AGF TRUST COMPANY v MCLEOD, 2011 ABQB 711

MASTER HANEBURY

9.14: Further or other order after judgment or order entered

Case Summary

The Applicant, a second mortgagee, sought to vary an Order Nisi/Order for Sale in a Foreclosure proceeding with respect to the amount of mortgage indebtedness owed to the Respondent, the first mortgagee. The Respondent argued, amongst other things, that Rule 9.14 was inapplicable, and that the Order was a Judgment and the Court could not entertain a motion to adjust the amount outstanding. In considering Rule 9.14, Master Hanebury noted a narrow exception, that further directions are allowed by a Court, provided they do not vary the Judgment, but merely supplement it, or work it out, or allow the Court to clarify the effect of its earlier Judgment. Master Hanebury determined that Rule 9.14 supports the Court’s ability to determine the amount required to pay out the first mortgage pursuant to the Order. The reason for this is that the Court would not be varying its Judgment, but would merely be deciding its effect.

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