Communicating a Case by CourtKeys.com

Author CourtKeys.com
Published 7 November 2017
Jurisdiction New Zealand
Website www.CourtKeys.com

This article is about how to complete statements of claim. These can be used to commence court cases in the District Court and in the High Court. Templates and examples are located at the bottom of this page.

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A statement of claim is a document that explains the reasons for the court case. It would need to describe who you are, what you are claiming, and why you should receive what you are claiming. It would also need to describe who the claim is against and why he, she or it should give you what you are claiming. These descriptions are called ‘pleadings’.

Statements of claim must include:

1. Your name.

2. Your address.

3. The name of the party, or each party, that you are bringing your claim against.

4. A description of each party you are claiming against.

5. The address of each party you are claiming against (if known).

6. A description of the claim, including:

6.1.      the events that caused you to make the claim;

6.2.      when those events happened;

6.3.      where the events happened;

6.4.      who was involved in the events;

6.5.      how the person or people you are claiming against are responsible for giving you what you are claiming;

6.6.      any loss was caused or damage done; and

6.7.      what you are claiming.

7. The date you completed the statement of claim.

8. Contact information for documents to be served on you.

Forms

The District Court requires statements of claim in much the same form as the High Court, although there are a few small differences. “HCR” means High Court Rule and “DCR” means District Court Rule in the table that follows.

Requirements HCR DCR
International A4 size paper of medium weight and good quality. 5.3 5.6
Contents must be typed. 5.4 5.7
A margin of at least one quarter of the width of a page must be left on the left-hand side of each page, although that margin must appear on the right if the reverse side of a page is used. 5.5 5.8
The first sheet of each court document must be a cover sheet. 5.7(1) 5.10(1)
Coversheets must not be numbered. 5.7(2) 5.10(2)
Numbers must be expressed in figures not in words 5.15 5.18
Each page after a coversheet must be numbered consecutively from the number 1. 5.7(3) 5.10(3)
All sheets of a court document must be securely fastened together. A staple in the top left hand corner is usually all that is needed. 5.7(4) 5.10(4)
A heading complying with HCR Form G1 or otherwise DCR Form 2.The headings and forms are largely the same although the HCR makes provision for information in claims concerning the validity or interpretation of a will. Such claims cannot be brought in the District Court.

Also, District Court registrars may require the heading to be repeated on the second page of the document. That may be more of an interpretation issue than a difference between the actual wordings of the rules though.

5.11 5.14
A description of the court document immediately below the heading. This would read “STATEMENT OF CLAIM” if the document were a statement of claim. 5.8 5.11
At the foot of the cover page, the name and contact information of any solicitor(s) presenting the document for filing, and the name of any agent filing it. 5.16 5.19
There must be enough space left between the description of the document and the information at the foot of the document for the Court to record a note or “minute”. 5.10 5.13
The contents of every court document must be divided into paragraphs. 5.14 5.17
Paragraphs must be numbered consecutively starting from the number 1. 5.14 5.17
Paragraphs must be confined to a single topic. 5.14 5.17
Distinct matters must be stated separately. 5.17 5.20
The general nature of the claim to the relief sought must be shown. 5.26(a) 5.29(a)
Sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform everyone of the cause(s) of action must be given. 5.26(b) 5.29(b)
The basis of any claim for interest and the rate of interest claimed must be stated specifically. 5.26(c) 5.29(c)
Particulars of the government department or officer or employee concerned must be given in proceedings against the Crown instituted against the Attorney-General. 5.26(d) 5.29(d)
A party who sues or is sued in a representative capacity must show in what capacity the party sues or is sued. 5.35 5.33
Statements of claim must conclude by specifying the relief sought. 5.27(1) 5.30(1)
If the statement of claim includes 2 or more causes of action, it must separately specify the relief sought on each cause of action immediately after the pleading of that cause of action. 5.27(2) 5.30(2)
Several causes of action may be included in the same statement of claim. 5.28(1) 5.31(1)
The relief claimed must be stated specifically, either by itself or in the alternative. 5.31 5.34
A statement of claim seeking the recovery of a sum of money must state the amount as precisely as possible. 5.32 5.35
The nature, particulars and amount of any special damages sought must be stated. 5.33 5.36
Any set-off or abandoned portion of a claim must be stated. 5.34 5.37
A ‘memorandum’ or part at the end stating information about the party filing document. This may be in one of the paragraphs of HCR Form G10 or otherwise DCR Form 12. 5.44 5.47

