Employment Litigation by CourtKeys.com

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

The New Zealand government has set up three separate forums that deal exclusively with employment issues. There is the employment mediation service operated by the Ministry of Business, Innovation and Employment. Then there is the Employment Relations Authority and the Employment Court. This guide deals with mediation first, then the Employment Relations Authority and then the Employment Court. An employment problem may not progress through the different forums in that order though. The most appropriate starting point very much depends on the particular facts of each problem.

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Chapters

Personal grievances

Employment Mediation

Employment Relations Authority

Applying to the Authority

Progressing a claim

Preparing for an investigation meeting

Attending an investigation meeting

Authority determinations

Enforcement

Employment Court

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The Motor Vehicle Disputes Tribunal by CourtKeys.com

Author CourtKeys.com
Published 9 December 2017
Jurisdiction New Zealand
Website www.CourtKeys.com

On this page:

  • Motor Vehicle Disputes Tribunal Jurisdiction
  • Claims and remedies under the Sale of Goods Act 1908
  • Claims and remedies under the Fair Trading Act 1986
  • Claims and remedies under the Consumer Guarantees Act 1993
  • Claims and remedies under the Contractual Remedies Act 1979
  • Extending Jurisdiction

The Motor Vehicle Disputes Tribunal deals with civil disputes that:

1.  are about vehicles that have some kind of engine and are ordinarily for personal, domestic and household use; and

2.  are to do with either the Sale of Goods, the Fair Trading, the Consumer Guarantees or the Contractual Remedies Acts; and

3.  involve a “motor vehicle trader”; and

4.  do not involve a claim for more than $100,000 (or more if all parties agree in writing).

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The jurisdiction of the Motor Vehicle Disputes Tribunal and the limitations on that jurisdictions are set out at sections 89 and 90:

89 Jurisdiction of Disputes Tribunal

(1) A Disputes Tribunal has jurisdiction, on the application of any party, to –                      

(a) inquire into and determine any application or claim, as the case may be, under any of the following Acts if that application or claim is in respect of the sale of any motor vehicle:

(i) the Sale of Goods Act 1908:

(ii) the Fair Trading Act 1986:

(iii) the Consumer Guarantees Act 1993:

(iv) the Contractual Remedies Act 1979; and

(b) make any order that a court or a Disputes Tribunal constituted under the Disputes Tribunals Act 1988 may make under, –

(i) in the case of proceedings under the Sale of Goods Act 1908, section 53 of that Act; or

(ii) in the case of proceedings under the Fair Trading Act 1986, section 43(2) of that Act; or

(iii) in the case of proceedings under the Consumer Guarantees Act 1993, section 39 or 47 of that Act; or

(iv) in the case of proceedings under the Contractual Remedies Act 1979, section 9 of that Act.

90 Limits on jurisdiction of Disputes Tribunals

(1) A Disputes Tribunal has jurisdiction only if –

(a) one party, but not both parties, to the application or claim is a motor vehicle trader; and

(b) the total sum of the application or claim does not exceed $100,000.

(2) Despite section (1)(b), the parties to the application or claim may consent in writing to the determination of the application or claim by the Disputes Tribunal.

Section 6 of the Motor Vehicle Sales Act 2003 defines “motor vehicle” as follows:

motor vehicle –

(a) means any of the following:

(i) a road vehicle that is drawn of propelled by mechanical power and is of a kind ordinarily acquired by consumers for personal, domestic or household use:

(ii) a vehicle of any other class or description declared by the Governor-General, by Order in Council, to be a motor vehicle for the purposes of this Act; but

(b) does not include any of the following:

(i) [Repealed]

(ii) a moped:

(iii) a motor cycle, the total cylinder capacity of which does not exceed 60 cubic centimetres:

(iv) a tractor or farm machinery:

(v) a trailer:

(vi) a vehicle of any other class or description declared by the Governor-General, by Order in Council, not to be a motor vehicle for the purposes of this Act:

(vii) a vehicle that the Director has declared is not a motor vehicle under section 168A of the Land Transport Act 1998:

(viii) a mobility device

A “motor vehicle trader” is defined at section 7 of the Motor Vehicle Sales Act 2003:

In this Act, motor vehicle trader –

(a) means any person who carries on the business of motor vehicle trading (whether or not that person carries on any other business); and

(b) includes –

(i) [Repealed]

(ii) an importer:

(iii) a wholesaler:

(iv) a car auctioneer:

(v) a car consultant.

