A subpoena need not be filed in or bear the seal of the Court. (New.)
(34) A subpoena shall be served and, where an affidavit is filed for the purpose of proving the service, it shall state when, where, how, and by whom service was effected. (MR 514, 515; ER 65/8.)
(35) A person served with a subpoena shall be entitled to tender of the proper fees at the time of service. (MR 491.)
(36) A party, by subpoena in Form 19, may require any person to bring to the trial
(a) any document in his possession or power relating to the matters in question, without the necessity of identifying the document, and
(b) any physical object in his possession or power which the party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object to be brought. (New.)
(37) The Court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution. (ER 54/9.)
(38) Upon proof
(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena, and
(b) that proper witness fees have been paid or tendered to that witness, and
(c) that the presence of that witness is material to the ends of justice,
the Court, by its warrant in Form 38 directed to a sheriff or other officer of the Court or to a peace officer, may cause that witness to be apprehended and forthwith brought before the Court and to be detained in custody or released on such terms as the Court may order, and the Court may order that witness to pay the costs arising from his failure to attend or to remain in attendance. (MR 490, 507b.)
(39) A person who has been served with a subpoena may apply to the Court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship upon him; and the Court may make any order, as to postponement of the trial or otherwise, as it thinks just. (New.)
(40) On each day of a trial a clerk of the Registry shall note the time the trial commences and terminates, the name of each witness and the time his evidence commences and terminates. (MR 464.)
(41) At or before a trial the Court may order that
(a) the evidence of a specified person at trial may be given by affidavit, or
(b) affidavit evidence may be presented by a party for the purpose
of proving a particular fact or document, and, unless the Court otherwise orders, the deponent is not subject to cross-examination and need not attend the trial. (MR 483, 548; ER 38/2.)
(42) At or before a trial the Court may order that evidence of a fact or document may be presented at the trial in any manner, including,
(a) by statement on oath of information and belief,
(b) by documents or entries in books,
(c) by copies of documents or entries in books, or
(d) by a specified publication which contains a statement of that fact. (ER 38/3.)
(43) Addresses to the jury or the Court shall be as follows:
(a) the party on whom the onus of proof lies may open his case before giving evidence,
(b) at the close of the case of the party who began, the opposite party, if he announces his intention to give evidence, may open his case,
(c) at the close of all of the evidence, the party who began may address the jury or the Court, and the opposite party may then address the jury or the Court and the party who began may then reply and the Court may allow the opposite party to be heard in response to a point raised in the reply,
(d) where a defendant claims a remedy over against a co-defendant, he may address the jury after that co-defendant, and
(e) where a party is represented by counsel, the rights conferred by this rule shall be exercised by his counsel. (MR 460; ER 35/7.)
RULE 41
Orders
(1) No application for judgment is necessary except where an enactment or these rules otherwise provides. (MR 463.)
(2) Where, after such redirection as the Court thinks appropriate, a jury answers some but not all of the questions directed to it, or where the answers are conflicting, so that judgment cannot be pronounced on the findings, the action shall be retried. (New.)
(3) Where the answers of the jury entitle either party to judgment in respect of some but not all of the claims, the Court may pronounce judgment on the claims as to which the answers are sufficient and the remaining claims shall be retried. (MR 432a.)
(4) Where the jury fails to reach a verdict in accordance with the Jury Act, the action shall be retried. (New.)
(5) A retrial under subrules (2) to (4) may take place at the same or subsequent sittings as the Court may direct. (New.)
(6) If the party who required a jury trial waives his right to a retrial, the Court may pronounce such judgment on the evidence as it thinks just. (New.)
(7) Where in a trial with a jury, by reason of the misconduct of a party or his counsel, a mistrial might be ordered, the Court, with the consent of all parties adverse in interest to the party whose conduct, or whose counsel's conduct, is complained of, may order that the trial continue without a jury and may pronounce such judgment on the evidence as it thinks just. (New.)
(8) An order of the Court may be drawn up by any party and, unless the Court otherwise directs, shall be approved in writing by all parties or their solicitors or counsel, and then left with the Registrar to have the seal of the Court affixed; but the order need not be approved by a party who has not consented to it and who did not appear or was not represented at the trial or hearing following which the order was made. (MR 718d, 718e.)
