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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Using Litigation Lawyers by CourtKeys.com

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

You can ordinarily represent yourself in a court or have a lawyer represent you. The general rule is that you cannot be represented by someone who is not a lawyer, but exceptions can be made. Companies and other corporates, however, are not usually allowed to conduct court cases except through lawyers in the High Court and some other courts. See those parts of this text dealing with representation in relation to specific courts and tribunals for more about this.

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The legal profession is heavily regulated. This helps to prevent lawyers from abusing the trust that their clients place in them. The Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 set out some of the most important consumer protection rules that relate to lawyers. This from the preface to those rules:

Client care and service information

Whatever legal services your lawyer is providing, he or she must –

– act competently, in a timely way, and in accordance with instructions received and arrangements made:

– protect and promote your interests and act for you free from compromising influences or loyalties:

– discuss with you your objectives and how they should best be achieved:

– provide you with information about the work to be done, who will do it and the way the services will be provided:

– charge you a fee that is fair and reasonable and let you know how and when you will be billed:

– give you clear information and advice:

– protect your privacy and ensure appropriate confidentiality:

– treat you fairly, respectfully, and without discrimination:

– keep you informed about the work being done and advise you when it is completed:

– let you know how to make a complaint and deal with any complaint promptly and fairly.

Regarding disputes, advice on efficient solutions is to be expected because lawyers owe a fundamental obligation to protect the interests of their clients. These may include alternatives to litigation such as negotiation, conciliation, mediation and arbitration. See those parts of CourtKeys.com dealing with alternative dispute resolution for more about those.

Privilege and confidentiality

Communications between lawyers and their clients are confidential and may also be subject to privilege. Chapter 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides:

A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.

The chapter goes on to provide some exceptions to the duty of confidence but, in general, you would expect that your lawyer would not disclose information you have supplied without your permission.

Communications with your lawyer are also subject to legal professional privilege. That means your lawyer must not pass on information you have supplied or advice given to you without your permission. Like confidentiality, however, privilege can also be subject to some specific exceptions.

The Evidence Act 2006 does not affect the general law governing legal professional privilege, although it does deal with some specific privileges relating to communications with or involving lawyers.

Section 54(1) of the Evidence Act 2006 provides:

A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was –

(a) intended to be confidential; and

(b) made in the course of and for the purpose of –

(i) the person obtaining professional legal services from the legal adviser; or

(ii) the legal adviser giving such services to the person.

Section 56 of the Evidence Act 2006 provides:

(1) Subsection (2)applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).

(2) A person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of –

(a) a communication between the party and any other person:

(b) a communication between the party’s legal adviser and any other person:

(c) information compiled or prepared by the party or the party’s legal adviser:

(d) information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.

[…]

Section 57 of the Evidence Act 2006 provides:

(1) A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication –

(a) was intended to be confidential; and

(b) was made in connection with an attempt to settle or mediate the dispute between the persons.

(2) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.

[…]

Costs

Lawyers are often thought to be expensive. A lawyer with a reasonable level of skill and experience in dealing with civil disputes might charge something in the order of $250 to $450 per hour, plus Goods and Services Tax and plus any expenses incurred on behalf of clients.

Legal fees are regulated though, chapter 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides:

A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.

Reasonable fee factors

9.1 The factors to be taken into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include the following:

(a) the time and labour expended:

(b) the skill, specialised knowledge, and responsibility required to perform the services properly:

(c) the importance of the matter to the client and the results achieved:

(d) the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:

(e) the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:

(f) the complexity of the matter and the difficulty or novelty of the questions involved:

(g) the experience, reputation, and ability of the lawyer:

(h) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:

(i) whether the fee is fixed or conditional (whether in litigation or otherwise):

(j) any quote or estimate of fees given by the lawyer:

(k) any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:

(l) the reasonable costs of running a practice:

(m) the fee customarily charged in the market and locality for similar legal services.

You would have an interest in knowing how much a lawyer might charge you to deal with a particular dispute. Some lawyers might be prepared to agree a fixed fee with you, but there is a real risk that either you or your lawyer would not receive fair value out of such an arrangement. That is because every dispute is different. Battle can be a fluid thing that requires you to react to issues you could not anticipate at the outset. The law might be reasonably well established but the relevant facts might shift or change as the parties interact with one another. Or the facts might be reasonably well established but the legal arguments go off on a tangent because of uncertainty or development of applicable laws.

A typical answer to the question of “how much will my case cost”, if asked at an early stage or before the case is even filed, is “how long is a piece of string”. That is obviously unhelpful because the response is actually another question rather than an answer. It does, however, suggest that every case is different and total costs, calculated on an hourly basis, are difficult if not impossible to estimate early on.

That said, however, lawyers are required to give fee information and advice by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008:

9.4 A lawyer must upon request provide an estimate of fees and inform the client promptly if it becomes apparent that the fee estimate is likely to be exceeded.

9.5 Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters.

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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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Guide to Civil Problems by CourtKeys.com

Author CourtKeys.com
Published 11 November 2017
Jurisdiction New Zealand
Website www.CourtKeys.com

Introduction

There is usually more than one way to resolve a dispute and you will have to decide which option is the best one for you. This article explains the things you should consider when deciding between different steps or processes.

See the glossary for definitions of terms that are used, and refer to links for external resources that could provide further or more specific information.

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Chapters:

  • Consider taking legal advice
  • What is the problem?
  • Identify and assess the issues
  • Consider the options
  • Raise the problem
  • Contracts
  • When there is no response
  • Leveraging security
  • Credit reporting
  • Threat of litigation
  • Claiming legal costs
  • Claiming interest
  • Statutory demands
  • If there is (still) no response to any threat, demand or other action
  • Abandoning the matter
  • Attempting to negotiate or engage in alternative dispute resolution
  • Giving up control over your part of the problem or taking control of other parts
  • Commencing litigation
  • Assessing risks and rewards
  • Assessing costs and benefits
  • When an argument is raised

Consider taking legal advice

If trouble finds you and you want to know how to deal with it then it may be wise to engage a lawyer to assist you at an early opportunity. A lawyer might identify issues and solutions you would not have, recommend which of many options is best for you, and save you time and costs.

See the part about using lawyers for information about engaging lawyers and what to expect from them. 


What is the problem?

You will not be able to figure that out without first identifying, in a very general sense, the kind of difficulty you are faced with. So you need to ask what the problem is about.

For example:

1. Has a crime been committed?

2. Is there a contract?

3. Has property been damaged?

4. What relationships are involved?


Is it to do with employment?

