Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 15 August 2020 at 09:10)
Part 46
Part 46 Accounts and inquiries
Division 1 General
46.1   Application of Part
(cf SCR Part 49, rule 1)
(1)  This Part applies to accounts, inquiries and other matters under an order in the same way as it applies to accounts, inquiries and other matters under a judgment.
(2)  In the application of this Part to accounts, inquiries and other matters under an order—
(a)  references in this Part to a judgment extend to an order, and
(b)  references in this Part to the giving of judgment extend to the making of an order.
46.2   Account: summary order
(cf SCR Part 48, rule 1)
(1)  If a party claims an account or makes a claim which involves taking an account, the court may, on application by that party at any stage of the proceedings—
(a)  order that an account be taken, and
(b)  order that any amount certified on taking the account to be due to any party be paid to him or her.
(2)  The court may not make an order under subrule (1)(a)—
(a)  against a defendant who has not filed an appearance, unless he or she is in default of appearance, or
(b)  if it appears that there is some preliminary question to be determined.
46.3   Account or inquiry at any stage
(cf SCR Part 48, rule 2)
The court may make orders for the taking of any account or the making of any inquiry.
46.4   Account: directions
(cf SCR Part 48, rule 3)
If the court makes an order for the taking of an account, the court, by the same or a subsequent order—
(a)  may give directions concerning the manner of taking or vouching the account, and
(b)  without limiting paragraph (a), may direct that in taking the account the relevant books of account are taken to be evidence of the matters contained in them.
46.5   Account: form and verification
(cf SCR Part 48, rule 4)
(1)  The items on each side of an account must be numbered consecutively.
(2)  Unless the court otherwise orders, an accounting party must verify his or her account by affidavit and the account must be made an exhibit to the affidavit.
46.6   Account: filing and service
(cf SCR Part 48, rule 5)
Unless the court otherwise orders, an accounting party must file his or her account and verifying affidavit.
46.7   Account: notice of charge or error
(cf SCR Part 48, rule 6)
(1)  If a party seeks to charge an accounting party with an amount beyond that in respect of which the accounting party by his or her account admits receipt, he or she must give to the accounting party notice of the charge, stating, so far as he or she is able, the amount that he or she seeks to charge, with brief particulars.
(2)  If a party alleges that any item in the account of an accounting party is erroneous in amount or otherwise, he or she must give to the accounting party notice of the allegation, stating the grounds for alleging the error.
46.8   Account: allowances
(cf SCR Part 48, rule 7)
In taking an account under a judgment, all just allowances must be made.
46.9   Delay
(cf SCR Part 48, rule 8)
If it appears to the court that there is delay in the prosecution of any account, inquiry or other matter under a judgment, the court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.
Division 2 Equity Division of the Supreme Court: General
46.10   Application
(cf SCR Part 49, rule 1)
This Division applies to proceedings in the Equity Division of the Supreme Court, other than proceedings entered in the following lists—
(a)  the Admiralty List,
(b)  the Commercial List,
(c)  the Probate List,
(d)  the Protective List,
(e)  the Technology and Construction List.
46.11   Motion to proceed
(cf SCR Part 49, rule 2)
If a judgment contains directions as to any account, inquiry or other matter under the judgment, any party may, after entry of the judgment, move the Supreme Court to proceed under the judgment.
46.12   Notice of judgment
(cf SCR Part 49, rule 3)
(1)  This rule applies to a judgment in proceedings for—
(a)  the administration of the estate of a deceased person, or
(b)  the execution of a trust, or
(c)  the sale of property.
(2)  If the Supreme Court gives a judgment—
(a)  affecting the rights or interests of a person who is not a party, or
(b)  for the taking of an account or the making of an inquiry,
the Court may, by the judgment or by subsequent order—
(c)  give directions for service of notice of the judgment on any person interested, or
(d)  if it appears to be impracticable to serve notice of the judgment on any person interested, dispense with service on him or her.
(3)  Without limiting subrule (2)(c), the Supreme Court may direct that notice be served personally or in some other manner.
(4)  If, under this rule, notice of a judgment is served on a person, or the Supreme Court dispenses with service of notice of a judgment on a person—
(a)  subject to paragraph (b), he or she is bound by the judgment to the same extent as if he or she were a party at the time when the judgment was given, except where the judgment has been obtained by fraud or non-disclosure of material facts,
(b)  the Court may, on application by him or her on notice of motion filed within the time limited by subrule (5), discharge or vary the judgment or order,
(c)  he or she may attend the accounts, inquiries or other matters under the judgment.
