Preserving property pending the outcome of a lawsuit in Small Claims Court
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WHAT THIS FACTSHEET IS ABOUT
This Factsheet will give you a step by step procedure to follow to preserve property which is the subject matter of a lawsuit. The goal is to preserve the property between the time that the lawsuit begins and the day of trial. Preserving property during this period is important because there may be many months between the day the lawsuit is started and the day of trial. If the property is lost, sold or damaged during that period the lawsuit may be meaningless. For example, suppose you entered into a contract to buy a car and the seller has refused to deliver the car to you. You have heard that the seller is planning to sell the car to someone else, or take it out of British Columbia. You want to stop the sale of the car or its removal from British Columbia. That way the car will still be available for you if you win a lawsuit to enforce the contract. To stop the sale or removal of the car you may want to get an Order to preserve property. To get such an Order you must apply to a Small Claims Court Judge. The Judge can grant several types of Orders.
- An Order which would allow the property to remain in the possession of the Defendant, but which would prohibit the Defendant from parting with the legal title to the property, or custody of the property, or removing it from British Columbia.
- An Order which would force the Defendant to deliver the property to a person designated by the Court (such as a Bailiff ).
- An Order which would require the Defendant to deliver the property to you.
This Factsheet will deal with the second and third types of Orders.
WHAT LAW APPLIES
Rule 17 (18)(a) of the Small Claims Court Rules says that Rule 10-1 [Detention, Preservation and Recovery of Property] of the Supreme Court Rules applies to an Application to preserve property.
Rule 10-1 of the Supreme Court Rules says:
“The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter on any land or building”
HOW TO GET AN ORDER TO PRESERVE PROPERTY
To obtain an Order to preserve property you should do the following:
- Determine who you want to seize the property.
- Prepare a Notice of Claim.
- Prepare an Application to a Judge.
- File the Notice of Claim and Application to a Judge at the Small Claims Court Registry.
- If you do not need the order urgently, serve the Notice of Claim and the Application to a Judge on the Defendant. If you need the Order urgently, you may be able to get your Order without first serving the Defendant.
- If the Defendant is served, seven days must pass before the hearing.
- Appear in Court to ask for the Order.
- Have the Order prepared.
- Serve the Order on the Defendant.
DETERMINE WHO YOU WANT TO ASSIST YOU
The first step is to contact a Bailiff to confirm that they would be prepared to assist. Click here to view a list of Bailiffs operating in British Columbia. Be sure to inquire about their fees. They may seem very costly to you.
PREPARE A NOTICE OF CLAIM
For detailed information about preparing a Notice of Claim see Factsheet 2, which is called “Starting a Lawsuit.”
Also see “Small Claims – Making a Claim for Proceedings Initiated in Small Claims Court” by the Province of British Columbia.
PREPARE AN APPLICATION TO A JUDGE
To apply for an Order from a Judge you must complete an Application to a Judge Form.
If you refer to that form, you will see that there are only two parts of the form which may be difficult to fill in. The first is the part that asks you for details of the Order you are asking for. The second is the facts upon which your Application is based.
THE WORDS TO USE
The words to use to describe the Order you want are as follows:
- “That (name of person, such as the Bailiff or other responsible person who has agreed in advance) or other person designated by the Court be made responsible for the detention, custody and preservation of the property that is the subject matter of this lawsuit (describe the property, such as a 2002 Nissan Sentra automobile, Licence Number AAA 123), “hereinafter called the Property.”
- “For the purpose of enabling the Order sought to be carried out (name of person, such as Bailiff or other responsible person) or other person designated by the Court be authorized to enter upon any land or building.”
- “Any person presently having possession, custody or control of the property shall deliver up the property forthwith to (name of person, such as Bailiff or other responsible person) or other person designated by the Court.”
IF THE APPLICATION IS URGENT
If you believe an Order must be obtained immediately without serving the Defendant you should add “That this Order be granted without the need to serve the Defendant with a copy of this Application.”
FACTS UPON WHICH THE APPLICATION IS BASED
After the words on the Form “The facts on which the Application is based are as follows:” you should write the reasons that you are afraid something will happen to the property before trial. You should also write down where you got your information. Write down who you spoke to or what you saw, or where you read the information. If you are asking for an Order without serving the Defendant with the Application you must also give reasons why you urgently need the Order. If we continue with the example of the contract to buy a car which was set out above, you might say:
- “The Defendant has told me he is leaving the Province in three days and is taking the car with him.” or
- “I read an advertisement in the Vancouver Sun, after the Defendant breached the contract with me, for the sale of a Nissan with the same description as the car I agreed to buy from the Defendant and with the Defendant’s phone number as the number to call for more information. I believe the Defendant is trying to sell the car to someone else before the trial of this lawsuit.”
FILE THE NOTICE OF CLAIM AND APPLICATION TO A JUDGE
After you have filled in the forms, make three photocopies and then take them to the Small Claims Court Registry and file them. If you need the Order urgently ask to speak to the Small Claims Court Registrar. Tell the Registrar that you want to appear in Court as soon as possible without serving the Defendant. Tell the Registrar why you need the Order urgently. Under Small Claims Court Rule 16(10), you will not have to serve the Application if the Registrar agrees. Otherwise, you will have to serve the Application or appeal the Registrar’s decision.
SERVING THE APPLICATION
If you must serve the Application you could:
- Leave a copy with the Defendant.
- Mail it by ordinary mail to the Defendant’s address.
- Mail it by registered mail. If it is mailed it is presumed to have been delivered fourteen days after being sent, unless there is evidence of earlier delivery.
HOW LONG BEFORE THE HEARING?
Unless the Registrar waives the requirement that you give notice of the hearing to the Defendant, the Defendant must receive the Application seven days before the hearing. Thus, if the Registrar requires the Defendant to be served, the soonest the hearing could take place would be seven days after the Defendant receives the Application. That would require the Defendant to be given a copy of the Application on the same day it was filed at the Small Claims Registry.
APPEAR BEFORE A JUDGE
Appear in Court at the time required. The time will be written on the Application to a Judge Form by the Registry Clerk. Be sure to arrive on time. Your opportunity to speak to the Judge will usually occur early in the Court session. When you arrive you should take a seat in the Courtroom. After the Court is called to order, the Judge or Court Clerk will usually read through the whole list of the day’s cases. When your case is called stand up and inform the Judge that you are present. After the Judge reads through the list once, the Judge will begin to go through the list a second time. When she calls out the name of your case the second time you should go the the front of the Courtroom. Stand when you speak to the Judge and address the Judge as “Your Honour.”
You should say the following: “Your Honour, I am making an Application for an Order to preserve property.”
The Judge may then ask you some questions about your case. Before doing so, sometimes the Judge will ask you to enter the witness box and have you swear or affirm to tell the truth. After asking you questions about your case, the Judge will then either grant the Order you are seeking, tell you what further things you must do to obtain your Order, or refuse to grant you the Order you want.
PREPARE AN ORDER
If the Judge decides to grant the Order, then the Order must be put in writing.
The bottom of the Application to a Judge Form may be used for that purpose. Sometimes the Judge (or Court Clerk) will fill in the form. Other times, the Judge will order you to fill in the Form. In either case, the Judge must sign the Order in the box containing the words “By the Court.” The Order must then be filed in the Court Registry. Be sure to obtain a copy of the Order after it has been filed.
HAVE THE ORDER ENFORCED
Once you have the Order you can take it to the Bailiff or other person authorized by the Court. That person can then seize the property that you want preserved until trial.
Prepared by Glenn Gallins
Revised February 2008
Links checked 2016
Funded by the PLE Program of the Legal Services Society