Employment difficulties have to be treated differently from the other kinds of difficulties that are addressed in this text. That is because the law imposes rights and obligations on parties in an employment relationship that it would not necessarily impose on those parties if they were not in that relationship. The consequence is that your options may be restricted right from the moment an employment problem is raised


Identify and assess the issues 

The next step is to identify all relevant issues and assess your legal position in relation to them. Legal advice can be particularly valuable for this step. Issues might not be properly identified or assessed without legal training and experience.

Examples of the kinds of issues that could be relevant:

1. Time limits for raising or responding to the problem

2. Rules for raising or responding to the problem

3. The legal status of the parties involved and the grounds for their involvement

4. Rules that apply to the kind of problem in question


Consider the options

Available options are defined by your legal position. Generally, you could:

1. Do nothing

2. Report the problem to an authority or some third party

3. Address the problem with the party or parties who are at the cause

Whether any one of these is reasonable or appropriate will depend on your particular situation. This text is about addressing the problem with the parties at the cause of it. It covers raising a civil problem with someone and responding when a problem is raised with you.


Raise the problem

There are many different ways to raise a civil problem with someone. Discussing it with the other party first may be sensible and appropriate. A friendly approach might be for the best if the parties are in a productive relationship that could be maintained. An overly assertive or aggressive approach at an early stage might cause the other party to resist simply because they do not want to be bullied or cast as ‘the bad guy’. It may be that you can resolve the problem at this point and no further action is necessary.

However, if the problem is confirmed, continues or escalates then you may be required to resolve it in a certain way. Such requirements may have been agreed in contract or imposed by law.


Contracts

Contracts sometimes include terms requiring the parties to raise and respond to problems in a particular way. Examples:

Either party might have to give written notice of a problem within 20 days of becoming aware of it. The other party might then be required to respond within 20 days or be taken to have waived its ability to argue.

The parties might agree that they cannot file a court case before going to mediation or arbitration first. They might have also agreed to how a mediator or arbitrator is to be appointed, and the procedure that is to apply.

However, it is important to note that some of these kinds of contract terms may not actually be enforceable. Legislation may provide for disputes to be resolved by a particular process, and the parties may not be able to contract out of that.


Employment

Section 238 of the Employment Relations Act 2000 provides:

The provisions of this Act have effect despite any provision to the contrary in any contract or agreement.

Section 4(1A)(b) of that Act “requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative”.

Consequently, employment problems are generally expected to be raised and discussed informally at first instance. A more formal meeting or notice may be called for if that does not resolve the matter, and mediation may follow.

That is because the Employment Relations Authority must consider referring the parties to mediation if the problem escalates that far anyway, so there is an incentive to mediate before involving that Authority. If the parties do not settle in mediation then the Authority may be called upon to investigate.

Refer to the employment chapter for more detail.


Residential tenancies

Section 81 Residential Tenancies Act 1986 provides:

(1) A provision in any tenancy agreement to which this Act applies, or in any other agreement entered into by the parties to any such tenancy agreement, to exclude or limit –

(a) the jurisdiction of the Tribunal; or

(b) the right of any person to invoke that jurisdiction –

shall be of no effect.

(2) Without limiting the generality of subsection (1), the Tribunal shall have jurisdiction in respect of a claim notwithstanding any agreement relating to the matter that provides for –

(a) the submission to arbitration of any dispute or difference; or 

(b) the making of an award upon such a submission to be a condition precedent to any cause of action accruing to a party to the agreement.

There is no requirement to try to work through a problem with the other party before making an application to the Tenancy Tribunal, but it seems sensible to do so. The problem you thought you had might not turn out to be a problem at all, or it could be resolved quickly and simply.

In any event, you can begin a case by filing an application at a Tenancy Tribunal office. Like the Employment Relations Authority, the Tenancy Tribunal may refer the parties to mediation if that seems a reasonable way forward. If mediation does not result in settlement then the dispute could progress to a hearing in the Tribunal.

See the tenancy tribunal chapter for more detail.


Motor vehicles

Section 91 of the Motor Vehicle Sales Act 2003 provides:

(1) A provision in any contract to exclude or limit the jurisdiction of a Disputes Tribunal or the right of any person to invoke that jurisdiction has no effect.

(2) A Disputes Tribunal has jurisdiction despite a provision in any contract that provides for –

(a) the submission to arbitration of any dispute or difference arising under that contract; or

(b) the making of an award upon such a submission to be a condition precedent to any cause of action accruing to a party to that contract.

As with residential tenancies, it seems sensible to try to work through problems as best you can before commencing legal action.

You can bring a case before the Motor Vehicle Disputes Tribunal by making an application to that Tribunal. The Tribunal then refers your application to the other party involved and asks that other party to discuss the matter with you and report back to the tribunal on whether or not a settlement is reached. The matter could progress to a hearing in the Tribunal if settlement is not reached.

See the motor vehicle disputes tribunal chapter for more detail.


When there is no response

A more forthright approach may be called for if a party does not respond to first attempts to raise a problem. That could involve a threat of litigation or, if a debt is owed, leveraging security, credit reporting or making a statutory demand under section 289 of the Companies Act 1993.


Leveraging security

‘Leveraging security’ can mean selling assets or taking bond money. Any assets would have to be given as security first though, and they could only be sold in accordance with the terms of whatever security agreement was made.

Mortgages and charging orders can secure real estate and give you power to sell in circumstances regulated by the applicable laws and any agreed terms. The Property Law Act 2007 relates to mortgagee sales and the High Court Rules relate to sale of property charged with a charging order.

A charging order is an order of a court that secures payment of a judgment debt. Charging orders can be registered on titles to real estate but they can also be made in relation to other assets. The High Court can make a charging order before judgment is actually given or on an interim basis. The District Court has a more restricted jurisdiction in relation to charging orders, and the Disputes and Tenancy Tribunals do not have jurisdiction at all.

The Personal Property Securities Act 1999 relates to security agreements for moveable assets. Those are described as personal property. The Personal Property Act relates to the repossession and sale of secured assets. It also regulates how sale proceeds are to be divided up between others with security in the same asset.

If your debtor is a company then your security agreement may entitle you to appoint a receiver. The Receiverships Act 1993 relates to receiverships.

How to go about appointing receivers or selling secured assets is beyond the scope of this text. However, it may be worthwhile to consider the potential risks and rewards as well as costs and benefits before commencing any action to leverage security. That would necessarily involve weighing costs against potential returns and risks of resistance and retaliation. See the part ‘if there is (still) no response to any threat, demand, or other action’ below for the kinds of considerations you may want to take into account

It may be that you would consider it worthwhile to make a threat to leverage security before going any further. In that case refer to the ‘threat of litigation’ part that follows (albeit as applied to leveraging security rather than litigation).


