Acts and Regulations

Rule-44 - INTERIM RECOVERY OF PERSONAL PROPERTY

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Full text
Current to 1 January 2024
PRESERVATION OF RIGHTS
PENDING LITIGATION
RULE 44
INTERIM RECOVERY OF
PERSONAL PROPERTY
44.01Motion for Interim Order
(1)An interim order for the recovery of personal property may be obtained on a motion by the plaintiff supported by affidavit containing
(a) a sufficient description of the property sought to be recovered to render it readily identifiable,
(b) the value of the property sought to be recovered,
(c) a statement that the plaintiff is the owner or lawfully entitled to possession of the property, as may be,
(d) a statement that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant, as may be, and
(e) the facts and circumstances giving rise to the unlawful taking or unlawful detention.
(2)Notice of a motion under paragraph (1) shall be served on the defendant unless the court is satisfied that
(a) the property was unlawfully taken from the plaintiff,
(b) there is reason to believe that the defendant may attempt to prevent recovery of the property, or
(c) for any other reason, the order should be made without notice.
44.02Interim Order
An interim order for the recovery of personal property shall contain a description of the property to be recovered sufficient to make it readily identifiable, and shall state the value of the property.
44.03Jurisdiction on Motion
Where Made on Notice
(1)On a motion for an interim order for the recovery of personal property made on notice to the defendant, the court may
(a) order the plaintiff to pay into court 1.25 times the value of the property as stated in the order, or such amount as the court may direct, or to give to the sheriff security in such form and amount as may be approved by the court, and direct the sheriff to take the property from the defendant and deliver it to the plaintiff,
(b) order the defendant to pay into court 1.25 times the value of the property as stated in the order, or such amount as the court may direct, or to give to the plaintiff security in such form and amount as may be approved by the court, and allow the property to remain in the possession of the defendant, or
(c) make such other order as may be just.
Where Made Without Notice
(2)On a motion for an interim order for the recovery of personal property made without notice to the defendant, the court may
(a) order the plaintiff to pay into court 1.25 times the value of the property as stated in the order, or such other amount as the court may direct, or to give to the sheriff security in such form and amount as may be approved by the court, and direct the sheriff to take and detain the property for a period of 10 days after service of the interim order upon the defendant before delivering it to the plaintiff, or
(b) make such other order as may be just.
44.04Condition and Form of Security
Where an interim order for the recovery of personal property requires either party to provide security, the condition of the security shall be that the party providing the security will return the property to the opposite party without delay should he be ordered to do so, and pay any damages and costs the opposite party may have sustained by reason of the interim order. Where the security is by bond, it shall be according to Form 44A, Form 44B or such other form as the court may approve, and shall remain in force until the security is released pursuant to this rule.
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44.05Rescinding Order
The defendant may apply to the court
(a) to rescind or vary an interim order for the recovery of personal property,
(b) to stay proceedings thereunder, or
(c) for any other relief with respect to the return, safety or sale of the property or any part thereof,
by Notice of Motion served within 10 days and returnable within 15 days after the order came to his attention.
44.06Release of Security
Security furnished pursuant to an order made under this rule may be released on the filing of the written consent of the parties or by order of the court.
44.07Duty of Sheriff
(1)Before a sheriff enforces an order for the recovery of personal property, he shall satisfy himself that security has been furnished in compliance with the order.
(2)As soon as possible after property has been recovered under an order for the recovery of personal property, the sheriff shall serve on the defendant the interim order and a copy of any supporting affidavit.
(3)Where the sheriff is unable to comply with an order for the recovery of personal property, or it is dangerous for him to do so, he may apply to the court for directions.
(4)The sheriff shall report without delay to the plaintiff as to the property he has recovered under an order for the recovery of personal property, and, where he has failed to recover possession of all or part of the property, as to the property he has failed to recover and the reason therefor.
(5)Where the sheriff has reason to believe that the property to be recovered under an order for the recovery of personal property, or any part thereof, is located in a building or enclosure, he shall demand from the owner or occupant thereof delivery of such property. If the owner or occupant does not deliver the property to the sheriff within 24 hours after such demand, the sheriff shall enter the building or enclosure, by force if necessary, and take possession of the property sought to be recovered.
(6)Where the sheriff has reason to believe that the property to be recovered under an order for the recovery of personal property, or any part thereof, is concealed on the person of the defendant or of someone holding it for the defendant, he shall demand possession of the property. If the defendant or other person refuses to give possession of the property to the sheriff on such demand, the sheriff shall search the defendant or other person to recover the property.
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44.08Where Property Removed
Where the sheriff reports that the defendant has prevented him from recovering property under an order for the recovery of personal property, or any part thereof, the plaintiff may apply for an order directing the sheriff to take other personal property of the defendant and deliver it to the plaintiff to hold until the defendant delivers the property in question to him.
44.09Examination of Persons Concerning Location of Property
Where an interim order is made under this rule, and where the court has reason to believe that a person has information regarding the location of the property referred to in the interim order, the court may order that person to attend before the court or a court stenographer to answer under oath questions relating to the location of such property.
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