The main things that usually need to appear in any kind of claim:

1. A description of who the parties are.

2. The reasons for the claim or ‘causes of action’.

3. The details, specific allegations or ‘particulars’ that support the causes of action.

4. The solutions, remedies or ‘relief’ that would resolve the claim.

These are addressed in turn.

1. Description of parties

The cover page of the statement of claim would normally set out the name, address and occupation of each party to the case. However, it can be helpful to at least reiterate who the plaintiff is.

For example:

1. The plaintiff is a duly incorporated company having its registered office at 14 Tenth Street, Auckland and carrying on business as a marine motor retailer.

Sometimes it is appropriate to describe who the defendant is as well, although you might not know much other than that he was a purchaser in the case concerns a simple transaction. That much should be obvious from particulars of subsequent pleadings so it does not need to be spelt out in the claim.

It would be appropriate to describe the defendant if that description is relevant to the claim. For example, in a case concerning negligent financial advice:

2. At all material times the defendant carried on business as a financial advisor operating from Level 6, 10 Fourteenth Street, Wellington.

2. Causes of action

The events or circumstances that caused you the make the claim are called the “causes of action”. You must describe the causes of action in enough detail for people to understand exactly what you are claiming and why.

For example:

First cause of action: Breach of contract

3. Particulars

The specifics of a cause of action are called “particulars”. These are items of information that help people to understand your cause or causes of action.

These can include places, names, dates, specific clauses in a contract or duties owed. Particulars are essentially the ‘who, what, where, why and how’ of the statement of claim. You would need to give ‘further and better particulars’ if someone one would not know exactly what you are claiming after reading your statement of claim.

However, it is important to note that you are not required to describe the evidence that supports facts you are alleging or discussing legal principles or authorities. The statement of claim is simply about making your allegations known. Argument about whether you are right to make those allegations comes later. So the requirement to give particulars does not mean you have to write a lot about your claim.

Each particular should be described in its own separate, numbered paragraph. That can make it easier to arrange your thoughts and refer back to a specific particular later on. Simple claims could involve only a few paragraphs of particulars.

Staying with the example of a transaction involving an outboard motor:

3. The plaintiff and the defendant made a written contract dated 7 May 2014 (“the contract”).

4. The contract was for the sale and purchase of a 2009, 5.3 litre “Yamaha F350” outboard motor bearing serial number 53350 (“the outboard”):

4.1.      The plaintiff was the vendor.

4.2.      The defendant was the purchaser.

4.3.      The purchase price was $16,000.

4.4.      The plaintiff was to deliver the outboard to the defendant no later than 20 May 2014.

4.5.      The defendant was to pay the purchase price to the plaintiff by 4 instalments of $4,000 (“the instalments”).

4.6.      The instalments were to be paid monthly.

4.7.      The first instalment was to be paid no later than 20 May 2014.

4.8.      Subsequent instalments were to be paid no later than the 20th day of each consecutive month following May 2014.

5. The plaintiff performed the contract by delivering the outboard to the defendant on or about 16 May 2014.

6. The defendant paid instalments as follows:

6.1.      $4,000 paid on or about 17 May 2014.

6.2.      $2,000 paid on or about 3 June 2014.

6.3.      $2,000 paid on or about 18 June 2014.

6.4.      $1,000 paid on or about 13 July 2014.

Total $9,000

7. The defendant breached the contract when he failed to pay the $3,000 balance of the instalment that was due to be paid by 20 July 2014.