(9) An order shall be in Form 39 or Form 40. (MR 762.)
(10) Where an order has been made not embodying any special terms or including any special directions, except as to costs, but simply extending the time for taking any step in a proceeding, doing any act, or granting leave,
(a) for the amendment of an originating process or pleading,
(b) for the filing of a document, or
(c) for an act to be done by an officer of the Court other than a solicitor,
it is not necessary to draw up the order unless the Court otherwise directs; but the production of a note or memorandum of the order, signed by a Judge, Master, or Registrar, is sufficient authority for the extension of time, issue, amendment, filing, or other act. (MR 709.)
(11) Where an order has been made substantially in the same terms as requested, if the Court endorses the notice of motion, petition, or other document to show that the order has been made or made with such variations or additional terms as may be shown in the endorsement, it is not necessary to draw up the order, but the endorsed document shall be filed. (MR 709.)
(12) Where an order may be entered on the filing of a document, the party shall file the document when leaving the draft order with the Registrar, and the Registrar shall examine the document and, if satisfied that it is sufficient, shall enter the order accordingly. (MR 574.)
(13) Where a person who has obtained an order upon condition does not comply with the condition, he shall be deemed to have abandoned the order so far as it is beneficial to him and, unless the Court otherwise directs, any other person interested in the matter may take either such steps as the order may warrant or such steps as might have been taken if the order had not been made. (MR 580; ER 45/10.)
(14) (a) An order shall be dated as of the day on which it was pronounced and shall take effect that day, unless the Court otherwise directs.
(b) Where a judgment is obtained by default, the entry of the order shall be dated as of the day on which the requisite documents are left with the Registry for entry, and the judgment shall take effect from that date. (MR 571, 572, 708, 718 (f); ER 42/3.)
(15) No consent order shall be entered unless the consent of each party affected is signified,
(a) where the party appears by solicitor or counsel, by the signature of the solicitor or counsel,
(b) where the party does not appear or appears in person,
(i) by the oral consent of the party before the Court or the Registrar, or
(ii) by the signature of the party, witnessed by a solicitor, notary public, justice of the peace, commissioner for oaths, or any person referred to in section 60 of the Evidence Act. (MR 577, 578.)
(16) Every order requiring a person to do an act shall
(a) be served on that person or delivered to his solicitor of record, and
(b) state the time, or the time after service or delivery of the order, within which the act is to be done. (MR 573; ER 42/2, 45/7.)
(17) An order shall be settled, when necessary, by the Registrar, who may refer the draft to the Judge who made the order. (MR 918a, 939; ER 42/7.)
(18) A party may obtain an appointment to settle an order in Form 41 and shall deliver the appointment and a draft order to all parties whose approval is required under subrule (8) at least one day before the time fixed thereby. (MR 934.)
(19) If a party fails to appear at the time appointed for settlement of an order, the Registrar may settle the order in his absence. (MR 938; ER 42/8.)
(20) The Court may review and vary the order as settled. (MR 918a.)
(21) The Court may direct the Registrar to draw up and enter an order. (MR 836; ER 42/7.)
(22) The Court may give special directions respecting the carriage, entry, or service of an order. (MR 771; ER 42/5.)
(23) The Court may at any time correct a clerical mistake in an order or an error arising therein from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon. (MR 315; ER 20/11.)
(24) The original copy of all orders required to be drawn up shall be inserted by the Registry in a book kept for that purpose, except where a photographic film of the order is taken and maintained. (MR 569, 718g; ER 42/5, 42/6.)
RULE 42
Enforcement of Orders
(1) An order for the payment of money to a person may be enforced by writ of seizure and sale in Form 42. (MR 581; ER 45/1.)
(2) An order for the payment of money into Court may be enforced by writ of sequestration in Form 43. (MR 582, 618, 619a; ER 45/1.)
(3) An order for the recovery or the delivery of the possession of land may be enforced by writ of possession in Form 44. (MR 583, 644; ER 45/3.)
(4) An order for the recovery or the delivery of the possession of any property other than land or money may be enforced by writ of delivery in Form 45 or Form 46 or writ of sequestration in Form 43. (MR 584, 647; ER 45/4.)
(5) An order may be enforced by the appointment of a receiver under Rule 47. (ER 45/1.)
