This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 1 October 2001, amend the High Court Rules (
“the principal rules”). The District Courts Amendment Rules 2001 make a number of corresponding amendments to the District Courts Rules 1992 at the same time.
Rule 3 extends the definition of Court in rule 3(1) of the principal rules to include a Master exercising the jurisdiction conferred on Masters by the Judicature Act 1908 or by rules made under section 26J of that Act. The rule also inserts a definition of the term Judge in rule 3(1). The term is defined to include a Master exercising the jurisdiction conferred on Masters by the Judicature Act 1908 or by rules made under section 26J of that Act. The purpose of these changes is to make it clear that references in the principal rules to the Court and to a Judge include Masters exercising the jurisdiction and powers of the Court or of a Judge of the Court conferred on Masters by the Judicature Act 1908 or by rules made under section 26J of that Act. Section 26J enables rules to be made conferring on Masters the jurisdiction and powers of a Judge sitting in Chambers.
Rule 4 replaces rule 14 of the principal rules with a new rule that suspends the period from 25 December to 15 January in calculating a period of time within which a particular thing must be done. The new rule also provides that, in calculating a period of 6 days or less, Saturdays, Sundays, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's Birthday, and Waitangi Day are excluded. The new rule 14 is consistent with the definition of the term working day in rule 3(1) of the principal rules. The rule is subject to the provisions of any Act or of the principal rules, or to a direction by the Court. The new rule is the same as new rule 14 of the District Courts Rules 1992. The position under both the principal rules and the District Courts Rules 1992 will therefore be the same.
Rule 5 revokes rule 129(2) of the principal rules. Rule 129(2) excludes the period 20 December to 20 January from the period within which a statement of defence must be filed and served. In future, only the period 25 December to 15 January will be excluded. The new rule is the same as rule 135 of the District Courts Rules 1992. The position under both the principal rules and the District Courts Rules 1992 will therefore be the same.
Rule 6 removes the requirement under rule 138 of the principal rules for a defendant who seeks summary judgment to file and serve a notice of proceeding. This amendment aligns the procedure on a defendant's summary judgment application with the District Courts Rules 1992.
Rule 7 replaces rule 138A of the principal rules with a new rule. The existing rule provides that, in the case of a summary judgment application that is to be served overseas, the Court must fix both the date for the hearing and the time within which the opposing party must file notice of opposition and other documents. In Hodder Moa Beckett Publishers Ltd v Weinbaum (High Court, Auckland (CP 346/97)), Master Faire noted that it was not clear whether, for the Court to fix the date of hearing and the time for filing documents in opposition, the rule required an application to be made by the party seeking summary judgment. The rule may also allow an opposing party who is overseas more time to file documents in opposition than a party in New Zealand has under rule 140.
The new rule 138A requires a plaintiff who applies for summary judgment to serve the documents on a defendant who is overseas not less than 21 days before the hearing if the defendant is in Australia, or not less than 35 days before the hearing if the defendant is elsewhere. The new rule 138A does not apply to summary judgment applications by defendants. Those applications will be subject to rule 140, which requires the service of documents not less than 21 days before the hearing. The new rule is the same as new rule 155 of the District Courts Rules 1992. The position under the principal rules and the District Courts Rules 1992 will therefore be the same.
Rule 8 makes rule 140 of the principal rules expressly subject to new rule 138A. Rule 157 of the District Courts Rules 1992 is amended in the same way.
Rule 9 replaces rule 601 of the principal rules with a new rule. Rule 601 allows an officer who executes a writ of sale to seize title documents of the person against whom the writ is directed. The rule does not enable the officer to obtain possession of title documents from any other person who may have them. In addition to enabling the title documents to be obtained directly from the person against whom the writ is issued, the new rule 601 will require that person to disclose the identity and address of any other person who has possession of the title documents and will enable the officer to obtain them from that person.
Rule 10 extends rule 603 of the principal rules to enable a mortgagee to give directions requiring any specified portions of land that may be sold separately to be sold first. The existing rule allows only the judgment debtor to give that direction. In the case of conflict between directions given by the judgment debtor and a mortgagee, the mortgagee's direction prevails.
Rule 11 amends rule 643 of the principal rules to make it clear that, if a deceased person who was not resident in New Zealand at the time of death leaves no property in New Zealand, the application for a grant of probate and all other documents filed under Part 8 of the principal rules must be filed in the Wellington registry of the Court or in any other registry that the Court directs.
Rule 12 omits a reference to costs in the form
“Notice of proceeding”. The reference to costs is no longer necessary in light of changes to the costs rules.
Rule 13 amends clause 5 of the form
“Memorandum attached to a notice of proceeding” as a consequence of the change to rule 129. Form 5 in Schedule 1 of the District Courts Rules 1992 is also amended in the same way.
Rule 14 revokes the form
“Notice of proceeding when summary judgment sought by defendant” as a consequence of the change to rule 138(4).
Rule 15 replaces the existing form
“Affidavit of service” with a new form. The new form requires the deponent to state his or her reasons for believing that the person served was the defendant. This requirement is new. The new form is the same as the new form 14 in Schedule 1 of the District Courts Rules 1992 that was substituted by rule 32 of the District Courts Amendment Rules (No 2) 2000 (SR 2000/282).