8. The defendant further breached the contract when he failed to pay the instalment that was due to be paid by 20 August 2014.

9. The plaintiff demanded the $7,000 balance of the purchase price from the defendant on or about 3 September 2014 (“the balance”).

10. The balance remains unpaid as at the date of this statement of claim.

You will see how defined terms simplify the particulars and putting them in (“bold, brackets and quotes”) make them easier to refer back to.

4. Relief

The “relief” is what you are claiming. So, if you are claiming $250,000, the “relief” is the $250,000. Most claims for an amount of money also include a claim for interest and legal costs as well as that amount. In those cases the “relief” would be “$250,000 plus interest and costs”. See those parts of CourtKeys.com that deal with interest and costs for more about those items of relief. Note that different courts and tribunals are subject to different rules about awarding interest and costs.

The relief must follow each cause of action both logically and literally.

Logically

People must be able to understand why you are entitled to the relief you are claiming. It is no good to say you have a cause of action for $250,000 in your claim but then go on to claim relief of $300,000. Where did the extra $50,000 come from? If the answer cannot be found in your statement of claim then either you have left something out of the particulars or you have not calculated the relief correctly.

Literally

The relief claimed in relation to a cause of action comes after the particulars for that cause of action. The part claiming the relief is known as the “prayer for relief”.

The prayer for relief can begin with the words “wherefore the plaintiff claims” and then go on to itemise the relief sought. Staying with the outboard motor example:

Wherefore the plaintiff claims:

A. The $7,000 balance of the purchase price.

B. Interest on the balance at prescribed rate of 5% per year from 20 August 2014 to the date of judgment in this proceeding.

C. Costs.

Format

The format for a simple statement of claim goes:

1. Cause of action.

2. Particulars of the cause of action.

3. Prayer for relief.

You follow that format even when there are several causes of action. So, for example, where there are three causes of action in a statement of claim the format would go:

1. First cause of action.

2. Particulars of the first cause of action.

3. Prayer for relief for the first cause of action.

4. Second cause of action.

5. Particulars of the second cause of action.

6. Prayer for relief for the second cause of action.

7. Third cause of action.

8. Particulars of the third cause of action.

9. Prayer for relief for the third cause of action.

No need to repeat particulars

Sometimes different causes of action share the same particulars. That does not mean you need to copy the particulars from one cause of action and repeat them in full in another. Remember that your particulars are set out in numbered paragraphs. You can simply refer back to those paragraphs rather than setting out the particulars all over again.

For example:

“Paragraphs 7, 9 to 11, 13 and 15 are repeated.”

Then, after referring back to particulars given previously, you could go on to describe new particulars that are needed to make out your additional cause of action.

District Court statement of claim template

You can download a District Court Statement of Claim template here.

High Court statement of claim template

You can download a High Court Statement of Claim template here. You can also download a High Court Statement of Claim example from here. The example demonstrates how the completed template could look.

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Alternatives to Litigation by CourtKeys.com

Author CourtKeys.com
Published 23 November 2017
Jurisdiction New Zealand
Website www.CourtKeys.com

Parties involved in a dispute, or ‘disputants’, may prefer to avoid litigation and resolve their disputes in other ways. This can be for a variety of reasons including confidentiality, cost and speed. Alternatives to litigation are collectively known as ‘alternative dispute resolution’ or ‘ADR’ for short.

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Resolutions can be achieved cheaper and faster than litigation in some cases, and the parties may agree to keep matters raised in the course of the dispute confidential. The confidentiality aspect of ADR can be very attractive where parties are reluctant to air their dirty laundry in open public forums such as the courts. ADR can also hold attraction for those hoping to preserve a productive relationship despite a problem. That relationship may be able to be maintained if the problem can be resolved by cooperation, whereas there might be little chance of that once an adversarial court case is filed.

Alternative dispute resolution options include:

1. negotiation;

2. conciliation;

3. mediation; and

4. arbitration.

