New Zealand Legislation: Acts
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| Public Act | 2008 No 90 |
| Date of assent | 25 September 2008 |
| Commencement | see section 2 |
The Parliament of New Zealand enacts as follows:
This Act is the Judicature (High Court Rules) Amendment Act 2008.
(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.
This Act amends the Judicature Act 1908.
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.
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.”
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:”.
Section 52 is repealed and the following section substituted: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.”
(1) Schedule 2 is repealed and the Schedule 2 set out in the Schedule of this Act substituted.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.
(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.
(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.”
(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 | s 7 |
Schedule 2 |
3.8 Search of documents relating to application for administration or recall under Administration Act 1969
4.43 Liability of former litigation guardian for costs subsequently awarded against incapacitated person
18.13 Joining in proceedings under Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949
These rules are the High Court Rules.
Compare: 1908 No 89 Schedule 2 r 1
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) 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
(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) 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) 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) 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) 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) 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) 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
(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) 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
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) 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) 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) 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).
(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
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) 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
(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
(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
(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.
(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
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
(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
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
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
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
(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
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
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
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
(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
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
(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
(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
(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
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)
(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)
(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)
(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)
(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)
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)
(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)
(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
(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
(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
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
(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
(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
(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)
(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)
(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
(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)
(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)
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
(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
(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
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
(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
(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
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
(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
(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
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
(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
(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
(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
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
(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
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
(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
(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
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
(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
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
(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
(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
(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
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
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
(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
(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
(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
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
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
(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
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
(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
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
(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
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
(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
(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
(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
(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
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
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
(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
(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
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
(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
(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
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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
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
(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
(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
All documents presented for filing must have the proper heading of the proceeding.
Compare: 1908 No 89 Schedule 2 r 35
(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
(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
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
(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
(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
Numbers must be expressed in figures and not in words.
Compare: 1908 No 89 Schedule 2 r 39
(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
(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
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
(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
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
(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
A notice of proceeding must be filed with every statement of claim.
Compare: 1908 No 89 Schedule 2 r 120
(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
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
(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
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
(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
(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
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
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
(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
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
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
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
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
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
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
(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
(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
(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
(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
(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
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
(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
(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)