Credit reporting

Listing a debt with a credit reporting agency may put pressure on your debtor to account to you for that debt. Whether you can actually list a particular debt is a matter for the agency in question.

As with leveraging security, it may be worthwhile to consider potential risks, rewards, costs and benefits before taking this step, and equally worthwhile to consider making a threat of credit reporting before going further. See the chapter ‘if there is (still) no response to any threat, demand, or other action’ below for more on analysing your options, and ‘threat of litigation’ in relation to threats of credit reporting (albeit as applied to credit reporting rather than litigation).


Threat of litigation

A threat of litigation may be appropriate where there is no security to leverage or where leveraging security has not resolved the problem (i.e. where proceeds of a mortgagee sale are not enough to pay off the debt secured by the mortgage).

The point of a threat of litigation is to warn of potential litigation and thereby create an opportunity to avoid it. It can be in the interests of all involved to avoid litigation if possible because of the potential risks and costs involved.

An effective threat of litigation normally includes four things:

1. clearly identify the problem;

2. demand a remedy within a specified timeframe;

3. threaten litigation if the demand is not complied with; and

4. make reference to the potential costs and/or claim for costs if litigation commences.

So there is a kind of carrot and stick approach where there is an incentive to meet the demand and a penalty otherwise.

It may be appropriate to describe the legal basis of the court case that may be brought, which court you would go to and which remedies you would claim. You may say you would claim damages plus legal costs and interest for instance. You might also be able to name specific figures or other relief that would be claimed, and if so it may prove worthwhile to communicate those figures or relief. That is because they may help the other party understand what is being argued over, and the figures could be used as reference points in any settlement negotiations that follow.

You should consider taking advice about your legal position and the kind of remedies available in particular. Legal advice can often prove especially valuable in relation to those.


Caution against blackmail

It is important to recognise that you would only be threatening a civil case for a civil remedy. You would not be threatening to go to the police unless the other party does what you are asking. That may amount to blackmail, and blackmail is a crime.

Section 237 of the Crimes Act 1961 provides:

(1) Everyone commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent –

(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and

(b) to obtain any benefit or to cause loss to any other person.

(2) Everyone who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.

(3) In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.


Claiming legal costs

Different forums deal with legal costs differently.

It is generally expected that, where a judgment is given in an Employment Relations Authority, District Court or High Court case, the losing party will have to pay legal costs to the successful party. Costs are awarded at the discretion of those forums however, so they cannot be assured.

A party may have agreed in contract to pay the actual legal costs of the other if successfully sued. The District Court and High Court may award actual costs in accordance with such agreement so long as they are reasonable. Actual legal costs are less likely to be awarded where there is no contract for them, and those Courts will often apply a formula intended to result in an award that is two thirds of the costs actually incurred by the successful party.

The jurisdiction of the Disputes Tribunal, Motor Vehicle Disputes Tribunal and Tenancy Tribunal to award costs is much more restricted. The default position is that costs will not be awarded.

Awards of costs are addressed in more detail in those parts of this text that relate to each specific forum.


Claiming interest

If the parties have specified some rate of interest in a contract then that rate may apply to monies due under that contract. Interest clauses may be unenforceable for a variety of reasons however, and any default rules may be applied as an alternative.


Interest in the High Court, District Court and Disputes Tribunal

If the High Court, District Court or Disputes Tribunal makes an order requiring one party to pay money to another, then they can award interest on that money also. The interest can run from the date when the cause of action for the money arose until the date when the order for that money is made. Currently, interest awarded cannot be more that 5% per year. The relevant law is the Clause 4 of the Judicature (Prescribed Rate of Interest) Order 2011, the District Courts (Prescribed Rate of Interest) Order 2011, and the Disputes Tribunals (Prescribed Rate of Interest) Order 2011.


Interest in the Employment Relations Authority

Section 11 of Schedule 2 of the Employment Relations Act 2000 provides:

(1) In any matter involving the recovery of any money, the Authority may, if it thinks fit, order the inclusion, in the sum for which judgment is given, or interest at the rate prescribed under section 87(3) of the Judicature Act 1908, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the determination of the Authority.

(2) Without limiting the Authority’s discretion under subclause (1), in deciding whether to order the inclusion of interest, the Authority must consider whether there has been long-standing and repeated non-compliance with a demand notice.

The rate prescribed under section 87(3) of the Judicature Act 1908 has been amended by the Judicature (Prescribed Rate of Interest) Order 2011, and currently sits at 5% per year.


Interest in the Motor Vehicle Disputes Tribunal

The jurisdiction of the Motor Vehicle Disputes Tribunal to award interest is not expressly provided for in the Motor Vehicle Sales Act 2003. Section 89(1)(b) gives jurisdiction to make any order that a court or the Disputes Tribunal may make in relation to specified sections of specified Acts. Namely:

(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 1988, 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.

Consequently, the Motor Vehicle Disputes Tribunal may award interest where it orders a party to pay money to another in accordance with those sections of the Acts described. That is because a court may make an order for interest on money from the time of the cause of action to the time of judgment. The reasoning is that the money was properly due from the time the cause of action arose, and interest would compensate the successful party for being deprived of it while matters worked their way through the court system.


Interest in the Tenancy Tribunal

Jurisdiction for the Tenancy Tribunal to award interest is not expressly provided for either. Section 78(1)(d) of the Residential Tenancies Act 1986 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, as above, interest on damages as well.


Statutory demands

A statutory demand is a formal demand for payment on a company or other corporation that is made in accordance with section 289 of the Companies Act 1993. It may follow a threat of litigation (or threat of a statutory demand) although it is often more efficient to use the demand as a substitute. That is because the demand is a kind of threat of litigation itself, albeit that there is less of an opportunity to avoid litigation if there is some dispute about the existence of the debt.

Section 289 Companies Act 1993 provides:

(1) A statutory demand is a demand by a creditor in respect of a debt owing by a company made in accordance with this section.

(2) A statutory demand must –

(a) be in respect of a debt that is due and is not less than the prescribed amount; and

(b) be in writing; and

(c) be served on the company; and

(d) require the company to pay the debt, or enter into a compromise under Part 14, or otherwise compound with the creditor, or give a charge over its property to secure payment of the debt, to the reasonable satisfaction of the creditor, within 15 working days of the date of service, or such longer period as the court may order.

The minimum “prescribed amount” of a statutory demand is $1,000. This is as provided by section 5 of the Companies Act 1993 Liquidation Regulations 1994.