ADR concluding with a settlement agreement

Negotiation, conciliation and mediation are all ADR options that can resolve disputes by facilitating settlement agreements. The parties are not told what to do. They are encouraged to cooperate and agree to a resolution. There is no obligation on them to settle, but it can be in their interests to do so if an agreement can be reached that is sensible in the all the circumstances.

See the part of this article dealing with ‘settlement’ below for things to keep in mind when negotiating a settlement and recording a settlement agreement.

Negotiation

This can be the least formal of the alternative dispute resolution options, and you may have already tried to negotiate a resolution to a problem before giving serious consideration to ADR. It could be worth considering this option even if you have tried to negotiate previously though. Types of negotiations can range from the very informal to more structured arrangements involving lawyers, written statements of position, pre-agreed itineraries and ‘ground rules’ such as how disputants to address one another, who is to discuss what and when each party has an opportunity to speak. These can be an extremely cost effective way to resolve disputes.

The more formal kinds of negotiation often begin with a conversation between lawyers who communicate their client’s positions and suggest settlement terms. The lawyers then revert to their clients for instructions and sometimes that is all it takes to reach agreement.

Some kind of preliminary negotiation is an obvious and sensible step that judges expect to have occurred before litigation is commenced. Missing this would not necessarily affect any ruling on the dispute itself, but may factor in a decision on costs. Legal costs are often awarded to a successful party, but the award is discretionary and may not be given if litigation was avoidable.

Hurled accusations and threats of legal action make for good TV drama but often translate into wasted time and needless costs. Nobody likes to be bullied or made to feel like a bad guy, so resistance can be expected. Any such resistance can have more to do with emotion than the rights and obligations at issue, but still hinders progress toward a resolution. Hurt feelings can sometimes become an additional complicating factor that is difficult to identify and address in a commercial context.

Structure

You cannot expect to negotiate in any meaningful way if you are not given an opportunity to say your piece and let the others involved say theirs. That means taking turns to talk and listen. See those parts of CourtKeys.com dealing with the format of hearings and trials for descriptions of how you might go about putting forward a position and addressing any response by way of reply.

Statements of position

Preparing and issuing a written statement of your position to the others involved in a negotiation might help them to understand your point of view and focus the negotiation. Such a statement would amount to a synopsis of submissions or synopsis of argument. See those parts of CourtKeys.com dealing with synopses of submissions for some idea of how to prepare those document.

Briefs of evidence

Similar to a statement of position, written briefs of evidence might help the others involved in a negotiation to understand the strength of your evidence. A brief of evidence is a written statement of what a witness would say if called to court. In the context of a negotiation, briefs may assist the parties by reducing speculation about the strength or quality of evidence that witnesses might give. That can help to focus debate. See parts of CourtKeys.com dealing with briefs of evidence for more about these documents.

Bundles of documents and other evidence

Like briefs of evidence, a bundle of key documents of evidence supporting your position may also help to focus debate: The parties would be able to actually see what is being referred to in a statement of position or brief or evidence. That puts them in a position where they can be satisfied about what the evidence actually is. Often, the more that is open to doubt the less progress can be made in a negotiation. See those parts of CourtKeys.com dealing with bundles of documents for more about these and the evidence that they might include.

Conciliation

Conciliation involves a neutral intermediary who meets disputants separately to discuss their story, the other side, common ground and possible settlement terms. This collaborative exercise can help to defuse strong emotions and reconcile differences by way of concession.

The structure of a conciliation meeting can be similar to a structure for a formal negotiation, although the parties may also be removed to separate rooms from time to time. The conciliator often acts as a kind of ambassador or messenger between the parties where they separate. The separation can help disputants to step back from details or dilute emotions and thereby facilitate settlement. See the part of this text dealing with the structure of a negotiation above for more on the general structure you might expect of a conciliation.