Section 8 of the Motor Vehicle Sales Act 2003 is titled “Who is treated as a motor vehicle trader”:

(1) A person is treated as carrying on the business of motor vehicle trading for the purposes of this Act if –

(a) the person holds out that the person is carrying on the business of motor vehicle trading; or

(b) in any specified period, the person sells more than 6 motor vehicles, unless that person proves that those motor vehicles were not sold for the primary purpose of gain; or

(c) in any specified period, the person imports more than 3 motor vehicles, unless that person proves that those motor vehicles were not imported to be sold for the primary purpose of gain.

(2) For the purposes of subsection (1)(a), a person holds out that the person is carrying on the business of motor vehicle trading if that person –

(a) advertises or notifies or states that the person carries on the business of motor vehicle trading; or

(b) in any way represents that the person is ready to carry, or is carrying, on the business of motor vehicle trading.

(3) Subsection (1)(b) does not apply to any trustee corporation (within the meaning of section 2(1) of the Trustee Act 1956) acting in the capacity of executor, administrator, trustee, guardian, committee, manager, agent, attorney, or liquidator, or in any fiduciary capacity, unless the trustee corporation is acting on behalf of the same person or estate.

If you have some kind of issue that falls outside the jurisdiction of the Motor Vehicle Disputes Tribunal then you may have to raise that in the Disputes Tribunal, District or High Court instead. An example of a motor vehicle dispute that falls outside the jurisdiction of the Motor Vehicle Disputes Tribunal would be where you bought a defective vehicle from an ordinary person instead of a “motor vehicle trader”. Disputes Tribunal has jurisdiction up to $15,000 or $20,000 if the parties agree to that. The District Court can hear claims up to $200,000. The High Court is a court of “unlimited jurisdiction”. There is no limit on the value of the claims that the High Court can deal with. See the CourtKeys.com chapters on the Disputes TribunalDistrict Court, and High Court for more about those particular forums.

Claims and remedies under the Sale of Goods Act 1908

The Sale of Goods Act 1908 contains several provisions that can be quite important to motor vehicle buyers. Section 14 provides:

14 Implied undertaking as to title, etc

In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is –

(a) an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods:

(c) an implied warranty that the goods are free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.

Section 16 of the Sale of Goods Act 1908 implies conditions as to quality and fitness for purpose into contracts for goods:

16 Implied conditions as to quality or fitness

Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose:     

provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose:

(b) where the goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality:

provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed:

[…]

Provisions relating to sales by sample could also apply to some motor vehicle contracts. Section 17 of the Sale of Goods Act 1908 provides:

17 Sale by sample

(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

(2) In the case of a contract for sale by sample there is an implied condition –

(a) that the bulk shall correspond with the sample in quality;

(b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and

(c) that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

Section 53 of the Sale of Goods Act 1908 provides for the remedy of specific performance. Fundamentally, specific performance requires a party to a contract to do what they agreed to do rather than, say, paying compensation for not doing it. The section provides:

53 Specific performance

(1) In an action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the application of the plaintiff, by its judgment direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.

(2) The judgment may be unconditional, upon such terms and conditions as to damages, payment of the price, and otherwise, as the court deems just; and the application by the plaintiff may be made at any time before judgment.

The applicability of the Sale of Goods Act 1908 may be limited or excluded altogether if the buyer and seller agree to that. Some specific provisions will also be excluded automatically where the Consumer Guarantees Act 1993 applies. Those exclusions are set out in section 56A of the Sale of Goods Act 1908.

Claims and remedies under the Fair Trading Act 1986

The Fair Trading Act 1986 contains various provisions concerning misleading and deceptive conduct, unfair practices, consumer information standards, layby sales, uninvited direct sales, extended warranties and auctions. Provisions of particular relevance:

9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

10 Misleading conduct in relation to goods

No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of goods.

17 Offering gifts and prizes

No person shall, –

(a) in connection with the supply or possible supply of goods or services or with the promotion by any means of the supply or use of goods or services; or

(b) in connection with the sale or grant or the possible sale or grant of an interest in land or with the promotion by any means of the sale or grant of an interest in land, –

offer gifts, prizes, or other free items with the intention of not providing them or of not providing them as offered.

