Judicature (High Court Rules) Amendment Act 2008

Crest

Judicature (High Court Rules) Amendment Act 2008

Public Act2008 No 90
Date of assent25 September 2008
Commencementsee section 2

The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Judicature (High Court Rules) Amendment Act 2008.

2 Commencement
  • (1) This Act comes into force on 1 February 2009.

    (2) Despite subsection (1), subparts 15 and 16 of Part 5 of the High Court Rules (as substituted by section 8) come into force on a date to be appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different provisions.

3 Principal Act amended
  • This Act amends the Judicature Act 1908.

4 Purpose
  • The purpose of this Act is to—

    • (a) re-enact the High Court Rules in a more accessible form:

    • (b) repeal provisions for district rules:

    • (c) provide for the electronic filing of court documents:

    • (d) enable judgment creditors to attach salaries, wages, and benefits of judgment debtors.

Part 1
Amendments to principal Act

5 Functions of Chief High Court Judge
  • Section 4B is amended by adding the following subsection as subsection (2):

    • (2) The Chief High Court Judge may make all the arrangements that are necessary for the sittings of the Court and the conduct of its business.

6 Associate Judge may exercise certain powers of the Court
  • Section 26I(1) is amended by inserting the following paragraphs after paragraph (e):

    • (ea) the making of any order (other than an arrest order or an order relating to an arrest order) that may be made under rules of court against a judgment debtor who has been ordered to attend court for examination:

    • (eb) the making, variation, suspension, or discharge of attachment orders under rules of court:.

7 New section 52 substituted
  • Section 52 is repealed and the following section substituted:

    52 Power of Judge to hold or adjourn sitting
    • (1) A Judge may hold any sitting of the Court at any time and place the Judge thinks fit.

      (2) A Judge may adjourn a sitting of the Court to a time and place the Judge thinks fit.

      (3) If a Judge is not present at the time appointed for a sitting of the Court, the Registrar may adjourn the sitting to a time that is convenient.

8 New Schedule 2 substituted
  • (1) Schedule 2 is repealed and the Schedule 2 set out in the Schedule of this Act substituted.

    (2) Despite subsection (1), Part 15 and forms 83 to 88 of the High Court Rules (which relate to constituency election petitions) as in force immediately before the commencement of this section continue in force until they are revoked by rules made under section 51C.

Part 2
Transitional provisions and consequential amendments

9 Transitional provisions
  • (1) Subsections (2) to (5) of this section apply to a proceeding that is commenced before the commencement of section 8 and that has not been completed by that date (a pending proceeding).

    (2) A pending proceeding must be continued, completed, and enforced under the High Court Rules set out in Schedule 2 as substituted by section 8.

    (3) Subsection (2) is subject to subsection (4).

    (4) If,—

    • (a) on the commencement of section 8, time is running on the period within which the High Court Rules require or permit a step to be taken in a pending proceeding; and

    • (b) the period prescribed by the High Court Rules in respect of that step, as in force immediately before that commencement, differs from that prescribed on that commencement,—

    then the period required or permitted for that step is the longer period.

    (5) Subsection (4) does not apply to any order made by a Judge.

    (6) If judgment has been sealed in a proceeding commenced before the commencement of section 8, any enforcement process permitted by the new High Court Rules as substituted by that section may be issued, but any execution or enforcement process that has been issued but not completed before that commencement must be completed as if section 8 had not been enacted.

    (7) In this section,—

    Judge includes an Associate Judge

    judgment includes a decree or order of the court

    proceeding means any application to the court, however commenced, for the exercise of the civil jurisdiction of the court.

10 Amendment to District Courts Act 1947
  • (1) This section amends the District Courts Act 1947.

    (2) The following heading and section are inserted after section 70:

    Determination of questions concerning rules

    70A Application of rules
    • If, in any civil proceeding, any question arises as to the application of any provision of rules made under section 122 or the High Court Rules, the Court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks fit in the interests of justice.

    (3) Section 84K is amended by adding the following subsection:

    • (3) This section also applies to attachment orders made in the High Court.

11 Amendment to Summary Offences Act 1981
  • (1) This section amends the Summary Offences Act 1981.

    (2) The following section is inserted after section 45:

    45A Attachment order default
    • An employer who defaults in complying with an attachment order made in the High Court under rules of court against an employee of that employer is liable to a fine not exceeding $1,000.


Schedule
New Schedule 2 substituted

s 7


Schedule 2
High Court Rules

Contents

Arrest of property

Applications in solemn form

Order to put company into liquidation


Part 1
Rules of general application

Subpart 1Objective and interpretation

1.1 Title
  • These rules are the High Court Rules.

    Compare: 1908 No 89 Schedule 2 r 1

1.2 Objective
  • The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.

    Compare: 1908 No 89 Schedule 2 r 4

1.3 Interpretation
  • (1) In these rules, unless the context otherwise requires,—

    Act means the Judicature Act 1908

    address for service, in relation to a party, means the address of a place in New Zealand at which a document may be left for that party, or to which it may be sent by post to that party, under these rules

    appearance means a document that states a person’s address for service, and is either—

    • (a) an appearance and objection to the jurisdiction of the court under rule 5.49; or

    • (b) an appearance for ancillary purposes under rule 5.50; or

    • (c) an appearance reserving rights under rule 5.51; or

    • (d) an appearance authorised by any other rule

    case management conference means a conference conducted under rule 7.3

    chattels includes all things that are not land

    civil means not criminal

    civil proceedings, in relation to the Crown, has the same meaning as in section 2(1) of the Crown Proceedings Act 1950

    control, in relation to a document, means—

    • (a) possession of the document; or

    • (b) a right to possess the document; or

    • (c) a right, otherwise than under these rules, to inspect or copy the document

    court means the High Court; and includes—

    • (a) a Judge of the High Court; and

    • (b) an Associate Judge of the High Court exercising the jurisdiction conferred on an Associate Judge by the Act or by rules made under section 26J of the Act

    court holiday means a day that is a holiday under rule 3.2

    the Crown has the same meaning as in section 2(1) of the Crown Proceedings Act 1950

    defendant means a person served or intended to be served with a proceeding (other than a third or subsequent party served with a proceeding under rule 4.12)

    document means—

    • (a) any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds, or from which such symbols, images, or sounds can be derived, and includes—

      • (i) a label, marking, or other writing that identifies or describes a thing of which it forms part, or to which it is attached:

      • (ii) a book, map, plan, graph, or drawing:

      • (iii) a photograph, film, or negative; and

    • (b) information electronically recorded or stored, and information derived from that information

    electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic, and electronically has a corresponding meaning

    expert means a person who has specialised knowledge or skill based on training, study, or experience

    expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion

    to file, in relation to any document, means to lodge the document in the form required by these rules in, or to send it by post or electronically in accordance with these rules to, the proper registry of the court, together with the fee (if any) payable for filing it

    hearing date, in relation to an interlocutory application or a proceeding, means the date on which, and the time at which, the application or the proceeding is to be heard

    hearing in chambers means a hearing that takes place in circumstances in which the general public is not admitted, except with the leave of the Judge, and includes any conference held under these rules

    interlocutory application means an application made in accordance with rule 7.19 or 7.41

    interlocutory order

    • (a) means an order or a direction of the court that—

      • (i) is made or given for the purposes of a proceeding or an intended proceeding; and

      • (ii) concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; and

    • (b) includes—

      • (i) an order for a new trial; and

      • (ii) an order striking out the whole or part of a pleading; and

      • (iii) an order varying or rescinding an interlocutory order

    Judge means a Judge of the High Court; and includes an Associate Judge of the High Court exercising the jurisdiction conferred on an Associate Judge by the Act or by rules made under section 26J of the Act

    land includes any estate, right, title, or interest in land

    lawyer has the same meaning as in section 6 of the Lawyers and Conveyancers Act 2006

    Māori means a person of the Māori race of New Zealand; and includes any descendant of that person

    nearer or nearest, in relation to any place, means nearer or nearest by the most practicable route

    notice of proceeding means a notice filed under rule 5.22

    opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact

    opposite party means, in relation to any party, any other party whose interests are opposed to those of that party

    party means any person who is a plaintiff or a defendant or a person added to a proceeding

    plaintiff means the person by whom or on whose behalf a proceeding is brought

    pleading includes a statement of claim, a statement of defence, a reply, and a counterclaim

    proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application

    property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest

    Registrar includes a Deputy Registrar

    respondent, in relation to an interlocutory application, means a party on whom the application has been served

    these rules means the High Court Rules

    trial includes a hearing before a Judge alone

    working day means any day of the week other than—

    • (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

    • (b) a day in the period commencing with 25 December in any year and ending with 15 January in the following year.

    (2) A word or an expression in a rule or form in these rules not defined in these rules but defined in an enactment dealing with the subject matter of that rule or form, unless the context otherwise requires, has the meaning given to it by that enactment.

    (3) In these rules, unless the context otherwise requires, a reference to a numbered form is a reference to the form so numbered in Schedule 1 of these rules.

    (4) In a judgment, order, direction, or other document forming part of a proceeding or of an interlocutory application, unless the context otherwise requires,—

    month means a calendar month

    working day has the same meaning as in subclause (1).

    Compare: 1908 No 89 Schedule 2 r 3

Subpart 2Application and compliance

1.4 Application
  • (1) The practice and procedure of the court in all civil proceedings and interlocutory applications is regulated by these rules.

    (2) Despite subclause (1), these rules do not apply to—

    • (a) appeals to the Court of Appeal; or

    • (b) appeals to the Supreme Court.

    (3) These rules are subject to—

    • (a) section 51(2) and (3) and to sections 51A to 56C of the Act:

    • (b) the Evidence Act 2006:

    • (c) any statute prescribing the practice and procedure of the court in a proceeding or an appeal or application for leave to appeal under that statute:

    • (d) rules made under section 51C of the Act prescribing the procedure applicable in respect of any class of civil proceedings.

    (4) If in any civil proceedings any question arises as to the application of any provision of these rules, the court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks just.

    Compare: 1908 No 89 Schedule 2 r 2

1.5 Non-compliance with rules
  • (1) A failure to comply with the requirements of these rules—

    • (a) must be treated as an irregularity; and

    • (b) does not nullify—

      • (i) the proceeding; or

      • (ii) any step taken in the proceeding; or

      • (iii) any document, judgment, or order in the proceeding.

    (2) Subject to subclauses (3) and (4), the court may, on the ground that there has been a failure to which subclause (1) applies, and on any terms as to costs or otherwise that it thinks just,—

    • (a) set aside, either wholly or in part,—

      • (i) the proceeding in which the failure occurred; or

      • (ii) any step taken in the proceeding in which the failure occurred; or

      • (iii) any document, judgment, or order in the proceeding in which the failure occurred; or

    • (b) exercise its powers under these rules to allow any amendments to be made and to make any order dealing with the proceeding generally as it thinks just.

    (3) The court must not wholly set aside any proceeding or the originating process by which the proceeding was begun on the ground that the proceeding was required by the rules to be begun by an originating process other than the one employed.

    (4) The court must not set aside any proceeding or any step taken in a proceeding or any document, judgment, or order in any proceeding on the ground of a failure to which subclause (1) applies on the application of a party unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

    Compare: 1908 No 89 Schedule 2 r 5

1.6 Cases not provided for
  • (1) If any case arises for which no form of procedure is prescribed by any Act or rules or regulations or by these rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of these rules affecting any similar case.

    (2) If there are no such rules, it must be disposed of in the manner that the court thinks is best calculated to promote the objective of these rules (see rule 1.2).

    Compare: 1908 No 89 Schedule 2 r 9

1.7 Oral applications for relief
  • (1) A Judge may grant relief on an oral application if the case is urgent and the interests of justice so require.

    (2) This rule applies despite any rule requiring a written application.

    (3) Relief may be granted on terms and conditions considered just.

1.8 Consent instead of leave of court
  • (1) When, by these rules, the leave of the court is required in any matter of procedure, and all parties and persons who are affected consent to the grant of leave, a party may file a memorandum signed by all those parties and persons evidencing that consent and its terms and conditions.

    (2) The Registrar must either—

    • (a) make and seal an order in terms of the memorandum; or

    • (b) refer the memorandum to the court, in which case the memorandum must be treated as an interlocutory application for the leave.

    Compare: 1908 No 89 Schedule 2 r 10

1.9 Amendment of defects and errors
  • (1) The court may, before, at, or after the trial of any proceeding, amend any defects and errors in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.

    (2) The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.

    (3) All amendments under subclause (1) or (2) may be made with or without costs and on any terms the court thinks just.

    (4) This rule is subject to rule 7.18 (no steps after the setting down date without leave).

    Compare: 1908 No 89 Schedule 2 r 11

1.10 Security
  • (1) An officer who is empowered to take security from a person for any purpose may determine the appropriate number of sureties and the form and the amount of the security.

    (2) Any person required to give security may appeal to the court against any decision under subclause (1).

    (3) If a surety becomes bankrupt or insolvent, or makes a composition with that surety’s creditors, the court may stay all further steps in the proceeding by the principal party to the security until another surety has been found.

    Compare: 1908 No 89 Schedule 2 rr 16, 17

Subpart 3Use of Māori language, translations, and sign language

1.11 Speaking in Māori
  • (1) This rule applies to a person entitled under section 4(1) of the Maori Language Act 1987 to speak Māori in a proceeding or at the hearing of an interlocutory application.

    (2) If a person to whom this rule applies wishes to speak Māori in a proceeding or at the hearing of an interlocutory application, that person, or, if the person is a witness, the party intending to call that person, must file and serve on every other party to the proceeding a notice of his or her intention to speak Māori.

    (3) The notice must state that the person intends to speak Māori at—

    • (a) all case management conferences and hearings; or

    • (b) all case management conferences and hearings held after a specified case management conference or hearing; or

    • (c) a specified case management conference or hearing.

    (4) The notice must be in form G 12.

    (5) The notice must be filed and served,—

    • (a) if the person intends to speak Māori at all case management conferences and hearings, not less than 10 working days before the first case management conference or hearing; or

    • (b) if the person intends to speak Māori at case management conferences and hearings held after a particular case management conference or hearing, not less than 10 working days before the first case management conference or hearing at which the person intends to speak Māori; or

    • (c) if the person intends to speak Māori at a particular case management conference or hearing, not less than 10 working days before the case management conference or hearing.

    Compare: 1908 No 89 Schedule 2 r 65A

1.12 Translation of documents into te reo Māori
  • (1) A person upon whom a document is served in any proceeding is entitled to receive a translation of the document into the Māori language if he or she—

    • (a) applies, orally or in writing, to the Registrar in the place where the proceeding is pending, within 10 working days after the date of service, for a translation into the Māori language of the document; and

    • (b) states a postal address for the service of the translation (if an address for service has not already been given); and

    • (c) satisfies the Registrar that he or she is unable to read the document but could read it if it were translated into the Māori language.

    (2) The Registrar must require that translation to be prepared by the party or person on whose behalf the document was served.

    (3) The translation must be certified correct by a person holding an endorsed certificate of competency under section 18 of the Maori Language Act 1987.

    (4) The translation may be served—

    • (a) personally; or

    • (b) at the address for service (if any) of the person entitled to the translation; or

    • (c) by sending it by registered post addressed to that person at the stated postal address.

    (5) When the translation is sent by registered post, it is to be treated as having been served when it would be delivered or available for delivery at its address in the ordinary course of registered post.

    (6) The costs of preparing, certifying, and serving the translation are in the discretion of the court as costs in the proceeding.

    (7) Unless the court otherwise orders,—

    • (a) the document is deemed not to have been served until the translation is served in accordance with subclause (4); and

    • (b) the proceeding in which the document is issued must be stayed as far as the person entitled to the translation is concerned until the translation is so served; and

    • (c) every subsequent document served on that person in the proceeding and every execution process or other process issued against that person to enforce any judgment entered or order made in the proceeding must, unless that person is at the time represented by a solicitor, be accompanied by a translation into the Māori language complying with this rule.

    Compare: 1908 No 89 Schedule 2 rr 62–64

1.13 Failure to give notice
  • A failure to comply with rule 1.11 does not prevent a person speaking Māori at a case management conference or pre-trial conference or hearing, but—

    • (a) the court may adjourn the conference or hearing to enable the Registrar to arrange for a person who holds a certificate of competency under section 15(2)(a) or (c) of the Maori Language Act 1987 or some other person competent to interpret Māori to be available at the adjourned case management conference or hearing:

    • (b) the court may treat the failure to comply as a relevant consideration in an award of costs.

    Compare: 1908 No 89 Schedule 2 r 65B

1.14 Translation may be ordered by court
  • (1) The court may at any time order that a translation into the Māori language, complying with rule 1.12(2) to (7), of any document served, before or after the making of the order, upon a Māori concerned in a proceeding be served on that Māori, whether or not he or she has applied for it under rule 1.12(1).

    (2) An order may be made subject to such terms and conditions as the court thinks just.

    (3) The court may, on ordering a translation under this rule, grant an adjournment of the proceeding if justice so requires.

    Compare: 1908 No 89 Schedule 2 r 65

1.15 Affidavit in language other than English
  • (1) An affidavit in a language other than English (non-English language affidavit) may be filed in a proceeding.

    (2) The non-English language affidavit must be accompanied by an affidavit by an interpreter to which is exhibited—

    • (a) a copy of the non-English language affidavit; and

    • (b) the interpreter’s translation of the non-English language affidavit.

    Compare: 1908 No 89 Schedule 2 r 512

1.16 Sign language
  • (1) Any person permitted by the New Zealand Sign Language Act 2006 to use New Zealand Sign Language in a proceeding or at the hearing of any interlocutory application or at a case management or pre-trial conference must give the court and all other parties 10 working days' notice of that person’s intention to do so.

    (2) A Judge may at any time, on application by or on behalf of a party, make any order thought just relating to—

    • (a) providing, with the Registrar’s assistance, a competent interpreter, and ensuring that the interpreter is available; and

    • (b) the interpretation of the sign language into English or Māori and the interpretation of English or Māori words used in court into sign language; and

    • (c) the cost of any interpretation ordered and its incidence; and

    • (d) the method of making and recording the sign language communication.

    (3) A failure to give notice as required by subclause (1) does not prevent any permitted person using New Zealand Sign Language, however—

    • (a) the failure is a relevant consideration in an award of costs; and

    • (b) the Judge may adjourn the conference or hearing or trial to enable the Registrar to arrange for a competent interpreter to be available at the adjourned conference or hearing or trial.

    (4) In this rule, competent interpreter means an interpreter who meets the standards of competency specified in regulations made under the New Zealand Sign Language Act 2006; and in the absence of such regulations means a person whom the Judge is satisfied is competent to translate from English or Māori (as the case requires) into New Zealand Sign Language and from New Zealand Sign Language into English or Māori (as the case requires).

Subpart 4Time

1.17 Calculating periods of time
  • (1) A period of time fixed by the rules or by a judgment, order, or direction or by a document in a proceeding must be calculated in accordance with this rule and rule 1.18.

    (2) When a time of 1 day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event must not be counted.

    (3) Nothing in this rule or in rules 1.18 and 1.19 affects the reckoning of a period of time fixed by the Limitation Act 1950 or any other statute or the application of the Interpretation Act 1999 in relation to the Limitation Act 1950 or any other statute.

    Compare: 1908 No 89 Schedule 2 r 13

1.18 When time expires when court registry is closed
  • When the time for doing any act at a registry of the court expires on a day on which that registry is closed, so that that act cannot be done on that day, the act is in time if done on the next day on which that registry is open.

    Compare: 1908 No 89 Schedule 2 r 15

1.19 Extending and shortening time
  • (1) The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

    (2) The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

    Compare: 1908 No 89 Schedule 2 r 6

Subpart 5Lawyers’ obligations

1.20 Lawyers’ duties
  • (1) The duties imposed by these rules on lawyers do not limit a lawyer’s obligations to a client or another lawyer or the court under the rules of conduct and client care for lawyers in New Zealand or other applicable ethical rules or guidelines.

    (2) A lawyer who acts for a party to a proceeding, or is a party to any proceeding, must not, without the leave of the court, act for any other party to the proceeding who does not have the same interest in the subject matter of the proceeding.

    (3) In this rule, lawyer includes the partner of a solicitor to whom subclause (1) applies.

    (4) In applying these rules, the court may have regard to the obligations referred to in subclause (1).

    Compare: 1908 No 89 Schedule 2 r 41A

Subpart 6Forms

1.21 Variation of forms
  • (1) Variations may be made to any form directed or authorised by these rules to be used, as the circumstances of a particular case require.

    (2) Subclause (1) does not apply if a Judge orders that a court document be prepared in a particular format or with prescribed content.

    Compare: 1908 No 89 Schedule 2 r 7

Subpart 7International co-operation

1.22 Communication with foreign court
  • (1) This rule applies if, and to the extent that, the court is required, or wishes, to seek the co-operation of a court in another country when dealing with an application under these rules.

    (2) The court is entitled to communicate with the foreign court if—

    • (a) the parties consent; and

    • (b) the communication is not prohibited by the law of the other country.

    (3) When the court acts under subclause (2) it must give the parties to the proceeding an opportunity to be heard on the form of the communication.

    (4) The communication and any reply must be treated as part of the record of the proceeding or interlocutory application.

Part 2
Jurisdiction and powers of Associate Judges and Registrars

Subpart 1Associate Judges

2.1 Jurisdiction and powers
  • (1) An Associate Judge has the jurisdiction and powers of a Judge in chambers conferred by the Act or these rules or another enactment.

    (2) The jurisdiction and powers referred to in subclause (1) are in addition to the jurisdiction and powers conferred by section 26I of the Act.

    (3) Despite subclause (1), an Associate Judge does not have jurisdiction or powers in respect of the matters specified in—

    • (a) section 26J(3) and (4) of the Act; or

    • (b) section 26P(1) of the Act.

    Compare: 1908 No 89 Schedule 2 r 61A

2.2 Interim order on transfer of proceeding
  • An Associate Judge who refers a proceeding or a matter arising in a proceeding to a Judge under section 26N(1) of the Act may, before the final disposal of the proceeding or matter, make any interim order he or she considers just.

    Compare: 1908 No 89 Schedule 2 r 61B

2.3 Review of decision
  • (1) An application for a review, under section 26P(1) of the Act, of an order or a decision made by an Associate Judge must be by interlocutory application, which must fully state the grounds of review and what exactly is challenged by the applicant.

    (2) Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,—

    • (a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or

    • (b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.

    (3) Unless a Judge or an Associate Judge directs otherwise, the application does not operate as—

    • (a) a stay of the proceeding; or

    • (b) a step in the proceeding.

    (4) If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—

    • (a) the review proceeds as a rehearing; and

    • (b) the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.

    (5) In all other cases,—

    • (a) a review proceeds as a full rehearing; and

    • (b) the Judge may give the order or decision the weight he or she thinks appropriate.

    Compare: 1908 No 89 Schedule 2 r 61C

2.4 Appeal to Court of Appeal
  • The Court of Appeal (Civil) Rules 2005 apply, with all necessary modifications, to an appeal under section 26P(2) of the Act brought against an order or a decision of an Associate Judge.

    Compare: 1908 No 89 Schedule 2 r 61D

Subpart 2Registrars

2.5 Registrars’ jurisdiction and powers relating to interlocutory applications
  • A Registrar (not including a Deputy Registrar) has the jurisdiction and powers of a Judge to do the following:

    • (a) hear and determine an application to extend or shorten the time for filing a statement of defence or notice of interlocutory application:

    • (b) hear and determine an application under rule 6.28 (relating to service out of New Zealand):

    • (c) adjourn a trial, reserving to the court the costs of, or arising out of, the adjournment:

    • (d) order a stay on an application made to vary or rescind an order or a decision of a Registrar:

    • (e) make an order in an interlocutory application on notice—

      • (i) if the consent of all relevant parties is endorsed on the application or filed; or

      • (ii) on receiving a draft order consented to in writing by all relevant parties or by their solicitor or counsel.

    Compare: 1908 No 89 Schedule 2 r 270

2.6 Additional jurisdiction for certain Registrars
  • The Registrar (not including a Deputy Registrar) at the Auckland, Hamilton, Rotorua, Palmerston North, Wellington, Christchurch, or Dunedin registry has the jurisdiction and powers given to a Judge by the following:

    • (a) rule 1.19, so far as it applies to—

      • (i) rule 5.73:

      • (ii) rule 8.18:

      • (iii) rule 9.69:

      • (iv) rule 9.70:

      • (v) rule 9.71:

    • (b) rule 4.35(4):

    • (c) rule 5.1(4):

    • (d) subpart 2 of Part 17:

    • (e) rule 17.24.

    Compare: 1908 No 89 Schedule 2 r 271

2.7 Limits on jurisdiction
  • (1) A Registrar must exercise jurisdiction under rules 2.5 and 2.6—

    • (a) in chambers; and

    • (b) subject to any judicial direction.

    (2) However, a Registrar may exercise his or her jurisdiction under those rules without further direction.

    (3) In exercising a jurisdiction conferred by these rules a Registrar is not subject to direction by any person except a Judge acting under rule 2.11.

    Compare: 1908 No 89 Schedule 2 r 272

2.8 Powers ancillary to jurisdiction
  • A Registrar may exercise powers ancillary to jurisdiction under rules 2.5 and 2.6 if a Judge may exercise those ancillary powers in the same circumstances.

    Compare: 1908 No 89 Schedule 2 r 273

2.9 Jurisdiction in other registries
  • A Registrar may exercise jurisdiction under rules 2.5 and 2.6 in respect of an application filed in a registry of the court other than the one at which he or she is Registrar.

    Compare: 1908 No 89 Schedule 2 r 274

2.10 Form of order
  • An order made by a Registrar under rule 2.5 or 2.6 must—

    • (a) be headed Before the Registrar at [place], in chambers; and

    • (b) be signed by a Registrar or Deputy Registrar, and sealed with the seal of the court; and

    • (c) state the rule under which it is made.

    Compare: 1908 No 89 Schedule 2 r 275

2.11 Review of Registrar’s decision
  • (1) An affected party to a proceeding or an intended proceeding may apply to a Judge by interlocutory application for a review of any of the following:

    • (a) a Registrar’s exercise of jurisdiction:

    • (b) a Registrar’s refusal to file a document tendered for filing:

    • (c) a Registrar’s refusal to perform a duty placed on him or her under these rules.

    (2) The Judge may, on review, make any orders he or she thinks just.

    (3) It is not necessary to apply for an order for an extraordinary remedy under Part 30 or to make an application for review under Part 1 of the Judicature Amendment Act 1972 when seeking a review under subclause (1)(b) or (c).

    (4) Notice of an application for review must be filed,—

    • (a) if it is made by a party who was present or represented when the decision or refusal of the Registrar was given, within 5 working days of the decision or refusal; or

    • (b) if it is made by a party who was not present or represented, within 5 working days after the receipt by the party of notice of the decision or refusal.

    (5) An application for review under this rule is not a stay of proceeding or a step in the proceeding, unless a Judge, or a Registrar acting under rule 2.5, so directs.

    Compare: 1908 No 89 Schedule 2 r 276

Part 3
Court administration

Subpart 1Registry hours and court holidays

3.1 Registry hours
  • The court’s registries must be open from 9 am to 5 pm on every day that is not a court holiday.

    Compare: 1908 No 89 Schedule 2 r 22

3.2 Court holidays
  • (1) The following are court holidays for the court and the court’s registries:

    • (a) the period beginning on Good Friday and ending on the close of the Tuesday after Easter:

    • (b) the period beginning on 24 December and ending on the close of 3 January:

    • (c) Saturdays and Sundays:

    • (d) the Sovereign’s birthday:

    • (e) Anzac Day:

    • (f) Labour Day:

    • (g) Waitangi Day:

    • (h) the anniversary day of the region in which the court is situated:

    • (i) in each place where a registry of the court is situated, any day which is in that place—

      • (i) a public holiday; or

      • (ii) a proclaimed holiday; or

      • (iii) a day observed by the Government as a holiday:

    • (j) any days on which the court and its registries are closed under an order made under rule 3.4.

    (2) The Holidays Act 2003 overrides subclause (1).

    Compare: 1908 No 89 Schedule 2 rr 18, 19

3.3 Sitting on court holidays
  • (1) The court may sit on a court holiday if a Judge considers it desirable to do so in order to dispose of business.

    (2) Despite subclause (1), the court may sit on a Sunday, Christmas Day, New Year’s Day, or Good Friday only if a Judge is of the view that the business to be disposed of is extremely urgent.

    (3) If the court sits on a court holiday, it may—

    • (a) authorise the receipt or issue of any document complying with these rules; and

    • (b) despite section 54 of the Act, authorise the service of any document received or issued under paragraph (a).

    Compare: 1908 No 89 Schedule 2 r 21

3.4 Epidemics and emergencies
  • (1) Despite rule 3.1, a Judge may order that the court and its registries be closed for a period specified in the order (not exceeding 1 week) if an epidemic or emergency exists in the place where the court is located.

    (2) A Registrar must ensure that an order made under this rule is immediately advertised in the manner the Judge directs.

    Compare: 1908 No 89 Schedule 2 r 20

Subpart 2Search of court documents

3.5 Interpretation
  • For the purposes of rules 3.6 to 3.11,—

    document includes—

    • (a) a record of oral evidence given at a hearing (other than notes made personally by the Judge):

    • (b) exhibits produced in evidence:

    • (c) a record of the reasons given by the Judge for his or her judgment (other than notes made personally by the Judge)

    file includes part of a file.

    Compare: 1908 No 89 Schedule 2 r 66(13)

3.6 Search of court records by person
  • (1) A person, on paying the prescribed fee, may search, inspect, and copy the following during office hours:

    • (a) registers and indexes of court records:

    • (b) a document on a file in the court’s registry if—

      • (i) any Act provides for the search, inspection, or copying of that document; or

      • (ii) that document is notice of its contents to the public.

    (2) Rule 3.11 overrides subclause (1).

    (3) A person may search, inspect, and copy a document on a file that relates to a proceeding that has terminated.

    (4) A person may search, inspect, and copy a document on a file relating to an interlocutory application—

    • (a) if the interlocutory application relates to—

      • (i) a proceeding that has terminated; or

      • (ii) an intended proceeding and leave to bring the proceeding is refused; or

    • (b) with the leave of the Judge if the interlocutory proceeding relates to an intended proceeding and a Judge is satisfied that the proceeding has not been commenced within a reasonable time.

    (5) Rules 3.9 and 3.10 override subclauses (3) and (4).

    Compare: 1908 No 89 Schedule 2 r 66(1), (3), (3A)

3.7 Search of court records by party or solicitor representing party
  • (1) A party to a proceeding or an interlocutory application or the solicitor on the record for that party may, without paying a fee, search, inspect, and copy the file relating to the proceeding or interlocutory application.

    (2) Subclause (1) applies despite rule 3.9(1) and (2), but is overridden by rule 3.9(3) and (4).

    Compare: 1908 No 89 Schedule 2 r 66(2)

3.8 Search of documents relating to application for administration or recall under Administration Act 1969
  • (1) A person may search, inspect, or copy a document on a file relating to—

    • (a) an application or a proceeding for a grant of administration under the Administration Act 1969; or

    • (b) a proceeding for the recall of a grant of that kind.

    (2) Subclause (1) applies whether or not the application, proceeding, or recall has been determined.

    (3) Rule 3.9(3) overrides subclauses (1) and (2).

    Compare: 1908 No 89 Schedule 2 r 66(4)

3.9 Restrictions on searching documents relating to certain proceedings
  • (1) A person may not search, inspect, or copy a file or document on a file relating to proceedings under the following enactments:

    • (a) Adoption Act 1955:

    • (b) Alcoholism and Drug Addiction Act 1966:

    • (c) Care of Children Act 2004:

    • (d) Civil Union Act 2004:

    • (e) Family Proceedings Act 1980:

    • (f) Family Protection Act 1955:

    • (g) Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

    • (h) Marriage Act 1955:

    • (i) Mental Health (Compulsory Assessment and Treatment) Act 1992:

    • (j) Property (Relationships) Act 1976:

    • (k) Protection of Personal and Property Rights Act 1988:

    • (l) Status of Children Act 1969:

    • (m) an earlier enactment that corresponds with any of the enactments listed in paragraphs (a) to (l).

    (2) A person may not search, inspect, or copy a document filed in a defamation proceeding.

    (3) A person may search, inspect, or copy a document, which a Judge has directed may not be inspected without leave, only if the person has the leave of a Judge.

    (4) A person may search, inspect, or copy a file or document on a file relating to an application under rule 9.60 or 28.4 only with the leave of a Judge.

    Compare: 1908 No 89 Schedule 2 r 66(5)–(7A)

3.10 Time restriction on search of files and documents
  • A person may not search, inspect, or copy a file or a document on a file in a proceeding or an interlocutory application after the following periods:

    • (a) if there is a sealed judgment or order, the expiry of 6 years from the date of the judgment or order:

    • (b) if there is no sealed judgment or order, the expiry of 6 years from the date of the Judge’s reasons or minute making the order.

    Compare: 1908 No 89 Schedule 2 r 66(8)

3.11 Registrar may grant leave to search
  • (1) A Registrar may grant a person who is not authorised to search, inspect, or copy under rule 3.6(3) or is prohibited from searching, inspecting, or copying under rule 3.9(1) or (2) or 3.10, leave to search, inspect, or copy a file or document.

    (2) An application made under subclause (1) may be on an informal basis.

    (3) A Registrar must (subject to any directions of the Judge) grant leave to a person who has a genuine or proper interest.

    (4) A Judge may review a Registrar’s refusal to grant leave under this rule on an informal basis.

    Compare: 1908 No 89 Schedule 2 r 66(9)–(11)

Subpart 3Investment of funds in court

3.12 Application for order
  • (1) Subclause (2) applies if money has been, or is to be, paid into court in a proceeding under—

    • (a) an order of the court; or

    • (b) a provision of these rules.

    (2) If this subclause applies, a party to the proceeding may apply to the court for an order directing the Registrar to invest the money on whatever security or securities the court thinks just.

    (3) Unless the court otherwise orders, an application may not be made until 15 working days after the money has been paid into court.

    Compare: 1908 No 89 Schedule 2 r 69

3.13 Powers of court in relation to application
  • (1) The court may, when making an order for investment of money under rule 3.12,—

    • (a) direct that the security on which the money is invested must be taken in the name of the Registrar alone or with another person the court nominates; and

    • (b) also give—

      • (i) directions as to the form and the terms of the security; and

      • (ii) any other directions as may appear necessary or expedient.

    (2) An order may be varied by the court on the application of a party to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 70

3.14 Disposal of securities and income
  • (1) The court may, on the application of a party to a proceeding, direct that—

    • (a) the security on which money is invested under rule 3.13 be transferred to a party or parties in the shares or proportions the court thinks just; or

    • (b) the security be converted into money and the resulting capital and income be paid to a party or parties in the shares or proportions the court thinks just; or

    • (c) the capital be paid to a party or parties and the income be paid to another party or parties in the shares or proportions the court thinks just.

    (2) An application may be made—

    • (a) at the time of making an order under rule 3.12; or

    • (b) at a later time.

    (3) Unless the court directs otherwise, the income received from an investment under an order under rule 3.12 must be paid to the party or parties who are found by the court to be entitled to the capital, in the shares or proportions the court thinks just.

    Compare: 1908 No 89 Schedule 2 r 71

Part 4
Parties

Subpart 1Limit on parties

4.1 Limit on parties
  • The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—

    • (a) persons whose presence before the court is necessary to justly determine the issues arising; and

    • (b) persons who ought to be bound by any judgment given.