A statement of position and evidence in support can also be helpful. See those parts dealing with ‘statements of position’, ‘briefs of evidence’ and ‘bundles of documents and other evidence’ in the ‘negotiation’ part of this text above for more.

Mediation

Mediation involves elements of negotiation and conciliation. The disputants meet before a mediator who assists them to negotiate a settlement. They are often separated at some point for the mediator to hold private discussions on possible settlement terms as a conciliator would.

You may find yourself having to attend mediation even if you chose to litigate rather than attempt alternative dispute resolution. The District Court, for example, may require you to attend a ‘judicial settlement conference’ before it will allow your case to progress to trial. A judicial settlement conference is a kind of mediation in a court with a judge acting as the mediator. The High Court also makes use of these kinds of conferences but the District Court requires them in the ordinary course for all except the simplest cases. Cases before the Family Court, Tenancy Tribunal and Employment Relations Authority often feature mediation or judicial settlement conference components as well. See the parts of CourtKeys.com that deal with judicial settlement conferences for more on those types of conferences.

The structure of a mediation can be similar to the structure of a formal negotiation or conciliation, as can the materials such a statement of position and evidence that may be useful. See the parts of this text dealing with ‘negotiation’ and ‘conciliation’ above for more on those. Also, see those parts dealing with employment mediations for some idea of what to expect of mediations in that context.

Settlement

The point of a settlement agreement is to bring an end to a dispute: If the dispute continues then it is not really settled. Matters to consider when negotiating settlement include:

1. What, exactly, are you trying to settle?

It may be that you have a number of different disputes with the same party. If you are attempting to settle only some of them then you will need to be careful to define which ones. Many settlement agreements set out a background to the   dispute(s) being settled. Equally, many agreements record settlement of ‘all issues between the parties’. If you are inclined to settle ‘all issues’ then you need to be careful to make sure you are not inadvertently or arguably settling some problem you did not even realise you had. The risk of this remains even if you are careful to avoid it.

2. Who is to do what, and how?

A settlement agreement might not be worthwhile if you end up having a whole new dispute about what it means. Who is to do what, and how they are to go about doing it should be carefully set out in order to avoid that possibility.

Exactly how much detail is called for will depend on exactly what has been agreed. For example, if one party has agreed to pay another by instalments over time then the amount of each instalment and the time each instalment is due ought to be written down. Recording how each instalment is to be paid and where it is to be paid to may also be worthwhile.

Other things to consider might include:

2.1.      What is to be done about any claim to legal costs or other costs?

2.2.      What is to be done about any claim to interest?

2.3.      What is to happen to any existing court case or ADR action?

2.4.      Should the settlement agreement be made conditional on a party doing something such as making a payment?

3. What is to happen if a party defaults on the agreement?

If another party fails to uphold its end of a settlement agreement then enforcing the agreement is an option that would ordinarily be available to you. The situation is somewhat different where the agreement is conditional on something or other and that condition was not met. In that case it would usually be as if there was no agreement at all, and the parties would go back to trying to resolve their dispute one way or another.

Where another party defaults on an unconditional settlement agreement then you would have to enforce the terms of that agreement as they stand unless there are specific terms for what is to happen upon default or ‘default provisions’. There can be no going back to the dispute unless the default provisions say so or the settlement agreement cannot be relied upon by any party or become ‘null and void’.

Default provisions can be important where you have made some concessions or given some discounts in order to reach settlement. That is because you could end up only being able to enforce the discounted settlement terms rather than the full claim you were making before you agreed to settle. Default provisions can get around that by requiring the other party to give everything you had claimed of them before you agreed to settle, plus interest (if applicable) and plus legal costs of making your claim, making the settlement agreement and enforcing the settlement agreement upon default. Opposing parties would of course have to agree to default provisions in a settlement agreement, but if they do not then the agreement might not be worth making in the first place.