A statutory demand should not be issued if there is a genuine and substantial dispute about the existence of the debt. That is because the demand would amount to an abuse of process in those circumstances. See Taxi Trucks Ltd v Nicholson [1989] 2 NZLR 297.

The basic rule is that if a debt is disputed then it should be resolved in the ordinary course. You are not allowed to shortcut the court process or other dispute resolution process by issuing a statutory demand. To try to shortcut a process in that way would amount to an abuse.

Section 290 of the Companies Act 1993 provides:

(4) The court may grant an application to set aside a statutory demand if it is satisfied that –

(a) there is a substantial dispute whether or not the debt is owing or is due; or

(b) the company appears to have a counterclaim, set-off, or cross-demand and the amount specified in the demand less the amount of the counterclaim, set-off, or cross-demand is less than the prescribed amount; or

(c) the demand ought to be set aside on other grounds. 

(5) A demand must not be set aside by reason only of a defect or irregularity unless the court considers that substantial injustice would be caused if it were not set aside.

(6) In subsection (5), defect includes a material misstatement of the amount due to the creditor and a material misdescription of the debt referred to in the demand.

The situation is somewhat different when a dispute is not genuine or substantial. The High Court does not require creditors to go through a dispute resolution process without good reason. So the Court may dismiss an alleged dispute summarily if it is satisfied that there is no real question to be tried. Factors that the Court may consider when deciding whether there is a real question to be tried includes whether the evidence of an alleged dispute:

1. conflicts with undisputed documentary evidence;

2. conflicts with other statements made by the same witness or ‘deponent’; or

3. is inherently improbable.

The High Court is entitled to take a robust and realistic approach where the facts justify that course of action.

It would be for the High Court to decide whether an alleged dispute is genuine or substantial because that is the court you would have to go to if you wanted to set aside a statutory demand. Debtors often argue statutory demands should be set aside because they have a genuine and substantial dispute, and it is up to the High Court to decide whether that is actually the case.

Section 287 of the Companies Act 1993 causes a debtor to be presumed insolvent unless it either complies with a statutory demand or otherwise applies to set it aside within 10 working days of the demand being served. If the debtor does not comply within time or successfully set the demand aside then it risks being put into liquidation.

‘Liquidation’ is when a ‘liquidator’ is appointed to take over the affairs of a corporation. It often results in the liquidated corporation being wound up or finished. It is a kind of death for a corporation, so the risk of liquidation over a debt provides a strong incentive to either pay the amount claimed by a statutory demand or otherwise fight that demand.

Finally, a statutory demand is of course pointless where a debtor corporation is already in liquidation. In that case you would pursue your debt under the rules that relate to corporations in liquidation.

So the criteria for when you can issue a statutory demand are:

1. You must be owed a debt of $1,000 or more.

2. The debt must be owed by a corporation.

3. The corporation must be incorporated and not in liquidation.

4. The debtor must not have a set off that is the same as or more than the amount being claimed.

5. There must not be a genuine and substantial dispute about the existence of the debt.

See the liquidation chapter for more detail.


If there is (still) no response to any threat, demand or other action

If you do not receive any response to any threat, demand or other action such as leveraging security, then it might be worth assessing risks, rewards, costs and benefits of the options available to you before going any further. It may prove worthwhile to have a lawyer help you with this.

The particular options that are available would depend on the particular problem you have. Generally, however, your options may include:

1. Abandoning the matter altogether.

2. Making further demands, threats of litigation or repeating other action already taken.

3. Attempting to negotiate or engage in alternative dispute resolution.

4. Giving up control over your part of the problem or taking over other parts.

5. Commence litigation.

Other options may of course be available depending on the particular problem. Employees, for example, may be able to raise a personal grievance. See the parts of this text that relate to particular kinds of problems for more, but note that this text may not address all options available in every circumstance. Again, legal advice could be particularly valuable here.


Abandoning the matter

This option would involve you simply walking away from the problem and,   presumably, putting the matter to rest. This may be appropriate where the risks of further action outweigh the probable rewards, or where the likely costs would not justify the benefits to be had. If the other party is probably insolvent, for example, then you may form the view that pursuing the matter any further would be throwing good money after bad.


Repeating other action already taken

Here you would repeat action already taken, such as making a demand or threat of    litigation. If these steps were not particularly effective the first time around then it may be difficult to see why you should repeat them unless something has changed.


Attempting to negotiate or engage in alternative dispute resolution

It is difficult if not impossible to negotiate with someone who is not responding to you, although there may be some obligation on you to make an attempt.

It may also be worthwhile to make a written offer to settle the matter for something less than all you may be legally entitled to. Such an offer may be called for where the potential rewards of litigation or other action are somewhat marginal when compared with the potential risks, or where further action is not attractive for other reasons.

You may find that an offer to settle for a discount would promote negotiation, but if not then it could improve your position on a claim to costs if the matter were to proceed further. See the settlement chapter for more.

As with negotiation, it is difficult if not impossible to compel an unresponsive   party to engage in an alternative dispute resolution process. However, you may   find that there is some obligation on you to at least make an attempt. There may be a clause in a relevant contract that requires you to attempt alternative dispute resolution such as mediation before commencing litigation or other action. See the alternative dispute resolution chapter for more detail.


Giving up control over your part of the problem or taking over other parts

These kinds of options can be overlooked sometimes. There can be a variety of different ways to give up your part of the problem or take over other parts, including:

Selling debt

If your problem is collecting a debt, then you may be able to sell the debt to someone. You would receive some value and the buyer would take over your collection problem.

Buying out a company

If your problem is with a company then you may be able to buy out that company and resolve the problem upon taking control.

Winding up an organisation

This is a fairly extreme solution that may be available to you if your problem belongs to a company of yours rather than belonging to you personally. It would involve putting your company into the hands of liquidators, who may resolve the problem in the course of winding up the company. That you would have to wind up your own company is an obvious potential drawback. Legal advice and accounting advice may be worthwhile when considering this option.

Commencing litigation

Litigation is often regarded as the final resort because it is the most costly and risky option. Your litigation options would depend on the kind of problem you have and the remedies you would like to achieve.

See those parts of this text that relate to jurisdiction and remedies in order to identify which court you might need to go to. You should also consider taking advice about your legal position and the kind of remedies available in particular. Legal advice could be especially valuable in relation to those.


Assessing risks and rewards

A risk / reward analysis involves first identifying the risks involved in a particular option and the potential rewards that option has to offer. Then you weigh up the risks against the rewards to help you decide whether the option is one that you would like to take. Legal advice could be worthwhile to help you with this assessment.