    Compare: 1908 No 89 Schedule 2 r 76

Subpart 2Plaintiffs

4.2 Plaintiffs
  • (1) Persons may be joined jointly, severally, or in the alternative as plaintiffs,—

    • (a) if it is alleged that they have a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw; and

    • (b) if each of those persons brought a separate proceeding, a common question of law or fact would arise.

    (2) On the application of a defendant, the court may, if it considers a joinder may prejudice or delay the hearing of a proceeding, order separate trials or make any order it thinks just.

    Compare: 1908 No 89 Schedule 2 r 73

Subpart 3Defendants

4.3 Defendants
  • (1) Persons may be joined jointly, individually, or in the alternative as defendants against whom it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw.

    (2) It is not necessary for every defendant to be interested in all relief claimed or every cause of action.

    (3) The court may make an order preventing a defendant from being embarrassed or put to expense by being required to attend part of a proceeding in which the defendant has no interest.

    (4) A plaintiff who is in doubt as to the person or persons against whom the plaintiff is entitled to relief may join 2 or more persons as defendants with a view to the proceeding determining—

    • (a) which (if any) of the defendants is liable; and

    • (b) to what extent.

    Compare: 1908 No 89 Schedule 2 r 74

Subpart 4Third, fourth, and subsequent parties

4.4 Third parties
  • (1) A defendant may issue a third party notice if the defendant claims any or all of the following:

    • (a) that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):

    • (b) that the defendant is entitled to relief or a remedy relating to, or connected with, the subject matter of the proceeding from a third party and the relief or remedy is substantially the same as that claimed by the plaintiff against the defendant:

    • (c) that a question or issue in the proceeding ought to be determined not only between the plaintiff and the defendant but also between—

      • (i) the plaintiff, the defendant, and the third party; or

      • (ii) the defendant and the third party; or

      • (iii) the plaintiff and the third party:

    • (d) that there is a question or an issue between the defendant and the third party relating to, or connected with, the subject matter of the proceeding that is substantially the same as a question or an issue arising between the plaintiff and the defendant.

    (2) A third party notice must be issued within—

    • (a) 10 working days after the expiry of the time for filing the defendant’s statement of defence; or

    • (b) a longer time given by leave of the court.

    (3) A third party notice may be issued only with the leave of the court if—

    • (a) an application for judgment is pending under rule 12.2 or 12.3; or

    • (b) a proceeding is entered on a commercial list established under section 24A of the Act at a registry of the court.

    Compare: 1908 No 89 Schedule 2 r 75(1), (5)

4.5 Fourth parties
  • (1) A third party claiming any or all of the matters in rule 4.4(1) in relation to a person who is not a party to the proceeding (a fourth party) may issue a fourth party notice.

    (2) A fourth party notice must be issued within—

    • (a) 10 working days after the expiry of the time for filing the third party’s statement of defence; or

    • (b) a longer time given by leave of the court—

      • (i) on an application on notice to all existing parties; or

      • (ii) with the written consent of all existing parties.

    (3) Rule 4.4(3) applies to fourth party notices.

    Compare: 1908 No 89 Schedule 2 r 75(2)

4.6 Subsequent parties
  • (1) A fourth party who claims any or all of the matters in rule 4.4(1) in relation to a person who is not a party to the proceeding (a subsequent party) may issue a subsequent party notice and so on.

    (2) A subsequent party notice may be issued only with—

    • (a) the written consent of all existing parties; or

    • (b) the leave of the court made on an application on notice to all existing parties.

    (3) Rule 4.4(3) and 4.5(2) apply, with all necessary modifications, to subsequent party notices.

    Compare: 1908 No 89 Schedule 2 rr 75(2), 162

4.7 Status of third, fourth, and subsequent parties
  • (1) A third, fourth, or subsequent party is a party to the proceeding from the time a notice is served on that party.

    (2) A third, fourth, or subsequent party has the same rights of defence as a defendant to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 75(3)

4.8 Court’s power and discretion
  • (1) On an application seeking leave to issue a third, fourth, or subsequent party notice, the court must have regard to all relevant circumstances, including delay to the plaintiff.

    (2) On the making of an application of that kind, the court may grant or refuse leave or grant leave on just terms.

    Compare: 1908 No 89 Schedule 2 r 75(4)

4.9 Application of third party notice rules to fourth and subsequent party notices
  • Rules 4.10 to 4.17 apply, with all necessary modifications, to fourth and subsequent party notices.

    Compare: 1908 No 89 Schedule 2 r 162

4.10 Requirements of third party notice
  • (1) A third party notice must be signed by the defendant and inform the third party of—

    • (a) the plaintiff’s claim against the defendant; and

    • (b) the defendant’s claim against the third party; and

    • (c) the steps the third party is required to take if the third party wishes to dispute either claim; and

    • (d) the consequences that will follow if the third party fails to dispute either claim.

    (2) A third party notice may be in form G 14.

    Compare: 1908 No 89 Schedule 2 r 154

4.11 Filing of third party notice
  • (1) A third party notice must be filed in the court together with a statement of the defendant’s claim against the third party.

    (2) The statement of claim must—

    • (a) comply with rules 5.27 to 5.35; and

    • (b) state the nature of the question or issue to be determined; and

    • (c) state the nature and extent of any relief or remedy claimed against the third party.

    Compare: 1908 No 89 Schedule 2 r 155

4.12 Service on third party
  • A defendant must, within 25 working days after the date of the filing of the third party notice or the date of the order granting leave to issue the third party notice, serve the following on the third party:

    • (a) a copy of the third party notice:

    • (b) a copy of the defendant’s statement of claim against the third party:

    • (c) a copy of the plaintiff’s statement of claim:

    • (d) a copy of the notice of proceeding:

    • (e) a copy of the defendant’s statement of defence or appearance:

    • (f) a list of other documents that have been served—

      • (i) by the plaintiff on the defendant; or

      • (ii) by the defendant on the plaintiff.

    Compare: 1908 No 89 Schedule 2 r 156

4.13 Service on plaintiff
  • (1) The defendant must, within 25 working days after the date of the filing of the third party notice or the date of the order granting leave to issue the third party notice, serve the plaintiff with—

    • (a) a copy of the third party notice; and

    • (b) a copy of the defendant’s statement of claim against the third party.

    (2) The plaintiff must not, without the leave of the court, do the following until the expiry of the time for the third party to file a defence:

    • (a) enter judgment in the proceeding; or

    • (b) apply for the allocation of a hearing date for the proceeding.

    (3) An application for leave to the court must be made on notice—

    • (a) to the defendant; and

    • (b) if the third party has been served, to the third party.

    Compare: 1908 No 89 Schedule 2 r 157

4.14 Filing and service of statement of defence
  • (1) A statement of defence by a third party must be filed and served within 25 working days after the date of service of the third party notice.

    (2) A third party must serve a copy of the third party’s statement of defence on the plaintiff and the defendant.

    Compare: 1908 No 89 Schedule 2 r 158

4.15 Service of application for leave
  • If an application to the court for leave to issue a third party notice is required, it must be served on the other parties to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 159

4.16 Setting aside third party notice
  • (1) A third party may apply to the court to have a third party notice issued and served with the leave of the court set aside.

    (2) A party to a proceeding served with a third party notice issued and served without leave of the court may apply to the court to have the notice set aside.

    (3) In either case, the court may—

    • (a) set the third party notice aside and dismiss the defendant’s statement of claim against the third party—

      • (i) on the merits; or

      • (ii) without prejudice to the right of the defendant to pursue that claim against the third party in an independent proceeding; or

    • (b) give other directions.

    Compare: 1908 No 89 Schedule 2 r 160

4.17 Default in filing statement of defence
  • (1) A third party defaulting in filing a statement of defence—

    • (a) admits the validity of, and is bound by,—

      • (i) any judgment (whether by consent, default, or otherwise) given in the proceeding; and

      • (ii) any decision on a question specified in the defendant’s statement of claim; and

    • (b) admits liability if a contribution, indemnity, relief, or remedy is claimed against the third party in the defendant’s statement of claim.

    (2) Subclause (1) does not apply in third party proceedings against the Crown, unless—

    • (a) an application is made to that effect and the court orders it; and

    • (b) the application was served on the Crown not less than 5 working days before the day for hearing the application.

    Compare: 1908 No 89 Schedule 2 r 161

Subpart 5Claims between defendants

4.18 Right to give notice
  • If a defendant claims against another defendant in circumstances in which (had that other defendant not been a defendant) it would be permissible to issue and serve a third party notice on that other defendant, the claiming defendant may, at any time before the setting down date for the proceeding, file and serve that other defendant and the plaintiff with a notice to that effect.

    Compare: 1908 No 89 Schedule 2 r 163

4.19 Statement of claim to be filed and served
  • (1) A defendant who files a notice under rule 4.18 must file and serve with it a statement of that defendant’s claim against the other defendant.

    (2) The statement of claim—

    • (a) must comply with the requirements of subpart 6 of Part 5; and

    • (b) in particular, must state the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed against the other defendant.

    Compare: 1908 No 89 Schedule 2 r 164

4.20 Statement of defence
  • (1) Unless a defendant served with a notice under rule 4.18 wishes to raise an affirmative defence to the claim made against that defendant by the defendant serving the notice, it is not necessary to file a statement of defence to that claim.

    (2) A statement of defence to a claim made in a notice served under rule 4.18 must, within 10 working days after the day of service of the notice, be filed and served—

    • (a) on the defendant serving the notice; and

    • (b) on the plaintiff.

    Compare: 1908 No 89 Schedule 2 r 165

4.21 Form of notice
  • (1) A notice filed and served under rule 4.18 must be in form G 15.

    (2) Every such notice must be signed by the defendant or the defendant’s solicitor.

    Compare: 1908 No 89 Schedule 2 r 166

4.22 Effect of omission to give notice
  • Even if a defendant has not given a notice under rule 4.18 the court may give any judgment or grant any relief in favour of that defendant that might have been given or granted in the absence of that rule.

    Compare: 1908 No 89 Schedule 2 r 167

Subpart 6Impact of certain capacities

4.23 Trustees, executors, and administrators
  • (1) Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees, executors, or administrators.

    (2) There is no need to join persons beneficially interested in a trust or an estate to a proceeding because the trustees, executors, and administrators represent those persons.

    (3) However, the court may, at any stage, order that a beneficially interested person be made a party, either in addition to or instead of the trustees, executors, or administrators.

    Compare: 1908 No 89 Schedule 2 r 77

4.24 Persons having same interest
  • One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—

    • (a) with the consent of the other persons who have the same interest; or

    • (b) as directed by the court on an application made by a party or intending party to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 78

4.25 Partners
  • (1) Any 2 or more persons making a claim as partners or alleged to be liable as partners may sue or be sued in the name of the firm (if any).

    (2) The opposite party may apply to the firm for the names of the persons who are partners in the firm and, until an affidavit has been filed stating the names and addresses of the partners, all further steps in the proceeding on the part of the partners are stayed.

    Compare: 1908 No 89 Schedule 2 r 79

4.26 Person trading as firm
  • (1) A person carrying on business in the name of a firm may be sued in the name of the firm.

    (2) The opposite party may apply to the court for an order—

    • (a) directing that an affidavit be filed stating the name and address of the person carrying on the business; and

    • (b) staying any further step in the proceeding on the part of the person carrying on the business until the affidavit has been filed.

    Compare: 1908 No 89 Schedule 2 r 80

4.27 Representation by other persons
  • In respect of a proceeding or intended proceeding, the court may, on an application by a party or an intending party or on its own initiative,—

    • (a) direct an executor or a trustee to represent minors, unborn persons, absentees, or unrepresented persons:

    • (b) appoint a counsel who agrees to represent minors, unborn persons, absentees, or unrepresented persons:

    • (c) appoint a litigation guardian to represent a person if it appears necessary:

    • (d) direct the Public Trust to represent a person or class of persons:

    • (e) direct that the Attorney-General or the Solicitor-General be served:

    • (f) direct, with the consent of the Attorney-General, that a head of a government department or other officer represent the public interest:

    • (g) direct that a local authority, public body, or other representative body represent the inhabitants of a locality or any class of persons, unless their interests, or the interests of a considerable section of them, may be adverse to those of the local authority, public body, or other representative body:

    • (h) if a local authority, public body, or other representative body is a plaintiff or a party whose interests appear to be adverse to those of the inhabitants of a locality or any class of persons, or a considerable section of them, direct the manner in which the inhabitants, class, or section are to be represented.

    Compare: 1908 No 89 Schedule 2 r 81

4.28 Relators
  • (1) In this rule, a relator is a person who has been approved by the Attorney-General to bring a proceeding in the name of the Attorney-General.

    (2) A person who seeks to bring a proceeding in the name of the Attorney-General must obtain the approval of the Attorney-General.

    (3) A relator is liable for the costs of a proceeding.

    (4) A proceeding does not come to an end because a relator or all relators die or become incapable of acting.

    (5) However, the court may stay a proceeding until the name of a new relator, who has been approved by the Attorney-General, has been substituted.

    (6) A person must not be named as a relator in a proceeding until the person has authorised the solicitor issuing the proceeding to name him or her as a relator.

    (7) The authority must be—

    • (a) in writing; and

    • (b) signed by the proposed relator; and

    • (c) filed in the registry of the court in which the proceeding is to commence.

    Compare: 1908 No 89 Schedule 2 r 95

Subpart 7Incapacitated persons

4.29 Incapacitated person, litigation guardian, and minor defined
  • For the purposes of these rules,—

    incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

    • (a) not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

    • (b) unable to give sufficient instructions to issue, defend, or compromise proceedings

    litigation guardian

    • (a) means—

      • (i) a person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); or

      • (ii) a person who is appointed under rule 4.35 to conduct a proceeding; and

    • (b) has the same meaning as the expression guardian ad litem

    minor means a person who has not attained the age of 18 years; and a person is of full age if he or she has attained the age of 18 years.

    Compare: 1908 No 89 Schedule 2 rr 82 and 83

4.30 Incapacitated person must be represented by litigation guardian
  • (1) An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

    (2) If a person becomes an incapacitated person during a proceeding, a party must not take any step in the proceeding without the permission of the court until the incapacitated person has a litigation guardian.

    Compare: 1908 No 89 Schedule 2 r 84

4.31 Minor must be represented by litigation guardian
  • (1) A minor must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

    (2) Subclause (1) does not apply to a minor who—

    • (a) is required by an enactment to conduct a proceeding without a litigation guardian; or

    • (b) is permitted by an enactment to conduct a proceeding without a litigation guardian and elects to do so; or

    • (c) is authorised under rule 4.32 to conduct a proceeding without a litigation guardian.

    Compare: 1908 No 89 Schedule 2 r 85

4.32 Minor may apply to conduct proceeding without litigation guardian
  • (1) This rule applies to a minor who—

    • (a) is not required or permitted by an enactment to conduct a proceeding without a litigation guardian; and

    • (b) is not prohibited by an enactment from conducting a proceeding without a litigation guardian.

    (2) A minor who wishes to conduct a proceeding in his or her own name may apply to the court for authorisation to conduct the proceeding without a litigation guardian.

    (3) On an application under subclause (2), the court may make an order allowing the minor to conduct the proceeding without a litigation guardian if it is satisfied that—

    • (a) the minor is capable of making the decisions required or likely to be required in the proceeding; and

    • (b) no reason exists that would make it in the interests of the minor to be represented by a litigation guardian.

    Compare: 1908 No 89 Schedule 2 r 86

4.33 Application of rules 4.34 to 4.46 to minors
  • Rules 4.34 to 4.46 apply to a minor to whom rule 4.31(1) applies, and every reference in those rules to an incapacitated person must be read as if it were also a reference to a minor.

    Compare: 1908 No 89 Schedule 2 r 86A

4.34 Court may set aside step in proceeding
  • The court may set aside a step in a proceeding if an incapacitated person did not have a litigation guardian when that step was taken and the court considers that the incapacitated person was unfairly prejudiced.

    Compare: 1908 No 89 Schedule 2 r 86B

4.35 Appointment of litigation guardian
  • (1) This rule applies if an incapacitated person does not have a litigation guardian within the meaning of paragraph (a)(i) of the definition of litigation guardian in rule 4.29.

    (2) The court may appoint a litigation guardian if it is satisfied that—

    • (a) the person for whom the litigation guardian is to be appointed is an incapacitated person; and

    • (b) the litigation guardian—

      • (i) is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

      • (ii) does not have interests adverse to those of the incapacitated person; and

      • (iii) consents to being a litigation guardian.

    (3) In deciding whether to appoint a litigation guardian, the court may have regard to any matters it considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.

    (4) The court may appoint a litigation guardian under this rule at any time—

    • (a) on its own initiative; or

    • (b) on the application of any person, including a person seeking to be appointed as litigation guardian.

    Compare: 1908 No 89 Schedule 2 r 86C

4.36 Application to be served on person for whom litigation guardian is to be appointed
  • (1) Unless the court otherwise orders, an application under rule 4.35—

    • (a) may be made without notice; and

    • (b) must be served on the person for whom the litigation guardian is to be appointed.

    (2) When the person for whom the litigation guardian is to be appointed is a minor,—

    • (a) subclause (1)(b) does not apply; and

    • (b) unless the court otherwise orders, the application must be served instead on—

      • (i) the minor’s parent or guardian; or

      • (ii) if there is no parent or guardian, a person of full age who has the care of the minor or with whom the minor lives.

    Compare: 1908 No 89 Schedule 2 r 86D

4.37 Notification of appointment
  • (1) A litigation guardian within the meaning of paragraph (a)(i) of the definition of litigation guardian in rule 4.29 must file a copy of the order or other document that empowers him or her to conduct the proceeding, at the same time as the first document relating to the proceeding is filed.

    (2) A person appointed under rule 4.35 as a litigation guardian of a party to a proceeding must give notice of the appointment to other parties in the proceeding as soon as practicable after the appointment.

    Compare: 1908 No 89 Schedule 2 r 86E

4.38 Powers of litigation guardian
  • A litigation guardian may do anything in relation to a proceeding that the incapacitated person could do if he or she were not incapacitated.

    Compare: 1908 No 89 Schedule 2 r 87

4.39 Heading on documents when incapacitated person is represented
  • The heading of a document filed in a proceeding in which an incapacitated person is represented by a litigation guardian must state—

    • (a) the name of the incapacitated person followed by the words by his (or her) litigation guardian; and

    • (b) the litigation guardian’s name.

    Compare: 1908 No 89 Schedule 2 r 88

4.40 Service of documents
  • (1) A party who knows that an incapacitated person has a litigation guardian must serve any document in a proceeding—

    • (a) on the litigation guardian, unless the litigation guardian has filed an address for service:

    • (b) where the litigation guardian has filed an address for service, at that address for service.

    (2) Subclause (3) applies to a party who believes on reasonable grounds that a person is an incapacitated person but does not know if that person has a litigation guardian.

    (3) The party—

    • (a) may apply to the court for the appointment of a litigation guardian under rule 4.35; and

    • (b) may apply for directions as to service; and

    • (c) must serve any documents in the proceeding in accordance with any directions as to service.

    Compare: 1908 No 89 Schedule 2 r 89

4.41 Representation to be disregarded in making award of costs
  • The fact that an incapacitated person is, or has been, represented by a litigation guardian must be disregarded in making an award of costs under the rules in favour of or against the incapacitated person.

    Compare: 1908 No 89 Schedule 2 r 90

4.42 Award of costs enforceable against incapacitated person or litigation guardian
  • (1) Unless the court otherwise orders, an award of costs made against an incapacitated person may be enforced against any 1 or more of the following:

    • (a) the incapacitated person:

    • (b) the person who is the litigation guardian of the incapacitated person at the time the costs determination is made:

    • (c) a person against whom an order for indemnity or contribution has been made under rule 4.43, to the extent of the amount of the indemnity or contribution.

    (2) Unless the court otherwise orders, a litigation guardian is entitled to be reimbursed out of the property of the incapacitated person for any costs paid under subclause (1)(b) or (c).

    Compare: 1908 No 89 Schedule 2 r 91

4.43 Liability of former litigation guardian for costs subsequently awarded against incapacitated person
  • The court may make an order—

    • (a) directing a person who has ceased to be a litigation guardian of an incapacitated person (a former litigation guardian) to indemnify the incapacitated person or a current litigation guardian for any costs subsequently awarded against the incapacitated person in relation to steps taken in the proceeding by the former litigation guardian:

    • (b) directing a former litigation guardian to indemnify the incapacitated person or the current litigation guardian on a basis specified by the court for any costs subsequently awarded against the incapacitated person in relation to steps taken in the proceeding after the former litigation guardian ceased to be the litigation guardian:

    • (c) directing the former litigation guardian to make a contribution to the costs referred to in paragraph (a) or (b):

    • (d) declaring that the former litigation guardian is not liable for any of the costs referred to in paragraph (a) or (b).

    Compare: 1908 No 89 Schedule 2 r 92

4.44 Compliance with liability order
  • (1) A former litigation guardian may be required by the incapacitated person or the current litigation guardian to give effect to an order made under paragraph (a), (b), or (c) of rule 4.43.

    (2) The court may, on the application of a former litigation guardian, declare that the former litigation guardian is not required to comply with that order if it is satisfied, having regard to circumstances occurring after the order was made, that it is no longer just that the former litigation guardian be required to comply with the order.

    Compare: 1908 No 89 Schedule 2 r 92

4.45 Litigation guardian may be reimbursed for costs out of property of incapacitated person
  • Unless the court otherwise orders, a litigation guardian is entitled to be reimbursed out of the property of the incapacitated person for any costs (including solicitor and client costs) paid or incurred, or that are to be paid or incurred, by the litigation guardian on behalf of the incapacitated person.

    Compare: 1908 No 89 Schedule 2 r 93

4.46 Retirement, removal, or death of litigation guardian
  • (1) A litigation guardian may retire only with the leave of the court.

    (2) Unless the court otherwise orders, the appointment of a litigation guardian under rule 4.35 ends if another person is subsequently authorised by or under an enactment to conduct the proceeding in the name of, or on behalf of, the incapacitated person.

    (3) A litigation guardian may be removed by the court when it is in the interests of the person he or she represents.

    (4) In the case of retirement, removal, or death of a litigation guardian, no further step may be taken in the proceeding without the leave of the court until the incapacitated person is represented by another litigation guardian.

    Compare: 1908 No 89 Schedule 2 r 94

4.47 Procedure when person ceases to be incapacitated person
  • (1) The court must make an order terminating the appointment of a litigation guardian if it is satisfied that the person the litigation guardian represents is no longer an incapacitated person.

    (2) The court may make an order at any time—

    • (a) on its own initiative; or

    • (b) on the application of—

      • (i) the incapacitated person; or

      • (ii) his or her litigation guardian; or

      • (iii) a party.

    (3) From the date of the order,—

    • (a) all subsequent steps in the proceeding must be carried on by the person formerly represented by the litigation guardian; and

    • (b) the person formerly represented by the litigation guardian is liable for all the costs of the proceeding (including solicitor and client costs) in the same manner as if he or she had commenced the proceeding or had become a party to the proceeding when he or she was not an incapacitated person.

    Compare: 1908 No 89 Schedule 2 r 94A

4.48 Procedure when minor attains full age
  • (1) A minor who attains full age must file and serve an affidavit confirming that he or she is no longer a minor.

    (2) Unless the court otherwise orders, from the date a minor attains full age—

    • (a) the appointment of his or her litigation guardian ends; and

    • (b) all subsequent steps in the proceeding must be carried on by that person; and

    • (c) that person is liable for all the costs of the proceeding (including solicitor and client costs) in the same manner as if he or she had commenced the proceeding or had become a party to the proceeding when he or she was not a minor.

    Compare: 1908 No 89 Schedule 2 r 94B

Subpart 8Change of parties by death, bankruptcy, or devolution

4.49 Proceeding not to come to end
  • (1) A proceeding does not come to an end on the death or bankruptcy of a party if a cause of action survives or continues.

    (2) A proceeding does not become defective because of the assignment, creation, or devolution of an estate or a title when the proceeding is pending.

    Compare: 1908 No 89 Schedule 2 r 98

4.50 Procedure on death, bankruptcy, and devolution
  • In the case of death, bankruptcy, or devolution of an estate of a party to a proceeding by operation of law in circumstances where the complete settlement of all the questions involved in the proceeding is necessary, the court—

    • (a) must order that a personal representative, trustee, or other successor to the interest (if any) of that party be made a party to the proceeding, or be served with notice of it, in the prescribed manner and form on terms it thinks just; and

    • (b) may make orders it thinks just for the disposal of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 99

4.51 Devolution when proceeding pending
  • A proceeding may be continued by or against a person to or on whom an estate or title is assigned, created, or devolved if the assignment, creation, or devolution takes place when a proceeding is pending.

    Compare: 1908 No 89 Schedule 2 r 100

4.52 New parties order
  • (1) Subclause (2) applies if, after a proceeding has commenced, there is an event causing a change or transmission of interest or liability (including death or bankruptcy) or an interested person comes into existence, making it necessary or desirable—

    • (a) that a person be made a party; or

    • (b) an existing party be made a party in another capacity.

    (2) An application without notice may be made for an order that the proceeding be carried on between the continuing parties and the new party (a new parties order).

    (3) The new parties order must, unless the court otherwise directs, be served on—

    • (a) the continuing parties to the proceeding; and

    • (b) each new party, unless the person making the application is the only new party.

    (4) The new parties order is binding on a person served from the time of service.

    (5) A person who is not already a party who is served with a new parties order must file a statement of defence in the same time frame and manner as a person served with a statement of claim.

    Compare: 1908 No 89 Schedule 2 rr 101 and 102

4.53 Discharge or variation of new parties order
  • (1) A person may apply to the court to discharge or vary a new parties order within 10 working days from the service of the order.

    (2) An incapacitated person who is served with a new parties order who does not have a litigation guardian may apply to the court within 10 working days from the appointment of a litigation guardian for the new parties order to be discharged or varied.

    (3) Until the period of 10 working days has expired, the new parties order has no force or effect on the incapacitated person.

    Compare: 1908 No 89 Schedule 2 rr 103, 104

Subpart 9Adjusting parties

4.54 Change of name
  • A party’s name that is incorrectly stated in pleadings or changed by marriage, civil union, deed poll, or other means, may be amended, without an application to the court, by a notice signed by the party and filed and served on all other parties.

    Compare: 1908 No 89 Schedule 2 r 105

4.55 Parties wrongly joined
  • (1) A proceeding is not defeated by reason of parties having been wrongly joined.

    (2) Despite a misjoinder, the court may deal with a proceeding in accordance with the rights and interests of the parties.

    Compare: 1908 No 89 Schedule 2 r 96

4.56 Striking out and adding parties
  • (1) A Judge may, at any stage of a proceeding, order that—

    • (a) the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

    • (b) the name of a person be added as a plaintiff or defendant because—

      • (i) the person ought to have been joined; or

      • (ii) the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.

    (2) An order does not require an application and may be made on terms the court considers just.

    (3) Despite subclause (1)(b), no person may be added as a plaintiff without that person’s consent.

    Compare: 1908 No 89 Schedule 2 r 97

Subpart 10Interpleader

4.57 Interpretation
  • In this rule and rules 4.58 to 4.64, unless the context otherwise requires,—

    applicant means a person or an officer entitled under rule 4.58 to apply to the court for relief under rule 4.63

    claimant means a person claiming against an applicant in terms of rule 4.58

    execution creditor means a person who has issued an enforcement process under Part 17

    execution debtor means a person against whose property an enforcement process has been issued under Part 17.

    Compare: 1908 No 89 Schedule 2 r 172

4.58 Right to interplead
  • (1) When a person (A) who is under a liability in respect of a debt or in respect of any money or chattels is, or expects to be, sued for or in respect of the debt, money, or chattels by 2 or more persons making adverse claims, A may apply to the court, on notice to the persons making the adverse claims, for relief under rule 4.63.

    (2) If a person (B) who is not a person against whom a sale order (described in rule 17.62) or a possession order (described in rule 17.80) is issued claims money or chattels taken or intended to be taken by an officer giving effect to either of those orders, or the proceeds or value of those chattels, the officer may apply to the court, serving notice on the execution creditor, the execution debtor, and B for relief under rule 4.63.

    (3) Subclause (2) applies—

    • (a) whether or not there has been a return of the order; and

    • (b) whether or not a proceeding has been commenced against the officer in respect of the money or chattels.

    Compare: 1908 No 89 Schedule 2 r 173

4.59 Form of application
  • (1) When a claimant has issued a proceeding against the applicant in respect of the debt or money or chattels referred to in rule 4.58(1), and in cases within rule 4.58(2), the application must be an interlocutory application in the proceeding.

    (2) Subject to rules 4.61 to 4.64, subpart 2 of Part 7 of these rules applies to the application.

    (3) In other cases the application must be made by filing and serving a statement of claim and notice of proceeding under Part 5.

    Compare: 1908 No 89 Schedule 2 r 174

4.60 Affidavit in support
  • (1) An application under rule 4.58 must be supported by an affidavit stating—

    • (a) that the applicant claims no interest in the subject matter in dispute other than the charges or costs; and

    • (b) that adverse claims (of which details must be given) have been made by the claimants and the steps already taken by the respective claimants in support of their claims; and

    • (c) that the applicant is not colluding with any of the claimants to that subject matter; and

    • (d) that the applicant is willing to pay or transfer that subject matter into court or dispose of it as the court may direct.

    (2) A copy of the affidavit must be served on each claimant when the application under rule 4.58 is served.

    Compare: 1908 No 89 Schedule 2 r 175

4.61 Time for applying
  • (1) If a claimant has commenced a proceeding against the applicant to enforce the claim, an application under rule 4.58 must be made before a statement of defence has been filed by the applicant.

    (2) If no statement of defence has been filed by the applicant, it must be made before judgment has been entered against the applicant.

    Compare: 1908 No 89 Schedule 2 r 176

4.62 Claimants to file affidavits
  • (1) Subject to subclauses (2) and (3), a claimant who wishes to justify a claim must, within 5 working days after service of an application made under subclause (1) or (2) of rule 4.58, file and serve on other claimants and on the applicant an affidavit stating the facts and matters relied on.

    (2) When, in accordance with rule 4.59(3), a statement of claim and notice of proceeding have been filed and served together with an affidavit under rule 4.60, the claimant must file and serve a statement of defence with the claimant’s affidavit.

    (3) If the claimant, had the claimant been a defendant, might have filed an appearance under rules 5.49 to 5.51, the claimant may, instead of filing and serving an affidavit under subclause (1), file and serve an appearance.

    (4) An appearance filed and served under subclause (3), for all the purposes of rules 4.63 and 4.64, has effect as though the claimant were a defendant in a proceeding brought by the applicant or by any other claimant referred to in the appearance.

    Compare: 1908 No 89 Schedule 2 r 177

4.63 Powers of court
  • (1) Upon hearing an application under rule 4.58, the court may make whatever orders and directions justice requires.

    (2) In particular, and without limiting subclause (1), the court may—

    • (a) stay a proceeding commenced by a claimant:

    • (b) bar the claim of a claimant who has not filed and served either—

      • (i) an affidavit justifying the claim under rule 4.62(2); or

      • (ii) an appearance under rule 4.62(3):

    • (c) adjudicate upon the competing claims on the affidavits filed, or adjourn the application for that purpose:

    • (d) if the question appears to be one of law only, direct that the question be determined by the court:

    • (e) direct the trial of the issues involved by the method that the court directs:

    • (f) order that 1 of the claimants commence a proceeding against any other or others to try the question involved or, if a proceeding has been commenced by a claimant, order that any other claimant be joined as a defendant to that proceeding:

    • (g) order that the chattels in dispute or any part of them be sold, and that the proceeds of the sale be applied in such manner and on such terms as are just.

    (3) Subclause (4) applies to a claimant who has been served with an application and—

    • (a) does not appear on the hearing of the application; or

    • (b) having appeared, fails or refuses to comply with an order.

    (4) The court may make an order declaring that the claimant and all persons claiming under that claimant may not continue or subsequently prosecute that claim against the applicant and all persons claiming under the applicant but that order does not affect the rights of the claimants as between themselves.

    Compare: 1908 No 89 Schedule 2 r 178

4.64 Costs of applicant
  • (1) Unless the court otherwise orders, an applicant is entitled to the indemnity costs (as defined by rule 14.6(1)(b)) of and incidental to the application.

    (2) The court may order that the applicant’s costs be paid by any 1 or more of the claimants and may apportion the liability between any 2 or more claimants, as it thinks just.

    (3) The court may charge any property in dispute, or the proceeds of the sale of it, or both, with payment of the costs of the applicant.

    Compare: 1908 No 89 Schedule 2 r 179

Part 5
Commencement of proceedings and filing of documents

Subpart 1Proper registry of court

5.1 Identification of proper registry
  • (1) The proper registry of the court, for the purposes of rules 5.25 and 19.7, is,—

    • (a) when a sole defendant is resident or has a principal place of business in New Zealand, the registry of the court nearest to the residence or principal place of business of the defendant, but when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand:

    • (b) when no defendant is resident or has a principal place of business in New Zealand, the registry the plaintiff selects:

    • (c) when the Crown is a defendant, the registry nearest to the place where the cause of action or a material part of it arose:

    • (d) despite paragraphs (a) to (c), the court at Wellington in the case of proceedings that consist of or include 1 or more of the following kinds of action or application:

      • (i) an application for judicial review under Part 1 of the Judicature Amendment Act 1972 that arises out of, or relates to, the making of a designation under the Terrorism Suppression Act 2002:

      • (ii) an application for, or in the nature of, an extraordinary remedy under Part 30 of these rules that arises out of, or relates to, the making of a designation under the Terrorism Suppression Act 2002:

      • (iii) an application under section 35, 47E, or 55 of the Terrorism Suppression Act 2002.

    (2) Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.

    (3) If a plaintiff proposes to exercise the option conferred by subclause (2), the plaintiff must file with the statement of claim and notice of proceeding an affidavit by the plaintiff or the plaintiff’s solicitor stating the place where the cause of action or the material part of it arose, and that that place is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides.

    (4) If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.

    (5) If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.

    Compare: 1908 No 89 Schedule 2 r 107

Subpart 2Formal requirements for documents

5.2 Non-complying documents
  • (1) A document that does not comply with rules 5.3 to 5.16 may be received for filing only by leave of a Judge or the Registrar.

    (2) The cost of an application under subclause (1) must be borne by the party making it, and may not be claimed as costs against another party under Part 14.

    Compare: 1908 No 89 Schedule 2 r 23

5.3 Paper
  • (1) The paper used must be of medium weight and good quality.

    (2) Each sheet of paper must be of international size A4.

    Compare: 1908 No 89 Schedule 2 r 24

5.4 Contents to be typed, etc
  • (1) The contents of each document must be legible and clearly typewritten, printed, or produced in permanent form by photocopying.

    (2) Despite subclause (1), handwriting may be used for the date of the document.

    (3) Subclause (1) does not apply to the signature on a document.

    Compare: 1908 No 89 Schedule 2 r 25

5.5 Margin
  • (1) A margin of at least one-quarter of the width of the paper must be left on the left-hand side of each page.

    (2) If, however, the reverse side of a page is used, a margin of that width must be left on the right-hand side of that page.

    Compare: 1908 No 89 Schedule 2 r 26

5.6 Signature to be original
  • If a document is signed,—

    • (a) the signature must be an original signature; and

    • (b) immediately below the original signature, the name of the signatory must be—

      • (i) legibly typed, printed, or stamped; or

      • (ii) legibly written in the style of printed matter.

    Compare: 1908 No 89 Schedule 2 r 27

5.7 Cover sheet, numbering, and fastening of document
  • (1) The first sheet of a document must be a cover sheet, showing the matters specified in rules 5.8 and 5.11.