(5)  Notice of a motion under subrule (4)(b) must be filed—
(a)  if notice of the judgment has been served on the applicant, within 28 days after the date of service, and
(b)  if the Supreme Court has dispensed with service of notice of the judgment on him or her, within 28 days after the date of the order dispensing with service.
46.13   Directions
(cf SCR Part 49, rule 4)
On the hearing of a motion to proceed under a judgment, the Supreme Court may give directions as to the conduct of the proceedings, including directions as to the material that may be used as evidence.
46.14   Representation of parties
(cf SCR Part 49, rule 5)
On the hearing of a motion to proceed under a judgment or subsequently, the Supreme Court—
(a)  may require parties whose interests are similar to be represented by the same solicitor and nominate a solicitor to represent them, or
(b)  may require that parties represented by the same solicitor be separately represented.
46.15   Costs of attendance
(cf SCR Part 49, rule 6)
The Supreme Court may order, on terms, that the costs to be incurred by any party of and incidental to his or her attendance on the account, inquiry or other matter under the judgment are to be paid out of the estate or property to which the proceedings relate.
46.16   Settlement of instrument
(cf SCR Part 49, rule 7)
If the judgment directs the settlement of an instrument, the Supreme Court may give directions for the preparation and service of a draft instrument and of objections to the draft.
46.17   Interest on debts
(cf SCR Part 49, rule 8)
(1)  This rule applies to the taking of an account of the debts of a deceased person pursuant to a direction in a judgment.
(2)  If any of the debts carries interest at any rate, interest is to be allowed on that debt at that rate.
(3)  In the case of a debt to which subrule (2) does not apply, interest is to be allowed on the debt at the relevant rate of interest prescribed by rule 36.7(1) for the purposes of section 101 of the Civil Procedure Act 2005, or such lesser rate as the court may determine, from the date when the judgment takes effect on so much of the debt as is from time to time unpaid.
(4)  Subrules (2) and (3) do not apply if the estate is insolvent or if the Supreme Court otherwise orders.
(5)  If a creditor establishes his or her debt and the debt does not carry interest, interest is to be allowed on such amount as is, for the time being, outstanding under the debt at the relevant rate of interest prescribed by rule 36.7(1) for the purposes of section 101 of the Civil Procedure Act 2005, or such lesser rate as the court may determine, out of any assets which may remain after satisfying—
(a)  the costs of the proceedings, and
(b)  the debts which have been established, and
(c)  the interest on such of those debts as by law carry interest.
46.18   Interest on legacies
(cf SCR Part 49, rule 9)
(1)  If an account of legacies is directed by any judgment, interest is, subject to section 84A of the Probate and Administration Act 1898, to be allowed at the rate prescribed for the purposes of subsection (1) of that section from a date of one year after the testator’s death.
(2)  Subrule (1) has effect subject to any directions in the will and unless the Supreme Court otherwise orders.
Division 3 Equity Division of the Supreme Court: administration accounts and inquiries etc
46.19   Application
(cf SCR Part 49, rule 10)
(1)  This Division applies to proceedings for the administration of the estate of a deceased person in respect of which the Supreme Court by judgment directs—
(a)  the taking of any account of debts or other liabilities of the estate of the deceased, or
(b)  the making of any inquiry for persons entitled to any interest in the estate on intestacy or otherwise.
(2)  This Division applies to proceedings for the execution of a trust in respect of which the Supreme Court by judgment directs—
(a)  the taking of any account of debts or other liabilities of the trust, or
(b)  the making of any inquiry for persons entitled to any interest in the trust property.
(3)  This Division applies, with the necessary modifications, to any other proceedings in respect of which the Supreme Court by judgment directs—
(a)  the taking of any account of debts or other liabilities of the trust, or
(b)  the making of any inquiry.
46.20   Advertisements
(cf SCR Part 49, rule 11)
(1)  On the hearing of the motion to proceed or subsequently, the Supreme Court may direct the issue of advertisements for creditors and other claimants.
(2)  For the purposes of determining what direction, if any, to make under subrule (1), the Supreme Court may have regard to any advertisement previously issued.
(3)  If the Supreme Court directs the issue of advertisements for creditors or other claimants, the Court may specify the time within which, and the person on whom, a claimant must serve particulars of his or her claim.
(4)  An advertisement for creditors or other claimants must state the time and name of the person specified under subrule (3) and an address for service of that person and must contain such other matters as the Supreme Court may direct.