Obvious potential rewards or remedies can be everything you consider you are entitled to. However, sometimes you may have several different kinds of remedies available to you but can chose only one. Kinds of remedies can compete with one another or be mutually exclusive. You may not be entitled to several different remedies at once if that would involve ‘double dipping’.

Common risks include:

1. That you might lose your case or otherwise find out you are not actually entitled to everything you think you are.

2. You may not be awarded costs, less costs than you hoped or even end up with a costs award against you.

3. You may face retaliation such as a counterclaim.

4. You may face negative publicity.

5. The dispute might become more expensive than you thought at first. This can happen when another party makes allegations that cause complications.

6. You may not recover all that you are entitled to even if you win your case. For example, if the defendant is insolvent then it may not be able pay the amount of a judgment in your favour. See those chapters dealing with enforcement for more.


Assessing costs and benefits

This is can be a fairly straightforward commercial type of assessment if you consider ‘costs’ and ‘benefits’ in simple money terms: If your irrecoverable costs would be the same as or greater than the benefits of any further action then it may not be sensible to take matters any further.

‘Irrecoverable costs’ means those costs that you would probably not recover from anyone else if you were to take the matter further. There is some overlap with the litigation risk assessment here. The most obvious risk being that you could end up throwing good money after bad. See those parts of this text that deal with costs for some idea of the costs that may become associated with your particular problem, what portion of those may be recoverable and what portion may not be.

‘Costs’ and ‘benefits’ can mean more than just money though: They can include things like reputation, relationships and the certainty that comes with setting a legal precedent. Creditors, for example, may want to avoid a reputation for being soft on their debtors and chose to litigate even though the financial costs might end up outweighing the financial benefits. Similarly, businesses that use the same standard contracts for a great many deals might chose to litigate in order to establish how those contracts should be interpreted (and thereby achieve some certainty about that).

A lawyer could help you to quantify the immediate financial aspects of any further action, but might not be well placed to help weigh up other items such as reputation in a particular marketplace or relationships with particular businesses or consumers.


Information to be assessed

What is relevant to any assessment will usually depend on your particular situation. Some information that is usually worth taking into account includes:

1. Strength of your position

It might not be wise to take a matter further if you cannot make out a claim in law or prove it with evidence. A decision can be more difficult where the law and the evidence is unclear. It could be worthwhile to invest in legal advice about this.

2. Solvency of parties

If a party is insolvent unable to pay you or ‘insolvent’ then there might be little point in proceeding further. You could be throwing good money after bad.

You can check whether a corporation is in liquidation, receivership or struck off by looking it up on the companies office website: business.govt.nz/companies. Similarly, you can check whether a natural person is or has been bankrupt on the website for the insolvency and trustee service: insolvency.govt.nz.

A party if obviously insolvent if it is currently in liquidation or bankruptcy. Whether the party is insolvent or about to become insolvent but has not yet been put into liquidation or bankrupted is more difficult to figure out. A credit check or search for securities may help but cannot be taken to be complete or conclusive on their own. Just because a party has given an asset as security does not necessarily indicate anything about its financial position. Uncertainty is something to be factored into a risk assessment.

Searching for securities

Security can be given over real property and personal property there are government registers of both.

Real property

‘Real property’ means land or real estate. Mortgages can be registered against land, as can charging order and caveats. These can be called ‘encumbrances’ or ‘instruments’. All operate to secure the real estate for whomever registered them.

Titles to real estate, registered proprietors and encumbrances are recorded electronically on a system maintained by Land Information New Zealand. The system is called Landonline, and it is available to registered users such as lawyers and conveyancers.

A lawyer or conveyancer registered to use Landonline may be able to search that system for property registered to (and securities registered against) the party you have a problem with, or otherwise Land Information New Zealand itself may be able to help you: linz.govt.nz.

If the party you have the problem with owns ‘unencumbered’ real estate then they probably have some equity they could use to pay you. See the parts of this text dealing with enforcement if you remain unpaid despite a determination in your favour. It may be that you could first secure and then sell the real estate in order to get paid.

Personal property

‘Personal property’ means assets that are not real estate such as vehicles, equipment, shares and money. You can find out whether a party has given security over personal property by searching the Personal Property Securities Register run by the companies office: http://www.ppsr.govt.nz.     

3. Locating parties

Natural persons can sometimes be difficult to locate. You should not have the same problem with a company or other incorporated entity because they have to provide address details on the relevant registers. See business.govt.nz/companies.

However, upon searching the appropriate register you may find that the incorporated entity has been ‘struck off’. Struck off entities no longer exist, so you could not take any further action against them. You may be able to apply to revive the entity and reinstate it to the register so that you can proceed, but that is beyond the scope of this text.

You can face a similar problem with natural persons who have passed away and where their estate has been distributed. Otherwise you may not be able to find someone because he or she does not want to be found. It could be pointless to incur the costs of commencing action only to find that you cannot proceed further because you cannot serve a party or, if you obtain an order for substituted service, because you would probably not be able to effectively enforce any judgment against them. See the parts of this text that deal with service and substituted service for more detail.

If you cannot easily locate a party then you could consider engaging a ‘skip tracing’ agency or otherwise a private investigator to find him or her for you. Some skip tracing agencies conduct their business from their offices, gathering data and phoning known associates of the ‘subjects’ they are attempting to locate. You might expect private investigators, on the other hand, to leave their offices and go out ‘into the field’ where office-based searches are insufficient.

4. Locating assets

As with parties, if you want to take action against a specific asset then you might want to find out where it is first. You may regret obtaining a New Zealand court order for possession of something only to find out it is somewhere in Columbia. It might have been more efficient to file your court case where you expected to enforce a judgment. Or perhaps abandon the matter altogether if enforcement prospects were not good and the risk of not being able to enforce could not justify the potential rewards.

A private investigator may be able to help you to locate specific assets if you have difficulty doing so yourself. If security is registered against the asset then the Personal Property Securities Register may be of some assistance. See ppsr.govt.nz. If the asset is land then see the part that deals with ‘real property’ above.


When an argument is raised

If a party responds to your first attempts to resolve a problem by arguing with you then you should identify your options and assess the costs, benefits, risks and rewards of each. You may need to investigate the merit of the argument before you could complete those assessments and make an informed decision.

Your options may include:

1. Abandoning the matter altogether. See the ‘abandoning the matter’ part of chapter addressing options under the heading ‘if there is (still) no response to any threat, demand, or other action’ above for more about this.

2. Making a threat of litigation, ‘Calderbank’ offer and/or attempt to negotiate a settlement. See the ‘threat of litigation’ and settlement chapters above for more.