    (2) The cover sheet must not be numbered, even if the heading is continued on another sheet under rule 5.10(2).

    (3) Each page after the cover sheet must be numbered consecutively, starting with the number 1.

    (4) All sheets of a document must be securely fastened together.

    Compare: 1908 No 89 Schedule 2 r 30

5.8 Description of document
  • (1) The cover sheet must show, immediately below the heading, an accurate description of the document.

    (2) The description must include—

    • (a) words indicating the party by whom or on whose behalf the document is filed; and

    • (b) the words application without notice in the case of an application so made.

    Compare: 1908 No 89 Schedule 2 r 31

5.9 Heading generally
  • All documents presented for filing must have the proper heading of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 35

5.10 Format of cover sheet
  • (1) The cover sheet of an originating document and of a notice of interlocutory application must—

    • (a) include only—

      • (i) the heading; and

      • (ii) the description of the document; and

      • (iii) if applicable, the next event date; and

      • (iv) if applicable, the name of the Judge or Associate Judge to whom the proceeding has been assigned; and

      • (v) the information required by rule 5.16; and

    • (b) leave ample space between the description of the document and the information referred to in paragraph (a)(v) for the inclusion of a minute.

    (2) The heading may, if necessary, be continued on another sheet.

    (3) In subclause (1)(a)(iii), next event date means, if allocated, the date and nature of a hearing or conference that is to be held next after the date on which the document is filed.

    Compare: 1908 No 89 Schedule 2 r 33

Subpart 3Heading of court documents

5.11 Heading on statement of claim and counterclaim
  • (1) The heading of a statement of claim, and of any counterclaim intended to be served upon a person other than the plaintiff, must show—

    • (a) the number of the proceeding:

    • (b) the registry of the court in which it is filed:

    • (c) if the statement of claim or counterclaim seeks relief in reliance on jurisdiction conferred by an enactment, the title of that enactment:

    • (d) if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of a will, the name of the testator:

    • (e) if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an instrument other than a will, the name of the maker of, or the names of the parties to, the instrument and its date:

    • (f) if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an enactment, the title and the relevant section or sections of the enactment:

    • (g) the full name, and the place of residence and occupation, of every plaintiff and defendant, so far as they are known to the party presenting the document for filing.

    (2) Form G 1 must be used for the purposes of subclause (1).

    (3) The names of parties in the heading of a statement of claim must not be repeated in the heading of a counterclaim, which may, for example, refer to the Plaintiff and First Counterclaim Defendant.

    Compare: 1908 No 89 Schedule 2 r 36

5.12 Heading on judgment and certain orders
  • The heading of a judgment and of an order that is required to be registered under any enactment must be the same as the heading on the statement of claim or other document by which the proceeding was commenced.

    Compare: 1908 No 89 Schedule 2 r 36A

5.13 Heading on other documents
  • (1) The heading of a document to which neither rule 5.11 nor 5.12 applies may be abbreviated as follows:

    • (a) first names of persons may be denoted by initials only, unless full names are necessary to distinguish between persons having the same initials:

    • (b) if 2 or more persons are joined in the same interest, the name of the first-named person may be set out, followed by the words and another or and others, as the case may be:

    • (c) places of residence and descriptions of persons (unless necessary to distinguish 2 or more persons required to be named and with the same name) and indications of the interest in which a person is a party must be omitted:

    • (d) the names of corporations must be set out without abbreviation, but without stating the fact of incorporation or referring to the registered office or making other addition.

    (2) Despite subclause (1), a fuller title may be used upon change of parties or if any party considers that a person has in a previous document been wrongly named or described or for other sufficient reason.

    Compare: 1908 No 89 Schedule 2 r 37

5.14 Division into paragraphs
  • (1) Every document presented for filing must be divided into paragraphs which must be numbered consecutively, starting with the number 1.

    (2) Each paragraph must so far as possible be confined to a single topic.

    Compare: 1908 No 89 Schedule 2 r 38

5.15 Numbers
  • Numbers must be expressed in figures and not in words.

    Compare: 1908 No 89 Schedule 2 r 39

5.16 Information at foot of cover page
  • (1) The following information must appear at the foot of the cover page of every document for filing:

    • (a) the name of the solicitor or firm of solicitors (if any) presenting it for filing and the name of any agent by whom the document is filed; and

    • (b) when the document is presented for filing by or on behalf of a solicitor or firm of solicitors,—

      • (i) the name and telephone number of the principal or employee dealing with the proceeding; and

      • (ii) the address of any post office box or document exchange used by the solicitor or firm; and

      • (iii) any fax number and any email address used by the solicitor or firm.

    (2) The fact that the name of a solicitor or firm of solicitors is subscribed on a document is prima facie evidence that the document was filed by that solicitor or firm of solicitors.

    Compare: 1908 No 89 Schedule 2 r 40

Subpart 4Pleadings generally

5.17 Distinct matters to be stated separately
  • (1) Distinct causes of action and distinct grounds of defence, founded on separate and distinct facts, must if possible be stated separately and clearly.

    (2) If a party alleges a state of mind of a person, that party must give particulars of the facts relied on in alleging that state of mind.

    (3) A state of mind includes a mental disorder or disability, malice, or fraudulent intention but does not include mere knowledge.

    Compare: 1908 No 89 Schedule 2 r 181

5.18 Denial of representative character
  • A denial must be specific if a party wishes to deny the right of another party to claim as executor or administrator or as trustee, or in a representative or other alleged capacity, or the alleged constitution of a partnership firm.

    Compare: 1908 No 89 Schedule 2 r 182

5.19 Denial of contract
  • (1) A bare denial of a contract will be treated as denying only the making of the contract in fact, and a party must specifically plead an assertion as to the legality or enforceability of a contract, whether with reference to section 24 of the Property Law Act 2007 or otherwise, or as to the interpretation of the contract advanced by that party.

    (2) A party asserting that a contract is illegal or unenforceable must plead the enactment or rule of law relied on.

    (3) A party asserting that the interpretation of a contract advanced by another party is wrong must assert its own interpretation.

    Compare: 1908 No 89 Schedule 2 r 183

5.20 Effect of document to be stated
  • If a party relies upon any document in whole or in part, it is sufficient to state its effect as briefly as possible, without setting it out, unless the precise words are material.

    Compare: 1908 No 89 Schedule 2 r 184

5.21 Notice requiring further particulars or more explicit pleading
  • (1) A party may, by notice, require any other party—

    • (a) to give any further particulars that may be necessary to give fair notice of—

      • (i) the cause of action or ground of defence; or

      • (ii) the particulars required by these rules; or

    • (b) to file and serve a more explicit statement of claim or of defence or counterclaim.

    (2) A notice must indicate as clearly as possible the points on which the pleading is considered defective.

    (3) If the party on whom a notice is served neglects or refuses to comply with the notice within 5 working days after its service, the court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.

    (4) Even if no notice has been given under this rule, the court may on its own initiative order a more explicit pleading to be filed and served.

    Compare: 1908 No 89 Schedule 2 r 185

Subpart 5Notice of proceeding

5.22 Notice of proceeding to be filed with statement of claim
  • A notice of proceeding must be filed with every statement of claim.

    Compare: 1908 No 89 Schedule 2 r 120

5.23 Requirements as to notice of proceeding
  • (1) The notice of proceeding must—

    • (a) be signed by the plaintiff or the plaintiff’s solicitor:

    • (b) state the place for the filing of a statement of defence and the time within which the statement of defence is required to be filed, in accordance with these rules:

    • (c) warn the defendant that if a statement of defence is not filed within the required time, the plaintiff may at once proceed to judgment on the plaintiff’s claim and judgment may be given in the absence of the defendant.

    (2) The notice of proceeding must be in form G 2.

    (3) If the court has directed that any person other than the defendant named in the title of the proceeding be served, a statement to that effect signed by the Registrar and setting out the name, place of residence, and occupation of that person must be annexed to the notice of proceeding.

    (4) A memorandum signed by the Registrar in form G 3, G 4, or G 5 (whichever is appropriate) must be attached to the notice of proceeding.

    Compare: 1908 No 89 Schedule 2 r 121

5.24 When not necessary to file notice of proceeding
  • Despite rule 5.22, a notice of proceeding need not be filed, unless the court so orders,—

    • (a) if no relief against any person is claimed in the statement of claim (as, for example, in the case of a company’s application to be put into liquidation by the court, or a person’s application to be adjudicated bankrupt); or

    • (b) if service of the notice is dispensed with—

      • (i) by statute; or

      • (ii) under these rules; or

      • (iii) by order of the court.

    Compare: 1908 No 89 Schedule 2 r 124

Subpart 6Statement of claim

5.25 Proceeding commenced by filing statement of claim
  • (1) A proceeding must be commenced by filing a statement of claim in the proper registry of the court.

    (2) Subclause (1) does not apply to—

    • (a) an unopposed application under Part 27:

    • (b) an appeal under Part 20:

    • (c) a proceeding commenced by originating application under Part 18, 19, or 26:

    • (d) an application under Part 31.

    (3) Despite subclause (1), the statement of claim may be filed in any registry of the court if the parties agree, by endorsement on the statement of claim, to the filing of the statement of claim in that registry.

    Compare: 1908 No 89 Schedule 2 r 106

5.26 Statement of claim to show nature of claim
  • The statement of claim—

    • (a) must show the general nature of the plaintiff’s claim to the relief sought; and

    • (b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and

    • (c) must state specifically the basis of any claim for interest and the rate at which interest is claimed; and

    • (d) in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.

    Compare: 1908 No 89 Schedule 2 r 108

5.27 Statement of claim to specify relief sought
  • (1) The statement of claim must conclude by specifying the relief or remedy sought.

    (2) If the statement of claim includes 2 or more causes of action, it must specify separately the relief or remedy sought on each cause of action immediately after the pleading of that cause of action.

    Compare: 1908 No 89 Schedule 2 rr 109, 114

5.28 Inclusion of several causes of action
  • (1) A plaintiff may include several causes of action in the same statement of claim.

    (2) Despite subclause (1), claims by or against an Official Assignee in bankruptcy, or a liquidator or a receiver of a company, in that capacity, must not, without leave of the court, be joined with any claim by or against that person in any other capacity.

    (3) Despite subclause (1), claims by or against an executor or administrator or trustee, in that capacity, must not be joined with claims by or against that person in a personal capacity unless those personal claims are alleged to arise with reference to the estate or trust in respect of which the person sues or is sued as executor or administrator or trustee.

    Compare: 1908 No 89 Schedule 2 r 110

5.29 Joint plaintiffs
  • Claims by plaintiffs jointly may be joined with separate claims by them or any of them against the same defendant.

    Compare: 1908 No 89 Schedule 2 r 111

5.30 Joining claims by or against spouses or partners
  • Claims by or against spouses, civil union partners, or de facto partners may be joined with claims by or against either of those spouses, civil union partners, or de facto partners if the opposite party is the same person.

    Compare: 1908 No 89 Schedule 2 r 112

5.31 Specifying relief sought
  • (1) The relief claimed must be stated specifically, either by itself or in the alternative.

    (2) Despite subclause (1), it is not necessary to ask for general or other relief but the court may, if it thinks just, grant any other relief to which the plaintiff is entitled, even though that relief has not been specifically claimed and there is no claim for general or other relief.

    Compare: 1908 No 89 Schedule 2 r 115

5.32 Amount of money claim
  • A statement of claim seeking the recovery of a sum of money must state the amount as precisely as possible.

    Compare: 1908 No 89 Schedule 2 r 116

5.33 Special damages
  • A plaintiff seeking to recover special damages must state their nature, particulars, and amount in the statement of claim.

    Compare: 1908 No 89 Schedule 2 r 117

5.34 Set-off
  • A plaintiff who wishes to allow a set-off or to give up a portion of the plaintiff’s claim must show the amount allowed or given up in the statement of claim.

    Compare: 1908 No 89 Schedule 2 r 118

5.35 Representative capacity of party
  • A party to a proceeding who sues or is sued in a representative capacity must show in what capacity the party sues or is sued in the statement of claim.

    Compare: 1908 No 89 Schedule 2 r 119

Subpart 7Authority of solicitors to act

5.36 Authority to file documents
  • No solicitor may file a document on behalf of a party unless the solicitor is—

    • (a) authorised by, or on behalf of, the party to file the document; and

    • (b) the holder of a current practising certificate as a solicitor or as a barrister and solicitor issued under section 39 of the Lawyers and Conveyancers Act 2006.

    Compare: 1908 No 89 Schedule 2 r 41

5.37 Solicitor’s warranty as to authorisation to file documents
  • A solicitor by whom, or on whose behalf, a document is filed in the court is to be treated as warranting to the court and to all parties to the proceeding that he or she is authorised, by the party on whose behalf the document purports to be filed, to file the document.

    Compare: 1908 No 89 Schedule 2 r 41B

5.38 Solicitor on record
  • (1) The solicitor on the record for a party to a proceeding is the solicitor whose name appears on the memorandum located at the end of the first document filed by the party in accordance with rule 5.44.

    (2) This rule is subject to rule 5.42.

    Compare: 1908 No 89 Schedule 2 r 42

5.39 Authority to sign documents
  • (1) A document required, by these rules, to be signed by a party may be signed on behalf of the party by the party’s solicitor on the record unless the party’s personal signature is expressly required.

    (2) Subclause (1) does not limit the authority of counsel to sign documents.

    Compare: 1908 No 89 Schedule 2 r 43

5.40 Change of representation or address for service
  • (1) A party must file and serve on every other party to the proceeding a notice of change of representation if—

    • (a) the party has acted in person and appoints a solicitor to act for that party; or

    • (b) the party wishes to change that party’s solicitor; or

    • (c) the party for whom a solicitor has acted wishes to act in person.

    (2) If the party’s address for service after the change of representation will be different from that which applied before the change, the party must also serve a copy of the notice at the address that was, immediately before the change, the party’s address for service.

    (3) The notice—

    • (a) must be signed by the party personally or by the party’s attorney; and

    • (b) in the case of a notice under subclause (1)(a) or (b), must contain the information about the new solicitor required by paragraphs (b) to (e) of rule 5.44(1); and

    • (c) in the case of a party referred to in subclause (1)(c), must state that the party’s intention is to act in person.

    (4) For the purpose of the proceeding, the change of representation takes effect on the filing of an affidavit proving service in accordance with subclause (1) and attaching and verifying a copy of the notice served.

    (5) A party may change that party’s address for service by—

    • (a) filing a notice of the change showing the new address for service; and

    • (b) serving a copy of the notice on every other party.

    (6) A change of address for service may be combined with a notice under subclause (1).

    (7) A notice of change of address for service need not be filed under subclause (5)(a) if an affidavit is filed under subclause (4).

    (8) Form G 11 may be used.

    Compare: 1908 No 89 Schedule 2 r 45

5.41 Withdrawal of solicitor who has ceased to act for party
  • (1) If the solicitor on the record for a party to a proceeding has ceased to act for the party, the solicitor may apply to the court for an order declaring that the solicitor has ceased to be the solicitor on the record for the party in that proceeding and the court may make the order.

    (2) It is not necessary to make an application if—

    • (a) the party has effected a change of solicitor in accordance with rule 5.40; or

    • (b) the party—

      • (i) has filed a notice stating that the party intends to act in person and the party’s new address for service; and

      • (ii) has served a copy of the notice on the solicitor on the record and on every other party to the proceeding who has given an address for service; and

      • (iii) has filed an affidavit proving that service and attaching and verifying a copy of the notice served.

    (3) Unless subclause (2)(a) or (b) applies, the solicitor on the record for a party to a proceeding, for the purposes of that proceeding, is the solicitor on the record for that party until the final conclusion of the proceeding unless and until the solicitor—

    • (a) obtains an order under subclause (1); and

    • (b) serves on every party to the proceeding who has given an address for service a copy of the order obtained under that subclause; and

    • (c) files an affidavit proving that service.

    (4) Every application under subclause (1) must be made by interlocutory application and must be supported by an affidavit giving the grounds of the application.

    (5) Unless the court otherwise directs, notice of every application under subclause (1), and a copy of the affidavit in support of the application, must be served on the party for whom the solicitor acted, and that notice must inform the party of the effect that rule 5.42 will have on the party’s address for service if the solicitor obtains an order under subclause (1).

    (6) An order made under subclause (1) does not affect the rights of the solicitor and the party for whom the solicitor acted as between themselves.

    Compare: 1908 No 89 Schedule 2 r 45A

5.42 Address for service of party whose solicitor has ceased to act
  • (1) This rule applies whenever the solicitor on the record for a party has obtained an order under rule 5.41 and has complied with rule 5.41(3)(b) and (c).

    (2) The last known address of the party, or, when the party is a body corporate, its registered or principal registry is, for the purpose of serving the party with any document not required to be served personally, the party’s address for service until the party either—

    • (a) appoints another solicitor and complies with rule 5.40; or

    • (b) if entitled to act in person,—

      • (i) files a notice stating that the party intends to act in person and showing the party’s new address for service; and

      • (ii) serves on the solicitor who obtained the order under rule 5.41 and on every other party to the proceeding who has given an address for service a copy of that notice; and

      • (iii) files an affidavit proving that service and attaching and verifying a copy of the notice served.

    Compare: 1908 No 89 Schedule 2 r 45B

5.43 Solicitors to inform clients of orders or directions
  • The solicitor on the record for a party must notify the party of an order or direction that affects that party promptly after it is made.

    Compare: 1908 No 89 Schedule 2 r 43A

Subpart 8Memorandum on first document

5.44 Memorandum at end of first document filed by party
  • (1) At the end of the first document filed by a party there must be a memorandum stating—

    • (a) that the document is filed by a party in person, or by the party’s solicitor, as the case may be; and

    • (b) if it is filed by a solicitor,—

      • (i) the name of the solicitor; and

      • (ii) if the solicitor is a member of a firm or practises under a firm’s name, the name of the firm; and

    • (c) if it is filed by a solicitor who has another solicitor acting as the solicitor’s agent in the proceeding,—

      • (i) the name of the agent or of the agent’s firm (if any); and

      • (ii) the postal address of the party’s solicitor; and

    • (d) an address for service; and

    • (e) if it is filed by a solicitor, any post office box address, document exchange box number, fax number, or email address by which the solicitor will accept service of documents in the course of the proceeding.

    (2) The memorandum may be in 1 of the paragraphs of form G 10.

    Compare: 1908 No 89 Schedule 2 r 44

Subpart 9Security for costs

5.45 Order for security of costs
  • (1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

    • (a) that a plaintiff—

      • (i) is resident out of New Zealand; or

      • (ii) is a corporation incorporated outside New Zealand; or

      • (iii) is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

    • (b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

    (2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

    (3) An order under subclause (2)—

    • (a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

      • (i) by paying that sum into court; or

      • (ii) by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

    • (b) may stay the proceeding until the sum is paid or the security given.

    (4) A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

    (5) A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

    (6) References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

    Compare: 1908 No 89 Schedule 2 r 60

5.46 Solicitor not to be surety
  • A party’s solicitor may not be accepted as surety for a security that the party is required to give under rule 5.45(2).

    Compare: 1908 No 89 Schedule 2 r 61

Subpart 10Statement of defence and appearance

5.47 Filing and service of statement of defence
  • (1) A defendant who intends to defend the proceeding must,—

    • (a) within the number of working days stated in the notice of proceeding, file in the registry of the court named in that notice a statement of defence to the plaintiff’s claim; and

    • (b) serve a copy of the statement of defence on the plaintiff and any other party.

    (2) Unless otherwise ordered by the court,—

    • (a) the place for filing the statement of defence must be the registry of the court in which the statement of claim was filed or into which it has been transferred:

    • (b) the time within which the statement of defence is required to be filed is 25 working days after the day on which the statement of claim and notice of proceeding are served on the defendant.

    Compare: 1908 No 89 Schedule 2 rr 122, 129

5.48 Requirements of statement of defence
  • (1) The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant.

    (2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.

    (3) An allegation not denied is treated as being admitted.

    (4) An affirmative defence must be pleaded.

    (5) The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant’s defence.

    Compare: 1908 No 89 Schedule 2 r 130

5.49 Appearance and objection to jurisdiction
  • (1) A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.

    (2) The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.

    (3) A defendant who has filed an appearance may apply to the court to dismiss the proceeding on the ground that the court has no jurisdiction to hear and determine it.

    (4) The court hearing an application under subclause (3) must,—

    • (a) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; but

    • (b) if it is satisfied that it has jurisdiction to hear and determine the proceeding, dismiss the application and set aside the appearance.

    (5) At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.

    (6) The court hearing that application must,—

    • (a) if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but

    • (b) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.

    (7) To the extent that an application under this rule relates to service of process effected outside New Zealand under rule 6.27 or 6.28, it must be determined under rule 6.29.

    (8) The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding in all respects as though the application were an application for directions under rule 7.9.

    (9) If the appearance set aside has been filed in relation to a proceeding in which the plaintiff has applied for judgment under rule 12.2 or 12.3, the court—

    • (a) must fix the time within which the defendant may file and serve—

      • (i) a notice of opposition; and

      • (ii) an affidavit by or on behalf of the defendant in answer to the affidavit by or on behalf of the plaintiff; and

    • (b) may, under subclause (8), give any other directions that appear necessary regarding any further steps in the proceeding.

    Compare: 1908 No 89 Schedule 2 r 131

5.50 Appearance for ancillary purposes
  • A defendant who does not oppose the plaintiff’s claim but who wishes to be heard on any ancillary matter (including costs) may, without filing a statement of defence, file and serve an appearance stating those matters, which must not subsequently be determined without notice to that defendant.

    Compare: 1908 No 89 Schedule 2 r 132

5.51 Appearance reserving rights
  • (1) This rule applies to a defendant who does not oppose the plaintiff’s claim but who wishes to reserve the defendant’s rights—

    • (a) in the event that any other person may become a party to the proceeding; or

    • (b) in the event that any person, already a party, may take some steps in the proceeding adverse to the defendant’s interests.

    (2) The defendant—

    • (a) may, without filing a statement of defence, file and serve an appearance reserving those rights; and

    • (b) is subsequently entitled to be served with all documents relevant to the rights so reserved that are filed in the proceeding by a person who is or becomes a party.

    (3) A defendant who has filed an appearance under subclause (2) may at any time, by leave of the court, file and serve a statement of defence and any other document within the time and upon any terms and conditions prescribed by the court when granting leave.

    Compare: 1908 No 89 Schedule 2 r 133

5.52 Forms
  • Form G 7, G 8, or G 9 (whichever is appropriate) may be used for the purpose of entering an appearance under rules 5.49 to 5.51.

    Compare: 1908 No 89 Schedule 2 r 134

Subpart 11Counterclaims

5.53 Counterclaim against plaintiff only
  • (1) A defendant who intends to raise a counterclaim against the plaintiff only must file a statement of counterclaim in the registry of the court in which the statement of defence must be filed.

    (2) This rule is subject to rule 5.54.

    Compare: 1908 No 89 Schedule 2 r 145

5.54 Heading of counterclaim
  • A counterclaim must be headed with the word Counterclaim but in all other respects it must conform with rule 5.11 and the rules applying to statements of claim.

    Compare: 1908 No 89 Schedule 2 r 147

5.55 Filing and service
  • A counterclaim must be filed in the court and a copy served on the plaintiff within the time stated in the notice of proceeding for filing a statement of defence or, if no such time is stated, within a time fixed by the court.

    Compare: 1908 No 89 Schedule 2 r 148

5.56 Defence to counterclaim
  • (1) A plaintiff who intends to defend a counterclaim that has been served must, within 25 working days after the day on which the counterclaim is served, file a statement of defence to it and serve a copy on the defendant.

    (2) The statement of defence must be headed with the words Defence to Counterclaim but in all other respects it must conform with the rules applying to statements of defence.

    Compare: 1908 No 89 Schedule 2 r 149

5.57 Counterclaim against plaintiff and another person
  • (1) A defendant who has a counterclaim against the plaintiff along with any other person (whether a party to the proceeding or not) for any relief relating to or connected with the original subject matter of the proceeding may, within the time allowed for filing a statement of defence, file a statement of the counterclaim and serve a copy on the plaintiff and that other person (to be referred to as a counterclaim defendant).

    (2) Subclause (1) is subject to rule 5.61.

    (3) A counterclaim defendant must file a statement of defence to a counterclaim within 25 working days after the day on which the counterclaim was served.

    (4) A notice of proceeding in form G 2 must be served with each copy of a counterclaim served under subclause (1).

    (5) Rules 5.53 to 5.56 apply with respect to the counterclaim and any defence to it.

    (6) The court may at any time order that a counterclaim to which subclause (1) applies be struck out, upon such terms as it thinks just, if it appears—

    • (a) that, by reason of the counterclaim, the plaintiff is likely to be unduly delayed in obtaining relief; or

    • (b) that the trial (if a trial is necessary) is to be held at a place where it could not be held if a counterclaim defendant had been made defendant to an independent proceeding by the defendant in respect of the subject matter of the counterclaim; or

    • (c) that the relief sought in the counterclaim is not related to or connected with the original subject matter of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 150

5.58 Place of trial of counterclaim
  • (1) A counterclaim must be tried at the same place as the statement of claim in the original proceeding and either simultaneously or immediately afterwards.

    (2) Despite subclause (1), if it appears to the court that a counterclaim and the statement of claim can more fairly or conveniently be tried separately, it may, subject to such conditions as it thinks fit, make an order that the counterclaim be tried at some other place or time.

    (3) Subject to subclauses (1) and (2), after a counterclaim has been served it must proceed in the same manner as if the defendant had commenced an independent proceeding against the plaintiff.

    Compare: 1908 No 89 Schedule 2 r 151

5.59 Status of counterclaim if proceeding stayed
  • If a defendant sets up a counterclaim against the plaintiff, whether alone or along with any other person, and the proceeding of the plaintiff is stayed, discontinued, or dismissed, that defendant may nevertheless proceed with the counterclaim.

    Compare: 1908 No 89 Schedule 2 r 152

5.60 Counterclaim by counterclaim defendant
  • (1) Rules 5.56 to 5.59 apply to a counterclaim by a counterclaim defendant in the same way as if the counterclaim defendant were a defendant in a separate proceeding brought by the defendant.

    (2) In a case referred to in subclause (1), the term defendant includes the counterclaim defendant and the term plaintiff includes the defendant who has joined the counterclaim defendant.

    Compare: 1908 No 89 Schedule 2 r 153

5.61 Restriction when the Crown involved
  • (1) In a proceeding by the Crown for the recovery of taxes, duties, or penalties, a defendant is not entitled to advance any set-off or counterclaim.

    (2) In a proceeding of any nature by the Crown, a defendant is not entitled to advance any set-off or counterclaim arising out of a right or claim to payment in respect of any taxes, duties, or penalties.

    (3) In a proceeding by or against the Crown, being a proceeding to which neither subclause (1) nor (2) applies, a defendant is not entitled, without leave of the court, to advance a set-off or counterclaim—

    • (a) if the Crown sues or is sued either—

      • (i) in the name of the Attorney-General on behalf of a government department or an officer or employee of the Crown; or

      • (ii) in the name of a government department or an officer or employee of the Crown; and

    • (b) if the subject matter of the set-off or counterclaim does not relate to that department or officer.

    (4) An application for leave under subclause (3) that is made by a defendant other than the Crown must be served on the Crown not less than 5 working days before the date specified for hearing the application.

    Compare: 1908 No 89 Schedule 2 r 146

Subpart 12Reply

5.62 Duty to file and serve reply
  • If a statement of defence asserts an affirmative defence or contains any positive allegation affecting any other party, the plaintiff or that other party must, within 10 working days after the day on which that statement of defence is served, file a reply and serve it on the party serving the statement of defence.

    Compare: 1908 No 89 Schedule 2 r 169

5.63 Contents of reply
  • (1) A reply must be limited to answering the affirmative defence or positive allegation and otherwise must comply with the rules governing statements of defence so far as they are applicable.

    (2) An affirmative defence or positive allegation in a statement of defence that is not denied is treated as being admitted.

    Compare: 1908 No 89 Schedule 2 rr 170, 171

Subpart 13Proceedings and actions transferred from District Court

5.64 Application of rules
  • (1) This subpart applies to every action, counterclaim, and other proceeding transferred to the court from a District Court under an order made under section 43, 44, or 45 of the District Courts Act 1947.

    (2) However, this subpart does not apply to a proceeding removed to the court by an order made under section 43(6) of the District Courts Act 1947.

    Compare: 1908 No 89 Schedule 2 r 228

5.65 Documents to be filed in proper registry
  • If the registry of the court at which the documents are received from the District Court is not the registry in which, had the action, counterclaim, or other proceeding been commenced in the High Court, the statement of claim would have been filed in accordance with rule 5.25, the Registrar receiving the documents must immediately transmit them to the Registrar at that registry for filing there.

    Compare: 1908 No 89 Schedule 2 r 229

5.66 On filing treated as proceeding
  • (1) Documents filed under rule 5.65 must be treated as documents in a proceeding commenced under these rules.

    (2) Subject to subclause (3) and rules 5.67 and 5.68, these rules apply with all necessary modifications.

    (3) Any party who has not given an address for service complying with these rules must immediately do so.

    Compare: 1908 No 89 Schedule 2 r 230

5.67 Title of documents
  • All documents filed in the proceeding after it has been filed in the court in accordance with rule 5.65 must be headed as if the proceeding had been commenced in the High Court.

    Compare: 1908 No 89 Schedule 2 r 231

5.68 Time for filing statement of defence
  • If no statement of defence has been filed in the District Court, a statement of defence may be filed within 25 working days from the date when the proceeding is filed in accordance with rule 5.65.

    Compare: 1908 No 89 Schedule 2 r 232

5.69 Transfer under section 45 of District Courts Act 1947
  • (1) An application under section 45 of the District Courts Act 1947 must be by interlocutory application.

    (2) It must,—

    • (a) if made by the counterclaimant, be made within 5 working days after the counterclaim or set-off and counterclaim is filed in the District Court:

    • (b) if made by the party against whom the counterclaim or set-off and counterclaim is made, be made within 5 working days after service on that party.

    (3) At any time after an application under subclause (1) has been filed, the court may order the proceedings in the District Court to be stayed pending its disposal.

    (4) The order in subclause (3) may be made without notice and subject to any conditions or undertakings that the court thinks just.

    (5) If the court orders that the counterclaim or set-off and counterclaim alone be transferred, references in rules 5.64 to 5.68 and in other provisions of these rules to the plaintiff must be read as references to the counterclaimant and references to the defendant must be read as references to the party against whom the counterclaim or set-off and counterclaim is made.

    Compare: 1908 No 89 Schedule 2 r 233

Subpart 14Service of statement of claim and notice of proceeding

5.70 Service generally
  • (1) Except as otherwise provided by any Act or these rules or an order made under these rules, a statement of claim and notice of proceeding must be served—

    • (a) on every defendant named in it; and

    • (b) on every other person directed to be served with it.

    (2) Despite subclause (1), in a civil proceeding against the Crown in which the Attorney-General is named as defendant or is directed to be served on behalf of the Crown or in which the Attorney-General is joined as a party or third or subsequent party, service on the Crown must be effected in accordance with section 16 of the Crown Proceedings Act 1950.

    Compare: 1908 No 89 Schedule 2 r 125

5.71 Personal service required
  • (1) Except when the court directs or these rules require or permit a different mode of service, the statement of claim and notice of proceeding must be served personally.

    (2) Rule 5.73(2) overrides subclause (1).

    Compare: 1908 No 89 Schedule 2 r 126

5.72 Prompt service required
  • (1) The statement of claim and notice of proceeding must be served—

    • (a) as soon as practicable after they are filed; or

    • (b) when directions as to service are sought, as soon as practicable after the directions have been given.

    (2) Unless service is effected within 12 months after the day on which the statement of claim and notice of proceeding are filed or within such further time as the court may allow, the proceeding must be treated as having been discontinued by the plaintiff against any defendant or other person directed to be served who has not been served.

    Compare: 1908 No 89 Schedule 2 r 127

5.73 Extension of time for service
  • (1) The plaintiff may, before or after the expiration of the period referred to in rule 5.72, apply to the court for an order extending that period in respect of any person (being a defendant or other person directed to be served) who has not been served.

    (2) The court, if satisfied that reasonable efforts have been made to effect service on that defendant or person, or for other good reason, may extend the period of service for 6 months from the date of the order and so on from time to time while the proceeding has not been disposed of.

    Compare: 1908 No 89 Schedule 2 r 128

Subpart 15Registration of users for e-filing purposes

5.74 Interpretation
  • In this subpart and in subpart 16, unless the context otherwise requires,—

    e-file means to file a document electronically (as those concepts are defined in rule 1.3)

    formal undertaking is an undertaking by a party or a party’s solicitor on the record to do or abstain from doing some specified thing

    registered user means a lawyer or a firm of lawyers registered to e-file documents under these rules

    working hours means hours, whether on the same day as that on which a document was received in a registry or on that day and the next day during which the registry of the court is open.

5.75 Registration procedure
  • (1) A lawyer or a firm of lawyers may apply in writing to a Registrar for registration under this subpart.

    (2) The Registrar must register the applicant as a registered user if—

    • (a) the applicant has, in the Registrar’s opinion, instituted sufficient measures to prevent persons unauthorised by the applicant filing documents in the applicant’s name; and

    • (b) the applicant has nominated an acceptable electronic address for service; and

    • (c) the applicant’s name is sufficiently distinctive to avoid later confusion between the applicant and another firm or lawyer (including that part of a partnership that has an office in a different place).

    (3) The Registrar may require an applicant to supply the names of those persons who are, from time to time, authorised to e-file on behalf of the applicant.

    (4) No fee is chargeable for registration.

    (5) When granting the application the Registrar must—

    • (a) assign the registered user an electronic identity for use whenever a document is e-filed; and

    • (b) open an account in the name of the registered user.

    (6) The Registrar must keep a register recording the name, electronic address for service, and electronic identity of each registered user and the date of that user’s registration under this subpart.

    (7) The register kept under subclause (6) may be searched by or on behalf of a registered user.

5.76 Effect of registration
  • (1) A registered user may e-file any document that complies with subpart 16.

    (2) A registered user may file any document in hard copy by physical lodgment (whether or not that document has already been e-filed).

    (3) If there is any difference between the content of an e-filed document and the filed hard-copy version of the same document, the hard-copy version prevails, and the document is treated as filed when it is physically lodged.

5.77 Renewal of registration
  • Registration lasts 36 months and is then renewable.

Subpart 16E-filing documents

5.78 Requirements for e-filing
  • (1) A document may be e-filed if it complies with this rule.

    (2) An electronic communication sent with a document for e-filing must be authenticated by an electronic identity currently assigned by the Registrar.

    (3) A document that is e-filed, and any electronic communication by which the document is e-filed, must comply with the requirements set out in a practice note issued by the Chief Judge or by a list Judge for a particular registry of the court with the approval of the Chief Judge.

    (4) The practice note may also limit the number of documents that may be filed on a single occasion or in a stated period, and impose other requirements to ensure that electronic filing is convenient to registered users and efficient and reliable and causes no injustice to other parties.

    (5) A document that is e-filed other than in imaged form need not comply with the rules as to shape, size, and format in subpart 2 of this Part (formal requirements for documents).

    (6) A document that is e-filed in imaged form must comply with subpart 2 of this Part.

    (7) An e-filed document must be adequately labelled so that it is obvious what it is, for example, Interlocutory application without notice for interim injunction.

    (8) If, under these rules, a document can be filed only if it is signed or otherwise authenticated, use of the registered user’s electronic identity to authenticate the electronic communication sent with the document must be treated for all purposes as equivalent to that user’s signature or other authentication of that document.

