Stewart v. MacAloney

Stewart v. MacAloney

Because the Small Claims Act and Regulations contain no provision to renew execution orders and Rule 79.05 of the Civil Procedure Rules requires leave for executions more than five years after judgment, the proper procedure is an ex parte motion for leave to obtain a new execution order from the Clerk; the application to renew is therefore treated as a motion for leave and leave is granted directing the Clerk to issue an execution order in Form 11.

Citation
2019 NSSM 46
Parties
Claimant: Jason Stewart; Defendant: Kenneth MacAloney
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
25 September 2019
Procedural Posture
Small Claims Court Execution Order Enforcement / Ex Parte Application to Renew Execution Order (treated as Motion for Leave)
Outcome
Application to renew treated as motion for leave and granted
Legal Topics
Execution Order Renewal, Leave to Obtain Execution Order, Application of Civil Procedure Rules for Guidance
Source Language
English
Civil Procedure Judgment Enforcement Small Claims Court Execution Order Renewal Leave to Obtain Execution Order Application of Civil Procedure Rules for Guidance

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 5 Party arguments 1 Amounts and remedies 4
Sign in to unlock

Parties

Jason Stewart

Claimant

Kenneth MacAloney

Defendant

Procedural Posture

Small Claims Court Execution Order Enforcement / Ex Parte Application to Renew Execution Order (treated as Motion for Leave)

Legal Issues

  1. 1 Whether the Small Claims Court can renew an expired execution order
  2. 2 Whether Civil Procedure Rule 79.05 requiring leave for executions more than five years after judgment applies by guidance to Small Claims Court
  3. 3 Proper procedural vehicle (renewal vs. motion for leave and issuance by Clerk)

Ratio Decidendi

Because the Small Claims Act and Regulations contain no provision to renew execution orders and Rule 79.05 of the Civil Procedure Rules requires leave for executions more than five years after judgment, the proper procedure is an ex parte motion for leave to obtain a new execution order from the Clerk; the application to renew is therefore treated as a motion for leave and leave is granted directing the Clerk to issue an execution order in Form 11.

Court Disposition

Application to renew treated as motion for leave and granted

Orders

  • Leave granted to obtain a new execution order
  • Clerk directed to issue execution order in Form 11