(6) A person not a party to a proceeding, who obtains an order or in whose favour an order is made, may enforce obedience to the order by the same process as if he were a party to the proceeding; and a person not a party to a proceeding, against whom obedience to an order may be enforced, is liable to the same process for enforcing obedience to the order as if he were a party to the proceeding. (MR 604; ER 45/9.)
(7) If a mandatory order or an order for the specific performance of a contract is not obeyed, the Court, besides or instead of proceeding against the disobedient person for contempt, may direct that the act required to be done may be done so far as is practical by the person who obtained the order, or some other person appointed by the Court, at the cost of the disobedient person; and upon the act being done, the expenses incurred may be ascertained in such manner as the Court may direct, and execution may issue for the amount so ascertained and costs. (MR 585, 608; ER 45/8.)
(8) Where an order is to the effect that a person is entitled to relief subject to or on compliance with a condition or the happening of a contingency, the person so entitled, on compliance with the condition or the happening of the contingency, and on demand made on the person against whom he is entitled to relief, may apply to the Court for leave to issue execution. The Court, if satisfied that the right to relief has arisen, may order that execution issue or may direct that any issue or question necessary for the determination of the rights of the persons be tried. (MR 587; ER 46/2.)
(9) Where a change has taken place, by death or otherwise, in the persons entitled or liable to execution, the person alleging himself to be entitled to execution may apply to the Court for leave to issue execution. The Court may order that execution may issue or may order that any issue or question necessary to determine the rights of the person be tried. (MR 601; ER 46/2.)
(10) No writ of execution shall issue without the production to the Registry of a copy of the order upon which the writ is to issue. (MR 589; ER 46/3.)
(11) A writ of execution shall be endorsed with the name and address of the solicitor or person causing it to be issued. (MR 591; ER 46/3.)
(12) A writ of sequestration shall be issued only upon filing proof satisfactory to the Registrar that the order sought to be enforced
(a) has been served or delivered pursuant to Rule 41 (16), and
(b) has not been complied with. (ER 46/5.)
(13) Where the order sought to be enforced is for the payment of money within a specified period, no writ of execution shall be issued until the expiration of the period. (MR 595; ER 46/6.)
(14) (a) Subject to these rules or an order of the Court, a writ of execution may be issued by the Registrar at any time during the lifetime of the order sought to be enforced.
(b) A writ of execution shall be prepared by the person seeking to enforce the order or his solicitor, shall be sealed by the Registrar, and shall thereupon be deemed to be issued.
(c) The person seeking to enforce the order or his solicitor, on presenting a writ of execution for sealing, shall leave a copy of the writ with the Registry. (MR 595.)
(15) (a) A writ of execution, if unexecuted, shall remain in force for one year only, unless renewed.
(b) At any time before the expiration of a writ of execution, or a renewed writ of execution, the writ may be renewed for one year from the date of renewal on the application of the party issuing the writ.
(c) An application to renew a writ of execution may be heard by the Court, a Master, or a Registrar designated by the Chief Justice.
(d) A renewed writ of execution shall be endorsed by the Master or the Registrar with the date of the order granting renewal or the date of the renewal referred to therein. (MR 598; ER 46/8.)
(16) The person entitled to execution may charge and realize the costs, fees, and expenses of execution. (MR 593; ER 47/4.)
(17) Upon an order granting relief and costs there may be, at the election of the person entitled thereto, either one writ or separate writs of execution for the relief granted and for the recovery of the costs. (MR 596, 646, 648; ER 47/3.)
(18) Where it is sought to enforce an order for the recovery of property other than land or money by writ of delivery, upon the application of the judgment-holder, the Court may order that execution issue for the delivery of the property without giving the other party the option of retaining the property upon paying the assessed value, and that if the property cannot be found, and unless the Court otherwise orders, the sheriff shall take possession of ail the other party's lands, goods, and chattels until the other party delivers the property or, at the option of the judgment-holder, until the sheriff realizes from the other party's goods and chattels the assessed value of the property. (MR 647; ER 45/4.)
(19) A debtor liable to execution on an order for the payment of money or, in the case of a corporation debtor, an officer or director thereof, or in the case of a partnership or firm debtor, a person liable to execution upon the order, may be orally examined by the party entitled to execution as to any matter he might be examined upon if appearing in response to a subpoena under subrule (28). (MR 610; ER 48/1.)