3. Leveraging security. See the part of this text dealing with ‘leveraging security’ above for more.

4. Credit reporting. See the part of this text dealing with ‘credit reporting’ above for more about this option.

5. Issuing a statutory demand. See the part of this text dealing with ‘statutory demands’ above for more, and also the liquidation chapter.

6. Attempting to engage in alternative dispute resolution such as mediation, conciliation or arbitration. See the chapter about alternative dispute resolution for more detail about the various alternatives to resolve disputes other than through litigation.

7. Giving up control over your part of the problem or taking over other parts. See ‘giving up control over your part of the problem or taking over other parts’ under the heading ‘if there is (still) no response to any threat, demand, or other action’ above for more about this.

8. Commencing litigation. See those chapters dealing with litigating in various forums for more on this option. Keep in mind that this is not a comprehensive text dealing with every available forum and option. Forums addressed include:

8.1.      Disputes Tribunal

8.2.      District Court

8.3.      Employment Court

8.4.      Employment Relations Authority

8.5.      High Court

8.6.      Motor Vehicle Disputes Tribunal

8.7.      Tenancy Tribunal

Regarding some of the matters you should take into account when considering your options, see those parts of this text above under the headings ‘assessing risks and rewards’; ‘assessing costs and benefits’; and ‘information to be assessed’.

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Litigation Costs by CourtKeys.com

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

Introduction

This page explains legal costs involved in court cases and gives estimates that are based on assumptions. Under the part titled ‘Summary’ there is a description of the estimates contained on this page. The reasons for the estimates and the assumptions they are based on are explained in the parts following the summary. The assumptions can vary a great deal, and this variability can change the estimates to a significant degree.

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Summary

This part summarises the estimates contained on this page. The reasons for the estimates are described in the parts that follow.

References to ‘costs’ are the estimated legal fees and disbursements that a plaintiff may incur to run a trial or take the action described. References to ‘recoverable’ amounts are the estimated amounts that a court may allow a successful plaintiff to recover from a defendant. Note that GST is not specifically accounted for.

References to ‘summary’ are references to summary judgment applications. References to ‘insolvency’ are references to liquidation and adjudication (bankruptcy) applications. References to ‘duration’ are references to the length of the substantive hearing or trial for each matter.

High Court
Action Classification Duration Cost Recoverable
Trial Straightforward 2 days 35,018 25,078
Trial Average 5 days 117,453 83,582
Trial Complex 7 days 348,885 239,470
Summary Straightforward 1 day 12,380 9,120
Summary Average 1 day 25,081 17,500
Insolvency Straightforward 3,566 2,974
Insolvency Average 6,473 4,912
District Court
Action Classification Duration Cost Recoverable
Short Trial Straightforward 1 day 7,915 6,026
Simplified Trial Average 2 days 42,299 29,516
Full Trial Average 5 days 73,931 52,270
Full Trial Complex 5 days 157,968 108,162
Summary Average 1 day 12,547 8,898
Summary Complex 1 day 28,132 19,288

Basis for costs

When lawyers act in a court case their fees tend to make up the greatest part of the costs involved. The total cost of a case depends on many variables. These include:

1. Some cases involve more evidence. Therefore a greater amount of analytical work and discovery may be required.

2. Answers to some legal questions are not yet obvious by reference to legislation or New Zealand case law. A greater amount of legal research may be necessary if a case involves such legal questions.

3. Different cases can involve different procedural steps. Some cases quickly come to an end if a defendant does not file a defence or if a summary judgment is given at an early stage. Others can go on for years if a lengthy trial is required and there are many pre-trial arguments, conferences and other steps.

4. Different lawyers offer different pricing models. Some charge an hourly rate for their time, whereas others may offer fixed fees for different components of a case or some other arrangement. Hourly rates and the cost of fixed fee components can vary from lawyer to lawyer.

Under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, lawyers must charge fees that are fair and reasonable. Rule 9.1 provides:

The factors to be taken into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include the following:

a. the time and labour expended:

b. the skill, specialised knowledge, and responsibility required to perform the services properly:

c. the importance of the matter to the client and the results achieved:

d. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:

e. the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:

f. the complexity of the matter and the difficulty or novelty of the questions involved:

g. the experience, reputation, and ability of the lawyer:

h. the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:

i. whether the fee is fixed or conditional (whether in litigation or otherwise):

j. any quote or estimate of fees given by the lawyer:

k. any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:

l. the reasonable costs of running a practice:

m. the fee customarily charged in the market and locality for similar legal services.

Lawyers tend to break their costs down into three parts. There is the fees part, any goods and services tax (“GST”) on their fees, and then there are disbursements. Disbursements include costs payable to other organisations such as Court filing and process service fees. The rate of GST is currently 15% in New Zealand. GST on legal fees may not be payable if you are not a New Zealand tax resident, and may otherwise be payable but refundable in some circumstances. GST is not specifically accounted for here.  


District and High Court costs schedules

The District and High Court Rules both include schedules that can be used to calculate costs awards made by those Courts. Those schedules describe some components or ‘steps’ in court cases, how much time each component can involve and a range of ‘daily recovery rates’. A daily recovery rate is the amount of money for legal fees, calculated on a daily basis, that a Court may allow to be recovered against another party to a court case.

The appropriate daily recovery rate depends on the nature and complexity of each particular case. These rates are intended to amount to two thirds of what is considered a reasonable rate. That is because the District and High Court schedules are only intended to be used to calculate partial compensation for costs incurred by a successful litigant. There are other provisions in the respective Court Rules for awarding greater amounts of costs and full costs, but reference to the schedules should give you a general idea of what it could cost to run a court case.

Daily recovery rates are set out in Schedule 2 of the High Court Rules 2016 and Schedule 5 of the District Court Rules 2014. The rates are different as between these two Courts. The rules and regulations for the other Courts and Tribunals covered by this website do not incorporate costs schedules. Arguments over costs in those forums may draw analogies between the High or District Court schedules, particularly concerning the reasonableness of costs claimed.


High Court costs

The appropriate High Court daily recovery rate depends on how a particular case is categorised. There are three categories of cases set out in rule 14.3 of the High Court Rules 2016. They are:

Category 1: Proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court.

Category 2: Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.

Category 3: Proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court

The daily recovery rates provided for by schedule 2 of the High Court Rules are set out in the column titled ‘Rate (2/3)’ of the following table. Remembering that those rates are only intended to amount to two thirds of what is considered reasonable, the full rate is set out in the column titled ‘Rate (3/3)’.

