Rules of Court 2021

Status:

Published in Subsidiary Legislation Supplement
on 01 Dec 2021

ORDER 52

MORTGAGE ACTIONS

Application and definition of this Order (O. 52, r. 1)

1.—(1) This Order applies to any action (whether begun by originating claim or originating application) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs:

(a)	payment of moneys secured by the mortgage;
(b)	sale of the mortgaged property;
(c)	foreclosure;
(d)	delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property;
(e)	redemption;
(f)	reconveyance of the property or its release from the security;
(g)	delivery of possession by the mortgagee.

(2) In this Order, “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgage and mortgaged property are to be construed accordingly.

(3) An action to which this Order applies is referred to in this Order as a mortgage action.

(4) These Rules apply to mortgage actions subject to the following provisions of this Order.

Claims for possession (O. 52, r. 2)

2.—(1) In a mortgage action begun by originating application, being an action in which the claimant is the mortgagee and claims delivery of possession or payments of moneys secured by the mortgage or both, the following provisions of this Rule apply.

(2) Where the claimant claims delivery of possession, there must be endorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the claimant intends at the hearing to apply for an order to the defendant to deliver up to the claimant possession of the mortgaged property and for such other relief (if any) claimed by the originating application as the claimant intends to apply for at the hearing.

(3) Where the hearing is adjourned and the defendant was absent from the hearing, then, subject to any directions given by the Court, the claimant must serve a written notice of the adjourned hearing, together with a copy of any further affidavit intended to be used at that hearing, on the defendant at least 2 clear days before the day fixed for the hearing.

(4) A copy of any affidavit served under paragraph (3) must be endorsed in accordance with paragraph (2).

(5) Service under paragraph (3) or service of the supporting affidavit under Rule 3, and the manner in which it was effected, may be proved by a certificate signed by the claimant, if the claimant sues in person, and otherwise by the claimant’s solicitor.

Action for possession or payment (O. 52, r. 3)

3.—(1) The supporting affidavit of the originating application by which an action to which this Rule applies is begun must comply with the following provisions of this Rule.

(2) This Rule applies to a mortgage action begun by originating application in which the claimant is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.

(3) The affidavit must exhibit a true copy of the mortgage.

(4) Where the claimant claims delivery of possession, the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class otherwise directs, the state of the account between the mortgagor and mortgagee with particulars of —

(a)	the amount and number of any instalments in arrears at the date of issue of the originating application and at the date of the affidavit; and
(b)	the amount remaining due under the mortgage.

(5) Where the claimant claims delivery of possession, the affidavit must give particulars of every person who to the best of the claimant’s knowledge is in possession of the mortgaged property.

(6) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and mortgagee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.

(7) Where the claimant claims payment of moneys secured by the mortgage, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (4).

Action by originating claim: Judgment in default (O. 52, r. 4)

4.—(1) Despite anything in Order 6, Rules 6(5) and 7(7), in a mortgage action begun by originating claim, judgment in default of notice of intention to contest or not contest or in default of defence must not be entered except with the permission of the Court.

(2) An application for the grant of permission under this Rule must be made by summons and the summons must, unless the Court otherwise orders, be served on the defendant at least 4 clear days before the hearing of the summons.

(3) Where a summons for permission under this Rule is issued, Rule 2(2), (3), (4) and (5) applies in relation to the action subject to the modification that for references in those provisions to the originating application, there are to be substituted references to the summons.

(4) Where a summons for permission under this Rule is issued in an action to which Rule 3 would apply had the action been begun by originating application, the affidavit in support of the summons must contain the information required by that Rule.

Foreclosure in redemption action (O. 52, r. 5)

5. Where foreclosure has taken place by reason of the failure of the claimant in a mortgage action for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply by summons for an order for delivery to the defendant of possession of the mortgaged property, and the Court may make such order on the application as the Court thinks fit.

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