If you do include default provisions, and if those provisions require another party to pay costs upon default, then it may be worth specifying the costs that would become payable or how they would be calculated. You may be able to negotiate for costs ‘on and solicitor and client basis’ or perhaps costs calculated in accordance with a particular court scale. See those parts of this text dealing with costs for more on the various court scales and how they differ from ‘indemnity costs’ or costs on a solicitor and client basis.

4. Are the terms of the settlement to be kept confidential?

It may be wise to negotiate for a term that requires the parties to keep the terms of the settlement agreement confidential except for enforcement purposes. You may also be interested to go a step further and require the parties to keep various matters arising in the course of the dispute confidential, or prohibiting the parties from disparaging one another.

What might follow from the parties breaking any confidentiality term is another matter. You may prefer to leave that question open and rely on defamation or other relevant laws, or perhaps negotiate a fixed penalty fee or schedule of penalty fees depending on the seriousness of the breach.

5. Governing law and jurisdiction?

There may be some need to have the settlement agreement governed by the laws of a particular country or to agree on the court that would have jurisdiction over the agreement. If that is the case then you should carefully record the country   and/or court in the agreement.

Settlement Agreement Template

You can download a template Settlement agreement here.

ADR concluding with a determination

There is another species of ADR that resolves disputes by putting some neutral third party in the position of a judge and having him or her make a decision. Disputants can have more than one ‘judge’ if they like, and who that person or those people might be is up to them. They might agree to have ‘judges’ appointed by a neutral third party if they cannot agree. Such neutral third parties could be the president of the New Zealand Law Society or retired High Court judge for example.

Parties would normally agree that they will be bound by the outcome of these kinds of alternative dispute resolution options at the time they elect them. Otherwise there is little point in using this form of ADR. They may of course agree on things such as rights of appeal as they would have if they brought their dispute before a court. It is up to them, and that is a reason why this kind of ADR can appeal: The parties can agree on their own process, and that can save time and cost.

Arbitration

Arbitration is an adversarial process similar to a court. An arbitrator hears the arguments of the parties involved in a dispute and makes a binding decision. Disputants may find cost savings by agreeing to tailor rules of procedure, evidence and submissions as appropriate to their case, but may still end up before the High Court if an appeal or setting aside application is made.

The Arbitration Act 1996 governs arbitration in New Zealand. Section 10 provides:

(1)       Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or, under any other law, such a dispute is not capable of determination by arbitration.

(2)       The fact that an enactment confers jurisdiction in respect of any matter on the High Court or a District Court but does not refer to the determination of that matter by arbitration does not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration.

Schedules 1 and 2 of the Arbitration Act 1996 provide general and additional optional rules for arbitrations, including how arbitrators may be appointed; how an arbitration may be conducted; how arbitral decisions may be enforced; and how costs and expenses may be dealt with.

An arbitration might be run like an interlocutory application or a short, simplified or full trial, or something entirely different. It all depends on what the parties agree. Parts of CourtKeys.com could be of assistance in some way, particularly those parts dealing with statements of claimdiscoverywitnesses, and synopses of submissions.

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Tenancy Tribunal Jurisdiction by CourtKeys.com

Author CourtKeys.com
Published 17 November 2017
Jurisdiction New Zealand
Website http://www.CourtKeys.com

The Tenancy Tribunal deals with disputes between landlords and tenants of residential properties that they are unable to resolve themselves. Section 77(5) of the Residential Tenancies Act 1986 limits the amount of money that the Tribunal can award to $50,000.

The Tenancy Tribunal can be a cost-effective option because filing fees cost $20.44 and lawyers are only allowed to represent disputants in limited circumstances. See the part of CourtKeys.com dealing with representation in the tenancy tribunal for more about that.

You can discount your claim to bring it within the $50,000 threshold or otherwise make your claim in the District Court or High Court. The District Court has jurisdiction to hear civil disputes worth up to $200,000. The High Court can hear claims of any value, although you may not be awarded all the costs you might expect if you could have brought your case in a lower court but went to the High Court instead. See, for instance, Northland Coastal Developments Limited v Twce (2014) Limited [2014] NZHC 2638 [28 October 2014].