Category Rate (2/3) Rate (3/3)
1: Straightforward proceedings / junior counsel $1,480 $2,220
2: Average proceedings / average counsel $2,230 $3,345
3: Significant or complex proceedings / special counsel $3,300 $4,950

Various steps that may be taken by parties to a court case are described at schedule 3 of the High Court Rules 2016. That schedule also sets out how long it may take to complete each step. Three different time estimates are given for each step. They are ranked ‘A’ for the least through to ‘C’ for the greatest amount of time considered reasonable. The rankings are described as ‘bands’ by rule 14.5(2) of the High Court Rules 2016 as follows:

(2) A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

a. to band A, if a comparatively small amount of time is considered reasonable; or

b. to band B, if a normal amount of time is considered reasonable; or

c. to band C, if a comparatively large amount of time for the particular step is considered reasonable.

The table that follows sets out:

Columns 1 and 2: some of the steps described in schedule 3 of the High Court Rules 2016; and

Columns 3 to 5: a range for legal fees calculated by reference to daily recovery rate 1, time estimate band A, rate 2 band B and rate 3 band C. The daily recovery rates used are the full “(3/3)” rates referred to above.

Estimated disbursements involved in particular steps are also set out in the row immediately below the relevant step. Disbursements are indicated by the letter ‘D’ in the column titled ‘Step’. Fees payable to the High Court are provided for by the High Court Fees Regulations 2013.

High Court Costs Schedule
Step Description Estimate
Commencement 1A 2B 3C
1 Commencement of proceeding by plaintiff 3,552 10,035 49,500
D1 High Court filing fee 1,350
D2 Process service fee 200
2 Commencement of defence by defendant 2,220 6,690 29,700
D3 High Court filing fee 110
Other pleadings and notices 1A 2B 3C
3 Reply 444 2,676 11,880
4 Counterclaim 1,776 5,352 23,760
D4 High Court filing fee 1,350
5 Cross-notice between defendants 1,332 4,014 19,800
6 Third party notice and statement of claim 2,664 8,028 34,650
D5 High Court filing fee 1,460
D6 Process service fee 200
7 Notice of appearance 444 669 990
D7 High Court filing fee 110
D8 Process service 400
8 Notice of appearance with protest to jurisdiction 666 2,007 9,900
D9 High Court filing fee 110
9 Pleading in response to amended pleading 666 2,007 9,900
Case management 1A 2B 3C
10 Preparation for first case management conference (including discussion about discovery) 444 1,338 4,950
11 Filing memorandum for first or subsequent case management conference or mentions hearing 444 1,338 4,950
12 Appearance at mentions hearing or callover 444 669 990
13 Appearance at first or subsequent case management conference 666 1,004 3,465
14 Preparation for and appearance at issues conference 1,673 4,950
15 Preparation for and appearance at pre-trial conference 1,673 4,950
Interrogatories, discovery and inspection 1A 2B 3C
16 Notice to answer interrogatories 888 3,345 19,800
17 Answer to interrogatories 888 3,345 19,800
18 Notice to admit facts 888 2,676 11,880
19 Admissions of facts 888 2,676 11,880
20 List of documents on discovery 1,554 8,363 34,650
D10 Copying/scanning/indexing/(digital) storage costs
21 Inspection of documents 1,110 5,018 29,700
Interlocutory applications 1A 2B 3C
22 Filing interlocutory application 666 2,007 9,900
D11 High Court filing fee 500
23 Filing opposition to interlocutory application 666 2,007 9,900
D12 High Court filing fee 110
24 Preparation of written submissions 1,110 5,018 14,850
25 Preparation by applicant of bundle for hearing 888 2,007 4,950
D13 Printing/binding costs
26 Appearance at hearing of defended application for sole or principal counsel The time occupied by the hearing measured in quarter days
D14 High Court hearing fee for each half-day or part half-day after the first half-day 1,600
27 Second and subsequent counsel if allowed by court 50% of allowance for appearance for principal counsel
28 Obtaining judgment without appearance 666 1,004 2,475
29 Sealing order or judgment 444 669 990
D15 High Court sealing fee 50
Trial preparation and appearance 1A 2B 3C
30 Plaintiff’s or defendant’s preparation of briefs or affidavits 3,330 8,363 24,750
31 Plaintiff’s preparation of list of issues, authorities, and common bundle 3,330 8,363 24,750
D16 Printing/binding costs
32 Defendant’s preparation of list of issues, authorities, and common bundle 2,220 6,690 19,800
D17 Printing/binding costs
33 Preparation for hearing 4,440 10,035 24,750
D18 High Court scheduling fee 1,600
34 Appearance at hearing for sole or principal counsel The time occupied by the hearing measured in quarter days
D19 High Court hearing fee for each half-day or part half-day after the first half-day 1,600
35 Second and subsequent counsel if allowed by court 50% of allowance for appearance for principal counsel
36 Other steps in proceeding not specifically mentioned As allowed by the court
D20 High Court fee for judicial settlement conference 640
Originating applications 1A 2B 3C
37 Filing application and supporting affidavits 2,220 6,690 29,700
D21 High Court filing fee 540
D22 Process service fee 200
38 Filing notice of opposition and supporting affidavits 2,220 6,690 29,700
D23 High Court filing fee 110
39 Case management (as for ordinary proceeding)
40 Preparation of written submissions 1,110 5,018 14,850
D24 High Court scheduling fee 640
41 Preparation by applicant of bundle for hearing 888 2,007 4,950
D25 Printing/binding costs
42 Appearance at hearing for sole or principal counsel The time occupied by the hearing measured in quarter days
D26 High Court hearing fee for each half-day or part half-day after the first half-day 640
43 Second and subsequent counsel if allowed by court 50% of allowance for appearance for principal counsel
Bankruptcy proceedings 1A 2B 3C
44 Filing and serving bankruptcy notice 222 669 2,970
D27 High Court filing fee 200
D28 Process service fee 200
45 Filing application for adjudication by creditor 666 2,007 8,910
D29 High Court filing fee 500
D30 High Court scheduling fee 640
D31 Process service 200
46 Appearance at hearing 444 1,338 5,940
47 Supporting party on bankruptcy 444 1,338 5,940
D32 High Court fee for sealing order for bankruptcy 50
Company liquidation proceedings 1A 2B 3C
48 Issuing statutory demand 222 669 2,970
D33 Process service fee 200
49 Filing statement of claim and other documents 666 2,007 8,910
D34 High Court filing fee 540
D35 Process service fee 200
D36 Advertising fees 800
50 Appearance at hearing 444 1,338 5,940
51 Supporting party on liquidation 444 1,338 5,940
D37 High Court sealing fee 50
Appeals 1A 2B 3C
52 Commencement of appeal or cross-appeal 1,110 3,345 14,850
D38 High Court filing fee 540
53 Commencement of response to appeal or cross-appeal 666 1,673 4,950
D39 High Court filing fee 110
54 Case management (as for ordinary proceeding) Refer above
55 Preparation of Case on Appeal 1,110 3,345 9,900
D40 High Court scheduling fee 1,600
56 Preparation of written submissions 2,220 10,035 29,700
57 Appearance at hearing for sole or principal counsel The time occupied by the hearing measured in quarter days
D41 High Court hearing fee for each half-day or part half-day after the first half-day 1,600
58 Second and subsequent counsel if allowed by court 50% of allowance for appearance for principal counsel
Australian judgment proceedings 1A 2B 3C
58A Preparing and filing an application under section 56 of the Trans-Tasman Proceedings Act 2010 to register in the court an Australian judgment 666 1,004 1,485
D42 High Court filing fee 100
D43 Process service fee 200
Enforcement of judgment or order 1A 2B 3C
59 Charging order without application 666 1,004 4,950
D44 High Court issuing fee 200
D45 Process service 200
60 Charging order with application, including any unopposed order 1,110 1,673 6,930
D46 High Court issuing fee 200
D47 Process service 200
61 Sale order, including sale of seized property 1,110 1,673 3,465
D48 High Court issuing fee 1,500
D49 High Court sale fee 500
D50 Process service fee 200
D51 Advertising fee 600
62 Other enforcement process 1,110 1,673 3,465