(5)  An advertisement for creditors or other claimants must be prepared by the party prosecuting the judgment and signed by the registrar.
46.21   Particulars of claim
(cf SCR Part 49, rule 12)
(1)  Subject to such provisions as may appear in the advertisement, particulars of a claim served in response to an advertisement must specify the nature and extent of, and full particulars of, the claim, and must state the name and an address for service of the claimant.
(2)  A claimant who does not serve particulars of claim, in accordance with the advertisement and in accordance with subrule (1), on the person and within the time stated in the advertisement is not entitled to prove his or her claim except with the leave of the Supreme Court.
46.22   Notice of judgment
(cf SCR Part 49, rule 13)
(1)  If a claimant serves particulars of his or her claim in response to an advertisement under a judgment, the person on whom it is served must, within 7 days after service of the particulars of claim, serve notice of the judgment on the claimant.
(2)  On service of notice of a judgment under subrule (1), the provisions of rule 46.12(1), (4) and (5) apply as if the notice had been served under that rule.
46.23   Examination of claims
(cf SCR Part 49, rule 14)
The Supreme Court—
(a)  may appoint a person to examine and list claims for the purposes of an account or inquiry under a judgment, and
(b)  may fix a date for adjudication on the claims.
46.24   Account: list of claims
(cf SCR Part 49, rule 15)
(1)  In the case of an account of debts or other liabilities, the person appointed under rule 46.23(a)—
(a)  must examine the claim of each claimant and consider whether it ought to be allowed, and
(b)  at least 7 days before the date for adjudication on the claims, must file lists of—
(i)  claims served in response to any advertisement, and
(ii)  other claims received by any of the personal representatives or trustees concerned, and
(iii)  debts and liabilities for which claims have not been received but which are or may still be due and which have come to the knowledge of any of the personal representatives or trustees concerned.
(2)  A list filed under subrule (1) must specify, in relation to each alleged debt or liability included in the list, whether, in the belief of the party making the list, the debt or liability ought to be allowed, and the reasons for the belief.
46.25   Inquiry: list of claims
(cf SCR Part 49, rule 16)
(1)  In the case of an inquiry for persons entitled to any interest in the estate of a deceased person on intestacy or otherwise, or entitled to any interest in trust property, the person appointed under rule 46.23(a)—
(a)  must examine the claim of each claimant and consider whether it is valid, and
(b)  at least 7 days before the date for adjudication on the claims, must file lists of—
(i)  claims served in response to any advertisement, and
(ii)  other claims received by, or which have come to the knowledge of, any of the personal representatives or trustees concerned.
(2)  A list filed under subrule (1) must specify, in relation to each claim included in the list, whether, in the belief of the party making the list, the claim is valid, and the reasons for the belief.
46.26   Verification of list
(cf SCR Part 49, rule 17)
The Supreme Court may direct a person appointed under rule 46.23(a), and any of the personal representatives or trustees concerned, to verify by affidavit a list filed under rule 46.24 or rule 46.25.
46.27   Adjudication
(cf SCR Part 49, rule 18)
(1)  On the adjudication on the claims, the Supreme Court—
(a)  may allow any claim, with or without proof, or
(b)  may direct that any claim be investigated in such manner as the Court thinks fit, or
(c)  may require any claimant to attend and prove his or her claim or to furnish further particulars or evidence of his or her claim or to produce any security relating to his or her claim, or
(d)  may disallow any claim.
(2)  A claimant need not make an affidavit or attend in support of his or her claim unless the Supreme Court so directs under subrule (1)(c).
(3)  If the Supreme Court so directs, a party must file a list of the claims allowed.
46.28   Notice to prove claim
(cf SCR Part 49, rule 19)
(1)  This rule applies if the Supreme Court requires a claimant to attend and prove his or her claim pursuant to rule 46.27(1)(c).
(2)  The Supreme Court must appoint a party to give notice in accordance with subrule (3) and must determine the times and documents to be specified in the notice.
(3)  The party so appointed must serve on the claimant a notice requiring him or her—
(a)  to serve on the party serving the notice an affidavit in support of his or her claim within such time, not less than 7 days after the date of service of the notice, as may be specified in the notice, and
(b)  to attend before the Supreme Court for adjudication on the claim at such time as may be specified in the notice, and
(c)  to produce to the Supreme Court, at such time as may be specified in the notice, such documents as may be specified or described.
(4)  If a claimant does not comply with a notice served on him or her under subrule (3), the Supreme Court may disallow his or her claim.