    (9) This rule is subject to rule 5.81.

5.79 Provisional filing
  • (1) An e-filed document must be treated as provisionally filed at the time it enters the information system designated for this purpose in the applicable practice note issued under rule 5.78(3), and that date and time must be recorded on the court file.

    (2) The Registrar or a Deputy Registrar must ensure that every provisionally filed document is checked to ensure it meets the requirements imposed by this subpart and by that practice note.

    (3) Checking must—

    • (a) be completed within 2 working hours of the provisional filing of an e-filed document; and

    • (b) comply with operational standards not conflicting with this subpart issued by the Ministry of Justice and available on request to registered users and any person considering registration under subpart 15 or the practice note issued under rule 5.78(3).

5.80 Acceptance of provisionally filed documents
  • (1) Acceptance of a document by the Registrar or a Deputy Registrar must be recorded by dating and timing that acceptance and endorsing the document Accepted for filing and verifying that date, time, and endorsement.

    (2) The Registrar must immediately notify the registered user if an e-filed document is not accepted.

    (3) If an e-filed document is accepted it must be treated for all purposes as having been filed on the date and at the time when it is recorded as having been provisionally filed.

    (4) Upon acceptance of an e-filed document the Registrar must direct debit the registered user with the appropriate fee for that document.

5.81 Affidavits and formal undertakings
  • (1) An affidavit or a formal undertaking may be e-filed if the e-filing complies with this rule.

    (2) If an affidavit or a formal undertaking is being e-filed, it must be transmitted to the court in imaged form.

    (3) Rule 5.78(2), (3), and (7) applies to the e-filing of an affidavit or a formal undertaking.

    (4) The original hard-copy form of the affidavit or formal undertaking, sworn or signed or authenticated as required by these rules, must be retained by the registered user,—

    • (a) if the affidavit or formal undertaking is filed in connection with an application under Part 18 or 19, or in a proceeding that does not go to trial, for 12 months from the date of e-filing:

    • (b) if it is filed in connection with a proceeding, and that proceeding goes to trial, until no appeal or further appeal from a judgment given in that proceeding is possible.

    (5) If uncertainty as to the content of an affidavit or formal undertaking arises, or a Judge considers that justice requires its production, the Judge, on application or on the Judge’s own initiative, may order that it be filed in court and served on the other party or parties in hard copy form, and may make such order as to a further hearing as the Judge thinks just.

Part 6
Service

Subpart 1Methods and proof of service

6.1 Methods of service
  • (1) Any of the following methods may be used for serving a document that is required by these rules to be served:

    • (a) personal service:

    • (b) service at an address for service given in accordance with these rules:

    • (c) service at an address directed by the court as the address for service for the party or person:

    • (d) if the solicitor for the party or person has, under rule 5.16, specified a post office box address, document exchange box number, fax number, or email address,—

      • (i) by posting the document to that post office box address; or

      • (ii) by leaving the document at a document exchange for direction to that document exchange box number; or

      • (iii) by transmitting the document electronically to that fax number or email address.

    (2) In any case not provided for by these rules, service must be effected by the method and at the place the court directs.

    (3) This rule does not apply if an Act or a rule requires a special and exclusive method of service.

    Compare: 1908 No 89 Schedule 2 r 192

6.2 Service of copies
  • Unless an Act or a rule expressly requires an original document to be served, service of a true copy is to be treated as service of the document.

    Compare: 1908 No 89 Schedule 2 r 193

6.3 Notices
  • Rules 6.1 and 6.2 and rules 6.4 to 6.25 apply to any notice that by these rules, or by any order made under these rules, is required to be given to any person, whether or not that person is a party or the notice is required to be filed in the court.

    Compare: 1908 No 89 Schedule 2 r 194

6.4 Personal service on spouses or partners
  • (1) This rule applies when defendants to a proceeding are—

    • (a) husband and wife; or

    • (b) civil union partners; or

    • (c) de facto partners.

    (2) Service on 1 spouse, civil union partner, or de facto partner is not to be treated as service on the other unless the court so orders.

    Compare: 1908 No 89 Schedule 2 r 205

6.5 Service at address for service
  • A document may be served at an address for service by leaving the document at that address at any time between 9 am and 5 pm.

    Compare: 1908 No 89 Schedule 2 r 206

6.6 Service by means of post office box, document exchange, fax, or email
  • (1) When a document is served on a party or person in accordance with rule 6.1(d)(i) or (ii), that document must,—

    • (a) if posted to a post office box address, be treated as served on the earlier of—

      • (i) the third working day after the day on which it was posted; or

      • (ii) the day on which it was received; and

    • (b) if left at a document exchange, be treated as served on the earlier of—

      • (i) the second working day after the day on which it was left; or

      • (ii) the day on which it was received.

    (2) A document served on a party or person in accordance with rule 6.1(d)(iii) must—

    • (a) be treated as dispatched at the time the electronic communication first enters an information system outside the control of its originator; and

    • (b) be treated as received,—

      • (i) in the case of a party who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system; or

      • (ii) in any other case, at the time the electronic communication comes to the attention of the party or person being served, or the solicitor or other agent of that party or person.

    (3) When a document is transmitted electronically on a day that is not a working day, or after 5 pm on a working day, it must be treated as served on the first subsequent working day.

    (4) When a document is served electronically under this rule, the party or person served must, on receiving the document, immediately give to the person who served the document, or that person’s solicitor or agent, an acknowledgement in writing or electronically—

    • (a) that the document has been received; and

    • (b) of the date and time of receipt.

    (5) In this rule, information system means a system for producing, sending, receiving, storing, displaying, or otherwise processing electronic communications.

    Compare: 1908 No 89 Schedule 2 r 206A

6.7 Service under agreement
  • Service by a method agreed to in writing by a party is sufficient service on that party.

    Compare: 1908 No 89 Schedule 2 r 210

6.8 Substituted service
  • If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has come to the knowledge of the person to be served or it cannot be promptly served, the court may—

    • (a) direct—

      • (i) that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and

      • (ii) that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

    • (b) when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served, direct that the document be treated as served on that person on a specified date:

    • (c) subject to any conditions that the court thinks just to impose, dispense with service of a document on a person and give to the party by whom the document is required to be served leave to proceed as if the document had been served.

    Compare: 1908 No 89 Schedule 2 r 211

6.9 Notices to be given by Registrar
  • When notice is required to be given by the Registrar to a person, whether a party or not, it may be given,—

    • (a) if the person is acting by a solicitor, by sending it by ordinary post addressed to the solicitor at the address for service (if given) or at the solicitor’s place of business:

    • (b) if the person is not acting by a solicitor, by sending it by ordinary post addressed to that person at that person’s address for service (if given) or last known or usual place of residence or business in New Zealand:

    • (c) in any other manner the court directs.

    Compare: 1908 No 89 Schedule 2 r 195

6.10 Proof of service
  • (1) The service of a document may be proved on oath before the court or by affidavit in form G 16.

    (2) If the service of a document is proved by affidavit in form G 16, it is unnecessary, unless the court otherwise directs, for a copy of that document to be annexed if—

    • (a) either the original of the document or a copy of the document has, at the time of service, been filed in the registry of the court; and

    • (b) the affidavit contains a description of the document that—

      • (i) is sufficient to enable the document to be identified; and

      • (ii) includes the date of the document (if the document is dated).

    Compare: 1908 No 89 Schedule 2 r 196

6.11 Personal service
  • A document may be personally served by leaving the document with the person to be served, or, if that person does not accept it, by putting it down and bringing it to the notice of that person.

    Compare: 1908 No 89 Schedule 2 r 197

Subpart 2Corporations, partners, attorneys, and agents

6.12 Personal service on New Zealand corporations
  • (1) A document may be served on a company incorporated under the Companies Act 1993 in accordance with section 387 of that Act.

    (2) A document may be served on a corporation incorporated in New Zealand other than a company incorporated under the Companies Act 1993—

    • (a) by service in accordance with rule 6.11 on—

      • (i) the mayor, chairman, president, town clerk, managing director, secretary, treasurer, or other similar officer of the corporation; or

      • (ii) any member, officer, or employee of the corporation at the corporation’s head office or principal place of business; or

    • (b) by leaving the document at the corporation’s registered office; or

    • (c) by serving the document on a member, officer, or employee of the corporation in any manner that the court directs; or

    • (d) by complying with any enactment that provides for service of a document on a corporation.

    Compare: 1908 No 89 Schedule 2 r 198

6.13 Personal service in New Zealand on foreign corporations
  • (1) An overseas company (within the meaning of section 2 of the Companies Act 1993) that is served in New Zealand must be personally served in accordance with section 389 of the Companies Act 1993.

    (2) A corporation (other than an overseas company within the meaning of section 2 of the Companies Act 1993) may be served in New Zealand in accordance with rule 6.11 by service on a person appearing to have control of the business of that corporation at the principal or only place of business of that corporation in New Zealand if the corporation—

    • (a) is incorporated outside New Zealand; and

    • (b) has a place or places of business in New Zealand.

    Compare: 1908 No 89 Schedule 2 r 199

6.14 Personal service on unincorporated societies
  • A document may be served on an unincorporated society by serving the president, chairperson, secretary, or any similar officer of the society under rule 6.11.

    Compare: 1908 No 89 Schedule 2 r 200

6.15 Personal service on partnership or apparent partnership
  • A document may be served on a partnership or on a person carrying on business in the name of a firm apparently consisting of more than 1 person by serving it in accordance with rule 6.11—

    • (a) on any partner or on that person; or

    • (b) at the principal place in New Zealand of the business of the partnership or apparent partnership, on any person appearing to have control of the business there.

    Compare: 1908 No 89 Schedule 2 r 201

6.16 Personal service on attorney or agent of absentee
  • A document may be served on a person who is out of New Zealand by serving, in accordance with rule 6.11, an attorney or agent of that person in New Zealand if the attorney or agent is authorised—

    • (a) to transact that person’s affairs generally and to defend proceedings; or

    • (b) to transact the person’s affairs in respect of the subject matter of the proceeding and to defend the particular proceeding.

    Compare: 1908 No 89 Schedule 2 r 202

6.17 Service on representatives
  • (1) This rule applies to a person (a representative) who—

    • (a) is appointed by the court to represent any person or persons, or any class of persons; or

    • (b) sues or defends on behalf of himself or herself and any other person or persons.

    (2) Service on the representative is to be treated as service on behalf of all persons for whom the representative has been appointed to represent or on whose behalf the representative sues or defends.

    Compare: 1908 No 89 Schedule 2 r 208

6.18 Service on solicitor
  • A document is treated as served on a person on the date on which the solicitor for that person signs on a copy of the document a note accepting service of it, or a proved earlier date.

    Compare: 1908 No 89 Schedule 2 r 209

6.19 Service of statement of claim on certain days void
  • (1) A statement of claim must not be served on Christmas Day, New Year’s Day, or Good Friday.

    (2) Section 54 of the Act is not affected.

    Compare: 1908 No 89 Schedule 2 r 207

6.20 Failure to give address for service
  • A party to a contentious proceeding who has not given an address for service is not entitled to be served with notice of any step in the proceeding or with copies of any further documents filed in the proceeding or to address the court.

    Compare: 1908 No 89 Schedule 2 r 212

Subpart 3Foreign process

6.21 Service of foreign process
  • (1) This subpart applies when a request is made to the court to effect service of a foreign process on a person in New Zealand.

    (2) A request may be made to the court to effect service of a foreign process on a person in New Zealand in any manner permitted or required by the provisions of a convention.

    (3) Service in New Zealand of a foreign process must be in accordance with a convention if—

    • (a) the convention contains an express provision governing the service of that process in New Zealand; and

    • (b) that convention excludes other methods of service.

    (4) When service is in accordance with a convention, no court fees are to be charged for the filing of any document or the doing of any act relating to the service or the certification of service.

    (5) A letter of request from a foreign court requesting service of process on any person in New Zealand in connection with any civil matter pending before that foreign court must be forwarded through diplomatic channels to the Secretary of Foreign Affairs and Trade who must send it to the Secretary for Justice for further transmission to the Registrar with an intimation that it is desirable that effect should be given to that request.

    (6) A letter of request must be accompanied by—

    • (a) a translation of it in English if it is not in English; and

    • (b) 2 copies of the process or citation to be served; and

    • (c) 2 copies of the process or citation in English or translated into English.

    (7) Subclauses (5) and (6) and rules 6.22 to 6.25 apply subject to the provisions of any relevant convention.

    (8) In this rule, convention means any treaty to which New Zealand is a party that makes provision for service of foreign process in New Zealand.

    Compare: 1908 No 89 Schedule 2 r 213

6.22 Sheriff to effect service
  • Service of the process or citation must be effected by the Sheriff whose registry is nearest to the place where the person to be served resides, or by any officer appointed by that Sheriff.

    Compare: 1908 No 89 Schedule 2 r 214

6.23 Method of service
  • Service must be effected by leaving, in accordance with these rules, a copy of the process or citation and of any translation with the person to be served.

    Compare: 1908 No 89 Schedule 2 r 215

6.24 Return as to service
  • After service of the process or citation has been effected or (if that is the case) attempts to effect service of the process or citation have failed, the Sheriff or the officer effecting or attempting to effect service must return to the Registrar of the court nearest to the place of service or attempted place of service—

    • (a) 1 copy of the process or citation; and

    • (b) an affidavit made by the Sheriff or the officer stating when, where, and how the Sheriff or officer effected service or attempted to effect service; and

    • (c) a statement of the costs incurred in effecting, or attempting to effect, service.

    Compare: 1908 No 89 Schedule 2 r 216

6.25 Certification
  • The Registrar must give a certificate in form G 17—

    • (a) identifying the documents annexed, namely the letter of request for service, a copy of the process or citation received with the letter, and a copy of the affidavit referred to in rule 6.24(b); and

    • (b) certifying—

      • (i) that the method of service of the process and the proof of service comply with the law and practice of the High Court of New Zealand regulating the service of New Zealand legal process in New Zealand and its proof; or

      • (ii) if that is the case, that service of the process could not be effected for the reason specified in the certificate; and

    • (c) certifying the cost of effecting, or attempting to effect, service.

6.26 Sealing and transmission of certificate
  • The certificate given under rule 6.25 must be sealed with the seal of the court and sent to the Secretary for Justice who must send it to the Secretary of Foreign Affairs and Trade for further transmission through diplomatic channels to the foreign court.

    Compare: 1908 No 89 Schedule 2 r 217

Subpart 4Service out of New Zealand

6.27 When allowed without leave
  • (1) This rule applies to a document that initiates a civil proceeding, or is a notice issued under subpart 4 of Part 4 (Third, fourth and subsequent parties), which under these rules is required to be served but cannot be served in New Zealand under these rules (an originating document).

    (2) An originating document may be served out of New Zealand without leave in the following cases:

    • (a) when a claim is made in tort and—

      • (i) any act or omission in respect of which damage was sustained was done or occurred in New Zealand; or

      • (ii) the damage was sustained in New Zealand:

    • (b) when a contract sought to be enforced or rescinded, dissolved, annulled, cancelled, otherwise affected or interpreted in any proceeding, or for the breach of which damages or other relief is demanded in the proceeding—

      • (i) was made or entered into in New Zealand; or

      • (ii) was made by or through an agent trading or residing within New Zealand; or

      • (iii) was to be wholly or in part performed in New Zealand; or

      • (iv) was by its terms or by implication to be governed by New Zealand law:

    • (c) when there has been a breach in New Zealand of any contract, wherever made:

    • (d) when the claim is for—

      • (i) a permanent injunction to compel or restrain the performance of any act in New Zealand; or

      • (ii) interim relief in support of judicial or arbitral proceedings commenced or to be commenced outside New Zealand:

    • (e) when the subject matter of the proceeding is land or other property situated in New Zealand, or any act, deed, will, instrument, or thing affecting such land or property:

    • (f) when the proceeding relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to the law of New Zealand:

    • (g) when any relief is sought against any person domiciled or ordinarily resident in New Zealand:

    • (h) when any person out of the jurisdiction is—

      • (i) a necessary or proper party to proceedings properly brought against another defendant served or to be served (whether within New Zealand or outside New Zealand under any other provision of these rules), and there is a real issue between the plaintiff and that defendant that the court ought to try; or

      • (ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by proceedings in the court:

    • (i) when the proceeding is for the administration of the estate of any deceased person who at the time of his or her death was domiciled in New Zealand:

    • (j) when the claim arises under an enactment and either—

      • (i) any act or omission to which the claim relates was done or occurred in New Zealand; or

      • (ii) any loss or damage to which the claim relates was sustained in New Zealand; or

      • (iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside New Zealand in the circumstances alleged; or

      • (iv) the enactment expressly confers jurisdiction on the court over persons outside New Zealand (in which case any requirements of the enactment relating to service must be complied with):

    • (k) when the person to be served has submitted to the jurisdiction of the court:

    • (l) when a claim is made for restitution or for the remedy of constructive trust and the defendant’s alleged liability arises out of acts committed within the jurisdiction:

    • (m) when it is sought to enforce any judgment or arbitral award.

    Compare: 1908 No 89 Schedule 2 r 219

6.28 When allowed with leave
  • (1) In any proceeding when service is not allowed under rule 6.27, an originating document may be served out of New Zealand with the leave of the court.

    (2) An application for leave under this rule must be made on notice to every party other than the party intended to be served.

    (3) A sealed copy of every order made under this rule must be served with the document to which it relates.

    (4) An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction under rule 6.29, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is a New Zealand citizen.

    (5) The court may grant an application for leave if the applicant establishes that—

    • (a) the claim has a real and substantial connection with New Zealand; and

    • (b) there is a serious issue to be tried on the merits; and

    • (c) New Zealand is the appropriate forum for the trial; and

    • (d) any other relevant circumstances support an assumption of jurisdiction.

    Compare: 1908 No 89 Schedule 2 r 220

6.29 Court's discretion whether to assume jurisdiction
  • (1) If service of process has been effected out of New Zealand without leave, and the court's jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—

    • (a) that there is—

      • (i) a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

      • (ii) the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

    • (b) that, had the party applied for leave under rule 6.28,—

      • (i) leave would have been granted; and

      • (ii) it is in the interests of justice that the failure to apply for leave should be excused.

    (2) If service of process has been effected out of New Zealand under rule 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

    (3) When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.

    Compare: 1908 No 89 Schedule 2 r 220

6.30 Service of other documents outside New Zealand
  • Any document other than an originating document required by any rule to be served personally may be served abroad with the leave of the court, which may be given with any directions that the court thinks just.

6.31 Notice to defendant served outside New Zealand
  • If a defendant is to be served out of New Zealand, the memorandum required by rule 5.23(4) must also include a notice, which may be in form G 6, informing the defendant of—

    • (a) the scope of the jurisdiction of the court in respect of claims against persons who are not resident in New Zealand; and

    • (b) the grounds alleged by the plaintiff in relying on that jurisdiction; and

    • (c) the defendant’s right to enter an appearance and objection to the jurisdiction of the court under rule 5.49.

    Compare: 1908 No 89 Schedule 2 r 221

6.32 Service outside New Zealand
  • (1) An originating document permitted under these rules to be served outside New Zealand may be served by a method—

    • (a) specified in rule 6.1; or

    • (b) permitted by the law of the country in which it is to be served; or

    • (c) provided for in rules 6.33 and 6.34.

    (2) Subclause (1) is subject to subclauses (3) and (4).

    (3) When a convention relating to service of process is in force between New Zealand and the country where service is to be effected, service must be effected in accordance with a method provided for, or permitted by, that convention.

    (4) No service outside New Zealand is valid if effected contrary to the law of the country where service is effected.

    Compare: 1908 No 89 Schedule 2 r 222

6.33 Service through official channels
  • (1) When a party seeks service outside New Zealand through official channels, the request must be sent by the Registrar to the Secretary for Justice who must forward it to the Secretary of Foreign Affairs and Trade for further transmission to the appropriate authorities in the foreign country.

    (2) Proof of service must be returned to the Registrar through the same channels.

    (3) In respect of each person to be served, the request for service must be accompanied by—

    • (a) the document to be served; and

    • (b) a copy of the document to be exhibited to the evidence verifying service; and

    • (c) when the language of the person to be served is not English,—

      • (i) a translation of the document into the language (verified as correct to the satisfaction of the Registrar) of the person to be served for service with the document; and

      • (ii) a copy of that translation, which must be exhibited to the evidence verifying service.

    (4) A certificate establishing the fact and date of service and given by the competent authority of the country concerned, or by a New Zealand consular officer, is sufficient proof of that fact and date.

    (5) This rule is subject to any relevant convention that requires or permits any other method of service through official channels.

    Compare: 1908 No 89 Schedule 2 r 223

6.34 Service in convention countries
  • (1) This rule applies when—

    • (a) a convention is in force between New Zealand and any other country relating to the service of documents in proceedings in the courts of the respective countries; and

    • (b) a party to a proceeding in New Zealand desires to take advantage of any provision made in the convention for service in that other country by official means.

    (2) When this rule applies, the party seeking service may file a request in form G 18 stating the official means of service desired and containing the undertaking set out in that form covering the payment of expenses.

    (3) Subclause (2) is subject to the provisions of the convention.

    (4) In respect of each person to be served, the request for service must be accompanied by—

    • (a) the document to be served; and

    • (b) a copy of it exhibited to the evidence verifying service; and

    • (c) when the language of the person to be served is not English,—

      • (i) a translation of the document into his or her language (verified as correct to the satisfaction of the Registrar) for service with the document; and

      • (ii) a copy of that translation to be exhibited to the evidence verifying service.

    (5) The document and translation to be served must be sealed by the Registrar with the seal of the court and the documents required to accompany the request for service forwarded by the Registrar to the Secretary for Justice for transmission through the appropriate channels to the country concerned for service in accordance with the request for service.

    (6) A certificate establishing the fact and date of service and given by the competent authority of the country concerned, or by a British or New Zealand consular officer, and transmitted by the Secretary for Justice to the Registrar is sufficient proof of that service.

    (7) A certificate filed by the Registrar is equivalent to an affidavit of service of the documents referred to in the certificate.

    Compare: 1908 No 89 Schedule 2 r 224

6.35 Time for filing defence
  • Except when the court otherwise orders, a defendant who has been served out of New Zealand must file a statement of defence or appearance within 30 working days from the date of service.

    Compare: 1908 No 89 Schedule 2 r 225

Part 7
Case management, interlocutory applications, and interim relief

Subpart 1Case management

7.1 Tracks for proceedings
  • (1) All proceedings (other than proceedings entered on the commercial list) are on either the standard track or the swift track.

    (2) The following are on the swift track:

    • (a) applications under Part 12 (applications for summary judgment):

    • (b) applications under Part 19 (originating applications):

    • (c) applications for leave to appeal, and appeals, under Part 20:

    • (d) applications under Part 24 (insolvency) and Part 31 (companies liquidation):

    • (e) applications for leave to appeal, and appeals, under Part 26 (arbitration).

    (3) A proceeding not referred to in subclause (2) is on the standard track.

    (4) A Judge may, at any time, on the Judge’s own initiative or on an application by a party, move a proceeding—

    • (a) from the swift track to the standard track; or

    • (b) from the standard track to the swift track.

    Compare: 1908 No 89 Schedule 2 r 426

7.2 Convening of case management conferences
  • (1) A Judge may, at any time, hold a case management conference.

    (2) The case management conference is held so that the Judge may—

    • (a) assist the parties in the just, speedy, and inexpensive determination of the proceeding:

    • (b) make orders under rule 7.9:

    • (c) if practicable, make other interlocutory orders.

    (3) A case management conference may be convened by a Judge on the Judge’s own initiative or on the application of 1 or more of the parties.

    Compare: 1908 No 89 Schedule 2 r 427

7.3 Case management and pre-trial conferences for proceedings on standard track
  • (1) Unless the court otherwise directs, the following provisions apply to the convening of case management conferences for a proceeding on the standard track:

    • (a) a first case management conference must be held within 35 working days after the commencement of the proceeding:

    • (b) a second case management conference must be held within 75 working days after the commencement of the proceeding:

    • (c) a pre-trial conference must be held on a date arranged by the Registrar in accordance with subclause (6).

    (2) After the commencement of a proceeding on the standard track,—

    • (a) the Registrar must make arrangements for a case management conference to be held in accordance with subclause (1)(a); and

    • (b) the plaintiff must, as soon as practicable after being notified of the date of the case management conference, give notice of that date to every other party.

    (3) The Registrar must make arrangements to ensure that, within 25 working days after a proceeding is moved to the standard track from the swift track, a case management conference is held for the proceeding.

    (4) Unless the court otherwise directs, the first case management conference that is held for a proceeding must be conducted by telephone or video link.

    (5) At the second case management conference, the presiding Judge or Associate Judge must—

    • (a) issue directions for the trial; and

    • (b) fix a date for the holding of the pre-trial conference, or direct the Registrar to do so.

    (6) The date referred to in subclause (5)(b) must be as close as practicable to the date that is 10 working days after the date specified by these rules or directed by the court for service of the first written statements of evidence proposed to be called at the trial.

    (7) The Registrar must—

    • (a) make arrangements for the pre-trial conference to be held; and

    • (b) at least 10 working days before the date fixed for the pre-trial conference, remind the parties or their counsel of that date.

    (8) At the pre-trial conference the parties must be prepared to discuss with the presiding Judge the matters listed in Schedule 8.

    (9) Counsel must file and serve, 2 working days before the pre-trial conference, a memorandum that addresses each of the items in Schedule 8, or, alternatively, a joint memorandum.

    Compare: 1908 No 89 Schedule 2 r 428

7.4 Matters to be considered at case management conferences for proceedings other than appeals
  • (1) The matters to be considered at a case management conference under rule 7.3(1)(a) and (b) are—

    • (a) the Schedule 5 matters that are relevant to the proceeding and its current stage; and

    • (b) any interlocutory applications allocated for hearing at that conference under rule 7.33; and

    • (c) any application for an interlocutory order outlined in a memorandum filed under subclause (3).

    (2) Unless excused by the Judge, the parties must, not later than 2 working days before the case management conference,—

    • (a) file a joint memorandum; or

    • (b) each file a memorandum.

    (3) Any memorandum filed for a conference under rule 7.3(1)(a) and (b) must—

    • (a) address the matters set out in Schedule 5 that are relevant to the proceeding and its current stage; and

    • (b) outline, with reasonable details, any application for an interlocutory order intended to be made at the case management conference.

    (4) Any memorandum filed for a conference under subclause (2) must address the matters in that subclause.

    (5) Any memorandum may be filed by fax or by email transmission.

    Compare: 1908 No 89 Schedule 2 r 429

7.5 Case management conferences for appeals
  • (1) In the case of an appeal under Part 20 or 26, the Registrar must make arrangements for a case management conference to be held within 15 working days after any of the following dates:

    • (a) the date on which a notice of appeal under rule 20.6 or an originating application under rule 26.3 is filed:

    • (b) the date on which leave to appeal is granted on an application under rule 20.3 or 26.15.

    (2) The appellant must, as soon as practicable after being notified of the date of the case management conference, give notice of that date to everyone who has been, or is to be, served with a copy of the notice of appeal or the originating application.

    (3) The parties must, not later than 2 working days before the case management conference,—

    • (a) file a joint memorandum; or

    • (b) each file a memorandum.

    (4) Any memorandum filed must—

    • (a) address the matters set out in Schedule 6; and

    • (b) specify any directions in Schedule 6 that should be deleted or modified, and why; and

    • (c) set out any additional directions sought, and why; and

    • (d) set out the issues raised by the appeal if they are not fully set out, or are different from those set out, in the notice of appeal.

    (5) Any memorandum may be filed by fax or by email transmission.

    (6) The directions set out in Schedule 6 apply except to the extent that those directions are modified by directions given by the Judge.

    (7) At the conference, the Judge must give directions for the conduct of the appeal, which may, without limitation, include directions—

    • (a) as to service of the notice of appeal or the originating application, including service on persons not currently parties:

    • (b) about any cross-appeal, including directions as to service:

    • (c) in the case of an appeal under Part 20, as to how and when any application to adduce further evidence on appeal is to be dealt with:

    • (d) in the case of an appeal under Part 26,—

      • (i) as to the preparation of the record in accordance with rule 26.10 or in any other manner the Judge thinks fit:

      • (ii) as to the transcription of the evidence in accordance with rule 26.11:

    • (e) on any other matter for the purpose of best securing the just, speedy, and inexpensive determination of the appeal.

    (8) In the case of an appeal or reference by way of case stated under Part 21, this rule applies as if the appeal or reference were an appeal under Part 20, except that the references in subclauses (4) and (6) to Schedule 6 must be read as references to Schedule 7.

    Compare: 1908 No 89 Schedule 2 r 430

7.6 Cancellation of conference
  • A Judge may cancel a case management conference if, after reading the memoranda prepared under rule 7.4(3) or 7.5(3) for the conference, the Judge—

    • (a) is satisfied that all orders sought can be made by consent; and

    • (b) is satisfied that the attendance of counsel is not required; and

    • (c) makes those orders.

    Compare: 1908 No 89 Schedule 2 r 431

7.7 Court to seek admissions and agreements
  • At a case management conference, the Judge—

    • (a) must endeavour to secure that the parties make all admissions and all agreements as to the conduct of the proceeding that ought reasonably to be made by them; and

    • (b) may direct that any refusal to make an admission or agreement be recorded, in any form the Judge directs, so that the refusal can be taken into account in an award of costs.

    Compare: 1908 No 89 Schedule 2 r 439(1)

7.8 Limitation of right of appeal
  • Rule 7.7 does not require the Judge to endeavour to secure that the parties agree to exclude or limit any right of appeal, but an agreement to that effect must be recorded in any form the Judge directs.

    Compare: 1908 No 89 Schedule 2 r 439(2)

7.9 Directions as to conduct of proceeding
  • (1) A Judge may, by interlocutory order,—

    • (a) give directions to secure the just, speedy, and inexpensive determination of a proceeding:

    • (b) fix the time by which a step in a proceeding must be taken:

    • (c) fix the time by which all interlocutory steps must be completed:

    • (d) direct the steps that must be taken to prepare a proceeding for substantive hearing:

    • (e) direct how the hearing of a proceeding is to be conducted.

    (2) On an originating application a Judge may direct the parties to file a statement of claim and of defence, respectively.

    (3) A party or intended party may apply without notice to a Judge for directions if in doubt about—

    • (a) whether it is correct or appropriate to join a person as a party; or

    • (b) the proper court in which to commence or take a step in a proceeding; or

    • (c) the correct method of proceeding under these rules.

    (4) A step taken in accordance with a direction given under subclause (3) must be treated as valid.

    Compare: 1908 No 89 Schedule 2 rr 8, 425

7.10 Order may be varied at trial
  • An order or direction made or given under rule 7.9 may, if justice so requires, be varied or revoked (in whole or in part) by the court at the trial.

    Compare: 1908 No 89 Schedule 2 r 440

7.11 Hearing dates for proceedings on swift track
  • (1) In the case of appeals under Part 20 or 26, the Judge must, at a case management conference or, if the case management conference is cancelled under rule 7.6, by minute, give a direction—

    • (a) allocating a hearing date for the appeal; or

    • (b) requiring the Registrar to allocate a hearing date for the appeal.

    (2) In the case of all other proceedings on the swift track (including applications for leave to appeal under Part 20 or 26), the Registrar must, as soon as practicable after the first document in the proceeding is filed or the proceeding is moved from the standard track to the swift track, allocate a hearing date for the proceeding.

    Compare: 1908 No 89 Schedule 2 r 432

7.12 Application of rules 7.13 to 7.18
  • Rules 7.13 to 7.18 apply to all proceedings other than proceedings that are on the swift track.

    Compare: 1908 No 89 Schedule 2 r 433

7.13 Allocation of hearing dates and setting down dates
  • (1) A Judge may give a direction that—

    • (a) allocates a hearing date for a proceeding; or

    • (b) requires the Registrar to allocate a hearing date for the proceeding.

    (2) Unless the Judge otherwise directs, if no hearing date has been allocated for the proceeding by the time that a second case management conference is, under rule 7.3(1)(b), held for the proceeding, the hearing date must be allocated at that conference whether or not any interlocutory application is outstanding.

    (3) When the Judge gives a direction under subclause (1), the Judge may also give a direction that fixes the setting down date for the proceeding.

    (4) A direction under subclause (1), or directions under subclauses (1) and (3), may be given at any time on the Judge’s own initiative or on the application of 1 or more parties to the proceeding.

    (5) If the Judge gives a direction under subclause (1) without giving a direction under subclause (3), the setting down date for the proceeding is the later of—

    • (a) the date that is 60 working days before the hearing date; or

    • (b) the date on which the hearing date is allocated.

    Compare: 1908 No 89 Schedule 2 r 434

7.14 Jury notice
  • If either party to a proceeding to which section 19A of the Act applies requires the proceeding to be tried before a Judge and a jury, the party must give notice to that effect to the court and to the other party not later than—

    • (a) 5 working days before the setting down date for the proceeding; or

    • (b) a date fixed by a Judge for the purpose.

    Compare: 1908 No 89 Schedule 2 r 435

7.15 Lists of proceedings
  • The Registrar must cause the following lists to be kept:

    • (a) a list of proceedings that have been allocated a hearing date under rule 7.13(1)(a); and

    • (b) a list of proceedings for which the Registrar is, under rule 7.13(1)(b), required to allocate a hearing date.

    Compare: 1908 No 89 Schedule 2 r 436

7.16 Registrar’s functions in relation to hearing dates
  • (1) After a Judge has allocated a hearing date for a proceeding under rule 7.13(1)(a), the Registrar must promptly—

    • (a) record the hearing date and the setting down date for the proceeding in the appropriate list; and

    • (b) give written confirmation of both dates to all parties to the proceeding.

    (2) After the Judge gives a direction under rule 7.13(1)(b) for a proceeding, the Registrar must—

    • (a) promptly record the proceeding in the appropriate list; and

    • (b) allocate a hearing date for the proceeding—

      • (i) as soon as practicable; and

      • (ii) so far as practicable, in the order in which the directions for the proceedings recorded in the appropriate list have been given; and

    • (c) then promptly—

      • (i) record the hearing date and the setting down date in the appropriate list; and

      • (ii) give written confirmation of both dates to all parties to the proceeding.

    (3) The performance of the Registrar’s functions under subclause (1) is subject to any direction by a Judge.

    Compare: 1908 No 89 Schedule 2 r 437

7.17 Parties to keep Registrar informed
  • It is the duty of all parties to a proceeding that has been allocated a hearing date to notify the Registrar, without delay, if the proceeding is settled.

    Compare: 1908 No 89 Schedule 2 r 438

7.18 No steps after setting down date without leave
  • (1) On and after the setting down date the Registrar, without requiring an application by a party, must treat the proceeding as set down for hearing.

    (2) No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, in the proceeding after the setting down date without the leave of a Judge.

    (3) Subclause (2) does not apply to—

    • (a) an application for leave under that subclause; or

    • (b) an application for directions under rule 7.9; or

    • (c) a pleading or an affidavit that merely brings up to date the information before the court; or

    • (d) an application for an amendment of a defect or error under rule 1.9.

    Compare: 1908 No 89 Schedule 2 r 438AA

Subpart 2Interlocutory applications and interlocutory orders

7.19 Contents, form, and filing of interlocutory application
  • (1) An interlocutory application must—

    • (a) state the relief sought and the grounds justifying that relief; and

    • (b) refer to any particular enactments or principles of law or judicial decisions on which the applicant relies.

    (2) The application need not ask for general or other relief.