(20) Where a party is entitled to examine a debtor he may compel the attendance of the person to be examined and the production of documents on the examination in the same manner as attendance and production is compelled under Rule 27, and that rule applied mutatis mutandis to examinations under this rule. (MR 610; ER 48/1.)
(21) Where a difficulty arises in or about the execution or enforcement of an order the Court may make such order for the attendance and examination of a party or otherwise as it thinks just. (MR 611; ER 48/1.)
(22) Unless the Court otherwise orders, the party conducting an examination under this rule is entitled to recover the costs of the examination from the debtor. (MR 612.)
(23) A debtor may require as a condition of paying a money judgment that the judgment creditor forthwith execute, file, and deliver an acknowledgment of payment, in Form 47. (MR 578a.)
(24) Where a judgment debtor claims to have paid the judgment but has not obtained an acknowledgment of payment from the judgment creditor, he may apply to the Court for an order certifying that the judgment has been paid. (New.)
(25) (a) The Court, at the time of making an order, may stay execution thereon until such time as it thinks fit.
(b) A party against whom an order has been made may apply to the Court for a stay of execution or other relief on the ground of facts which have arisen too late to be pleaded, and the Court may give relief on such terms as it thinks just. (MR 595, 605; ER 45/10, 47/1.)
(26) A sheriff, judgment creditor, or judgment debtor may apply to the Court for directions under Rule 43 concerning the sale of any property taken in execution. (ER 31/2.)
(27) A creditor who has obtained an order of the Court for the recovery or payment of money, or costs, or both, may issue out of the Registry a subpoena in Form 48 on filing an affidavit showing that the order is not satisfied and that no writ of execution is outstanding and that no order under the Attachment of Debts Act is in effect against the debtor. (S. 147, County Courts Act; rr. 48, 55, County Court Rules, 1968.)
(28) The subpoena shall be directed to the debtor or to an officer or director of a corporate debtor or to a person liable to execution on an order against a partnership or firm debtor. (R. 53, County Court Rules, 1968.)
(29) The subpoena shall be served personally at least 7 days before the date of the hearing, and with the subpoena shall be tendered the expenses the person served would be entitled to were he required to attend the Court as a witness. (S. 147, County Courts Act; rr. 47, 52, County Court Rules, 1968.)
(30) The examination shall take place before an examiner and shall be on oath as to the following matters:
(a) the income and property of the debtor,
(b) the debts owed to and by the debtor,
(c) the disposal the debtor has made of any property,
(d) the means the debtor has, or has had, or in future may have, of satisfying the order. (S. 147, County Courts Act.)
(31) The examiner shall be
(a) the Court, or
(b) a Master, or
(c) a Registrar designated as an examiner by the Chief Justice. (New.)
(32) The creditor and the person subpoenaed may, with leave of the examiner, call witnesses who may be cross-examined. (S. 149, County Courts Act; r. 54, County Court Rules, 1968.)
(33) The examiner may adjourn the hearing from time to time. (R. 46, County Court Rules, 1968.)
(34) If the person subpoenaed
(a) does not attend as required at the hearing or an adjournment thereof,
(b) refuses to be sworn, or to affirm or to answer any question put to him,
(c) after an order to that effect, refuses or neglects to produce or permit to be inspected any document or property, or
(d) does not give answers which are to the satisfaction of the examiner, then
(e) if the examiner is a Master or Registrar, he may make a report to that effect and shall fix a time and place for the person subpoenaed to appear before the Court, and the creditor at that time and place may apply without notice for committal, or
(f) if the examiner is the Court, the examiner may order committal. (S. 151, County Courts Act.)
(35) If the creditor who issued a subpoena fails to appear at the hearing, or if the examiner is of the opinion that the proceedings are unnecessary, or vexatious, the examiner may order the creditor to pay to the person subpoenaed a sum of money by way of compensation and may order that sum to be paid forthwith or to be set off against the debt. (S. 152, County Courts Act; r. 57, County Court Rules, 1968.)
