This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 1 February 2002, amend the High Court Rules (
“the principal rules”). The rule changes arise mainly from the enactment of the Property (Relationships) Amendment Act 2001, most of which comes into force on that date. Under that Amendment Act, the Matrimonial Property Act 1976 is renamed the Property (Relationships) Act 1976, and replaces completely the Matrimonial Property Act 1963 (the 1963 Act). Other changes arise from the amendments to the Administration Act 1969 that are made by the Administration Amendment Act 2001 and are also to come into force on that date.
Rule 3 amends rule 66(5)(c) of the principal rules, which relates to searching of Court records generally, to reflect the renaming of the Matrimonial Property Act 1976.
Rule 4 amends rule 219 of the principal rules, which permits certain statements of claim and notices that cannot be served in New Zealand to be served overseas without leave of the Court. Rule 219(k) is revoked because the service out of New Zealand of proceedings under the Property (Relationships) Act 1976 is to be dealt with under rule 242 of the District Courts Rules 1992.
Rule 5 amends rule 448 of the principal rules, which states some proceedings to which Part 4 of the principal rules (procedure in special cases) applies. The amendments ensure that Part 4 of the principal rules does not apply to proceedings under the Property (Relationships) Act 1976, except as provided by new rule 448D of the principal rules (inserted by rule 6).
Rule 6 inserts new rule 448D into the principal rules. The rule ensures that rules 454 and 455 (and no other rules in Part 4) apply to proceedings under the Property (Relationships) Act 1976. Rule 454 (amended by rule 8) relates to joinder of claims and consolidation. Rule 455 requires evidence to be given by means of an agreed statement of facts under rule 502, or by affidavit under rules 507 to 519.
Rule 7 amends rule 451 of the principal rules, which relates to applications for directions for service and orders for representation. The amendment ensures that rule 451 no longer refers to proceedings under the 1963 Act.
Rule 8 revokes subclauses (2) and (3) of rule 454 of the principal rules, which relate to joinder of claims and consolidation of proceedings. Subclause (2) is revoked because joinder of claims against the estate of a deceased person under the Property (Relationships) Act 1976 to proceedings under the Family Protection Act 1955 or Law Reform (Testamentary Promises) Act 1949 will take place where proceedings under the Property (Relationships) Act 1976 are commenced: in Family Courts. New subclause (2) has the same effect as revoked subclause (3). New subclause (2) makes it clear that separate proceedings against the estate of the same deceased person may be consolidated, under rules 382 and 383, if they are proceedings under the Family Protection Act 1955, proceedings under the Law Reform (Testamentary Promises) Act 1949, or proceedings under the Property (Relationships) Act 1976 transferred by order of a Family Court Judge because of the complexity of the proceedings or a question arising in them.
Rule 9 relates to rule 456 of the principal rules, which requires claimants under the Family Protection Act 1955 or the 1963 Act to serve their own affidavits in support at the same time as they serve their statements of claim. Rule 9 substitutes a new rule 456. New rule 456 re-enacts rule 456, but for claimants under the Family Protection Act 1955 only.
Rule 10 revokes rule 458D(1)(a)(xv) of the principal rules. That subparagraph, read together with rule 458E of the principal rules, permits applications under section 22(3) of the Matrimonial Property Act 1976 (for the transfer to the High Court of proceedings under that Act pending in a Family Court) to be made by way of an originating application. The subparagraph is revoked because similar applications for transfer, under section 22(3) of the Property (Relationships) Act 1976, are now determined by Family Courts.
Rule 11 amends rule 656 of the principal rules, which relates to justification of an applicant's entitlement to a grant of letters of administration with will annexed. The amendment relates to proof that other applicants for a grant of that kind are disqualified.
Rule 12 amends rule 665 of the principal rules. Rule 665 determines who may apply for letters of administration of the estate of a person who has died wholly intestate, unless section 6 of the Administration Act 1969 requires otherwise. Rule 665(2) states an order of priority for the purpose. First in the order are persons having a beneficial interest in the estate, in the order of priority set out in rule 665(3). Under rule 665(3)(a), the first of those persons is the surviving spouse, if he or she is not disqualified, for example by a separation order in force at the time that the deceased died. Rule 12 revokes rule 665(3)(a), and substitutes new rule 665(3)(a) and (aa). New rule 665(3)(a) and (aa) re-enact rule 665(3)(a), but also amend it to reflect the potential inclusion, among the persons having a beneficial interest in the estate of a person who dies intestate on or after 1 February 2002, of surviving de facto partners of the deceased.
Rule 13 amends various forms in Schedule 1 of the principal rules. The forms relate mainly to the grant of administration on an intestacy. The amendments add references to de facto relationships and surviving de facto partners.