    (3) The application is made by filing it in the court.

    (4) The application must be in form G 31 or G 32.

    (5) This subpart applies to the application.

    Compare: 1908 No 89 Schedule 2 r 237(1)–(3)

7.20 Affidavit to be filed with application
  • Any affidavit in support of the application must be filed at the same time as the application.

    Compare: 1908 No 89 Schedule 2 r 241

7.21 Filing by post
  • (1) An applicant may post an application and related documents together with the applicable fee to the Registrar at the proper registry of the court.

    (2) A posted application is filed when that Registrar receives it with the applicable fee.

    (3) The Registrar must acknowledge the receipt of all documents sent by post and notify the applicant of the hearing date (if any) allocated for the application.

    (4) If the application is made without notice and does not require any attendance by or on behalf of the applicant, the Registrar must notify the applicant of the result of the application.

    Compare: 1908 No 89 Schedule 2 r 237(4), (5)

7.22 Service of application and supporting affidavit
  • (1) After filing an application and any affidavit in support of it, the applicant must promptly serve a copy of the application and affidavit on every party.

    (2) After the applicant is notified of the hearing date for the application, the applicant must promptly notify every respondent of the hearing date.

    (3) This rule does not apply to an application made without notice in accordance with rule 7.23.

    Compare: 1908 No 89 Schedule 2 r 243

7.23 Application without notice
  • (1) If the applicant wishes the application to be determined without any other party being served (in these rules referred to as an application without notice), the applicant must use form G 32.

    (2) An application without notice must contain a certificate that—

    • (a) uses the words I certify that this application complies with the rules; and

    • (b) is personally signed by the applicant’s lawyer.

    (3) The lawyer who signs the certificate must, before signing it, be personally satisfied that—

    • (a) the application and every affidavit filed in support of it complies with these rules:

    • (b) the order sought is one that ought to be made:

    • (c) there is a proper basis for seeking the order in an application without notice.

    (4) The lawyer is responsible to the court for those matters.

    (5) Despite subclause (2), a Judge may dispense with the certificate if the applicant is unrepresented and justice so requires, and if dispensation is sought, the applicant must state the reasons for the absence of a lawyer’s certificate.

    Compare: 1908 No 89 Schedule 2 r 240

7.24 Notice of opposition to application
  • (1) A respondent who intends to oppose an application must file and serve on every other party a notice of opposition to the application within—

    • (a) the period of 10 working days after being served with the application; or

    • (b) if the hearing date for the application is within that period, 3 working days before the hearing date.

    (2) The notice of opposition must—

    • (a) state the respondent’s intention to oppose the application and the grounds of opposition; and

    • (b) refer to any particular enactments or principles of law or judicial decisions on which the respondent relies.

    (3) The notice of opposition must be in form G 33.

    Compare: 1908 No 89 Schedule 2 r 244

7.25 Affidavit to be filed with notice of opposition
  • Any affidavit setting out evidence in support of the notice of opposition must be filed and served at the same time as the notice of opposition.

    Compare: 1908 No 89 Schedule 2 r 245

7.26 Affidavit in reply
  • (1) Any reply by the applicant to the respondent’s notice of opposition or affidavit must be by affidavit, which must be filed and served within—

    • (a) the period of 5 working days after service of the notice of opposition; or

    • (b) if the hearing date for the application is within that period, 1 pm on the working day before that hearing date.

    (2) The affidavit in reply must be limited to new matters raised in the notice of opposition or in an affidavit filed by the respondent.

    Compare: 1908 No 89 Schedule 2 r 246

7.27 Evidence normally given by affidavit
  • (1) Evidence relating to interlocutory applications is given by affidavit.

    (2) Despite subclause (1), in special circumstances, a Judge may accept oral evidence.

    Compare: 1908 No 89 Schedule 2 r 253(1)

7.28 Cross-examination of maker of affidavit
  • A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.

    Compare: 1908 No 89 Schedule 2 r 253(2)

7.29 Rules governing affidavits
  • Rules 9.75 to 9.88 apply, with all necessary modifications, to affidavits filed for interlocutory applications.

    Compare: 1908 No 89 Schedule 2 r 249(1)

7.30 Statements of belief in affidavits
  • (1) A Judge may accept statements of belief in an affidavit in which the grounds for the belief are given if—

    • (a) the interests of no other party can be affected by the application; or

    • (b) the application concerns a routine matter; or

    • (c) it is in the interests of justice.

    (2) Subclause (1) overrides rule 7.29.

    Compare: 1908 No 89 Schedule 2 r 249(2)

7.31 When admissions binding
  • An admission of a fact expressly made only for the purpose of an application binds the party only for the application.

    Compare: 1908 No 89 Schedule 2 r 247

7.32 Previous affidavits and agreed statements of fact
  • (1) Affidavits already filed in the court and agreed statements of fact, if made in the same proceeding or, with the leave of a Judge, in any other proceeding between the same parties, may be used on the disposal of any application if—

    • (a) prior notice of the intention to use them has been given to the opposite party (whether in the notice of application or in the notice of opposition or otherwise); or

    • (b) in the case of an application without notice, they are referred to in the notice of application.

    (2) Subclause (1) does not apply to an affidavit or to an agreed statement to the extent that the affidavit or statement contains any admission of the kind described in rule 7.31.

    Compare: 1908 No 89 Schedule 2 r 248

7.33 Allocation of hearing date
  • On or following the filing of an application (other than an application without notice), the Registrar must allocate a hearing date for the application.

    Compare: 1908 No 89 Schedule 2 r 242(1)

7.34 Mode of hearing
  • (1) An interlocutory application for which a hearing is required must be heard in chambers unless a Judge otherwise directs.

    (2) On the Judge’s own initiative or on the application of 1 or more of the parties, the Judge may conduct a hearing in chambers by telephone or video link.

    Compare: 1908 No 89 Schedule 2 r 251(2), (3), (5)

7.35 Publication about hearing in chambers
  • Particulars of the hearing in chambers of an interlocutory application or of the decision or both (including the reasons for the decision) may be published unless a Judge or Registrar, exercising jurisdiction in chambers, otherwise directs.

    Compare: 1908 No 89 Schedule 2 r 72A

7.36 Application for summary judgment to be heard in open court
  • Despite rule 7.34(1), every application for summary judgment must be heard in open court.

    Compare: 1908 No 89 Schedule 2 r 251(1)

7.37 No hearing required if respondents consent or do not oppose
  • (1) Subclause (2) applies if each respondent to an interlocutory application has stated on the application or in a memorandum filed in the court that the respondent consents to, or does not oppose, the orders sought in the application.

    (2) A Judge may—

    • (a) make the orders sought without holding a hearing; or

    • (b) direct that the application be heard on the hearing date allocated under rule 7.33.

    (3) If the Judge makes the orders without holding a hearing, the Registrar must promptly advise the parties of the orders made and the cancellation of the hearing date.

    Compare: 1908 No 89 Schedule 2 r 250(1), (2)

7.38 Respondent who consents, or who does not oppose, need not attend hearing
  • (1) If a hearing of an interlocutory application is held, a respondent need not attend the hearing if the respondent consents to, or does not oppose, the application and has notified the court in writing.

    (2) Subclause (1) does not apply if, on the hearing date allocated for the interlocutory application, a case management conference is also due to be held.

    Compare: 1908 No 89 Schedule 2 r 250(3), (4)

7.39 Synopsis of argument
  • (1) This rule applies to a defended interlocutory application unless, or to the extent that, a Judge directs otherwise.

    (2) The applicant must file and serve a synopsis of argument (synopsis) on every other party,—

    • (a) if the respondent has filed a notice of opposition under rule 7.24(1)(a), at least 3 working days before the hearing of the interlocutory application; or

    • (b) if the respondent has filed a notice of opposition under rule 7.24(1)(b), at least 2 working days before the hearing of the interlocutory application.

    (3) The applicant’s synopsis must—

    • (a) identify the general nature of the case:

    • (b) include a chronology of the material facts:

    • (c) outline the applicant’s principal submissions:

    • (d) be accompanied by or have annexed to it—

      • (i) an indexed and paginated set of relevant documents; and

      • (ii) a list of authorities.

    (4) The material required to be included in the applicant’s synopsis under subclause (3)(a) to (c) must not exceed 10 pages.

    (5) The respondent must, at least 1 working day before the hearing, file and serve a synopsis on every other party.

    (6) The respondent’s synopsis must—

    • (a) identify any material facts that are not referred to in the applicant’s synopsis:

    • (b) state any facts that are disputed:

    • (c) outline the respondent’s principal submissions:

    • (d) be accompanied by or have annexed to it—

      • (i) an indexed and paginated set of any relevant documents not included in the applicant’s synopsis; and

      • (ii) a list of any authorities not included in the applicant’s synopsis.

    (7) The material required to be included in the respondent’s synopsis under subclause (6)(a) to (c) must not exceed 10 pages.

    Compare: 1908 No 89 Schedule 2 r 251A

7.40 Failure to attend
  • (1) If a party is neither present nor represented at the hearing of an application, the Judge may—

    • (a) determine the application in the party’s absence in any manner that appears just; or

    • (b) adjourn the application; or

    • (c) strike out the application.

    (2) If an order determining an application is made in the absence of a party, a Judge may, if the Judge thinks it just to do so, recall the order at any time before a formal record of it has been drawn up and sealed.

    (3) A Judge may, in any manner that the Judge thinks just, reinstate an application that has been struck out for non-appearance.

    (4) A Judge may make a determination referred to in subclause (2) or (3) on the Judge’s own initiative or on the application of a party.

    (5) Notice of an application under subclause (4) must be filed and served,—

    • (a) if it is made by a party who was present or represented at the hearing, within 5 working days after the hearing:

    • (b) if it is made by a party who was neither present nor represented, within 5 working days after receipt by the party of notice of the decision given at the hearing.

    Compare: 1908 No 89 Schedule 2 r 252

7.41 Certain applications may be made orally at hearing
  • (1) At a hearing, the Judge may agree to hear an oral application for an interlocutory order if—

    • (a) all parties interested consent to the order sought; or

    • (b) these rules permit the application to be made without filing a notice of the application; or

    • (c) the order sought has been outlined in a memorandum filed for a case management conference, and no party will be unduly prejudiced by the absence of a formal notice of the application; or

    • (d) because of the nature of the order sought, no party will be unduly prejudiced by the absence of a formal notice.

    (2) If the Judge agrees to hear an oral application, the Judge may make any interlocutory order or grant any interlocutory relief the Judge could have made or granted on a formal notice of the application.

    (3) This rule overrides rule 7.19.

    Compare: 1908 No 89 Schedule 2 r 254

7.42 Adjournment
  • The hearing of an application may, from time to time, be adjourned on any terms that the Judge thinks just.

    Compare: 1908 No 89 Schedule 2 r 255

7.43 Making of interlocutory orders
  • (1) A Judge may make any interlocutory order that—

    • (a) is provided for in these rules; or

    • (b) may be made under rule 1.6.

    (2) An interlocutory order may be made—

    • (a) on the interlocutory application of a party; or

    • (b) on a Judge’s own initiative.

    (3) Before making an order under subclause (2)(b), the Judge must give the parties an opportunity to be heard.

    Compare: 1908 No 89 Schedule 2 r 234

7.44 Power to grant interlocutory order or interlocutory relief
  • A Judge may make any interlocutory order or grant any interlocutory relief the Judge thinks just, even though the order or relief has not been specifically claimed and there is no claim for general or other relief.

    Compare: 1908 No 89 Schedule 2 r 235

7.45 Interlocutory orders may be made subject to conditions
  • A Judge may make an interlocutory order subject to any just terms or conditions, including, without limitation, any condition that—

    • (a) a party give an undertaking:

    • (b) the order operate only for a specified period.

    Compare: 1908 No 89 Schedule 2 r 236

7.46 Determination of application without notice
  • (1) The Registrar must refer an application without notice to a Judge for direction or decision.

    (2) The Judge, on receiving an application without notice, must determine whether the application can properly be dealt with without notice.

    (3) The Judge may determine that an application can properly be dealt with without notice only if the Judge is satisfied that—

    • (a) requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or

    • (b) the application affects only the applicant; or

    • (c) the application relates to a routine matter; or

    • (d) an enactment expressly permits the application to be made without serving notice of the application; or

    • (e) the interests of justice require the application to be determined without serving notice of the application.

    (4) If the Judge determines that the application can properly be dealt with without notice, the Judge may—

    • (a) make the order sought in the application; or

    • (b) make any other order that the Judge thinks just in the circumstances; or

    • (c) dismiss the application.

    (5) If the Judge determines that the application cannot properly be dealt with without notice, the Judge may—

    • (a) give directions as to service and adjourn the determination of the application until the application has been served on persons who are affected by the application; or

    • (b) if the Judge considers that the application has no chance of success, dismiss the application.

    Compare: 1908 No 89 Schedule 2 rr 242(2), 256

7.47 Drawing up and sealing interlocutory order
  • (1) A party may draw up an interlocutory order and submit it to the Registrar for sealing.

    (2) Despite subclause (1), a party who obtains an interlocutory order must draw up the order and submit it to the Registrar for sealing if the order—

    • (a) affects a person who is not a party; or

    • (b) joins a person as a party; or

    • (c) directs that it be served on a person.

    (3) If a party elects to have an order sealed, or is required by the court or by these rules to have an order sealed, the following provisions apply:

    • (a) the party must file an original order together with sufficient copies so that the party and the other parties who have given an address for service can each receive a duplicate sealed order:

    • (b) the order must be in form G 34:

    • (c) the order must specify both the date on which it was made and the date on which it was sealed:

    • (d) the Registrar, when satisfied with the form of the order, must sign and seal the original and every copy:

    • (e) the Registrar must mark every copy with the word duplicate:

    • (f) the Registrar must retain the original on the file:

    • (g) the party who submitted the order for sealing must promptly serve a sealed copy on every other party who has given an address for service and on any person affected by the order.

    Compare: 1908 No 89 Schedule 2 r 257

7.48 Enforcement of interlocutory order
  • (1) If a party (the party in default) fails to comply with an interlocutory order, a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.

    (2) The Judge may, for example, order—

    • (a) that any pleading of the party in default be struck out in whole or in part:

    • (b) that judgment be sealed:

    • (c) that the proceeding be stayed in whole or in part:

    • (d) that the party in default be committed:

    • (e) if any property in dispute is in the possession or control of the party in default, that the property be sequestered:

    • (f) that any fund in dispute be paid into court:

    • (g) the appointment of a receiver of any property or of any fund in dispute.

    (3) An order must not be enforced by committal unless the order has been served personally on the party in default or that party had notice or knowledge of the order within sufficient time for compliance with the order.

    Compare: 1908 No 89 Schedule 2 r 258

7.49 Order may be varied or rescinded if shown to be wrong
  • (1) A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

    (2) A party may not apply under subclause (1) if the order or decision was made or given—

    • (a) with the consent of the parties; or

    • (b) on an interlocutory application for summary judgment under rule 12.4; or

    • (c) by an Associate Judge in chambers.

    (3) Notice of an application under subclause (1) must be filed and served,—

    • (a) if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:

    • (b) if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.

    (4) The application does not operate as a stay unless a Judge so orders.

    (5) Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.

    (6) The Judge may,—

    • (a) if satisfied that the order or decision is wrong, vary or rescind the order or decision; or

    • (b) on the Judge’s own initiative or on the application of a party, transfer the application to the Court of Appeal.

    Compare: 1908 No 89 Schedule 2 r 259

7.50 Order relating to management of proceeding may be varied if circumstances change
  • (1) This rule applies to an order or direction (a determination) that—

    • (a) relates to the management of a proceeding; and

    • (b) has been made by a Judge in chambers.

    (2) If there has been a change in circumstances affecting a party or the party’s solicitor or counsel since the making of a determination, a Judge may, on application, vary the determination.

    (3) Despite subclause (2), a Judge may, on application or on the Judge’s own initiative, direct that—

    • (a) an application under subclause (2) to vary a determination made by an Associate Judge in chambers be heard as a review of an order made by an Associate Judge in chambers under section 26P of the Act and these rules:

    • (b) an application under subclause (2) to vary a determination made by a Judge in chambers be heard as an application under rule 7.49(1) or be transferred to the Court of Appeal.

    Compare: 1908 No 89 Schedule 2 r 260

7.51 Order may be rescinded if fraudulently or improperly obtained
  • (1) A Judge may rescind any order that has been fraudulently or improperly obtained.

    (2) The Judge may grant any further relief by way of costs that the interests of justice require.

    (3) This rule does not limit any other remedies of a party who has been adversely affected by an order that has been fraudulently or improperly obtained.

    Compare: 1908 No 89 Schedule 2 r 261

7.52 Limitation as to second interlocutory application
  • (1) A party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a Judge.

    (2) A Judge may grant leave only in special circumstances.

    Compare: 1908 No 89 Schedule 2 r 262

Subpart 3Interim relief

7.53 Application for injunction
  • (1) An application for an interlocutory injunction may be made by a party before or after the commencement of the hearing of a proceeding, whether or not an injunction is claimed in the party’s statement of claim, counterclaim, or third party notice.

    (2) The plaintiff may not make an application for an interlocutory injunction before the commencement of the proceeding except in case of urgency, and any injunction granted before the commencement of the proceeding—

    • (a) must provide for the commencement of the proceeding; and

    • (b) may be granted on any further terms that the Judge thinks just.

    Compare: 1908 No 89 Schedule 2 r 238(1), (2)

7.54 Undertaking as to damages
  • (1) An applicant for an interlocutory injunction under rule 7.53 must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunction.

    (2) The undertaking must be referred to in the order granting the interlocutory injunction and is part of it.

    Compare: 1908 No 89 Schedule 2 r 238 (3), (4)

7.55 Preservation of property
  • (1) A Judge may at any stage in a proceeding make orders, subject to any conditions specified by the Judge, for the detention, custody, or preservation of any property.

    (2) An order may authorise a person to enter any land or to do any other thing for the purpose of giving effect to the order.

    (3) The Judge may order that a fund be paid into court or otherwise secured if the proceeding concerns the right of a party to the fund.

    (4) The Judge may treat an application under this rule as an application for directions under rule 7.9 and give directions accordingly.

    Compare: 1908 No 89 Schedule 2 rr 331, 335, 336

7.56 Sale of perishable property before hearing
  • (1) A Judge may, on application, make an order authorising a person to sell property (other than land) in a manner and subject to any conditions stated in the order if—

    • (a) the proceeding concerns the property or raises, or may raise, questions about the property; and

    • (b) the property—

      • (i) is perishable or likely to deteriorate; or

      • (ii) should for any other reason be sold before the hearing.

    (2) The Judge may treat an application under this rule as an application for directions under rule 7.9 and give directions accordingly.

    Compare: 1908 No 89 Schedule 2 rr 332, 335

7.57 Order to transfer part of property to person with interest in property
  • (1) At any stage of a proceeding concerning property a Judge may order, subject to any conditions, that a part of the property be transferred or delivered to a person who has an interest in the property.

    (2) The order may be made if the Judge is satisfied—

    • (a) that the part of the property transferred or delivered is not required for the provision that ought to be made to meet the claims on the property; and

    • (b) that the order is necessary or desirable—

      • (i) to exclude the part of the property from an injunction or other order; or

      • (ii) to protect the person who is to transfer or deliver the property.

    Compare: 1908 No 89 Schedule 2 r 333

7.58 Interim payment of income to person with interest in income
  • (1) At any stage of a proceeding concerning property a Judge may order, subject to any conditions, that the whole or part of the income from the property be paid, during a period stated in the order, to 1 or more persons who have an interest in the income.

    (2) The order may be made if the Judge is satisfied—

    • (a) that the income stated in the order is not required for any provision that ought to be made to meet the claims on the property or its income; and

    • (b) that the order is necessary or desirable—

      • (i) to exclude the income from a freezing injunction or other order; or

      • (ii) to protect the person who is to pay the income.

    Compare: 1908 No 89 Schedule 2 r 334

Subpart 4Receivers

7.59 Application
  • Rules 7.60 to 7.67 apply to a receiver appointed under an order of the court to the extent that the order does not expressly provide otherwise.

    Compare: 1908 No 89 Schedule 2 r 337

7.60 Address for service
  • The receiver must, within 5 working days after appointment, file a notice specifying an address for service.

    Compare: 1908 No 89 Schedule 2 r 338

7.61 Receiver must give security
  • (1) A Judge may give directions as to the security that the receiver is required to give in accordance with this rule.

    (2) If a Judge directs that a receiver be appointed, no appointment may be made until the person to be appointed has given security in accordance with this rule.

    (3) Any security given under this rule must be approved by the Registrar.

    (4) The Registrar must be satisfied that the security is sufficient to ensure that the receiver will—

    • (a) account for everything received in his or her capacity as receiver; and

    • (b) comply with any direction given by a Judge.

    (5) A Judge may vary any directions given and may, in particular, order that the security be varied or discharged.

    (6) Subclauses (1) and (2) are subject to any enactment.

    Compare: 1908 No 89 Schedule 2 r 339

7.62 Remuneration of receiver
  • (1) A receiver must be paid the remuneration fixed by a Judge.

    (2) A Judge may, in the order appointing a receiver or in a later order, name the party or parties who must pay the remuneration and, if more than 1 party is named, the proportion to be paid by each party.

    (3) A Judge may order any party or parties to give security for the receiver’s remuneration.

    (4) Subclause (3) does not affect subclause (2).

    Compare: 1908 No 89 Schedule 2 r 340

7.63 Accounts of receiver
  • A receiver must file accounts at the intervals or on the dates specified in directions given by a Judge.

    Compare: 1908 No 89 Schedule 2 r 341

7.64 Examination of accounts
  • (1) The receiver must—

    • (a) on filing the accounts, request the Registrar to examine the accounts and to allocate a date and time for that examination; and

    • (b) serve on each party interested who has given an address for service in the proceeding—

      • (i) a copy of the accounts; and

      • (ii) a notice of the date and time allocated for the examination of the accounts.

    (2) The receiver must, unless a Judge otherwise orders, attend at the examination of the accounts.

    Compare: 1908 No 89 Schedule 2 r 342

7.65 Default by receiver
  • (1) A Judge may make any orders and give any directions that the Judge thinks fit if a receiver does not comply with a requirement, under these rules or an order or a direction,—

    • (a) to file any accounts or an affidavit; or

    • (b) to attend at the examination of the accounts; or

    • (c) to do any other thing.

    (2) Orders and directions made under subclause (1) may include orders and directions for—

    • (a) the discharge of the receiver; and

    • (b) the appointment of another receiver; and

    • (c) the payment of costs.

    (3) If a receiver does not comply with a requirement under these rules or an order or direction of a Judge to pay into court a sum shown by the accounts as due from the receiver, a Judge may order the receiver to pay interest at the rate prescribed under section 87 of the Act.

    (4) This rule does not limit the powers of the court to enforce orders or to punish contempt.

    (5) Subclause (3) does not limit subclause (1) or (2).

    Compare: 1908 No 89 Schedule 2 r 343

7.66 Powers of receiver
  • (1) A Judge may authorise a receiver to do (either in the receiver’s own name or in that of 1 or more parties) any act or thing that 1 or more parties could do if of full age and capacity.

    (2) An authority given under subclause (1)—

    • (a) may apply generally or be limited to a particular instance; and

    • (b) has effect even if 1 or more parties are not of full age and capacity.

    (3) This rule does not limit the powers of a Judge to authorise a receiver to do any act or thing.

    Compare: 1908 No 89 Schedule 2 r 344

7.67 Accounts on death of receiver
  • (1) If the receiver in any proceeding dies, a Judge may, on application, make any orders the Judge thinks fit for the filing and examining of accounts by the personal representatives of the deceased receiver and for the payment into court of any amount shown to be due.

    (2) A Judge may not make any order under subclause (1) unless notice of the application has been served on the personal representatives.

    (3) Notice of the application may be served in any manner in which a statement of claim may be served.

    Compare: 1908 No 89 Schedule 2 rr 345, 346

Subpart 5Interim payments

7.68 Interpretation
  • In rules 7.69 to 7.76, interim payment means a payment on account of any damages, debt, or other sum (excluding costs) that the defendant in a proceeding may be held liable to pay to, or for the benefit of, the plaintiff in that proceeding.

    Compare: 1908 No 89 Schedule 2 r 346A

7.69 Application for interim payment
  • (1) The plaintiff in a proceeding may, at any time after the time for the filing of a statement of defence by the defendant has expired, apply to the court for an order requiring the defendant to make an interim payment.

    (2) An application under subclause (1) must be supported by an affidavit—

    • (a) stating the amount of the damages, debt, or other sum to which the application relates and the reasons for making the application; and

    • (b) attaching any documentary evidence relied on by the plaintiff in support of the application.

    (3) The application and a copy of the affidavit in support and any documents annexed to it must be served on the defendant against whom the order is sought at least 10 working days before the date allocated for the hearing of the application.

    (4) A second or subsequent application for an interim payment may be made if it is shown to be justified, even if such an order has previously been made or refused.

    Compare: 1908 No 89 Schedule 2 r 346B

7.70 Order for interim payment in respect of damages
  • (1) A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied that—

    • (a) the defendant against whom the order is sought has admitted liability for the plaintiff’s damages; or

    • (b) the plaintiff has a judgment against the defendant for damages to be assessed; or

    • (c) on a trial of the proceeding, the plaintiff would obtain judgment for substantial damages against the defendant or, if there are several defendants, against 1 or more of them.

    (2) A Judge may, within the limits in subclause (3), order the defendant to make an interim payment of an amount that the Judge thinks just.

    (3) The amount must not exceed a reasonable proportion of the damages the plaintiff is, in the opinion of the Judge, likely to recover after taking into account—

    • (a) any relevant contributory negligence; and

    • (b) any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.

    Compare: 1908 No 89 Schedule 2 r 346C

7.71 Order for interim payment in respect of sums other than damages
  • (1) A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied—

    • (a) that the plaintiff has obtained an order for an account to be taken as between the plaintiff and the defendant and for the payment of any amount certified to be payable on the basis of that account; or

    • (b) in the case of a claim for the possession of land, that even if the proceeding was finally determined in favour of the defendant, the defendant would still be required to compensate the plaintiff for the defendant’s use and occupation of the land before the determination of the proceeding; or

    • (c) that, on the trial of the proceeding, the plaintiff is likely to obtain judgment against the defendant for a substantial sum of money apart from any damages or costs.

    (2) A Judge may order that the defendant pay an amount the Judge thinks just, after taking into account any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.

    (3) The order does not prejudice any contentions of the parties as to the nature or character of the sum to be paid by the defendant.

    Compare: 1908 No 89 Schedule 2 r 346D

7.72 Method of payment
  • (1) The amount of any interim payment ordered to be made must be paid to the plaintiff unless the order provides for it to be paid into court.

    (2) If the amount is paid into court, a Judge may, on the application of the plaintiff, order the whole or any part of it to be paid out to the plaintiff at a time or times the Judge thinks just.

    (3) If the person entitled to an interim payment or to a part of an interim payment belongs to a class of persons stated in subclause (4), acceptance of the interim payment is subject to the approval of a Judge and payment out of court may not be made without the leave of a Judge.

    (4) The classes are—

    • (a) minors (not including a minor to whom rule 4.31(2) applies):

    • (b) persons subject to a property order under the Protection of Personal and Property Rights Act 1988:

    • (c) incapacitated persons within the meaning of rule 4.29.

    (5) An application under subclause (2) for money in court to be paid out may be made without notice, but a Judge hearing the application may direct that notice of the application be served on the other party.

    (6) An interim payment may be ordered to be made in 1 sum or by any instalments a Judge thinks just.

    (7) If a payment is ordered in respect of the defendant’s use and occupation of land, the order may provide for periodical payments to be made while the proceeding awaits determination.

    (8) Subclause (1) is subject to subclause (3).

    Compare: 1908 No 89 Schedule 2 r 346E

7.73 Directions on interim payment application
  • When an application is made under rule 7.69, a Judge may give any directions as to the further conduct of the proceeding that the Judge thinks just, and may, in particular, order an early trial of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 346F

7.74 Non-disclosure of interim payment
  • (1) The fact that an order has been made under rule 7.70(2) or 7.71(2) must not be pleaded.

    (2) The fact that the order has been made or that an interim payment has been made, whether voluntarily or under an order, must not be disclosed at the trial, or hearing, of any question or issue as to liability or damages.

    (3) Subclause (2) does not prevent the disclosure of any fact—

    • (a) to the extent that the defendant consents to, or a Judge directs, the disclosure; or

    • (b) after all questions of liability and amount have been determined.

    Compare: 1908 No 89 Schedule 2 r 346G

7.75 Adjustment on final judgment or order or on discontinuance
  • (1) A Judge may, on the application of a party, make an order with respect to an interim payment made under an order or voluntarily that the Judge thinks just.

    (2) A Judge may, in particular, make an order for—

    • (a) the repayment by the plaintiff of all or part of the interim payment; or

    • (b) the variation or discharge of the interim payment; or

    • (c) the payment by another defendant of part of the interim payment, if the defendant who made the interim payment is entitled to recover from the other defendant an amount—

      • (i) by way of contribution or indemnity; or

      • (ii) in respect of a remedy or relief relating to, or connected with, the plaintiff’s claim.

    (3) A Judge may make an order under this rule—

    • (a) when giving or making a final judgment or order; or

    • (b) when granting the plaintiff leave to discontinue the proceeding or to withdraw the claim in respect of which the interim payment has been made; or

    • (c) at any other stage of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 346I

7.76 Counterclaims and other proceedings
  • Rules 7.68 to 7.75 apply, with all necessary modifications, to any counterclaim or proceeding in which 1 party seeks an order for an interim payment from another.

    Compare: 1908 No 89 Schedule 2 r 346J

Subpart 6Amendment of pleading

7.77 Filing of amended pleading
  • (1) A party may before trial file an amended pleading and serve a copy of it on the other party or parties.

    (2) An amended pleading may introduce, as an alternative or otherwise,—

    • (a) a fresh cause of action, which is not statute barred; or

    • (b) a fresh ground of defence.

    (3) An amended pleading may introduce a fresh cause of action whether or not that cause of action has arisen since the filing of the statement of claim.

    (4) If a cause of action has arisen since the filing of the statement of claim, it may be added only by leave of the court. If leave is granted, the amended pleading must be treated, for the purposes of the law of limitation defences, as having been served on the date of the filing of the application for leave to introduce that cause of action.

    (5) Subclause (4) overrides subclause (1).

    (6) If an amended pleading introduces a fresh cause of action, the other party must file and serve that party’s defence to it within 10 working days after the day on which the amended pleading is actually served on the other party.

    (7) When an amended pleading does not introduce a fresh cause of action, the other party may, within 5 working days after the day on which the amended pleading is served on that other party, file and serve an amended defence to it.

    (8) If an amended pleading has been filed under this rule, the party filing the amended pleading must bear all the costs of and occasioned by the original pleading and any application for amendment, unless the court otherwise orders.

    (9) This rule does not limit the powers conferred on the court by rule 1.9.

    (10) This rule is subject to rule 7.18 (which prohibits steps after the setting down date without leave).

    Compare: 1908 No 89 Schedule 2 r 187

Subpart 7Recovery of specific property subject to lien

7.78 Recovery of specific property subject to lien or other security
  • (1) This rule applies if a party (A) seeks to recover specific property other than land and the party from whom recovery is sought (B) does not dispute the title of A, but claims to retain the property by virtue of a lien or otherwise as security for a sum of money.

    (2) The court may order that A may pay into court the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as the court directs, and money so paid in must be held by the court until the result of the proceeding is known.

    (3) If payment into court is made, the court may order that the property claimed be delivered to its claimant.

    (4) Subclause (1) is applicable as soon as the claim to retain the property appears from the statement of defence or otherwise.

    Compare: 1908 No 89 Schedule 2 r 180

Subpart 8Negotiations for settlement

7.79 Court may assist in negotiating for settlement
  • (1) A Judge may, at any time before the hearing of a proceeding, convene a conference of the parties in chambers for the purpose of negotiating for a settlement of the proceeding or of any issue, and may assist in those negotiations.

    (2) A Judge who presides at a conference under subclause (1) may not preside at the hearing of the proceeding unless—

    • (a) all parties taking part in the conference consent; and

    • (b) the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.

    (3) A Judge may, at any time during the hearing of a proceeding, with the consent of the parties, convene a conference of the parties for the purpose of negotiating for a settlement of the proceeding or of any issue.

    (4) A Judge who convenes a conference under subclause (3) may not assist in the negotiations, but must arrange for an Associate Judge or another Judge to do so unless—

    • (a) the parties agree that the Judge should assist and continue to preside at the hearing; and

    • (b) the Judge is satisfied there are no circumstances that would make it inappropriate for the Judge to do so.

    (5) A Judge may, with the consent of the parties, make an order at any time directing the parties to attempt to settle their dispute by the form of mediation or other alternative dispute resolution (to be specified in the order) agreed to by the parties.

    (6) The parties, and a Judge or Associate Judge who presides at a conference or assists in negotiations under this rule, must not disclose any statement made during a conference, either—

    • (a) in court; or

    • (b) otherwise.

    (7) This rule must be read with subpart 8 of Part 2 of the Evidence Act 2006 (privilege).

    Compare: 1908 No 89 Schedule 2 r 442

7.80 Arbitration by consent
  • (1) The parties to a proceeding may agree to arbitration of their dispute or any part of it under the Arbitration Act 1996 at any time during the course of the proceeding.

    (2) If an arbitration agreement entered into during the course of a proceeding relates to all the matters in dispute in the proceeding, the court must, on application by a party, stay the proceeding.

    (3) If an arbitration agreement entered into during the course of a proceeding relates to some but not all of the matters in dispute in the proceeding, the court must, on application by a party, stay those parts of the proceeding to which the arbitration agreement relates.

    (4) The court may make the stay on terms as to costs or other ancillary matters.

    (5) Subclauses (2) and (3) do not apply if the court finds that the agreement has no effect or is inoperative or incapable of being performed.

    Compare: 1908 No 89 Schedule 2 r 383A

Subpart 9Interim relief in respect of overseas proceedings

7.81 Interim relief in support of overseas proceedings
  • (1) On the application of a party or an intended party to judicial proceedings commenced or to be commenced outside New Zealand (overseas proceedings), the court may, if the court thinks it just to do so, give interim relief in support of the overseas proceedings.

    (2) These rules apply to an application under subclause (1) as if the overseas proceedings for which support is sought had been commenced under these rules.

    (3) Subclause (1) does not apply to—

    • (a) an application for an interim payment under subpart 5:

    • (b) an application for discovery under subpart 3 of Part 8:

    • (c) an application in relation to evidence under Part 9:

    • (d) an application for a freezing order under Part 32.

    (4) Before making an order under this rule, the court must be satisfied that there is a real connecting link between the subject matter of the interim relief and the territorial jurisdiction of the court.

    (5) An order under subclause (1) must not be inconsistent with interim relief granted in the overseas proceedings by the court outside New Zealand.

Part 8
Interrogatories, discovery, and inspection

Subpart 1Interrogatories

8.1 Interrogatories by notice
  • (1) After a statement of defence has been filed, a party who has filed a pleading may file and serve on another party who has filed a pleading a notice requiring that party to answer specified interrogatories relating to any matter in question in the proceeding between the interrogating party and the party served.

    (2) The notice may require that the answers be verified even if the interrogating party has not previously required any answers to interrogatories to be verified.

    (3) The notice must be in form G 35.

    Compare: 1908 No 89 Schedule 2 r 278

8.2 Duties of party served
  • (1) A party required by notice under rule 8.1 to answer interrogatories must answer the interrogatories within the period specified in the notice.