(36) If it appears to the examiner that the debtor,
(a) with intent to defraud the creditor, has made or caused to be made any gift or delivery or transfer of property, or has removed or concealed property, or
(b) has unreasonably neglected or refused to pay the debt in whole or in part or to pay any installment ordered to be paid, or
(c) is a corporation and that the person subpoenaed has done, authorized, permitted, or acquiesced in an act or omission described in paragraph (a) or (b),
then
(d) if the examiner is a Master or Registrar, he may make a report of his findings and fix a time and place for the person subpoenaed to appear before the Court, and at that time and place the creditor may apply without notice for committal, or
(e) if the examiner is the Court, the examiner may order committal. (S. 151, County Courts Act.)
(37) The examiner may make one or more of the following orders:
(a) for the payment of the debt by installments,
(b) for the payment of the debt on or before a fixed date,
(c) varying or rescinding any previous order,
(d) for payment to be made to the Registrar, or to the creditor or to his solicitor,
(e) fixing the costs payable by the debtor without taxation, and if the examiner is the Master or Registrar, the order shall have the effect of an order made by the Court and shall be entered accordingly. (S. 153, County Courts Act; r. 55, County Court Rules, 1968.)
(38) If a debtor fails to pay in accordance with an order made by an examiner, the creditor may issue out of the Registry a notice of motion for committal in Form 49, on filing an affidavit showing that the default has occurred, and subrules (28) and (29) apply mutatis mutandis. (S. 154, County Courts Act.)
(39) (a) The Court may order committal if satisfied that
(i) the order to pay has not been obeyed,
(ii) the person knew of the order, and
(iii) the person has not shown good cause why an order of committal should not be made against him.
(b) The Court may fix the costs payable by the debtor without taxation. (S. 154, County Courts Act.)
(40) An order of committal shall be in Form 50 and shall commit the person named to prison for a term not exceeding 40 days. (Ss. 155, 156, County Courts Act; r. 58, County Court Rules, 1968.)
(41) No order of committal shall be enforced after the expiration of one year after the date the order was made. (S. 155, County Courts Act; r. 58, County Court Rules, 1968.)
(42) A creditor seeking to enforce an order of committal shall pay to the sheriff for the maintenance of the person committed the sum of $10 per day by weekly payments of $70 in advance. The maintenance money paid by the creditor shall be recoverable by him from the debtor as costs of execution, without order. (MR 1021.)
(43) Subject to subrule (45), a sheriff or peace officer executing an order of committal shall bring the person arrested forthwith before the Court, and the person arrested may be examined by the Court, and if the Court considers that imprisonment is not appropriate, it may stay execution of the order and shall fix a time and place for a hearing to determine whether or not the order of committal should be set aside or varied, and shall give directions for notice of the hearing to be given to the creditor. (S. 157, County Courts Act.)
(44) A person who is the subject of an order of committal may apply to the Court to set aside or vary the order, and the Court may direct a stay of execution of the order pending the hearing of the application and give directions for service of notice of the hearing. (S. 155, County Courts Act.)
(45) (a) A person who is the subject of an order of committal may pay the amount payable endorsed on the order either to the Registrar or to the sheriff or peace officer or warden in whose custody he is.
(b) Upon payment to him of the amount payable, the Registrar shall issue a receipt to that effect.
(c) Upon payment to any of them of the amount payable or upon being shown a Registrar's receipt to that effect, a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the Registry.
(d) All money received under this rule shall forthwith be paid to the creditor. (S. 158, County Courts Act; rr. 59, 60, County Court Rules, 1968.)
(46) A creditor who has obtained an order of committal may file in the Registry a praecipe requesting discharge of the person committed, and the Registrar shall endorse the praecipe and a copy with the words "This is your authority to discharge .................................................. (name) from custody" above his signature, and on being shown the copy of the praecipe a sheriff or peace officer or warden shall release the person committed from custody and shall endorse the order accordingly and return it to the Registry. (S. 158, County Courts Act; rr. 59, 60, 61, County Court Rules, 1968.)
(47) A sheriff who has not received maintenance money as provided in subrule (42) shall release the person committed, if in his custody, or shall notify the warden, if in his custody, who shall release the person committed, and each shall endorse the order accordingly and return it to the Registry. (MR 1022.)
(48) No imprisonment under these rules extinguishes the liability imposed by an order. (S. 159, County Courts Act.)
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