Acts and Regulations

Rule-41 - APPOINTMENT AND CONFIRMATION OF RECEIVERS

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Current to 1 January 2024
PRESERVATION OF RIGHTS
PENDING LITIGATION
85-5
RULE 41
APPOINTMENT AND CONFIRMATION
OF RECEIVERS
41.01Definition of ‘receiver’
In this rule, except where the context requires otherwise, receiver means a receiver or receiver-manager whose appointment is made or confirmed by the court.
41.02Appointment of Receiver
(1)Where
(a) an instrument, other than an order of the court, provides for the appointment by the court of a receiver,
(b) it is necessary to appoint a person as receiver to carry out a judgment or order of the court, or
(c) where the court is satisfied that a receiver should be appointed,
the court may appoint a suitable person accordingly or make such other order as may be just.
41.03Confirmation of Appointment of a Receiver
(1)Where a receiver is acting under an instrument other than an order of the court, the debtor or a creditor or other person having an interest in the property which is subject to the receivership, may request that the court confirm the appointment of the receiver.
(2)The court may confirm the appointment of a receiver if the applicant
(a) satisfies the court that it is appropriate for the receiver to be under the supervision of the court, and
(b) either
(i) guarantees the costs of the receiver arising from supervision by the court, or
(ii) satisfies the court that sufficient assets are available to satisfy the costs of the receiver arising from supervision by the court.
(3)Confirmation of appointment of a receiver has the same effect as an appointment by the court of any receiver.
41.04How Request to be Made
(1)A request for the appointment, or confirmation of appointment, of a receiver may be made
(a) in a proceeding, by a notice of motion, or
(b) where a proceeding has not been commenced, by Notice of Application.
(2)Unless ordered otherwise, notice of a motion or application under paragraph (1) shall be given, as directed by the court, to persons who may have an interest in the property which is subject to the receivership.
(3)Where it appears to the court that an order should be made pursuant to a request under paragraph (1) without requiring notice thereof to be given, the court may appoint or confirm the appointment of a receiver on appropriate terms which may include a limitation on the duration of the appointment.
(4)Where a request is made for the appointment of a receiver to enforce a judgment or order of the court, the court may
(a) with or without notice, grant any injunction or order for the preservation of assets, which may be necessary to prevent loss or dissipation of assets, and
(b) make such other order as may be just.
41.05Form of Order
An order appointing or confirming the appointment of a receiver (Form 41A) shall
(a) name the person appointed or whose appointment is confirmed,
(b) where the order is made without notice, specify the terms of the appointment or confirmation of appointment, including any limitation with respect to its duration,
(c) specify the amount and terms of security, if any, to be furnished by him for the proper performance of his duties, which security shall be in Form 41B unless ordered otherwise,
(d) define the scope of his managerial powers, if any, which may include the power
(i) to commence, continue or defend proceedings when necessary for the protection, preservation or acquisition of the property which is subject to the receivership,
(ii) to employ assistance necessary to carry out his duties,
(iii) in order to protect and to carry on the undertaking, to borrow money from time to time, the principal amount not to exceed a stated amount at any time,
(iv) to deal with the property which is subject to the receivership,
(v) to pay any claim or incur and pay any expense necessary to acquire, protect or preserve the property which is subject to the receivership,
(e) provide for the remuneration of the receiver,
(f) give other appropriate directions, if necessary, which may include the granting of an injunction or directions for the preservation of assets,
(g) if required, direct the debtor to deliver forthwith to the receiver all the property and undertaking which is subject to the receivership and all books, documents, papers and records relating thereto,
(h) give directions respecting submission of the receiver’s accounts to the court for approval and for payment of any balances in his hands from time to time,
(i) where appropriate, give directions with respect to costs in the proceeding.
41.06Charge on Property Subject to the Receivership
Where the receiver exercises the powers granted under this rule, the property which is subject to the receivership is charged with the payment of obligations arising from the exercise of such powers.
41.07Notice of Appointment or Confirmation
A receiver shall, as soon as possible after his appointment is made or confirmed by the court, give notice (Form 41C) as the court directs to all persons who may have an interest in the property which is subject to the receivership.
41.08Directions
A receiver may apply for directions from the court at any time upon notice to such persons and in such manner as the court directs.
41.09Filing Security
Unless ordered otherwise, a receiver shall not take possession of property which is subject to the receivership until he has filed with the clerk the required security.
41.10Default of Receiver
Where a receiver performs his duties improperly, the court, on the request of any person having an interest in the assets, may order
(a) the removal of the receiver,
(b) the appointment of another,
(c) the disallowance of any remuneration claimed,
(d) the payment by the receiver of such interest and costs as may be just,
(e) payment of damages by the receiver, and, where the receiver is appointed under an instrument other than an order of the court, payment of damages by the person appointing the receiver,
(f) assignment by the clerk to any person entitled to interest, costs or damages, of any security filed with the clerk under Rule 41.09.
41.11Discharge of Receiver
The court shall not discharge a receiver without notice to all persons who may be affected by the order, unless the court is satisfied that notice is unnecessary.
41.12Restriction on Proceedings
(1)Where a proceeding is commenced against the debtor or with respect to the property which is subject to receivership, the receiver may apply in that proceeding by notice of motion to have the proceeding stayed.
(2)On a motion under paragraph (1) the court may order that the proceeding be stayed on such terms as may be just.