    (2) The period specified commences on the first working day after the day on which the notice under rule 8.1 is served and may not be less than 10 working days (or, if the party is resident out of New Zealand, 20 working days).

    (3) Unless verification is required, the party required to answer the interrogatories must file and serve on the party requiring the answers,—

    • (a) if the answers do not have to be verified, a statement in accordance with rule 8.6; or

    • (b) if the answers do have to be verified, an affidavit verifying the statement together with the statement verified unless it has already been filed and served.

    (4) This rule is subject to rule 8.3.

    Compare: 1908 No 89 Schedule 2 r 279

8.3 Limitation of interrogatories by notice
  • (1) A Judge may, on the application of a party required to answer interrogatories, order that answers to interrogatories under rule 8.2 by that party—

    • (a) are not required; or

    • (b) need to be given only to specified interrogatories or classes of interrogatories or to specified matters that are in question in the proceeding.

    (2) The application may be made before or after the party has been served with a notice under rule 8.1.

    (3) In determining the application, the Judge must make any orders required to prevent unnecessary or oppressive interrogatories or unnecessary answers to interrogatories.

    Compare: 1908 No 89 Schedule 2 r 280

8.4 Multiple parties
  • If there are more than 2 parties, a party who is required under rule 8.2 to answer interrogatories must serve the documents required to be served under that rule on every party who has given an address for service.

    Compare: 1908 No 89 Schedule 2 r 281

8.5 Order to answer
  • (1) A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.6 in answer to interrogatories specified or referred to in the order.

    (2) The interrogatories must relate to matters in question in the proceeding.

    (3) The order may require the statement to be verified by affidavit.

    (4) The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.

    Compare: 1908 No 89 Schedule 2 r 282

8.6 Contents of statement
  • (1) A statement in answer to interrogatories must, unless a Judge otherwise orders, comply with this rule.

    (2) A statement in answer to interrogatories must deal with each interrogatory specifically, either—

    • (a) by answering the substance of the interrogatory without evasion; or

    • (b) by objecting to answer the interrogatory on 1 or more of the grounds mentioned in rule 8.7(1) and briefly stating the facts on which the objection is based.

    (3) The statement must set out above or opposite to each answer or objection the interrogatory to which it relates.

    Compare: 1908 No 89 Schedule 2 r 283

8.7 Objection to answer
  • (1) A party may object to answer an interrogatory on the following grounds only:

    • (a) that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:

    • (b) that the interrogatory is vexatious or oppressive:

    • (c) that the information sought is privileged:

    • (d) that the sole object of the interrogatory is to ascertain the names of witnesses.

    (2) It is not a sufficient objection that the answer to an interrogatory will determine a substantial issue in the proceeding.

    (3) On an application under rule 8.3 in respect of an interrogatory, a Judge may—

    • (a) require the applicant to specify on what grounds the applicant objects to answer that interrogatory; and

    • (b) determine the sufficiency of the objection.

    (4) If the Judge determines that the objection is not sufficient, the applicant is not entitled to object to answer the interrogatory.

    Compare: 1908 No 89 Schedule 2 r 284

8.8 Who may swear affidavit verifying statement in answer to interrogatories
  • (1) An affidavit verifying a statement of a party in answer to interrogatories may be made as follows:

    • (a) by the person required to make the statement:

    • (b) if the person required to make the statement is a minor (other than a minor to whom rule 4.31(2) applies) or is an incapacitated person within the meaning of rule 4.29, by the person’s litigation guardian:

    • (c) if the person required to make the statement is a corporation or a body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of a registry), by a person who meets the requirements of rule 9.82:

    • (d) if the person required to make the statement is the Crown, or an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.

    (2) Despite subclause (1), if paragraph (c) or (d) of that subclause applies, and if the affidavit is to be filed and served in accordance with an order, a Judge may—

    • (a) specify by name or otherwise the person who has to make the affidavit; or

    • (b) specify by description or otherwise a group or class of persons, any one of whom may make the affidavit.

    Compare: 1908 No 89 Schedule 2 r 286

8.9 Insufficient answer
  • If a party fails to answer an interrogatory sufficiently, a Judge may, in addition to acting under rule 7.48,—

    • (a) if the party has made an insufficient answer, order the party to make a further answer verified by affidavit in accordance with rule 8.8; or

    • (b) order the party, or any of the persons mentioned in rule 8.8(1)(b) to (d) as the case requires, to attend to be orally examined.

    Compare: 1908 No 89 Schedule 2 r 287

8.10 Incorrect answer to be amended
  • (1) If, by reason of a change of circumstances or an error or omission, a statement filed in response to a notice given or order made under rule 8.1, 8.5, or 8.9 appears to the party by or on whose behalf it was filed to be defective or erroneous, that party must promptly file and serve a further statement that corrects or supplements the original statement.

    (2) If the original statement was verified, the further statement must also be verified.

    Compare: 1908 No 89 Schedule 2 r 288

8.11 Answers as evidence
  • (1) A party may give in evidence—

    • (a) 1 or more answers to interrogatories without giving the others:

    • (b) part of an answer to an interrogatory without giving the whole of the answer.

    (2) If a party proposes to give in evidence an answer (or part of an answer) to an interrogatory (answer A), the Judge may look at the other answers, and if the Judge considers that answer A is so connected with another answer (answer B) that answer A ought not to be received without answer B, the Judge may refuse to receive answer A unless answer B is also given in evidence.

    Compare: 1908 No 89 Schedule 2 r 289

8.12 Public interest
  • The rules that relate to interrogatories do not affect any rule of law that authorises or requires the withholding of a matter on the ground that its disclosure would be injurious to the public interest.

    Compare: 1908 No 89 Schedule 2 r 290

8.13 Defamation proceedings
  • If, in a proceeding for defamation, the defendant pleads that the words or matters complained of are honest opinion on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant’s sources of information or grounds of belief may be allowed unless the interrogatories are necessary in the interests of justice.

    Compare: 1908 No 89 Schedule 2 r 285

Subpart 2Notice to admit facts

8.14 Notice to admit facts
  • (1) A party who is entitled to serve a notice under rule 8.1 may at any time serve on another party a notice requiring the party to admit, for the purpose of the proceeding only, the facts specified in the notice.

    (2) The notice must be in form G 36.

    (3) An admission made in compliance with a notice under subclause (1)—

    • (a) may be amended or withdrawn by the party by whom it was made at any time, if a Judge so allows and on any terms the Judge thinks just:

    • (b) must not be used against the party by whom it was made in a proceeding or interlocutory application other than the proceeding or interlocutory application for which it was made.

    (4) If the party on whom a notice to admit facts has been served under subclause (1) refuses or neglects to admit the facts within 5 working days after the day of service or within any longer time allowed by a Judge, the costs of proving the facts must be paid by that party, unless a Judge otherwise orders.

    Compare: 1908 No 89 Schedule 2 r 291

8.15 Judgment on admission of facts
  • A judgment or order may be made on an admission of facts under rule 15.15.

    Compare: 1908 No 89 Schedule 2 r 292

Subpart 3Discovery

8.16 Contents of discovery order
  • (1) In this rule and in rules 8.17 to 8.38, discovery order means an order, made under rule 8.17(1) or (3), that requires each party to a proceeding to discover the existence of documents to every other party.

    (2) To the extent that a discovery order does not modify the terms set out in rule 8.18, the order contains those terms.

    (3) A discovery order may modify the terms set out in rule 8.18 in any 1 or more of the following ways:

    • (a) by suspending the operation of the order until a date fixed or to be fixed by a Judge:

    • (b) by excluding 1 or more of those terms:

    • (c) by varying 1 or more of those terms:

    • (d) by replacing 1 or more of those terms with different terms:

    • (e) by adding any terms that are not set out in rule 8.18 to the order.

    (4) A discovery order may, for example, specify 1 or more of the following matters:

    • (a) the kinds of documents that a party is to discover:

    • (b) the method of discovering the documents:

    • (c) the time or times within which the documents are to be discovered.

    Compare: 1908 No 89 Schedule 2 r 293

8.17 Discovery orders to be made at case management conferences
  • (1) If discovery of documents is appropriate for a proceeding on the standard track, a Judge must make a discovery order.

    (2) An order under subclause (1) must be made at the first case management conference that is held for the proceeding, unless there is good reason for making the order later.

    (3) A Judge may make a discovery order for a proceeding on the swift track if—

    • (a) a case management conference is held for the proceeding; and

    • (b) a party to the proceeding sets out in a memorandum, filed under rule 7.5, why the order is sought.

    (4) If a party wishes a discovery order to contain terms that are not contained in, or that differ from, the terms set out in rule 8.18, the party must, in a memorandum filed under rule 7.5, set out the terms sought and why they are sought.

    Compare: 1908 No 89 Schedule 2 r 294

8.18 Default terms of discovery order
  • (1) A discovery order is in the terms set out in this rule unless those terms are modified by the order.

    (2) Each party must make an affidavit of documents that lists the documents that—

    • (a) are or have been in that party’s control; and

    • (b) relate to a matter in question in the proceeding.

    (3) The affidavit of documents must—

    • (a) comply with rules 8.20 and 8.21; and

    • (b) be filed and served on every other party who has given an address for service.

    (4) Each party must comply with the order within 20 working days after the date on which the order is made.

    Compare: 1908 No 89 Schedule 2 r 295

8.19 Solicitor’s obligations on discovery
  • As soon as practicable after a party becomes bound to comply with a discovery order, the solicitor who acts for the party in the proceeding must, to the best of the solicitor’s ability, ensure that the party—

    • (a) understands the party’s obligations under the order; and

    • (b) faithfully fulfils those obligations.

    Compare: 1908 No 89 Schedule 2 r 296

8.20 Affidavit of documents
  • (1) This rule applies to an affidavit of documents that a party is required to make under rule 8.18(2), but only to the extent that the requirement is not modified by the order.

    (2) In the affidavit of documents, the party must—

    • (a) refer to the discovery order under which the affidavit is made; and

    • (b) state that the party understands the party’s obligations under the order; and

    • (c) give particulars of the steps taken to fulfil those obligations; and

    • (d) identify or list the documents required to be discovered under the order in a schedule that complies with rule 8.21; and

    • (e) state any restrictions proposed to protect the claimed confidentiality of any document.

    (3) The affidavit may be in form G 37.

    Compare: 1908 No 89 Schedule 2 r 297

8.21 Schedule appended to affidavit of documents
  • (1) The schedule referred to in rule 8.20(2)(d) must identify or list documents—

    • (a) in the control of the party giving discovery and for which the party does not claim privilege or confidentiality, identifying them by number:

    • (b) in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:

    • (c) in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:

    • (d) that have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control and the person who now has control of them:

    • (e) that have not been in the control of the party giving discovery but are known by that party to relate to a matter in question in the proceeding, stating who has control of them.

    (2) Documents of the same nature in category (b), (c), (d), or (e) may be described as a group or groups.

    (3) The schedule need not include—

    • (a) copies of documents filed in court; or

    • (b) correspondence that may reasonably be assumed to be in the possession of all parties.

    Compare: 1908 No 89 Schedule 2 r 298

8.22 Variation of discovery order
  • (1) Subject to rule 7.18, a party may apply for an order varying the terms of a discovery order.

    (2) The variation may be granted by a Judge on the ground that—

    • (a) compliance or attempted compliance with the terms of the order has revealed a need for a variation; or

    • (b) there has been a change of circumstances justifying reconsideration.

    Compare: 1908 No 89 Schedule 2 r 299

8.23 Inspection of document referred to in pleading or other document
  • (1) A party (party A) on whom a pleading or other document is served may, by notice in writing served on the party or person by whom the pleading or other document was filed (party B), require party B to produce for inspection a document referred to in the pleading or other document.

    (2) Party B must, within 5 working days after service of a notice under subclause (1), make the document available for inspection by the parties to the proceeding.

    (3) Subclause (2) is subject to any claim by party B to privilege or confidentiality.

    (4) If party A challenges a claim to privilege or confidentiality, party A may apply to the court for an order setting aside or modifying the claim.

    Compare: 1908 No 89 Schedule 2 r 299A

8.24 Order for particular discovery against party after proceeding commenced
  • If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

    • (a) to file an affidavit stating—

      • (i) whether the documents are or have been in the party’s control; and

      • (ii) if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control, and who now has control of them; and

    • (b) to serve the affidavit on any other party.

    Compare: 1908 No 89 Schedule 2 r 300

8.25 Order to discover particular documents before proceeding commenced
  • (1) This rule applies if it appears to a Judge that—

    • (a) a person (the intending plaintiff) is or may be entitled to claim in the court relief against another person (the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate the intending plaintiff’s claim without reference to 1 or more documents or a group of documents; and

    • (b) there are grounds to believe that the documents may be or may have been in the control of a person (the person), who may or may not be the intended defendant.

    (2) The Judge may, on the application of the intending plaintiff made before any proceeding is brought, order the person—

    • (a) to file an affidavit stating—

      • (i) whether the documents are or have been in the person’s control; and

      • (ii) if they have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

    • (b) to serve the affidavit on the intending plaintiff; and

    • (c) if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.33, to the intending plaintiff.

    (3) An application under subclause (2) must be by interlocutory application made on notice—

    • (a) to the person; and

    • (b) to the intended defendant.

    (4) The Judge may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made.

    Compare: 1908 No 89 Schedule 2 r 301

8.26 Order for particular discovery against non-party after proceeding commenced
  • (1) This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding.

    (2) The Judge may, on application, order the person—

    • (a) to file an affidavit stating—

      • (i) whether the documents are or have been in the person’s control; and

      • (ii) if they have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

    • (b) to serve the affidavit on a party or parties specified in the order; and

    • (c) if the documents are in the control of the person, to make those documents available for inspection, in accordance with rule 8.33, to the party or parties specified in the order.

    (3) An application for an order under subclause (2) must be made on notice to the person and to every other party who has filed an address for service.

    (4) The Judge may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made.

    Compare: 1908 No 89 Schedule 2 r 302

8.27 Expenses
  • If an order is made under rule 8.25(2) or 8.26(2), the Judge may, if the Judge thinks it just, order the applicant to pay to the person from whom discovery is sought the person’s expenses (including solicitor and client costs) of and incidental to the application and in complying with any order made on the application.

    Compare: 1908 No 89 Schedule 2 r 303

8.28 Incorrect affidavit of documents to be amended
  • If, by reason of any change of circumstances or an error or omission, an affidavit of documents filed under an order made under any of rules 8.17, 8.22, or 8.24 to 8.26 appears to the person making discovery to be defective or erroneous, the person must promptly file and serve an affidavit that corrects or supplements the affidavit of documents.

    Compare: 1908 No 89 Schedule 2 r 304

8.29 Where process impeded by discovery of irrelevant documents
  • If a Judge considers that a party has impeded the process of discovery and inspection by including documents in an affidavit that are not required to be included, the Judge may order the party to pay costs to a party or parties specified in the order.

    Compare: 1908 No 89 Schedule 2 r 305

8.30 Who may swear affidavit of documents
  • (1) When the Judge makes an order under any of rules 8.17, 8.22, or 8.24 to 8.26, the Judge may—

    • (a) specify by name or otherwise the person who has to make the affidavit of documents; or

    • (b) specify by description or otherwise a group of persons or a class of persons, each of whom may make the affidavit.

    (2) If the Judge does not specify the person or the group or class of persons, the affidavit of documents may be made as follows:

    • (a) by the person required to make discovery:

    • (b) if the person required to make discovery is a corporation or a body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of a registry), by a person who meets the requirements of rule 9.82:

    • (c) if the person required to make discovery is the Crown, an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.

    Compare: 1908 No 89 Schedule 2 r 306

8.31 Challenge to privilege or confidentiality claim
  • (1) If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.

    (2) In considering the application, a Judge may require the document under review to be produced to the Judge and inspect it for the purpose of deciding the validity of the claim.

    (3) The Judge may—

    • (a) set aside the claim to privilege or confidentiality; or

    • (b) modify the claim to privilege or confidentiality; or

    • (c) dismiss the application; or

    • (d) make any other order with respect to the document under review that the Judge thinks just.

    Compare: 1908 No 89 Schedule 2 r 307

8.32 Crown documents and public interest
  • An order made under section 27(1) of the Crown Proceedings Act 1950 must be construed as not requiring disclosure of the existence of any document if—

    • (a) the Prime Minister certifies that the disclosure of the existence of that document would be likely to prejudice—

      • (i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or

      • (ii) any interest protected by section 7 of the Official Information Act 1982; or

    • (b) the Attorney-General certifies that the disclosure of the existence of that document would be likely to prejudice the prevention, investigation, or detection of offences.

    Compare: 1908 No 89 Schedule 2 r 308

8.33 Inspection of documents
  • (1) As soon as a person who is required to make discovery has served an affidavit of documents, the person must make the documents listed in the affidavit available for inspection by the parties to the proceeding.

    (2) The person is not required to make privileged documents or documents no longer in the person’s control available for inspection.

    (3) The person may limit inspection of confidential documents to the persons specified in the affidavit of documents and subject to the restrictions proposed in the affidavit.

    (4) Subclause (1) is subject to subclauses (2) and (3).

    (5) Subclauses (2) and (3) are subject to any contrary order made under rule 8.31.

    Compare: 1908 No 89 Schedule 2 r 309

8.34 Order facilitating inspection
  • (1) A Judge may, on application, make any order the Judge thinks appropriate to facilitate the efficient inspection of documents.

    (2) An order under subclause (1) may, for example, require the person who is to produce the documents for inspection to do either or both of the following:

    • (a) arrange the documents in a stated manner or order:

    • (b) assist the party inspecting the documents to locate and identify particular documents or groups of documents.

    Compare: 1908 No 89 Schedule 2 r 310

8.35 Cost of production by non-party
  • If an order is made under rule 8.25(2) or 8.26(2), the Judge may, if the Judge thinks it just, order that the applicant pay the person from whom discovery is sought that person’s expenses (including solicitor and client costs) in making the documents discovered available for inspection by the parties to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 311

8.36 Right to make copies
  • (1) A party to whom a document is produced for inspection under rule 8.33 or 8.34 may make copies of the document.

    (2) On the application of a party to whom a document is produced for inspection under rule 8.33 or 8.34, a Judge may order the person who has control of the document to give the applicant a legible copy.

    (3) An order under subclause (2) may be made on any terms the Judge thinks just, and, in particular, the Judge may order the applicant to pay the reasonable expenses of the other party, and may order that the document be marked to the effect that it is a copy given for purposes of inspection only.

    (4) A party who obtains a copy under this rule—

    • (a) may use that copy only for the purposes of the proceeding; and

    • (b) except for the purposes of the proceeding, must not make it available to any other person.

    Compare: 1908 No 89 Schedule 2 r 312

8.37 Effect of failure to include document
  • A document that should have been included in a party’s affidavit of documents may be produced in evidence at the hearing only with the consent of the other party or parties or the leave of the court.

    Compare: 1908 No 89 Schedule 2 r 313

8.38 Admission of documents discovered
  • (1) Whenever a party (party A) is permitted to inspect a document specified in an affidavit of documents served by another party (party B) on party A under any of rules 8.17 to 8.22, party A must (subject to any contrary order by a Judge) be treated as having made the following admissions in favour of party B:

    • (a) that the document, if described in the affidavit as an original document, is an original document and was printed, written, signed, or executed as it appears to have been; or

    • (b) that the document, if described in the affidavit as a copy, is a true copy.

    (2) Subclause (1) does not apply if—

    • (a) a party has in a pleading denied the authenticity of the document; or

    • (b) within 10 working days after inspecting the document, party A serves on party B a notice disputing the authenticity of the document.

    (3) At the hearing of a proceeding, party A may give secondary evidence of a document and of its contents if—

    • (a) the document is shown in an affidavit served in accordance with any of rules 8.17 to 8.22 to be in the control of party B; and

    • (b) party B has not produced the document after being requested to do so by party A.

    (4) Subclause (3) applies whether or not a notice to produce the document has been served on party B.

    (5) Subclauses (1) to (3) apply, with all necessary modifications, in relation to an affidavit made in compliance with an order under any of rules 8.24 to 8.26 (which relate to discovery of particular documents) as they apply in relation to an affidavit made under a discovery order.

    Compare: 1908 No 89 Schedule 2 r 314

8.39 Notice to produce documents or things
  • (1) A party to a proceeding may serve on another party a notice requiring the other party to produce a document or thing for the purpose of evidence at the hearing of the proceeding, or before a Judge, an officer, an examiner, or other person having authority to take evidence in the proceeding.

    (2) If the document or thing is in the control of the party who is served with the notice, the party must, unless a Judge otherwise orders, produce the document or thing in accordance with the notice, without the need for a subpoena for production.

    (3) The notice must be treated as an order of the court to produce the document or thing specified in the notice.

    Compare: 1908 No 89 Schedule 2 r 315

8.40 Notice to admit authenticity of documents
  • (1) A party (party A) to a proceeding may, by notice served on another party (party B), require party B to admit, for the purpose of that proceeding only, the authenticity of the documents specified in the notice.

    (2) For the purposes of the proceeding, party B is deemed to have admitted the authenticity of any document specified in the notice unless, within 10 working days after the date on which party B is served with the notice, party B serves on party A a notice disputing the authenticity of the document.

    (3) A party may, with the leave of a Judge, withdraw an admission under subclause (2).

    Compare: 1908 No 89 Schedule 2 r 316

8.41 Restricted effect of admission
  • An admission under rule 8.38 or 8.40 for the purpose of a proceeding may not be used against the admitting party in another proceeding.

    Compare: 1908 No 89 Schedule 2 r 317

8.42 Contempt of court
  • (1) Every person is guilty of contempt of court who, being a person from whom discovery is sought by an order made under rule 8.25(2) or 8.26(2), wilfully and without lawful excuse disobeys the order or fails to ensure the order is complied with.

    (2) This rule does not limit or affect any power or authority of the court to punish a person for contempt of court.

    Compare: 1908 No 89 Schedule 2 r 317A

Part 9
Evidence

Subpart 1Briefs of evidence, indexes, and bundles of documents

9.1 Scope of briefs regime
  • (1) The evidence in chief of witnesses in a proceeding must be contained in briefs and given in accordance with this subpart unless the Judge has directed that such evidence, or the evidence of a particular witness, or part of that evidence, be given orally.

    (2) Rules 9.2 to 9.9 and 9.12 to 9.16 apply to a proceeding unless modified or excluded by a direction of the court.

    (3) Despite subclause (2), rules 9.2 to 9.9 and 9.12 to 9.16 do not apply to a specified proceeding unless they are applied, with or without modifications, by a direction of the court.

    (4) In this rule, specified proceeding means a proceeding—

    • (a) that is on the swift track; or

    • (b) in which evidence is to be given by affidavit; or

    • (c) in which an agreed statement of facts has been filed under rule 9.57.

    (5) In this subpart, brief, in relation to the evidence of a witness to be called by a party, means a written statement setting out evidence proposed to be given by that witness.

    Compare: 1908 No 89 Schedule 2 r 441A

9.2 Service by plaintiff of briefs
  • (1) The plaintiff or other party responsible for serving the first briefs in a proceeding must, not later than the specified date, serve on every other party who has given an address for service a brief of the evidence in chief of each witness to be called by the plaintiff or that party.

    (2) For the purposes of subclause (1), the specified date is—

    • (a) the date fixed by the court for the purpose; or

    • (b) if no date is fixed, 15 working days after the setting down date.

    Compare: 1908 No 89 Schedule 2 r 441B

9.3 Service by other parties of briefs of evidence in chief
  • If a party who has been served with a brief under rule 9.2 also wishes to offer evidence, the party must, not later than 15 working days after the date on which the party was served with that brief, serve on every other party who has given an address for service a brief of the evidence in chief of each witness to be called by the party.

    Compare: 1908 No 89 Schedule 2 r 441C

9.4 Requirements in relation to briefs
  • A brief served under rule 9.2, 9.3, or 9.5—

    • (a) must be signed by the witness by whom the brief is made; and

    • (b) must not contain evidence that is inadmissible in the proceeding.

    Compare: 1908 No 89 Schedule 2 r 441D

9.5 Supplementary briefs
  • (1) A party to a proceeding who wishes to offer new or further evidence after a brief has been served on that party under rule 9.2 or 9.3 (not being evidence in response to any matter contained in that brief) may serve on every other party who has given an address for service a supplementary brief.

    (2) A supplementary brief served under subclause (1) must be served as soon as possible after the party wishing to offer the new or further evidence becomes aware of its existence or its relevance.

    (3) The evidence contained in a supplementary brief served under this rule may be offered as evidence only with the leave of the court.

    Compare: 1908 No 89 Schedule 2 r 441E

9.6 Evidence in chief at trial
  • (1) A brief signed by a witness that has been served under rule 9.2 or 9.3, together with any supplementary brief that may be offered under rule 9.5,—

    • (a) must, unless the trial Judge otherwise directs, be read by the witness at the trial as the witness’s evidence in chief; and

    • (b) is, when read by the witness at the trial, the evidence in chief given by the witness at the trial; and

    • (c) must, after being read by the witness at the trial, be endorsed by or on behalf of the Registrar with the words Given in evidence on [date].

    (2) The endorsement made under subclause (1)(c) must be signed and dated by or on behalf of the Registrar.

    Compare: 1908 No 89 Schedule 2 r 441F

9.7 Oral evidence in chief generally not permissible
  • (1) Oral evidence in chief of any person (whether or not a brief of that person’s evidence has been served) may be offered at the trial only if that oral evidence—

    • (a) is in response to evidence offered by another party; or

    • (b) is offered with the leave of the trial Judge.

    (2) Leave may be granted only if—

    • (a) the evidence relates to matters contained in a brief that has been served and is required to explain, elaborate, or otherwise clarify those matters; or

    • (b) the evidence relates to evidence in response to matters contained in a brief that has been served; or

    • (c) the evidence relates to new or further matters that could not reasonably have been included in the witness’s brief or a supplementary brief; or

    • (d) the admission of the evidence is required in the interests of justice; or

    • (e) every party to the proceeding who is represented at the hearing consents.

    (3) This rule does not apply if the Judge has directed that evidence be given orally under rule 9.1(1) or 9.6.

    Compare: 1908 No 89 Schedule 2 r 441G

9.8 References to briefs not given in evidence
  • If, by the time that a party opens the party’s case, the brief of another party’s witness has not been given in evidence, the party may, in opening, refer to that brief only with the leave of the trial Judge.

    Compare: 1908 No 89 Schedule 2 r 441H

9.9 Cross-examination in relation to briefs not given in evidence
  • (1) When any part of the evidence contained in a brief served under rule 9.2, 9.3, or 9.5 is not given in evidence at the trial by the person who signed the brief, any other party to the proceeding may, unless the trial Judge otherwise directs, put that part of the statement to that person in cross-examination.

    (2) When a brief served under rule 9.2, 9.3, or 9.5, or any part of the brief, has not been given in evidence, any party may, with the leave of the trial Judge, put that brief or that part of it to any witness in cross-examination.

    Compare: 1908 No 89 Schedule 2 r 441I

9.10 Privilege and admissibility not affected by briefs
  • Nothing in rules 9.1 to 9.9—

    • (a) deprives any party of that party’s right to treat any communication as privileged; or

    • (b) changes inadmissible evidence into admissible evidence; or

    • (c) changes admissible evidence into inadmissible evidence; or

    • (d) deprives any party of that party’s right to cross-examine any party to a proceeding on a brief, served under these rules, that is inconsistent with a statement previously made by that party; or

    • (e) allows a brief, served under these rules, to be made available, before it is given in evidence, for use for another purpose or proceeding.

    Compare: 1908 No 89 Schedule 2 r 441J

9.11 Cross-examination duties
  • The exchange of briefs under this subpart does not affect the cross-examination duties referred to in section 92 of the Evidence Act 2006.

    Compare: 1908 No 89 Schedule 2 r 441K

9.12 Exchange of indexes of documents intended for hearing
  • (1) A party who wishes to rely on documents at a hearing must refer to those documents in an index and serve that index on every other party to the proceeding at the same time that the party serves briefs of evidence under these rules.

    (2) An index served by a party under subclause (1) must include only documents that—

    • (a) will be referred to in evidence to be given, or submissions to be made, at the hearing; and

    • (b) are not already included in any index previously served under this rule on the party by another party.

    Compare: 1908 No 89 Schedule 2 r 441M

9.13 Bundle of documents for hearing to be prepared and filed
  • (1) After the expiry of the period of 15 working days specified in rule 9.3, the plaintiff must prepare a bundle of documents (in this rule and in rules 9.14 and 9.15 referred to as the common bundle) that contains every document referred to in—

    • (a) the index served by the plaintiff under rule 9.12; and

    • (b) each index (if any) served by another party under that rule.

    (2) In preparing the common bundle, the plaintiff must—

    • (a) set out the documents in chronological order or any other appropriate order agreed on by counsel; and

    • (b) number each page of the common bundle in consecutive order; and

    • (c) set out before the first document an index that shows—

      • (i) the date and nature of each document; and

      • (ii) the party from whose custody each document has been produced; and

      • (iii) the page number of each document as it appears in the common bundle.

    (3) The plaintiff must, not later than 5 working days before the hearing,—

    • (a) file 2 copies of the common bundle in the court; and

    • (b) serve 1 copy of the common bundle on every party to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 441N

9.14 Consequences of incorporating document in common bundle
  • (1) Each document contained in the common bundle is, unless the court otherwise directs, to be considered—

    • (a) to be admissible; and

    • (b) to be accurately described in the index to the bundle; and

    • (c) to be what it appears to be; and

    • (d) to have been signed by any apparent signatory; and

    • (e) to have been sent by any apparent author and to have been received by any apparent addressee; and

    • (f) to have been produced by the party indicated in the index to the common bundle.

    (2) If a party objects to the admissibility of a document included in the common bundle or to the application of any of paragraphs (b) to (f) of subclause (1) to a document, the objection must be—

    • (a) recorded in the common bundle; and

    • (b) determined by the court at the hearing or at any prior time that the court directs.

    (3) The fact that a document has been included in the common bundle is not relevant to the determination, under subclause (2), of an objection that relates to the document.

    (4) A document in the common bundle is received into evidence when a witness refers to it in evidence or when counsel refers to it in submissions (made otherwise than in a closing address).

    (5) A document in the common bundle may not be received in evidence except under subclause (4).

    (6) The court may direct that any provision of this rule is not to apply to a particular document.

    Compare: 1908 No 89 Schedule 2 r 441O

9.15 Consequence of not incorporating document in common bundle
  • A document that is not incorporated in the common bundle may be produced at the hearing only with the leave of the court.

    Compare: 1908 No 89 Schedule 2 r 441P

9.16 Plaintiff’s synopsis of opening and chronology
  • The plaintiff must, not later than 2 working days before the hearing, file in the court and serve on every other party to the proceeding—

    • (a) a copy of the plaintiff’s opening; and

    • (b) a chronology of the material events that form part of the plaintiff’s evidence.

    Compare: 1908 No 89 Schedule 2 r 441Q

Subpart 2Evidence by depositions

9.17 Order for examination of witness or for letters of request
  • (1) When, in a proceeding or on an interlocutory application, a party desires to have the evidence of a person or persons taken otherwise than at the trial or the hearing of that interlocutory application, the court may, on application by that party, make orders on any terms the court thinks just—

    • (a) for the examination of a person on oath before a Judge, Registrar, or Deputy Registrar or before a person that the court appoints (in rules 9.18 to 9.23 referred to as the examiner) at any place whether in or out of New Zealand; or

    • (b) for the sending of a letter of request to the judicial authorities of another country, to take, or cause to be taken, the evidence of a person.

    (2) On the application of an opposite party, the court may, if it is satisfied that the party who obtained the order under subclause (1) is not implementing the order with due diligence, rescind the order and may make any other order justice requires.

    Compare: 1908 No 89 Schedule 2 r 369

9.18 Security for costs for taking evidence outside New Zealand
  • The court may, as a condition of making an order under rule 9.17 for the taking of evidence outside New Zealand, require the party applying to give security for—

    • (a) the estimated fees and expenses of the examiner, or other person by or before whom the evidence is to be taken; and

    • (b) the costs of any opposite party of and incidental to the taking of the evidence, for the amount the court thinks just, but not exceeding the estimated reasonable indemnity costs and disbursements of that opposite party.

    Compare: 1908 No 89 Schedule 2 r 370

9.19 Documents for examiner
  • (1) The party obtaining an order for examination before an examiner must, unless the examination is conducted by the Registrar or Deputy Registrar at the court where the file of the proceeding is held, furnish the examiner with copies of those documents in the proceeding that are necessary to inform the examiner of the matters to which the examination is to relate.

    (2) If the documents in the proceeding are not sufficient to inform the examiner of the matters to which the examination is to relate, the court must, in the order for examination or in a later order, state those matters.

    Compare: 1908 No 89 Schedule 2 r 371

9.20 Procedure for examination before examiner
  • (1) On receipt of a copy of the order for examination, the examiner must appoint a time and place for the examination and notify all parties of the time and place.

    (2) The examiner may adjourn the examination from time to time and from place to place as is necessary or expedient.

    (3) The examiner may administer an oath to each witness examined and each witness may be examined, cross-examined, and re-examined as at the trial of a proceeding.

    (4) The examiner must ensure that evidence given at the examination is recorded, together with notes of any objections to the evidence.

    (5) The depositions so taken must be signed on each page by the witness and by the examiner.

    (6) The depositions when taken must be securely fastened together and must, together with the exhibits and the report of the examiner, be sent without delay to the registry of the court in which the file of the proceeding is for the time being held.

    (7) The examiner may send to the registry of the court in which the file of the proceeding is for the time being held a certificate stating that—

    • (a) at the time and place appointed for the examination or at any adjournment, there was no appearance by or on behalf of the party obtaining the order; or

    • (b) the witness did not attend at that time and place; or

    • (c) at that time and place, the applicant intimated that it was not intended to proceed with the taking of the evidence.

    (8) On application to the Registrar a party may inspect any depositions taken under this rule and make copies of them or extracts from them.

    Compare: 1908 No 89 Schedule 2 r 372

9.21 Examination of additional persons
  • (1) The examiner may, with the consent in writing of all parties to the proceeding, take the examination of a person in addition to the person named or referred to in the order for examination.

    (2) The consent of each of the parties must be attached to the deposition of that person.

    Compare: 1908 No 89 Schedule 2 r 373

9.22 Objection to question
  • When objection is taken to a question to a person being examined before an examiner, or a witness takes objection to answering a question or to producing a document or a thing,—

    • (a) the examiner must give the parties the examiner’s opinion on the objection, but must not rule on it; and

    • (b) the question, the ground for the objection, the opinion of the examiner, and the answer (if any) to the question must be set out in the deposition of the witness or in a statement attached to the deposition; and

    • (c) the court may, on application by a party, decide the validity of the objection.

    Compare: 1908 No 89 Schedule 2 r 374

9.23 Form of report
  • The report of the examiner may be in form G 19.

    Compare: 1908 No 89 Schedule 2 r 375

9.24 Depositions as evidence
  • Depositions taken in accordance with these rules under an order under rule 9.17 may be produced as evidence at the trial of the proceeding and must be received subject to any objection on the ground of admissibility.

    Compare: 1908 No 89 Schedule 2 r 376

9.25 Letters of request where convention exists
  • When a convention is in force between a country and New Zealand relating to the taking of evidence in that country for use in New Zealand, rules 9.26 to 9.28 apply subject to any special provisions contained in the convention.

