3.37: Application for judgment against defendant noted in default
3.38: Judgment for recovery of property

Case Summary

The Plaintiff relied on Rules 3.37 and 3.38 to bring an Application, without notice, for an Order for Judgment that would: (1) rectify a contract of purchase and sale, and (2) direct Land Titles to register a title in the name of the Plaintiff. The Defendant had been noted in default pursuant to Rule 3.36(1) for not responding to an Amended Statement of Claim.

The Court noted that neither Rule 3.38, nor its predecessor (Rule 149) under the “old” Rules, had been subject to judicial commentary or discussion. After setting out dictionary definitions of “recovery”, Shelley J. found that “recovery of property” in Rule 3.38 references the restoration or regaining of property or title, as opposed to a general usage of “recovery” that would include, for instance, a Plaintiff in a lawsuit seeking “recovery” through damages of what that Plaintiff had lost. Under Rule 3.38, Her Ladyship determined that Default Judgment for the recovery of property should only be available when the property is easily ascertainable, without the need for a Court Application. An example provided by the Court was a foreclosure Action where the Plaintiff has a mortgage identifying its interest, or in a bailment Action where the Plaintiff has an agreement describing the personal property sued for.

Turning to Rule 3.37, the Court indicated that the Plaintiff’s Amended Statement of Claim had sought three remedies: damages, rectification of a contract, and specific performance. Shelley J., in denying the Plaintiff’s Application, referred to Fenske v Schneider, 2007 ABQB 164, for the proposition that notice must be given to a Defendant of the Plaintiff’s choice of remedy so that the Defendant can advance a position in regards to the appropriate equitable remedy. An additional reason for denying the Rule 3.37 Application was that the facts deemed admitted by the Defendant in the Amended Statement of Claim (as a result of the Defendant having been noted in default) were not sufficient to permit the Court to make an Order of rectification.

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