36U Disclosure requirements relating to extended warranty agreements

(1) A warrantor must ensure that –

(a) every extended warranty agreement –

(i) is in writing; and

(ii) is expressed in plain language; and

(iii) is legible; and

(iv) is presented clearly; and

(v) complies with the requirements of subsection (2); and

(b) a copy of the agreement is given to the consumer at the time the consumer purchases the extended warranty.

(2) The requirements referred to in subsection (1)(a)(v) are that –

(a) the following information is set out on the front page of the agreement:

(i) a summarised comparison between the relevant Consumer Guarantees Act 1993 guarantees and the protections provided by the extended warranty agreement; and

(ii) a summary of the consumer’s rights and remedies under the Consumer Guarantees Act 1993; and

(iii) a summary of the consumer’s right to cancel the agreement under section 36V; and

(iv) the warrantor’s name, street address, telephone number, and email address; and

(b) all the terms and conditions of the agreement are included in the agreement, including –

(i) the rights and obligations of the warrantor and the consumer; and

(ii) the duration and expiry date of the agreement (including whether or not the agreement expires when a claim is made); and

(c) the total price payable under the agreement is disclosed in the agreement; and

(d) the agreement is dated.

(3) In addition to the requirements for written disclosure under subsections (1) and (2), the warrantor must, where reasonably practicable (for example, where the agreement is entered into between a warrantor and consumer in each other’s presence or by telephone), give the consumer oral notice, before the agreement is entered into, of –

(a) the consumer’s right to cancel the agreement within 5 working days; and

(b) how the consumer may cancel the agreement.

Remedies under the Fair Trading Act 1986 are set out at section 43 of that Act. Those remedies include:

1.   a declaration that a contract and any collateral contract, such as a collateral credit agreement, is void;

2.  an order varying a contract;

3.  an order for a refund of money;

4.  an order for payment of damages;

5.  an order to repair;

6.  an order to provide parts; and

7.  an order to provide certain services.

Section 43(4) of the Fair Trading Act 1986 defines a “collateral credit agreement” as follows:

(4) In subsection (3)(a) to (d), collateral credit agreement, in relation to a contract for the supply of goods, means a contract or an agreement that –

(a) is arranged or procured by the supplier of the goods; and

(b) is for the provision of credit by a person other than the supplier to enable person A to pay, or defer payment, for the goods.

“Person A” is defined elsewhere in section 43 as someone who “has suffered, or is likely to suffer, loss or damage by conduct of another person”.

Claims and remedies under the Consumer Guarantees Act 1993

Part 1 of the Consumer Guarantees Act 1993 provides various guarantees for the supply of goods. These are often called “consumer protection provisions” because they are there to protect buyers against suppliers of unsatisfactory goods.

The sections under part 1 of the Consumer Guarantees Act 1993:

5          Guarantees as to title

5A        Guarantee as to delivery

6          Guarantee as to acceptable quality

7          Meaning of acceptable quality

7A        Guarantee of acceptable quality in supply of gas and electricity

7B        Relationship of section 7A with rest of Act

8          Guarantees as to fitness for particular purpose

9          Guarantee that goods comply with description

10        Guarantee that goods comply with sample

11        Guarantee as to price

12        Guarantee as to repairs and spare parts

13        Express guarantees

Applied to motor vehicles, these guarantees require, among other things, that:

1.  vehicles are of “acceptable quality” at the time they are sold;

2.  vehicles are fit for any particular purposes represented by the motor vehicle trader or communicated to the trader at or before the time of sale;

3.  vehicles correspond with any description given at or before the time of sale;

4.  vehicles correspond with any sample or demonstration model shown at or before the time of sale; and

5.  manufacturers will ensure there are spare parts and facilities available to repair the vehicle for a reasonable time after the vehicle is supplied.

If a vehicle does not comply with a guarantee then, under section 18 of the Consumer Guarantees Act 1993:

(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2) Where the failure can be remedied, the consumer may –

(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:

(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time, –

(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

(ii) subject to section 20, reject the goods in accordance with section 22.

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may –

(a) subject to section 20, reject the goods in accordance with section 22; or

(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.