    Compare: 1908 No 89 Schedule 2 r 377

9.26 Issue of letters of request
  • (1) When an order has been made for the issue of a letter of request, the party obtaining the order must—

    • (a) lodge with the Registrar—

      • (i) a form of the appropriate letter of request; and

      • (ii) the interrogatories and cross-interrogatories (if any) to accompany the letter of request; and

      • (iii) where required by the convention, a translation of each of the documents mentioned in subparagraphs (i) and (ii) into the language, or an appropriate language, of the country concerned; and

    • (b) file—

      • (i) a copy of each of the documents mentioned in paragraph (a); and

      • (ii) a personal undertaking by the party obtaining the order or the party’s solicitor to be responsible for all expenses in respect of the execution of the letter of request incurred by the court or by any person at the request of the court, and, on being given notice of the amount of those expenses, to pay the amount forthwith into a Crown Bank Account and produce evidence of the payment to the Registrar.

    (2) The correctness of every translation must be certified or otherwise verified to the satisfaction of the Registrar.

    (3) The Registrar may require security of a reasonable amount instead of an undertaking under subclause (1)(b)(ii).

    (4) The letter of request must be in such form as the court approves and be issued under the hand of a Judge and the seal of the court.

    Compare: 1908 No 89 Schedule 2 r 378

9.27 Agents of parties
  • The party who obtains an order for the issue of a letter of request must file a statement of the names and addresses of the parties’ agents in the country in which the letter of request is to be executed.

    Compare: 1908 No 89 Schedule 2 r 379

9.28 Consequences of non-compliance with undertaking as to expenses
  • When a party who has given an undertaking under rule 9.26(1)(b)(ii) does not, within 5 working days after being served with notice of the amount of the expenses concerned, pay that amount to the Registrar, the court may, on application by the Registrar,—

    • (a) order the party to pay the amount of the expenses to the Registrar; and

    • (b) until payment, stay the proceeding as far as concerns the whole or any part of any claim for relief by that party; and

    • (c) strike out any pleading filed by that party.

    Compare: 1908 No 89 Schedule 2 r 380

9.29 Application by Solicitor-General on letters of request from abroad
  • (1) The Registrar must transmit to the Solicitor-General a letter of request received if—

    • (a) the letter relates to a proceeding to which sections 184 and 185 of the Evidence Act 2006 apply; and

    • (b) it appears that the letter is not to be given effect by an application by a party to the proceeding.

    (2) The Solicitor-General may then make an application and take any steps that are necessary to give effect to the letter.

    Compare: 1908 No 89 Schedule 2 r 381

Subpart 3Medical examinations

9.30 Order for medical examination
  • (1) An order under section 100(1) of the Act may be made—

    • (a) at any time after the time for filing a statement of defence to the plaintiff’s statement of claim has expired, on the application of any party to the proceeding; or

    • (b) by the court on its own initiative.

    (2) The time and place of the examination must be fixed by the order.

    Compare: 1908 No 89 Schedule 2 r 318

9.31 Report
  • When an order is made under section 100(1) of the Act the court may require a medical practitioner making the examination—

    • (a) to furnish to the court, within the time specified in the order, a report in writing setting out—

      • (i) the medical practitioner’s clinical findings; and

      • (ii) the medical practitioner’s opinion of the physical condition or mental condition or both of the person examined, so far as relevant; and

      • (iii) if appropriate, the medical practitioner’s prognosis in respect of the condition; and

    • (b) to deliver, within the same time, a copy of the report to the party (if any) who applied for the order.

    Compare: 1908 No 89 Schedule 2 r 319

9.32 Service of report
  • (1) Unless the court otherwise directs, the party to whom the copy of the report is delivered under rule 9.31(b) must immediately serve a copy of the report on the person examined or that person’s solicitor and the other parties.

    (2) If the order under section 100(1) of the Act was made by the court on its own initiative, the Registrar must, as soon as practicable after the report is furnished to the court, serve a copy of the report on the parties to the proceeding.

    Compare: 1908 No 89 Schedule 2 r 320

9.33 Evidence of medical practitioner when medical examination ordered
  • If the parties do not agree to accept a report obtained under an order under section 100(1) of the Act, the court—

    • (a) may summon the medical practitioner named in the order to attend at the trial; and

    • (b) may, at any appropriate stage of the trial before counsels' addresses, examine the medical practitioner on the report; and

    • (c) may permit any party to cross-examine the medical practitioner on the evidence then given.

    Compare: 1908 No 89 Schedule 2 r 321

Subpart 4Inspection and testing

9.34 Order for inspection, etc
  • (1) The court may, for the purpose of enabling the proper determination of any matter in question in a proceeding, make orders, on terms, for—

    • (a) the inspection of any property:

    • (b) the taking of samples of any property:

    • (c) the observation of any property:

    • (d) the measuring, weighing, or photographing of any property:

    • (e) the conduct of an experiment on or with any property:

    • (f) the observation of a process.

    (2) An order may authorise a person to enter any land or do anything else for the purpose of getting access to the property.

    (3) In this rule, property includes any land and any document or other chattel, whether in the control of a party or not.

    Compare: 1908 No 89 Schedule 2 r 322

9.35 Notice of application
  • A party applying for an order under rule 9.34 must, so far as practicable, serve notice of the application on each person who would be affected by the order if made.

    Compare: 1908 No 89 Schedule 2 r 323

Subpart 5Experts

9.36 Appointment of court expert
  • (1) In a proceeding that is to be tried by Judge alone and in which a question for an expert witness arises, the court may at any time, on its own initiative or on the application of a party, appoint an independent expert, or, if more than 1 such question arises, 2 or more such experts, to inquire into and report upon any question of fact or opinion not involving questions of law or of construction.

    (2) An expert appointed under subclause (1) is referred to in this rule and in rules 9.37 to 9.42 as a court expert.

    (3) A court expert in a proceeding must, if possible, be a person agreed upon by the parties and, failing agreement, the court must appoint the court expert from persons named by the parties.

    (4) A person appointed as an independent expert in a proceeding under rule 9.44(3) may not be appointed as a court expert unless the parties agree.

    (5) In this rule, expert, in relation to a question arising in a proceeding, means a person who has the knowledge or experience of, or in connection with, that question that makes that person’s opinion on it admissible in evidence.

    Compare: 1908 No 89 Schedule 2 r 324

9.37 Submission of question to court expert
  • The question to be submitted to the court expert and the instructions (if any) given to the court expert must, failing agreement between the parties, be settled by the court.

    Compare: 1908 No 89 Schedule 2 r 325

9.38 Report of court expert
  • (1) The court expert must send his or her report to the court, together with whatever number of copies the court directs.

    (2) The Registrar must send copies of the report to the parties or their solicitors.

    (3) The court may direct the court expert to make a further or supplemental report.

    (4) Any part of the court expert’s report not accepted by all the parties must be treated as information furnished to the court and given appropriate weight.

    Compare: 1908 No 89 Schedule 2 r 326

9.39 Experiments and tests
  • (1) If the court expert is of the opinion that an experiment or test of any kind (other than one of a trifling character) is necessary for the making of a satisfactory report, the court expert—

    • (a) must inform the parties or their solicitors; and

    • (b) must, if possible, make an arrangement with the parties or their solicitors about—

      • (i) the expenses involved; and

      • (ii) the persons to attend the experiment or test; and

      • (iii) any other relevant matters.

    (2) The court must settle any matters on which the parties or their solicitors are unable to agree.

    Compare: 1908 No 89 Schedule 2 r 327

9.40 Cross-examination of court expert
  • (1) Any party may, within 10 working days after receiving a copy of the court expert’s report, apply to the court for an order under subclause (2).

    (2) On an application under subclause (1), the court must make an order for the cross-examination of the court expert by all parties, either—

    • (a) at the trial; or

    • (b) before an examiner at such time and place as may be specified in the order.

    Compare: 1908 No 89 Schedule 2 r 328

9.41 Remuneration of court expert
  • (1) The remuneration of the court expert must be fixed by the court and include—

    • (a) a fee for the report; and

    • (b) a proper sum for each day during which he or she is required to be present either in court or before an examiner.

    (2) The court may, by the order appointing the court expert or subsequently, make any order it thinks just for and incidental to the payment of the remuneration of the court expert including either or both of the following:

    • (a) an order directing that the remuneration of the court expert must be paid by 1 or more of the parties and, if more than 1, in the proportions the court thinks just:

    • (b) an order that any party or parties give security, on any terms the court thinks just, for the remuneration of the court expert.

    (3) When the court appoints the court expert on its own initiative, the court, instead of making an order under subclause (2), may, by the order appointing the expert or subsequently, order that the remuneration of the court expert must be paid by the chief executive of the Ministry of Justice out of money appropriated by Parliament for the purpose.

    (4) Subclauses (2) and (3) do not affect the power of the court to make an order providing for the payment of the court expert’s remuneration as part of the costs of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 329

9.42 Calling of expert witnesses
  • (1) If a court expert is appointed in a proceeding or an interlocutory application, a party may call 1 expert witness, or with leave, more than 1, to give evidence on the question reported on by the court expert, if the party gives notice of the intention to do so a reasonable time before the trial.

    (2) The court must not grant leave under subclause (1) unless the circumstances are exceptional.

    Compare: 1908 No 89 Schedule 2 r 330

9.43 Expert witness to comply with code of conduct
  • (1) A party to a proceeding who engages an expert witness must give the expert witness a copy of the code of conduct set out in Schedule 4.

    (2) An expert witness must—

    • (a) state in any written statement of the proposed evidence of the witness served under rule 9.2 or 9.3, or at the time of giving any oral evidence, or in any affidavit containing the evidence of the expert witness, that the expert witness has read the code of conduct and agrees to comply with it:

    • (b) comply with the code of conduct in preparing any written statement of the proposed evidence of the witness to be served under rule 9.2 or 9.3 or in giving any oral or affidavit evidence in any proceeding.

    (3) The evidence of an expert witness who has not complied with subclause (2)(a) may be offered only with the leave of the court.

    Compare: 1908 No 89 Schedule 2 r 330A

9.44 Court may direct conference of expert witnesses
  • (1) The court may, on its own initiative or on the application of a party to a proceeding, direct expert witnesses to—

    • (a) confer on specified matters:

    • (b) confer in the absence of the legal advisers of the parties:

    • (c) try to reach agreement on matters in issue in the proceeding:

    • (d) prepare and sign a joint witness statement stating the matters on which the expert witnesses agree and the matters on which they do not agree, including the reasons for their disagreement:

    • (e) prepare the joint witness statement without the assistance of the legal advisers of the parties.

    (2) The court must not give a direction under subclause (1)(b) or (e) unless the parties agree.

    (3) The court may, on its own initiative or on the application of a party to the proceeding,—

    • (a) appoint an independent expert to convene and conduct the conference of expert witnesses:

    • (b) give any directions for convening and conducting the conference the court thinks just.

    (4) The court may not appoint an independent expert or give a direction under subclause (3) unless the parties agree.

    (5) Subject to any subsequent order of the court as to costs, the court may determine the remuneration of an independent expert and the party by whom it must be paid.

    (6) The matters discussed at the conference of the expert witnesses must not be referred to at the hearing unless the parties by whom the expert witnesses have been engaged agree.

    (7) An independent expert appointed under subclause (3) may not give evidence at the hearing unless the parties agree.

    Compare: 1908 No 89 Schedule 2 r 330B

9.45 Status of joint witness statement by expert witnesses
  • (1) A joint witness statement prepared by expert witnesses under rule 9.44—

    • (a) must be circulated by the parties to the proceeding by whom the expert witnesses have been engaged to every other party who has given an address for service; and

    • (b) may be produced in evidence by any expert witness who signed the statement; and

    • (c) may, if the parties to the proceeding agree, be produced in evidence without the need to call any of the expert witnesses who signed the statement.

    (2) Rules 9.4 to 9.11 apply, with all necessary modifications, to a joint witness statement as if the statement were a written statement under rule 9.2 or 9.3.

    (3) An expert witness is not precluded from giving evidence on any matter at the hearing simply because the expert witness has participated in the preparation of a joint witness statement under rule 9.44 or because the witness statement is evidence at the hearing under rule 9.6.

    Compare: 1908 No 89 Schedule 2 r 330C

9.46 Evidence of expert witnesses at trial
  • The court may, at the hearing, direct that the evidence of expert witnesses is given after all or certain factual evidence is given or in a sequence the court thinks best suited to the circumstances of the proceeding.

    Compare: 1908 No 89 Schedule 2 r 330D

Subpart 6Preserving evidence

9.47 Right to preserve evidence
  • A person may apply by originating application for an order for the examination of a witness whose evidence may be material for establishing a right or claim—

    • (a) to any estate or interest in property, or to any other relief, to which the person would, in the circumstances alleged to exist, become entitled, on the happening of a future event; and

    • (b) that cannot be established before the happening of the future event.

    Compare: 1908 No 89 Schedule 2 r 443

9.48 Procedures in which the Crown may have interest
  • If the Crown may have an estate or interest in the property or in the right or claim, the applicant may join the Crown as a respondent.

    Compare: 1908 No 89 Schedule 2 r 444

9.49 Examination of witness
  • An application under rule 9.47 is not to be set down for hearing but the court may make an appropriate order under rules 9.17 to 9.19 for the examination of a witness (whether offered by the applicant or another party).

    Compare: 1908 No 89 Schedule 2 r 445

9.50 Subsequent admissibility
  • Evidence taken under rule 9.49 may subsequently be offered at the trial of a proceeding to enforce the claim or interest to which it relates and is admissible unless it is inadmissible in whole or in part under the Evidence Act 2006.

    Compare: 1908 No 89 Schedule 2 r 446

Subpart 7Evidence at trial

9.51 Evidence to be given orally
  • Unless otherwise directed by the court or required or authorised by these rules or by an Act, disputed questions of fact arising at the trial of any proceeding must be determined on evidence given by means of witnesses examined orally in open court.

    Compare: 1908 No 89 Schedule 2 r 496

9.52 Issue of subpoenas
  • (1) Orders of subpoena in form G 25 to require the attendance of witnesses at the trial to testify or to produce documents, or both, may be obtained by any party, at any time after the filing of the statement of claim.

    (2) A party requiring the issue of an order of subpoena must file a written request to obtain it.

    (3) The names of more than 1 witness may be included in an order of subpoena, but it is not necessary to show the names on the written request.

    Compare: 1908 No 89 Schedule 2 r 497

9.53 Service of subpoena
  • The order of subpoena must be served on the witness personally, by leaving a sealed copy of it with the witness, together with any allowances and travelling expenses required by section 56A(3) of the Act.

    Compare: 1908 No 89 Schedule 2 r 498

9.54 Evidence of person in custody
  • An application for an order under section 65 of the Corrections Act 2004 may be made without notice.

    Compare: 1908 No 89 Schedule 2 r 499

9.55 Affidavit evidence by agreement
  • (1) In a proceeding heard by a Judge alone, the parties may file an agreement signed by the parties, that the evidence, or any part of the evidence, is to be given by affidavit.

    (2) Despite an agreement filed under subclause (1), the court may direct that evidence of any disputed fact or issue be given in accordance with rule 9.51.

    Compare: 1908 No 89 Schedule 2 r 500

9.56 Affidavit evidence under order of court
  • (1) The court may, even though no agreement for the giving of evidence by affidavit has been made, at any time for sufficient reason order, on reasonable conditions,—

    • (a) that any particular fact or facts may be proved by affidavit; or

    • (b) that the evidence of any witness may be given by affidavit read at the trial or on any application for judgment.

    (2) Despite subclause (1), an order must not be made authorising the evidence of the witness to be given by affidavit if—

    • (a) an opposite party desires the production of a witness for cross-examination; and

    • (b) the witness can be produced.

    (3) Subclause (2) is subject to any order made under rule 7.9.

    Compare: 1908 No 89 Schedule 2 r 501

9.57 Agreed statement of facts
  • (1) If the parties so agree, the evidence at the trial of any proceeding heard by a Judge alone, or any issue in that proceeding, may be given, without examining any witnesses or filing any affidavits, by a statement of facts agreed upon by the parties.

    (2) Despite the agreement, the court may direct that evidence of any fact or matter be given in accordance with rule 9.51 or 9.56.

    (3) Every agreement under subclause (1) must be in writing signed by the parties and must be filed.

    (4) The agreement must set out the facts agreed upon and the court is entitled to draw any necessary inferences from the agreed facts.

    Compare: 1908 No 89 Schedule 2 r 502

Subpart 8Evidence in Trans-Tasman proceedings

9.58 Interpretation
  • In rules 9.59 to 9.67, unless the context otherwise requires, terms that are defined in the Evidence Act 2006 have the meanings given to them by that Act.

    Compare: 1908 No 89 Schedule 2 r 502A

9.59 Issue of subpoenas by High Court for service in Australia
  • (1) An order of subpoena of the High Court for service on a witness in Australia that requires the witness to testify, whether or not it also requires the witness to produce documents or things, must be in form G 26.

    (2) An order of subpoena of the High Court for service on a witness in Australia that requires the witness to produce documents or things, but does not require the witness to testify, must be in form G 27.

    (3) An order of subpoena referred to in subclause (1) or (2) may be obtained in the same manner and subject to the same conditions as an order of subpoena under rule 9.52.

    Compare: 1908 No 89 Schedule 2 r 502B

9.60 Leave to serve New Zealand subpoena on witness in Australia
  • (1) An application for leave to serve a New Zealand subpoena on a witness in Australia must be made without notice by originating application and Part 19 applies, with all necessary modifications, to the application.

    (2) Every application for leave to serve a New Zealand subpoena on a witness in Australia must be accompanied by an affidavit containing the following matters:

    • (a) the name, occupation, and residential address of the witness:

    • (b) proof that the witness has attained the age of 18 years:

    • (c) if the subpoena requires the witness to testify and to attend at the New Zealand court, whether consideration has been given to requiring the witness to testify from Australia by video link or telephone conference and the reason it is not considered appropriate that the witness do so:

    • (d) the latest date proposed for service of the subpoena:

    • (e) if the subpoena requires the witness to attend at the New Zealand court or at any other place,—

      • (i) the availability of suitable means of transport to enable the witness to comply with the subpoena:

      • (ii) an estimate of the length of time that the witness will be required to attend at the court or other place:

      • (iii) an estimate of the cost of transport and accommodation likely to be incurred by the witness in complying with the subpoena:

    • (f) the amounts or the amounts represented by vouchers, as the case may be, proposed to be paid or tendered to the witness to enable the witness to comply with the subpoena:

    • (g) if the applicant is aware of any fact or circumstance that may constitute a ground for setting the subpoena aside under section 160 of the Evidence Act 2006, the fact or circumstance.

    (3) A Judge may direct that a New Zealand subpoena be served in Australia on a body corporate by serving the subpoena on a member, officer, or employee of the body corporate in the manner the Judge directs.

    (4) The file relating to an application must be kept separate from the file relating to the proceeding to which the subpoena relates.

    (5) Despite rule 3.9, no document relating to an application under this rule may be searched, inspected, or copied without the leave of a Judge.

    Compare: 1908 No 89 Schedule 2 r 502C

9.61 Service of subpoena on witness in Australia
  • Every statement that, in accordance with section 156 of the Evidence Act 2006, is required to accompany a subpoena that is served on a witness in Australia must be in form G 28.

    Compare: 1908 No 89 Schedule 2 r 502D

9.62 Application to set aside New Zealand subpoena
  • (1) An application to set aside a New Zealand subpoena served on a witness in Australia may be filed by—

    • (a) a person who is entitled to file documents under these rules; or

    • (b) a person who is entitled to practise as a solicitor of a Supreme Court of a State or Territory of Australia and who is in practice on his or her own account or as a principal in a firm of solicitors.

    (2) The application may be filed by sending it by fax to the registry of the High Court in which leave to serve the subpoena was given.

    (3) Every application must be made by way of interlocutory application.

    (4) The heading on the application may be the same as the heading on the order granting leave to serve the subpoena.

    (5) Every application—

    • (a) must state an address in New Zealand or Australia that is the applicant’s address for service:

    • (b) may state a fax number in New Zealand or Australia to which documents relating to the application may be sent to the applicant.

    (6) If the application is filed by fax, the Registrar—

    • (a) must send by fax to the applicant or the applicant’s solicitor, as the case may be, an acknowledgement that the application has been received:

    • (b) may, if the application is not clear or legible, require the applicant or the applicant’s solicitor, as the case may be, to transmit the application by fax again.

    Compare: 1908 No 89 Schedule 2 r 502E

9.63 Service of documents on applicant
  • (1) A document relating to an application to set aside a New Zealand subpoena may be served on the applicant by—

    • (a) leaving it at the address for service of the applicant stated in the application; or

    • (b) if a fax number is stated in the application, sending it by fax to that number.

    (2) If a document relating to the application is served on the applicant by fax, the document must, subject to subclauses (3) and (4), be treated as having been served on the day on which it was sent.

    (3) If a document is sent by fax to a fax number in a State or Territory of Australia at a time later than 5 pm in that State or Territory, the document must, subject to subclause (4), be treated as having been served on the first working day after the day on which it was sent.

    (4) A document sent to a fax number in Australia must, unless the contrary is proved, be treated as having been received in a complete and legible condition.

    Compare: 1908 No 89 Schedule 2 r 502F

9.64 Hearing of application
  • (1) Despite any other rule, if neither the applicant for an order to set aside a New Zealand subpoena nor the person at whose request the subpoena was issued states that a hearing is required, the court may determine an application to set the subpoena aside without a hearing.

    (2) For the purposes of determining an application, the court may, if it thinks fit, hold a hearing by video link or telephone conference under section 168 of the Evidence Act 2006.

    (3) Subject to the Evidence Act 2006, the court must hold a hearing by video link or telephone conference if the applicant requests, either in the application or within a reasonable time after the filing of the application, that a hearing be held by video link or telephone conference.

    Compare: 1908 No 89 Schedule 2 r 502G

9.65 Failure to comply with subpoena
  • A certificate under section 161 of the Evidence Act 2006 must be in form G 29.

    Compare: 1908 No 89 Schedule 2 r 502H

9.66 Transmission of documents or things to Australian Court
  • (1) Every person who produces a document or thing at a registry of the court in compliance with an Australian subpoena must provide the Registrar with a copy of the subpoena.

    (2) When a document or thing is produced at a registry of the court, the Registrar must, on compliance with subclause (1),—

    • (a) issue a receipt for the document or thing that states the date and time of its production; and

    • (b) send to the Registrar of the Australian Court that issued the subpoena, by fax or other means of communication, a copy of the receipt and of the subpoena; and

    • (c) send the document or thing together with a copy of the subpoena, without delay, to the Australian Court by means enabling it to be received before the date on which it is required to be produced to that court.

    Compare: 1908 No 89 Schedule 2 r 502I

9.67 Evidence and submissions by video link and telephone conference
  • (1) An application under section 168 of the Evidence Act 2006 for a direction that evidence be given from Australia or submissions be made from Australia by video link or telephone conference may be made without notice. Except in the case of an application under section 160 of that Act, the application must be accompanied by an affidavit containing the following matters:

    • (a) the nature of the evidence or the submissions:

    • (b) the place in Australia from which the evidence is to be given or the submissions are to be made:

    • (c) if it is proposed that evidence be given or submissions be made by video link, particulars of the video link facilities available at the courtroom or other place where the court is to sit in New Zealand and at the place where the evidence is to be given or the submissions are to be made in Australia:

    • (d) if it is proposed that evidence be given or submissions be made by telephone conference, particulars of the telephone conference facilities available at the courtroom or other place where the court is to sit in New Zealand and at the place where the evidence is to be given or the submissions are to be made in Australia:

    • (e) in a case where evidence is proposed to be given, an estimate of the time the examination of the witness will take:

    • (f) whether issues of character or credibility are likely to be raised:

    • (g) in a case in which submissions are proposed to be made, an estimate of the time required to make the submissions.

    (2) When the court gives a direction under section 168 of the Evidence Act 2006, it must instruct the Registrar to make appropriate arrangements in New Zealand and Australia in accordance with any particular directions that the court may make.

    (3) Without limiting subclause (2), the court may—

    • (a) direct that the evidence be given or the submissions be made at an Australian Court or at another place in Australia:

    • (b) request that an officer of an Australian Court or other person approved by the Judge be present to assist in the transmission of evidence or submissions, and in particular to—

      • (i) introduce witnesses giving evidence or a barrister or solicitor, or both, making submissions:

      • (ii) assist with the administration of oaths:

      • (iii) assist with the implementation of any directions or requests given or made by the Judge hearing the evidence or submissions.

    Compare: 1908 No 89 Schedule 2 r 502J

Subpart 9Procedure when evidence given by affidavit

9.68 Application of rules 9.69 to 9.74
  • (1) Rules 9.69 to 9.74 apply subject to a direction by the court and to any rule affecting a particular kind of proceeding.

    (2) In this subpart, taker means the person before whom an affidavit is sworn or an affirmation is made.

    Compare: 1908 No 89 Schedule 2 r 503

9.69 Time for filing plaintiff’s affidavits
  • (1) In this rule, the prescribed date means,—

    • (a) if the parties have agreed under rule 9.55 that evidence be given by affidavit, the date when the agreement was filed:

    • (b) when these rules provide that the evidence be given by affidavit, the setting down date determined under rule 7.13.

    (2) Within 10 working days after the prescribed date the plaintiff must, subject to rule 19.11, file the plaintiff’s affidavits and serve copies on the other parties.

    Compare: 1908 No 89 Schedule 2 r 504

9.70 Time for filing defendant’s affidavits
  • The defendant must, within 10 working days after service of the plaintiff’s affidavits, file the defendant’s affidavits and serve copies of them on the plaintiff and on any other party.

    Compare: 1908 No 89 Schedule 2 r 505

9.71 Time for filing affidavits in reply
  • Within 10 working days after service on the plaintiff of the defendant’s affidavits, the plaintiff must file the plaintiff’s affidavits in reply and serve copies of them on the defendant and on any other party.

    Compare: 1908 No 89 Schedule 2 r 506

9.72 Use of affidavits
  • (1) No affidavit may be read or used until it has been filed.

    (2) When an affidavit has been filed, it may be used by any party.

    (3) An affidavit may not be taken off the file without the leave of the court.

    Compare: 1908 No 89 Schedule 2 r 507

9.73 Swearing of affidavits
  • (1) An affidavit may be read and used in a proceeding only if it complies either with subclause (2) or (3).

    (2) A sworn affidavit must be sworn—

    • (a) in accordance with the Oaths and Declarations Act 1957; and

    • (b) before a person authorised to administer oaths under that Act or under rule 9.85 or 9.86.

    (3) An affirmed affidavit must comply with the Oaths and Declarations Act 1957.

    Compare: 1908 No 89 Schedule 2 r 520

9.74 Cross-examination of person who has sworn affidavit
  • (1) A party desiring to cross-examine a person who has sworn or affirmed an affidavit on behalf of an opposite party may serve on that opposite party a notice in writing (which may be by letter addressed to the opposite party’s solicitor) requiring the production of that person for cross-examination before the court at the trial.

    (2) The notice must be served, and copies of it filed in the court and delivered to all other parties who have taken any step in the proceeding, not less than 3 working days before the day fixed for the trial.

    (3) The affidavit of a person who is not produced must not be used as evidence unless the evidence is routine, or there are exceptional circumstances, and in either case the court grants leave.

    (4) The party to whom the notice is given is entitled to compel the attendance of the person who has sworn an affidavit for cross-examination in the same way as that party might compel the attendance of a witness to be examined.

    Compare: 1908 No 89 Schedule 2 r 508

9.75 Person refusing to make affidavit
  • (1) If a person having information relevant to a proceeding or an interlocutory application refuses to make an affidavit as to that information, a party may apply for an order directing the person to appear and be examined on oath before the court, or any person the court appoints, as to that information.

    (2) The court may—

    • (a) make any orders the court thinks just for the attendance of that person before the court, or before the person named in the order, for the purpose of being examined, and for the production of any documents specified in the order; and

    • (b) impose any terms the court thinks just, as to the examination and the costs of and incidental to the application and examination.

    Compare: 1908 No 89 Schedule 2 r 509

9.76 Form and contents of affidavits
  • (1) An affidavit—

    • (a) must be expressed in the first person; and

    • (b) must state the full name, occupation, and place of residence of the person making it; and

    • (c) must either—

      • (i) be signed by that person; or

      • (ii) if that person cannot write, have that person’s mark set to it by that person; and

    • (d) must be confined—

      • (i) to matters that would be admissible if given in evidence at trial by the deponent; and

      • (ii) if in reply, to matters strictly in reply.

    (2) The court—

    • (a) may refuse to read an affidavit that—

      • (i) unnecessarily sets forth any argumentative matter or copies of or extracts from documents; or

      • (ii) being in reply, introduces new matter; and

    • (b) may order that the costs incurred in respect of or occasioned by an affidavit to which paragraph (a) applies be paid by the party filing the affidavit.

    (3) The taker must sign the affidavit after the signature of the person making it, and must state the date and place of swearing or affirming the affidavit and the taker’s qualification (in this subpart referred to as the statement by the taker).

    (4) If an affidavit has more than 1 page,—

    • (a) the deponent must initial or set the deponent’s mark on each page (not including the cover sheet) that precedes the page on which the statement by the taker in accordance with subclause (3) appears; and

    • (b) the taker must initial each of those pages.

    (5) This rule does not limit the extent to which subpart 2 of Part 5 applies in respect of affidavits.

    Compare: 1908 No 89 Schedule 2 r 510

9.77 Exhibits to affidavits
  • (1) Exhibits to an affidavit—

    • (a) must be marked, in each case, with a distinguishing letter or number; and

    • (b) must be annexed to the affidavit—

      • (i) if this is practicable; and

      • (ii) if none of them exceed international size A4; and

    • (c) must, in each case, be identified by a note made on it and signed by the taker.

    (2) Exhibits that are not annexed to the affidavit must, subject to subclause (3), be filed with the affidavit in a separate bundle, which bundle must—

    • (a) be securely bound; and

    • (b) include a sheet bearing a proper heading, endorsement, and subscription.

    (3) If the size, shape, or nature of an exhibit makes it impracticable to comply with subclause (1)(b) or (2), that exhibit must have firmly affixed to it a sheet bearing a proper heading, endorsement, and subscription.

    Compare: 1908 No 89 Schedule 2 r 511

9.78 Interlineation, alteration, or erasure in affidavit
  • An affidavit having in the statement by the taker or its contents an interlineation, alteration, or erasure must not, without leave of the court, be read or made use of in a proceeding unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the taker, or, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialled in the margin of the affidavit by the taker.

    Compare: 1908 No 89 Schedule 2 r 513

9.79 Irregularity in form of affidavit
  • The court may receive any affidavit sworn or affirmed for the purpose of being used in any proceeding, despite any defect by misdescription of parties in the title or statement by the taker, or any other irregularity in its form, and may direct that a note be made on the document that it has been so received.

    Compare: 1908 No 89 Schedule 2 r 514

9.80 Service copies of affidavits
  • Every service copy of an affidavit must be legible and, when practicable, include legible copies of all exhibits.

    Compare: 1908 No 89 Schedule 2 r 515

9.81 Affidavit may be sworn on Sunday
  • An affidavit may be sworn or affirmed on any day, including Sunday.

    Compare: 1908 No 89 Schedule 2 r 516

9.82 Affidavits made on behalf of corporation
  • A person may make an affidavit on behalf of a corporation or body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of an office) if the person—

    • (a) knows the relevant facts; and

    • (b) is authorised to make the affidavit.

    Compare: 1908 No 89 Schedule 2 r 517

9.83 Affidavit by 2 or more persons
  • In an affidavit made by 2 or more persons, the names of each of those persons must be inserted in the statement by the taker. If, however, the affidavit of those persons is sworn (or affirmed) at the same time before the same person, it is sufficient to state that it was sworn (or affirmed) by both (or all) of the persons named above.

    Compare: 1908 No 89 Schedule 2 r 518

9.84 Affidavit by blind or illiterate person
  • If it appears to the taker that the person making the affidavit is wholly or partially blind, or (whether because of physical handicap or otherwise) is unable to read or has severe difficulty in reading, the taker must certify in the affidavit—

    • (a) that the affidavit was read and explained by him or her to the person; and

    • (b) that the person appeared perfectly to understand the affidavit; and

    • (c) that the person wrote his or her signature or made his or her mark in the presence of the taker.

    Compare: 1908 No 89 Schedule 2 r 519

9.85 Authority to take affidavits in New Zealand
  • (1) An affidavit may be sworn in New Zealand before a solicitor of the court or a Registrar or a Justice of the Peace.

    (2) No affidavit, other than one sworn in respect of a non-contentious proceeding, may be read or used if it was sworn before a solicitor who, at the time of taking it, was acting as—

    • (a) the solicitor of a party to the proceeding; or

    • (b) a partner in, or a solicitor employed or engaged by, the firm of the solicitor of a party to the proceeding; or

    • (c) the agent of the solicitor of a party to the proceeding.

    (3) Subclause (2) overrides subclause (1).

    (4) In this rule,—

    Registrar includes—

    • (a) a Deputy Registrar of the High Court:

    • (b) a Registrar of a District Court:

    • (c) a Deputy Registrar of a District Court

    solicitor means a person enrolled as a barrister and solicitor of the High Court.

    Compare: 1908 No 89 Schedule 2 r 521

9.86 Authority to take affidavits in places outside New Zealand
  • (1) An affidavit may be sworn in a place outside New Zealand before—

    • (a) a Commissioner of the High Court of New Zealand who has authority in that place; or

    • (b) a person who is authorised to administer oaths by the law of that place; or

    • (c) a person who is authorised by a Judge to administer the oath required for the affidavit.

    (2) The person administering an oath under subclause (1) must state in the affidavit which qualification that person has.

    (3) An affidavit that appears to comply with subclauses (1) and (2) must be taken to have been properly sworn unless the court requires verification by evidence or other means of any matter relating to compliance with either of those subclauses.

    (4) Nothing in this rule affects the administering of oaths under the Oaths and Declarations Act 1957.

    Compare: 1908 No 89 Schedule 2 r 522

9.87 Meaning of authenticated deposition
  • In rules 9.88 and 9.89, authenticated deposition means a written statement—

    • (a) made in a place outside New Zealand before a court or a judicial or other authority or person; and

    • (b) the maker of which is, under the law in force in the place in which the statement is made, liable to punishment if the statement is false; and

    • (c) that purports to be—

      • (i) signed by a person holding judicial office or by an official exercising authority under the law in force in the place in which the statement is made; or

      • (ii) sealed with an official or public seal or with the seal of a Minister of State, or with the seal of a department or an official of the government exercising authority in the place in which the statement is made; or

      • (iii) endorsed with or accompanied by a certificate, given by a person having authority under the law in force in the place in which the statement is made to give the certificate, that the statement complies with the requirements of the law in force in that place and that, under that law, the maker of the statement is liable to punishment if the statement is false.

    Compare: 1908 No 89 Schedule 2 r 523

9.88 Admissibility of authenticated deposition
  • Evidence that may, under these rules, be given by affidavit, may be given in an authenticated deposition.

    Compare: 1908 No 89 Schedule 2 r 524

9.89 Application of other rules
  • (1) Rules 9.69 to 9.75 apply, with any necessary modifications, in relation to an authenticated deposition as if the deposition were an affidavit.

    (2) Rule 9.88 and this rule do not affect rules 9.17 to 9.29.

    Compare: 1908 No 89 Schedule 2 r 524A

Part 10
Trial

Subpart 1Place

10.1 Venue and changing it
  • (1) The place of trial is the town where the registry of the court in which the statement of defence is to be filed is situated, but if that registry is in Masterton, the place of trial is Wellington, and if that registry is in Tauranga the place of trial is Rotorua.