You could also bring your case before the District or High Court if you cannot bring it before the Tenancy Tribunal because there is no dispute. Then, assuming you are able to obtain a judgment, you could take enforcement action through the courts to compel compliance. See those parts of this text that deal with enforcement for more on that.

Who is a “landlord” and who is a “tenant”?

Section 2 of the Residential Tenancies Act 1986 provides:

landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes –

(a)       a prospective landlord; and

(b)       a former landlord; and

(c)        a lawful successor in title of a landlord to the premises; and

(d)       the personal representative of a deceased landlord; and

(e)        an agent of a landlord

An “agent of a landlord” could include a property manager.

As for the question of who is a “tenant”, section 2 provides:

tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes –

(a)       a prospective tenant; and

(b)       a former tenant; and

(c)        a lawful successor in title of a tenant to the premises; and

(d)       the personal representative of a deceased tenant; and

(e)        an agent of a tenant

Tenancy Tribunal jurisdiction checklist

The following is a list of key questions to consider when figuring out if the Tenancy Tribunal has jurisdiction to deal with a dispute. The Tribunal probably has jurisdiction if the answer to every question is ‘yes’. However, keep in mind that some of the questions involve terms that have specific definitions. A dispute might have something to do with a residential property, for example, but might not properly come within the jurisdiction of the tenancy tribunal if that has no real relevance to the disputed issues. If you are in doubt about jurisdiction then it might be worth discussing that matter with tenancy tribunal staff or consulting a lawyer before taking further action.

The questions:

1. Is there a dispute between a “landlord” and a “tenant”?

2. Is the dispute about a residential tenancy?

3. Is the value of the dispute not more than $50,000?

Remedies in the Tenancy Tribunal

It is worth considering the kind of remedies or ‘relief’ or outcome that the Tenancy Tribunal could give you at an early stage. That is because you could waste time and costs reading about or preparing a case for the Tribunal only to find out later that it cannot actually give you what you want. It could be that you should take your case to the District Court or High Court instead.

Examples of the kinds of orders that the Tenancy Tribunal may make include:

1. A ‘possession order’ to have a tenant evicted from a property. This may be given where:

1.1.      rent is more than 21 days overdue;

1.2.      the tenant is causing substantial damage to the property or threatening to do so;

1.3.      the tenant has assaulted or threatened to assault the landlord, or an agent or relation of the landlord, or other tenants or neighbours; or

1.4.      the tenant has broken the tenancy agreement, the landlord has given 14 days notice to remedy the breach, the breach remains and the notice has expired.

2. An order to pay money such as unpaid or overpaid rent, compensation for loss or damage or exemplary damages.

Exemplary damages are a kind of punishment for particular wrongs, including breaches of sections of the Residential Tenancies Act 1986 that are described as ‘unlawful acts’. Those ‘unlawful acts’, the sections of the Residential Tenancies Act 1986 that they relate to and the maximum penalty that may be imposed are set out in Schedule 1A of that Act:

Section Unlawful act Amount
12 Unlawful discrimination $4,000
16A(6) Landlord failing to appoint agent when outside New Zealand for longer than 21 consecutive days $1,000
17 Requiring key money $1,000
18 Landlord requiring bond greater than amount permitted $1,000
18A Requiring unauthorised form of security $1,000
19(2) Breach of duties of landlord on receipt of bond $1,000
23 Landlord requiring rent more than 2 weeks in advance or before rent already paid expires $1,000
27(2) Landlord requiring rent in excess of market rent order $200
29 Failure by landlord to give receipts for rent $200
33 Landlord seizing or disposing of tenant’s goods $2,000
38(3) Interference with privacy of tenant $2,000
40(2)(ab) Interference, etc, with means of escape from fire $3,000
40(3A)(a) Failing to observe without reasonable excuse, the tenant’s duties upon termination $1,000
40(3A)(c) Using or permitting premises to be used for unlawful purpose $1,000
40(3A)(d) Harassment of tenant or neighbour $2,000
40(3A)(e) Tenant failing to ensure number of residents does not exceed maximum allowed $1,000
44(2A) Assigning or subletting a tenancy when prohibited to do so or without the landlord’s written consent $1,000
45(1A) Landlord’s failure to meet obligations in respect of cleanliness, maintenance, or building, or health and safety requirements $3,000
45(2A) Landlord interfering with supply of services to premises $1,000
46(3) Altering locks without consent of other party $1,000
48(4)(a) Unlawful entry by landlord $1,000
61(5) Abandonment of premises without reasonable excuse $1,000
66G(4) Harassment of tenant in boarding house $2,000
66I(4) Landlord of boarding house failing to meet obligations in respect of cleanliness, maintenance, or building, or health and safety requirements $3,000
66J(4) Landlord of boarding house interfering with services or failing to advise that premises on the market $1,000
66K(2)(b) Interference, etc, with means of escape from fire $3,000
66K(4)(b) Using or permitting premises to be used for unlawful purposes $1,000
66K(4)(c) Harassment of neighbour $2,000
66P(4) Landlord of boarding house failing to comply with order relating to house rules $2,000
66T(1) Contraventions relating to entry, or attempted entry, of tenant’s room in boarding house $1,000
66X(5) Abandonment of premises without reasonable excuse $1,000
108(2A) Intentional breach of work order $3,000
137(2) Contracting to contravene or evade the provisions of this Act $1,000

3. A ‘work order’ to repair damage or carry out maintenance. A money order may be made where a work order is not complied with.

4. An ‘attachment order’ by consent between the landlord and the tenant at the Tenancy Tribunal hearing. An attachment order is an order that deductions are made from someone’s wages to pay a debt. An attachment order by consent is called an ‘agreed attachment order’.

Interest

Jurisdiction for the Tenancy Tribunal to award interest is not expressly provided for in the Residential Tenancies Act 1986. Section 78(1)(d) of that Act gives jurisdiction to make an order that a party pay money to another. Subsection (h) provides the Tribunal may also make “any other order that the High Court or District Court may make under any enactment or rule of law relating to contracts”. Those Courts may order a party to pay damages for breach of contract and interest on damages as well. It may be that the Tribunal would therefore consider it could award interest in some circumstances. You could consult a lawyer for a legal opinion on your particular circumstances if you are interested to claim interest but not prepared to do so without first understanding your legal position. See those parts of CourtKeys.com that relate to interest in the District Courts and in the High Court for more on the ability of those Courts to award interest and when they might do so.

Costs

The ability of the Tenancy Tribunal to award costs is set out at section 102 of the Residential Tenancies Act 1986:

(1)       Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it.

(2)       The Tribunal may make an order of a kind referred to in subsection (3) in any of the following case:

(a)       where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought:

(b)       where any of the parties was represented by counsel:

(c)        where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner:

(d)       where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause.

(3)       In any case to which subsection (2) applies, the Tribunal may order a party to pay –

(a)       to the Crown, any 1 or more of the following:

(i)        the reasonable costs of the Tribunal hearing:

(ii)       the fees and expenses of any witness that have been paid or are payable by the Crown:

(iii)      the reasonable fees and expenses of any Tenancy Mediator in relation to the preparation of a report under section 99:

(iv)      fees and expenses of any valuer in relation to the preparation of a report under section 100; or

(b)       to another party, the reasonable costs of that other party in connection with the proceedings.

(4)       If the applicant –

(a)       has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application:

(b)       has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application.

(5)       The Tribunal may make an order to give effect, in whole or in part, to a provision in a tenancy agreement requiring one party (the debtor) to reimburse the other party (the creditor) for any reasonable expenses or commissions paid or incurred by the creditor in recovering, or attempting to recover, any overdue payment that the debtor owes to the creditor under an order of the Tribunal.

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