A case could come before the Motor Vehicle Disputes Tribunal where there is some dispute about whether a vehicle complies with a guarantee or the appropriate remedy for non-compliance.

As to the orders that the Motor Vehicle Disputes Tribunal may make, section 39 of the Consumer Guarantees Act 1993 provides:

(1) Where a consumer cancels under this Act a contract for the supply of services, a court or a Disputes Tribunal, in any proceedings or on application made for the purpose, may from time to time if it is just and practicable to do so, make an order or orders under this section.

(2) An order under this section may –

(a) vest in any party to the proceedings the whole or any part of any real or personal property that was the subject of the contract or was the whole or part of the consideration for it:

(b) direct any party to the proceedings to transfer or assign to any other such party or to give him or her the possession of the whole or any part of any real or personal property that was the subject of the contract or was the whole or part of the consideration for it:

(c) without prejudice to any right to recover damages, direct any party to the proceedings to pay to any other such party such sum as the court or Tribunal thinks just:

(d) direct any party to the proceedings to do or refrain from doing in relation to any other party any act or thing as the court or Tribunal thinks just:

(e) permit a supplier to retain the whole or part of any money paid or other consideration provided in respect of the services under the contract.

[…]

The reference to “consideration” in that section is a reference to the promised value of a contract. For instance, where a seller is to transfer a vehicle to a buyer in return for $10,000: The seller’s consideration is the vehicle and the buyer’s consideration is the purchase price.

Section 47 of the Consumer Guarantees Act 1993 makes clear that the District Court and Disputes Tribunal can only make awards under that Act so long as they do not exceed their jurisdictions.

Claims and remedies under the Contractual Remedies Act 1979

Section 9 of the Contractual Remedies Act 1979 gives the Motor Vehicle Disputes Tribunal the power to:

(a) vest in any party to the proceedings, or direct any such party to transfer or assign to any other such party or to deliver to him the possession of, the whole or any part of any real or personal property that was the subject of the contract or was the whole or part of the consideration for it:

(b) subject to section 6, direct any party to the proceedings to pay to any other such party such sum as the court thinks just:

(c) direct any party to the proceedings to do or refrain from doing in relation to any other party any act or thing as the court thinks just.

The power to make orders under section 9 is discretionary, but the discretion only becomes available once a contract is cancelled. So a claim for a remedy under the Contractual Remedies Act 1979 would have to be about a contract that has been cancelled.

Section 7 of the Contractual Remedies Act 1979 deals with cancellation:

(1) Except as otherwise expressly provided in this Act, this section shall have effect in place of the rules of the common law and of equity governing the circumstances in which a party to a contract may rescind it, or treat it as discharged, for misrepresentation or repudiation or breach.

(2) Subject to this Act, a party to a contract may cancel it if, by words or conduct, another party repudiates the contract by making it clear that he does not intend to perform his obligations under it or, as the case may be, to complete such performance.

(3) Subject to this Act, but without prejudice to subsection (2), a party to a contract may cancel it if –

(a) he has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to that contract; or

(b) a term in the contract is broken by another party to that contract; or

(c) it is clear that a term in the contract will be broken by another party to that contract.

(4) Where subsection (3)(a) or subsection (3)(b) or subsection (3)(c) applies, a party may exercise the right to cancel if, and only if, –

(a) the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to him; or

(b) the effect of the misrepresentation or breach is, or, in the case of an anticipated breach, will be, –

(i) substantially to reduce the benefit of the contract to the cancelling party; or

(ii) substantially to increase the burden of the cancelling party under the contract; or

(iii) in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.

[…]

Extending jurisdiction

The jurisdiction of the Motor Vehicle Disputes Tribunal can be extended beyond $100,000 so long as all parties agree to that in writing. Extending jurisdiction can be a cost-effective option because the filing fee for making a claim is just $50 and lawyers are not allowed to represent parties except in some limited circumstances. Those limited circumstances are where the lawyer is a party to the dispute or where the lawyer is a majority shareholder of a company that is a party to the dispute.

You could discount your claim to bring it within the $100,000 threshold if parties do not agree to extend jurisdiction. Otherwise you would need to make your claim in the District Court or High Court. See those chapters of CourtKeys.com dealing with District Court claims and High Court claims for more on those kinds of claims.

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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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