    (2) Despite subclause (1), the court may at any time order that the proceeding be tried at a place—

    • (a) that the parties consent to; or

    • (b) where the proceeding can be more conveniently or more fairly tried.

    (3) When the court orders a change of venue, it may direct that all subsequent steps in the proceeding be taken at the place where the trial is to take place.

    Compare: 1908 No 89 Schedule 2 rr 123, 479

Subpart 2Adjournments, methods of trial, and verdicts

10.2 Adjournment of trial
  • The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

    Compare: 1908 No 89 Schedule 2 r 480

10.3 Method of trial
  • A proceeding must be tried either before a Judge alone or before a Judge and a jury.

    Compare: 1908 No 89 Schedule 2 r 481

10.4 Court may order separate trials
  • When justice requires, the court may order separate trials of causes of action and it may also direct the sequence of the separate trials and make any supplementary order that is just.

    Compare: 1908 No 89 Schedule 2 r 113

10.5 Existence or accuracy of record
  • In any proceeding tried before a Judge and a jury, any question as to the existence or accuracy of a record of the court must be determined by the Judge and not by the jury.

    Compare: 1908 No 89 Schedule 2 r 482

10.6 When neither party appears
  • (1) If neither party appears when the proceeding is called, the court may order it to be struck out.

    (2) The court may order it to be reinstated on good cause shown by either party and on any terms it thinks just.

    Compare: 1908 No 89 Schedule 2 r 483

10.7 When only plaintiff appears
  • If the plaintiff appears and the defendant does not, the plaintiff must prove the cause of action so far as the burden of proof lies on the plaintiff.

    Compare: 1908 No 89 Schedule 2 r 484

10.8 When only defendant appears
  • If the defendant appears but the plaintiff does not, the defendant,—

    • (a) if the claim is not admitted, is entitled to judgment dismissing the proceeding; and

    • (b) if there is a counterclaim, must prove it so far as the burden of proof lies on the defendant.

    Compare: 1908 No 89 Schedule 2 r 485

10.9 Judgment following non-appearance may be set aside
  • Any verdict or judgment obtained when one party does not appear at the trial may be set aside or varied by the court on any terms that are just if there has, or may have been, a miscarriage of justice.

    Compare: 1908 No 89 Schedule 2 r 486

10.10 When both parties appear
  • (1) If both the plaintiff and the defendant appear, the plaintiff or any other party that has the right to begin must open the case and offer any evidence in support of it.

    (2) When the party who begins has closed that party’s case, the other party must state his or her case and offer any evidence in support of it.

    (3) After the evidence has been given, the party who did not begin may address the court generally on the case, and then the other party may address the court in reply.

    (4) If, however, the party who did not begin has not offered evidence, the sequence stated in subclause (3) is reversed.

    (5) This rule applies subject—

    • (a) to any directions given under rule 7.9; and

    • (b) to the provisions of any Act.

    Compare: 1908 No 89 Schedule 2 r 487

10.11 When proceeding tried with jury
  • (1) When the proceeding is tried with a jury, the Judge must, after the conclusion of counsels' addresses, direct the jury on the evidence given in the case and on any relevant points of law.

    (2) The Judge may leave the case to the jury generally to find for either party, or may ask the jury to answer the issues the Judge has settled, and take the verdict of the jury on those issues only.

    (3) The jury may, instead of finding a verdict for either party, state the facts as they find them to have been proved.

    (4) The statement must be put into writing and signed by the foreman of the jury before the jury is discharged.

    (5) The jury may give a verdict for either party, subject to a special case to be stated by the parties.

    (6) This rule applies subject to the provisions of any Act.

    Compare: 1908 No 89 Schedule 2 r 488

Subpart 3Consolidation of proceedings

10.12 When order may be made
  • The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—

    • (a) that some common question of law or fact arises in both or all of them; or

    • (b) that the rights to relief claimed therein are in respect of or arise out of—

      • (i) the same event; or

      • (ii) the same transaction; or

      • (iii) the same event and the same transaction; or

      • (iv) the same series of events; or

      • (v) the same series of transactions; or

      • (vi) the same series of events and the same series of transactions; or

    • (c) that for some other reason it is desirable to make an order under this rule.

    Compare: 1908 No 89 Schedule 2 r 382

10.13 Application of rule 10.12
  • Rule 10.12 applies even though—

    • (a) the relief claimed in the proceedings is not the same; or

    • (b) 1 or more of the proceedings—

      • (i) is pending in the court in the exercise of its admiralty jurisdiction; or

      • (ii) is brought under the provisions of an Act conferring special jurisdiction on the court.

    Compare: 1908 No 89 Schedule 2 r 383

Subpart 4Separate decision of questions

10.14 Definition of question
  • In rules 10.15 to 10.21, question includes any question or issue in any proceeding, whether of fact or of law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties, or otherwise.

    Compare: 1908 No 89 Schedule 2 r 417

10.15 Orders for decision
  • The court may, whether or not the decision will dispose of the proceeding, make orders for—

    • (a) the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and

    • (b) the formulation of the question for decision and, if thought necessary, the statement of a case.

    Compare: 1908 No 89 Schedule 2 r 418

10.16 Removal into Court of Appeal
  • If the court orders the separate decision of a question of law under rule 10.15, it may further order that it be removed into the Court of Appeal.

    Compare: 1908 No 89 Schedule 2 r 419

10.17 Agreed result
  • (1) The parties to a proceeding in which an order is sought or has been made under rule 10.15 may agree that, on any question being decided in the sense specified in the agreement, a specified direction for entry of judgment or a specified order will be made.

    (2) On that question being so decided, the court may make the agreed direction or order.

    (3) Where an agreement is made under subclause (1) before a case is stated, the terms of the agreement must be set out in the case stated.

    Compare: 1908 No 89 Schedule 2 r 420

10.18 Record, etc, of decision
  • When any question is decided under an order made under rule 10.15, the court must, subject to rule 10.19, either—

    • (a) cause the decision to be recorded; or

    • (b) direct the entry of an appropriate declaratory judgment or order.

    Compare: 1908 No 89 Schedule 2 r 421

10.19 Disposal of proceeding if proceeding substantially affected by decision of question
  • (1) This rule applies if a decision of a question under an order made under rule 10.15—

    • (a) substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or

    • (b) renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding.

    (2) The court, at the time of deciding the question or at any subsequent time, may, as appropriate,—

    • (a) dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or

    • (b) direct the entry of any judgment; or

    • (c) make any other order.

    Compare: 1908 No 89 Schedule 2 r 422

10.20 Form and contents of case
  • A case stated under an order under rule 10.15—

    • (a) must be divided into paragraphs numbered consecutively; and

    • (b) must state concisely any facts, and attach any documents that are necessary to enable the court to hear and decide the questions arising on the case stated; and

    • (c) must state the questions and matters to be decided.

    Compare: 1908 No 89 Schedule 2 r 423

10.21 Insufficient case or disputed facts or documents
  • If a case stated does not state the facts and documents sufficiently to enable the court to decide the questions arising, or otherwise to hear and determine the questions and matters on the case stated, or in any case in which any relevant fact or document is disputed, the court may,—

    • (a) with the consent of all parties interested, amend the case stated; or

    • (b) receive evidence, make findings of fact, and amend the case stated in accordance with the findings of fact of the court.

    Compare: 1908 No 89 Schedule 2 r 424

Subpart 5Counsel assisting

10.22 Counsel assisting
  • At the request of the court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the court.

    Compare: 1908 No 89 Schedule 2 r 438A

Part 11
Judgment

Subpart 1General provisions

11.1 Interpretation
  • In this Part,—

    delivery time has the meaning set out in rule 11.5

    judgment includes a decree or order of the court

    reasons for judgment means—

    • (a) the written reasons given by a Judge for his or her decision; or

    • (b) when the Judge gives reasons orally, means a report, approved by the Judge, of those reasons.

    Compare: 1908 No 89 Schedule 2 r 539

11.2 Types of judgment
  • A judgment may—

    • (a) be interim; or

    • (b) be final; or

    • (c) deal with any question or issue; or

    • (d) order any accounts, inquiries, acts, or steps that the court considers necessary.

    Compare: 1908 No 89 Schedule 2 r 531(1)

11.3 How judgment given
  • (1) A Judge may give a judgment—

    • (a) in writing; or

    • (b) orally—

      • (i) if the conditions in subclause (2) apply; or

      • (ii) on an application without notice.

    (2) The conditions are that the affected parties or their counsel have been given a reasonable opportunity—

    • (a) to be present when the judgment is given; or

    • (b) to hear the Judge give the judgment, for example, by telephone, telephone conference call, or video link.

    Compare: 1908 No 89 Schedule 2 r 540(1), (2)

11.4 Time judgment given
  • (1) A judgment is given orally when the Judge pronounces it, with or without reasons.

    (2) A written judgment is given at the delivery time directed or nominated under rule 11.5.

    Compare: 1908 No 89 Schedule 2 r 540(3), (4)

11.5 Delivery time of written judgment
  • The delivery time of a written judgment is—

    • (a) the date and time directed by the Judge responsible for it; or

    • (b) if no direction is given under paragraph (a), a date and time nominated by the Registrar under rule 11.14.

    Compare: 1908 No 89 Schedule 2 r 540(4), (5)

11.6 Form of judgment
  • (1) Judgments must be drawn up in a form approved by the Registrar.

    (2) Forms J 1 to J 4 must be used, as appropriate.

    Compare: 1908 No 89 Schedule 2 r 541(1), (2)

11.7 Duplicate judgments
  • Duplicates of a judgment, with the word duplicate on the front page, may be issued to any party.

    Compare: 1908 No 89 Schedule 2 r 541A

11.8 Death or incapacity of Judge before judgment
  • (1) A Judge or the Registrar may give a judgment or deliver the reasons for a judgment signed by a Judge who becomes incapable or dies after signing and before giving the judgment or delivering the reasons.

    (2) A decision is the judgment of the court, if—

    • (a) subclause (1) does not apply; and

    • (b) a court of 3 or more Judges sitting without a jury completes the trial of a proceeding or issue; and

    • (c) 1 of the Judges becomes incapable of giving judgment or dies; and

    • (d) a majority of the Judges who constituted the court when the trial began concur in the decision on the proceeding or issue.

    (3) A proceeding or issue must be retried if—

    • (a) neither subclause (1) nor (2) applies; and

    • (b) a Judge who is sitting without a jury on the trial of the proceeding or issue becomes incapable of giving judgment or dies.

    (4) A Judge or the Registrar must discharge the jury and order a new trial if another Judge sitting with a jury on the trial of the proceeding or issue dies or becomes incapable of acting for any other reason before the jury retires to consider its verdict.

    (5) A Judge may do any 1 or more of the following if another Judge sitting with a jury on the trial of a proceeding or issue dies or becomes incapable of acting for any other reason after the jury retires to consider its verdict and before judgment is given:

    • (a) give any further directions required by the jury:

    • (b) take the verdict and give judgment on it:

    • (c) discharge the jury without verdict:

    • (d) do whatever is necessary, up to and including the sealing of judgment.

    Compare: 1908 No 89 Schedule 2 r 543

11.9 Recalling judgment
  • A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

    Compare: 1908 No 89 Schedule 2 r 542(3)

11.10 Correction of accidental slip or omission
  • (1) A judgment or order may be corrected by the court or the Registrar who made it, if it—

    • (a) contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

    • (b) is drawn up so that it does not express what was decided and intended.

    (2) The correction may be made by the court or the Registrar, as the case may be,—

    • (a) on its or his or her own initiative; or

    • (b) on an interlocutory application.

    Compare: 1908 No 89 Schedule 2 r 12

Subpart 2Sealing and notification

11.11 Judgments to be sealed, dated, and served
  • (1) A Registrar must seal judgments with the seal of the court.

    (2) A judgment must be sealed—

    • (a) in accordance with any direction given by the Judge relating to the sealing of the judgment; or

    • (b) if no direction is given, at any time after the judgment is given.

    (3) Except with the leave of the court, a judgment must not be sealed until any application under rule 11.9 for the recall of the judgment is determined.

    (4) A sealed judgment must state—

    • (a) the date on which the judgment is given; and

    • (b) the date on which it is sealed.

    (5) A party who has a judgment sealed must immediately serve a sealed copy of it on—

    • (a) every other party who has given an address for service; and

    • (b) any other person who, although not a party, is affected by the judgment.

    Compare: 1908 No 89 Schedule 2 r 541(1), (3)–(5)

11.12 When judgment takes effect
  • (1) A judgment takes effect when it is given.

    (2) Rule 11.13 overrides subclause (1).

    Compare: 1908 No 89 Schedule 2 r 542(1), (5)(a)

11.13 Steps before judgment sealed
  • (1) A step may be taken on a judgment before it is sealed only with the leave of a Judge.

    (2) A party may appeal under rule 31 of the Court of Appeal (Civil) Rules 2005 against a judgment before it is sealed but must take steps to ensure the judgment is sealed without delay after the appeal is brought.

    Compare: 1908 No 89 Schedule 2 r 542(2), (4)

11.14 Registrar’s role on receipt of judgment
  • (1) The Registrar must endorse a written judgment with the delivery time when the Registrar receives it from the Judge responsible for it.

    (2) The date and time nominated by the Registrar under rule 11.5(b) must not be earlier than the date and time the Registrar endorses the judgment under subclause (1).

    (3) The Registrar must attempt to notify the parties of the delivery time, by telephone or otherwise, immediately after endorsing a judgment.

    (4) A party may request the Registrar to—

    • (a) send the party a copy of the written judgment by email or fax immediately after the delivery time; or

    • (b) make a copy of the written judgment available for collection from the court registry immediately after the delivery time.

    (5) The Registrar must, immediately after the delivery time, post a copy of the written judgment to a party that—

    • (a) has given an address for service; and

    • (b) does not make a request under subclause (4).

    (6) A failure by the Registrar to comply with any of subclauses (3) to (5) does not affect a judgment’s validity or its delivery time.

    Compare: 1908 No 89 Schedule 2 r 540(4), (6)–(9)

Subpart 3Judgment if proceeding tried with jury

11.15 Judgment after proceeding tried with jury
  • After a Judge takes the jury’s verdict in a proceeding, he or she may—

    • (a) give judgment immediately; or

    • (b) adjourn the proceeding for further consideration; or

    • (c) give judgment for either party and reserve leave for either party to apply—

      • (i) to set aside the judgment; and

      • (ii) for another judgment.

    Compare: 1908 No 89 Schedule 2 r 525

11.16 Leave to apply to set aside judgment
  • A party to whom leave is reserved under rule 11.15(c) and who wishes to apply must do so—

    • (a) within the time fixed by the court for the purpose; or

    • (b) if paragraph (a) does not apply, within 10 working days after leave is reserved.

    Compare: 1908 No 89 Schedule 2 r 526

11.17 Judgment not in accordance with verdict
  • (1) Either party to a proceeding tried with a jury may apply to set aside the judgment and for another judgment, on the ground that the judgment given is not in accordance with the verdict of the jury.

    (2) An application under subclause (1)—

    • (a) may be made without leave reserved; and

    • (b) must be made within 10 working days after judgment is given.

    Compare: 1908 No 89 Schedule 2 r 527

11.18 Application for judgment on special verdict or subject to special case
  • (1) Either party may apply for the judgment to which the party considers the party is entitled within 10 working days after the jury states the facts or finds a verdict subject to a special case.

    (2) A copy of the case must be filed in court with the notice of application if it is on a special case.

    Compare: 1908 No 89 Schedule 2 r 529

11.19 Application for judgment by both parties
  • Applications for judgment by 2 or more parties must be heard together, unless the court thinks it preferable to hear them separately.

    Compare: 1908 No 89 Schedule 2 r 530

Subpart 4Giving effect to judgments

11.20 Conduct of proceedings after judgment
  • The court may give the conduct of the proceeding after judgment to whichever party the court thinks proper, if the court makes an order under rule 11.2(d).

    Compare: 1908 No 89 Schedule 2 r 531(2)

11.21 Applying for dismissal because of inactivity
  • (1) A party may apply to dismiss the proceeding if the opposite party has the conduct of the proceeding and does not—

    • (a) proceed with the accounts, inquiries, acts, or steps ordered; or

    • (b) take all necessary steps to have them completed.

    (2) On an application under subclause (1), the court may make any 1 or more of the following orders it considers just:

    • (a) an order as to the prosecution of the account, inquiries, acts, or steps:

    • (b) an order for the dismissal of the proceeding:

    • (c) an order giving the conduct of the proceeding to another party.

    Compare: 1908 No 89 Schedule 2 r 532

11.22 Judgment directing sale of property
  • (1) Property to be sold because of a direction in a judgment or order must be sold in a way that ensures that the best price is obtained for it, unless the court directs otherwise.

    (2) The court may do any 1 or more of the following, when giving the judgment or making the order or at a later time:

    • (a) give directions about the method of the sale:

    • (b) give directions about the terms and conditions of sale:

    • (c) if the sale is by auction,—

      • (i) fix a reserve price, if appropriate; and

      • (ii) define the rights of parties to bid at the sale.

    (3) All parties must co-operate in effecting the sale of the property and do everything necessary to give effect to the sale, including signing any documents required to transfer or convey the property to the purchaser.

    (4) To effect the sale of the property, the court may—

    • (a) give all necessary directions, including directions in relation to the transfer or conveyance of the property sold; and

    • (b) appoint a person to sign any documents required to transfer or convey to the purchaser the property sold.

    Compare: 1908 No 89 Schedule 2 r 533

11.23 Judgment for balance of claim over counterclaim
  • The plaintiff is entitled to judgment on the cause of action for the balance of his or her claim, after deducting the amount of the counterclaim proved by the defendant, if a counterclaim is proved to an amount less than that recovered on the cause of action.

    Compare: 1908 No 89 Schedule 2 r 534

11.24 Judgment for balance of counterclaim
  • The defendant is entitled to judgment for the excess if a counterclaim is proved to an amount exceeding that recovered on the cause of action.

    Compare: 1908 No 89 Schedule 2 r 535

11.25 Cross judgments
  • (1) Cross judgments may be set off against each other by leave of the court if they are between the same parties and for any 1 or more of the following:

    • (a) money:

    • (b) costs:

    • (c) debt:

    • (d) damages.

    (2) Leave must not be granted under subclause (1) if the set-off would prejudice any solicitor’s lien for costs in the particular proceeding against which the set-off is sought.

    Compare: 1908 No 89 Schedule 2 r 536

11.26 Judgment if third party defends
  • (1) The court may do the following if a third party files a statement of defence to a third party notice:

    • (a) order judgment to be entered for or against the defendant giving the notice against or for the third party; and

    • (b) grant to the defendant or to the third party any relief or remedy that might properly have been granted if the defendant had instituted a proceeding against the third party; and

    • (c) make another appropriate order, instead of or in addition to the orders in paragraphs (a) and (b).

    (2) The court may act under subclause (1)—

    • (a) at or after the trial; or

    • (b) on application, whether the proceeding is decided by trial or otherwise.

    (3) This rule applies, with all necessary modifications, whenever a fourth or subsequent party notice is issued.

    Compare: 1908 No 89 Schedule 2 r 537

11.27 Interest on judgment debt
  • (1) A judgment debt carries interest from the time judgment is given until it is satisfied.

    (2) The interest is at the rate prescribed by or under section 87 of the Act or at a lower rate fixed by the court.

    (3) The interest may be levied on the judgment under an enforcement process (as defined in rule 17.3).

    Compare: 1908 No 89 Schedule 2 r 538

11.28 Satisfaction of judgment
  • (1) As soon as a judgment is satisfied by payment, levy, or in another way, the party against whom the judgment was given is entitled to have satisfaction of that judgment formally entered.

    (2) For the purposes of subclause (1), the party against whom the judgment was given must produce and file in the registry of the court an acknowledgment of satisfaction signed by or on behalf of the party obtaining judgment.

    (3) Despite subclause (2), the court may order satisfaction to be entered upon proof that the judgment has been satisfied.

    Compare: 1908 No 89 Schedule 2 r 544

Part 12
Summary judgment

12.1 Application of summary judgment procedure
  • Rules 12.2 to 12.16 apply to all proceedings except—

    • (a) a proceeding under Part 19, 20, or 21; or

    • (b) an application for a writ of habeas corpus; or

    • (c) an application for administration in common form under Part 27.

    Compare: 1908 No 89 Schedule 2 r 135

12.2 Judgment when there is no defence or when no cause of action can succeed
  • (1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to any cause of action in the statement of claim or to a particular cause of action.

    (2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

    Compare: 1908 No 89 Schedule 2 r 136

12.3 Summary judgment on liability
  • The court may give judgment on the issue of liability, and direct a trial of the issue of amount (at the time and place it thinks just), if the party applying for summary judgment satisfies the court that the only issue to be tried is one about the amount claimed.

    Compare: 1908 No 89 Schedule 2 r 137

12.4 Interlocutory application for summary judgment
  • (1) Application for judgment under rule 12.2 or 12.3 must be made by interlocutory application.

    (2) An application by a plaintiff may be made either at the time the statement of claim is served on the defendant, or later with the leave of the court.

    (3) An application by a defendant may be made either at the time the statement of defence is served on the plaintiff, or later with the leave of the court.

    (4) The party making the application must file and serve on the other party the following documents:

    • (a) an interlocutory application on notice in form G 31:

    • (b) a supporting affidavit:

    • (c) if the party is a plaintiff applying at the time the statement of claim is served,—

      • (i) a notice of proceeding in form G 13; and

      • (ii) a statement of claim:

    • (d) if the party applying is a defendant applying at the time the statement of defence is served, a statement of defence.

    (5) The affidavit—

    • (a) must be by or on behalf of the person making the application:

    • (b) if given by or on behalf of the plaintiff, must verify the allegations in the statement of claim to which it is alleged that the defendant has no defence, and must depose to the belief of the person making the affidavit that the defendant has no defence to the allegations and set out the grounds of that belief:

    • (c) if given by or on behalf of the defendant, must show why none of the causes of action in the plaintiff’s statement of claim can succeed.

    Compare: 1908 No 89 Schedule 2 r 138

12.5 Service out of New Zealand
  • A plaintiff who makes an application under rule 12.2 or 12.3 must serve the documents specified in rule 12.4(4) on a defendant who is overseas,—

    • (a) if the defendant is served in the Commonwealth of Australia, not less than 15 working days before the date for hearing the application:

    • (b) if the defendant is served elsewhere, not less than 25 working days before the date for hearing the application.

    Compare: 1908 No 89 Schedule 2 r 138A

12.6 Requirements as to notice of proceeding
  • Rule 5.23 does not apply to a proceeding under Part 12.

    Compare: 1908 No 89 Schedule 2 r 139

12.7 Time for service
  • (1) The documents specified in rule 12.4(4) must be served on the other party to the proceeding not less than 15 working days before the date for hearing the application.

    (2) Rule 12.5 overrides this rule.

    Compare: 1908 No 89 Schedule 2 r 140

12.8 Postponement of hearing
  • If the documents specified in rule 12.4(4) have not been served within the time prescribed by rule 12.7(1), or rule 12.5 if applicable, the Registrar, on request, may postpone the hearing by—

    • (a) deleting the original date of hearing shown in the notice of interlocutory application; and

    • (b) inserting a new date; and

    • (c) initialling the new date in the margin opposite the alteration.

    Compare: 1908 No 89 Schedule 2 r 140A

12.9 Notice of opposition and affidavit in answer
  • (1) A party who intends to oppose an application for judgment under rule 12.2 or 12.3 must, at least 3 working days before the date for hearing the application, file in the court and serve on the applicant—

    • (a) a notice of opposition in form G 33; and

    • (b) an affidavit by or on behalf of the party intending to oppose the application in answer to the affidavit by or on behalf of the applicant.

    (2) For the purposes of subclause (1), in answer to means,—

    • (a) in the case of a defendant, setting out the defence to the cause or causes of action that are subject to the summary judgment application; or

    • (b) in the case of a plaintiff, setting out the reasons why the defendant’s defences do not succeed against the plaintiff’s cause or causes of action.

    (2) If an opposing party does not file and serve the documents required by subclause (1), the party may not be heard in opposition to the application without the leave of the court.

    (3) Rule 7.24(2) and (3) apply, with all necessary modifications, to a notice of opposition filed under subclause (1)(a).

    Compare: 1908 No 89 Schedule 2 r 141

12.10 Statement of defence
  • A defendant who has filed both a notice of opposition and an affidavit under rule 12.9 may, in addition, file a statement of defence in the registry of the court in which the notice of opposition and the affidavit were filed.

    Compare: 1908 No 89 Schedule 2 r 141A

12.11 Affidavits in reply
  • (1) An affidavit may be filed by or on behalf of the party making the application in reply to an affidavit filed by or on behalf of the party opposing the application.

    (2) Every affidavit filed under subclause (1)—

    • (a) must be limited to new matters in the affidavit of the party opposing the application; and

    • (b) must be filed in the court and served on the party opposing the application not later than 1 pm on the last working day before the date for hearing the application.

    Compare: 1908 No 89 Schedule 2 r 141B

12.12 Disposal of application
  • (1) If the court dismisses an application for judgment under rule 12.2 or 12.3, the court must give directions as to the future conduct of the proceeding as may be appropriate.

    (2) If it appears to the court on an application for judgment under rule 12.2 or 12.3 that the defendant has a counterclaim that ought to be tried, the court—

    • (a) may give judgment for the amount that appears just on any terms it thinks just; or

    • (b) may dismiss the application and give directions under subclause (1).

    Compare: 1908 No 89 Schedule 2 r 142

12.13 Time for filing statement of defence on dismissal of plaintiff’s application
  • (1) The statement of defence in the proceeding, if not already filed, must be filed within 10 working days after the date on which any application by a plaintiff for judgment under rule 12.2 or 12.3 is dismissed in whole or in part.

    (2) Rule 12.12(1) overrides this rule.

    Compare: 1908 No 89 Schedule 2 r 142A

12.14 Setting aside judgment
  • A judgment given against a party who does not appear at the hearing of an application for judgment under rule 12.2 or 12.3 may be set aside or varied by the court on any terms it thinks just if it appears to the court that there has been or may have been a miscarriage of justice.

    Compare: 1908 No 89 Schedule 2 r 143

12.15 Discontinuance
  • (1) The party making the application may, at any time before an application for judgment under rule 12.2 or 12.3 is heard, discontinue the application—

    • (a) by filing in the registry of the court in which the application is filed a memorandum of discontinuance; and

    • (b) by serving a copy of the memorandum on the other party to the application.

    (2) The court may give directions about the future conduct of the proceeding after an application for judgment under rule 12.2 or 12.3 is discontinued.

    Compare: 1908 No 89 Schedule 2 r 143A

12.16 Application to counterclaims and claims against third parties
  • Rules 12.1 to 12.15 apply, with all necessary modifications, to counterclaims and to claims against third parties.

    Compare: 1908 No 89 Schedule 2 r 144

Part 13
Summary proceeding for recovery of land

13.1 Interpretation
  • In this Part, unlawful occupier means a person who—

    • (a) occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

    • (b) is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.

    Compare: 1908 No 89 Schedule 2 r 134A(1)

13.2 Application of Part
  • (1) This Part applies to every proceeding in which the plaintiff claims the recovery of land that is occupied solely by 1 or more unlawful occupiers.

    (2) This Part does not affect the application of Part 12 (summary judgment) to a proceeding for the recovery of land.

    Compare: 1908 No 89 Schedule 2 r 134A

13.3 Defendants
  • (1) The plaintiff must name as a defendant in the statement of claim each unlawful occupier who is known to the plaintiff.

    (2) If no unlawful occupier is known to the plaintiff by name, the statement of claim need not name any person as defendant.

    (3) Subclause (1) is subject to subclause (2).

    Compare: 1908 No 89 Schedule 2 r 134B

13.4 Affidavit in support
  • The plaintiff must file with the statement of claim an affidavit that—

    • (a) states the interest of the plaintiff in the land; and

    • (b) states the circumstances in which the land has been occupied without licence or consent and in which the claim for recovery of the land arises; and

    • (c) if no person is named as defendant in the statement of claim, states that the plaintiff does not know the name of any of the unlawful occupiers.

    Compare: 1908 No 89 Schedule 2 r 134C

13.5 Service
  • (1) The plaintiff must serve the following documents on each defendant, if any, and on each unlawful occupier who is not a defendant:

    • (a) the statement of claim:

    • (b) the notice of proceeding:

    • (c) a copy of the affidavit required by rule 13.4:

    • (d) a copy of any exhibit referred to in that affidavit.

    (2) In the case of a defendant, service must be effected in accordance with rule 5.71.

    (3) In the case of an unlawful occupier who is not a defendant, service (unless the court directs or permits a different method of service) must be effected—

    • (a) by affixing to some conspicuous part of the land the documents required to be served under subclause (1); and

    • (b) if practicable, by leaving in the letterbox or other receptacle for mail on the land the documents required to be served under subclause (1) (those documents must be enclosed in a sealed envelope addressed to The Occupiers).

    Compare: 1908 No 89 Schedule 2 r 134D

13.6 Time for filing statement of defence
  • Despite rule 5.47(2)(b), if service is effected in accordance with rule 13.5(3), the statement of defence must be filed within 25 working days after the day on which that service is effected.

    Compare: 1908 No 89 Schedule 2 r 134E

13.7 Power of court to make unlawful occupiers defendants
  • A Judge may order that an unlawful occupier who is not a defendant be made a defendant or be added as a defendant.

    Compare: 1908 No 89 Schedule 2 r 134F

13.8 Judgment for possession
  • Rule 15.8 (which allows the plaintiff to seal judgment immediately upon certain defaults by the defendant) does not apply to proceedings to which this Part applies.

    Compare: 1908 No 89 Schedule 2 r 134G

13.9 Possession order
  • (1) Once 3 months have elapsed after the date on which a judgment is given in a proceeding to which this Part applies, a possession order to enforce the judgment may issue only with the leave of the court.

    (2) An application for leave under subclause (1) may be made without notice unless a Judge otherwise directs.

    Compare: 1908 No 89 Schedule 2 r 134H

Part 14
Costs

Subpart 1Costs generally

14.1 Costs at discretion of court
  • (1) All matters are at the discretion of the court if they relate to costs—

    • (a) of a proceeding; or

    • (b) incidental to a proceeding; or

    • (c) of a step in a proceeding.

    (2) Rules 14.2 to 14.10 are subject to subclause (1).

    (3) The provisions of any Act override subclauses (1) and (2).

    Compare: 1908 No 89 Schedule 2 r 46

14.2 Principles applying to determination of costs
  • The following general principles apply to the determination of costs:

    • (a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

    • (b) an award of costs should reflect the complexity and significance of the proceeding:

    • (c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

    • (d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:

    • (e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:

    • (f) an award of costs should not exceed the costs incurred by the party claiming costs:

    • (g) so far as possible the determination of costs should be predictable and expeditious.

    Compare: 1908 No 89 Schedule 2 r 47

14.3 Categorisation of proceedings
  • (1) For the purposes of rule 14.2(b), proceedings must be classified as falling within 1 of the following categories:

    Category 1 proceedings Proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court
    Category 2 proceedings Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court
    Category 3 proceedings Proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court

    (2) The court may at any time determine in advance a proceeding’s category, which applies to all subsequent determinations of costs in the proceeding, unless there are special reasons to the contrary.

    Compare: 1908 No 89 Schedule 2 r 48

14.4 Appropriate daily recovery rates
  • For the purposes of rule 14.2(c), the appropriate daily recovery rates for the categories referred to in rule 14.3—

    • (a) are the rates specified in Schedule 2; and

    • (b) must be applied to those categories.

    Compare: 1908 No 89 Schedule 2 r 48A

14.5 Determination of reasonable time
  • (1) For the purposes of rule 14.2(c), a reasonable time for a step is—

    • (a) the time specified for it in Schedule 3; or

    • (b) a time determined by analogy with that schedule, if Schedule 3 does not apply; or

    • (c) the time assessed as likely to be required for the particular step, if no analogy can usefully be made.

    (2) A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

    • (a) to band A, if a comparatively small amount of time is considered reasonable; or

    • (b) to band B, if a normal amount of time is considered reasonable; or

    • (c) to band C, if a comparatively large amount of time for the particular step is considered reasonable.

    Compare: 1908 No 89 Schedule 2 r 48B

14.6 Increased costs and indemnity costs
  • (1) Despite rules 14.2 to 14.5, the court may make an order—

    • (a) increasing costs otherwise payable under those rules (increased costs); or

    • (b) that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).

    (2) The court may make the order at any stage of a proceeding and in relation to any step in it.

    (3) The court may order a party to pay increased costs if—

    • (a) the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

    • (b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

      • (i) failing to comply with these rules or with a direction of the court; or

      • (ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

      • (iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

      • (iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

      • (v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

    • (c) the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or

    • (d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

    (4) The court may order a party to pay indemnity costs if—

    • (a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

    • (b) the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

    • (c) costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or

    • (d) the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it; or

    • (e) the party claiming costs is entitled to indemnity costs under a contract or deed; or

    • (f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

    Compare: 1908 No 89 Schedule 2 r 48C

14.7 Refusal of, or reduction in, costs
  • Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

    • (a) the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or

    • (b) the property or interests at stake in the proceeding were of exceptionally low value; or

    • (c) the issues at stake were of little significance; or

    • (d) although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

    • (e) the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

    • (f) the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

      • (i) failing to comply with these rules or a direction of the court; or

      • (ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

      • (iii) failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or

      • (iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

      • (v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

    • (g) some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

    Compare: 1908 No 89 Schedule 2 r 48D

14.8 Costs on interlocutory applications
  • (1) Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

    • (a) must be fixed in accordance with these rules when the application is determined; and

    • (b) become payable when they are fixed.

    (2) Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

    (3) This rule does not apply to an application for summary judgment.

    Compare: 1908 No 89 Schedule 2 r 48E

14.9 Costs may be determined by different Judge or Associate Judge
  • Costs may be determined by a Judge or an Associate Judge other than the one who heard the matter to which the costs relate, if he or she is not available conveniently to make the determination.

    Compare: 1908 No 89 Schedule 2 r 48F

14.10 Written offers without prejudice except as to costs
  • (1) A party to a proceeding may make a written offer to another party at any time that—

    • (a) is expressly stated to be without prejudice except as to costs; and

    • (b) relates to an issue in the proceeding.

    (2) The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided.

    Compare: 1908 No 89 Schedule 2 r 48G

14.11 Effect on costs
  • (1) The effect (if any) that the making of an offer under rule 14.10 has on the question of costs is at the discretion of the court.

    (2) Subclauses (3) and (4)—

    • (a) are subject to subclause (1); and

    • (b) do not limit rule 14.6 or 14.7; and

    • (c) apply to an offer made under rule 14.10 by a party to a proceeding (party A) to another party to it (party B).

    (3) Party A is entitled to costs on the steps taken in the proceeding after the offer is made, if party A—

    • (a) offers a sum of money to party B that exceeds the amount of a judgment obtained by party B against party A; or

    • (b) makes an offer that would have been more beneficial to party B than the judgment obtained by party B against party A.

    (4) The offer may be taken into account, if party A makes an offer that—

    • (a) does not fall within paragraph (a) or (b) of subclause (3); and

    • (b) is close to the value or benefit of the judgment obtained by party B.

    Compare: 1908 No 89 Schedule 2 r 48GA

14.12 Disbursements
  • (1) In this rule,—

    disbursement, in relation to a proceeding,—

    • (a) means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and

    • (b) includes—

      • (i) fees of court for the proceeding:

      • (ii) expenses of serving documents for the purposes of the proceeding:

      • (iii) expenses of photocopying documents required by these rules or by a directio