Costs schedules referred to on this page cannot be regarded as perfectly accurate. Sometimes steps take less time than indicated by the schedules and sometimes they take more time. Steps that are not accounted for by the schedules may need to be taken and, as shown above, estimates are not provided for every single step that is accounted for. Keep in mind the variable factors affecting costs. Some of those are described at the beginning of this page.

Reference to the costs schedules can, however, be useful to provide a general idea of the kinds of costs that could be involved in a court case.


Estimate for a ‘1A’ High Court trial

With reference to the costs schedule above, a simple High Court claim that progresses to trial could cost a plaintiff $35,018. $25,078 of those costs would be recoverable if ‘1A’ costs and all disbursements except D10 and D16 were awarded.

This estimate is made on the basis that the proceeding is of a straightforward nature, able to be conducted by counsel considered junior, and involving only a comparatively small amount of time for each step. So the proceeding would be regarded as a ‘category 1, band A’ proceeding.

The estimate assumes no interlocutory applications are made in the proceeding, there is only one round of each kind of case management step, discovery and bundling costs are relatively inexpensive at $300 each, and a two day trial conducted by only one counsel.

The estimate accounts for the following steps and disbursements: 1; D1; D2; 3; 10; 11; 12; 13; 16; 18; 20; D10 ($300); 21; 30; 31; D16 ($300); 33; D18; 34 (2 days); D19 (2 days); 29; D15. Any costs to enforce judgment are not accounted for.


Estimate for a ‘1A’ High Court summary judgment

Estimated costs in the order of $35,000 to complete a simple High Court trial provide incentive to settle or otherwise resolve a claim early. Summary judgment, if it is available, is a way to have a case determined without the full expense of a trial. Where a plaintiff makes a summary judgment application it must satisfy the Court that the defendant has no defence to a claim. Where a defendant makes a summary judgment application it must show that the plaintiff cannot succeed with a claim. This is as provided by rule 12.2 of the High Court Rules 2016.

Summary judgment applications are typically advanced by plaintiffs either at the time they file a statement of claim, after they have received a response by the defendants or after discovery and inspection has occurred.

If a summary judgment application is advanced by a plaintiff at the time a simple High Court claim is filed, then the costs to hear and determine that application could be $12,380. Of these, $9,120 would be recoverable if ‘1A’ costs and all disbursements except D13 were awarded.

That is on the basis that the proceeding is of a straightforward nature able, to be conducted by counsel considered junior, and involving only a comparatively small amount of time for each step. So the proceeding would be regarded as a ‘category 1, band A’ proceeding.

The estimate assumes a one day hearing conducted by one counsel, and printing and binding costs of $300 for the necessary bundle of documents.

The estimate accounts for the following steps and disbursements: 1; D1; D2; 22; 24; 25; D13 ($300); 26 (1 day); D14 (1 day); 29; D15. Any costs to enforce judgment are not accounted for.


Estimate for a ‘2B’ High Court trial

An average High Court claim that progresses to trial could cost a plaintiff $117,453. Of these, $83,582 would be recoverable if ‘2B’ costs and all disbursements were awarded except D10 and D16.

That is on the basis that the proceeding is of an average nature, able to be conducted by counsel considered average, and involving a normal amount of time for each step. So the proceeding would be regarded as a ‘category 2, band B’ proceeding.

The estimate assumes two rounds of case management conferences, no interlocutory applications, discovery and document bundle disbursements of $600 a piece, a five day trial conducted by two counsel and a one day judicial settlement conference conducted by one counsel.

The estimate accounts for the following steps and disbursements: 1; D1; D2; 3; 10; 11 (x2); 12; 13 (x2); 14; 15; 16; 18; 20; D10 ($600); 21; 30; 31; D16 ($600); 33; D18; 34 (5 days); D19 (5 days); 35; 36 (1 day judicial settlement conference); D20; 29; D15. Any costs to enforce judgment are not accounted for.


Estimate for a ‘2B’ High Court summary judgment

As with ‘1A’ proceedings, the estimated costs to complete a trial provide incentive to settle or otherwise resolve the claim early. Summary judgment can resolve appropriate cases without the full expense of a trial. For plaintiffs, an appropriate case for a summary judgment application is where the defendant has no defence to a claim. Where a defendant makes a summary judgment application it must show that the plaintiff cannot succeed with a claim. This is as provided by rule 12.2 of the High Court Rules 2016.

Summary judgment applications are typically advanced by plaintiffs either at the time they file a statement of claim, after they have received a response by the defendants or after discovery and inspection has occurred.

If a summary judgment application is advanced by a plaintiff at the time an average High Court claim is filed, then the costs to hear and determine that application could be $25,081. Of these, $17,520 would be recoverable if ‘2B’ costs and all disbursements were awarded except D13.

That is on the basis that the proceeding is of an average nature, able to be conducted by counsel considered average, and involving a normal amount of time for each step. So the proceeding would be regarded as a ‘category 2, band B’ proceeding.

The estimate assumes a one day hearing conducted by one counsel, and printing and binding costs of $400 for a bundle of documents.

The estimate accounts for the following steps and disbursements: 1; D1; D2; 22; 24; 25; D13 ($400); 26 (1 day); D14 (1 day); 29; D15. Any costs to enforce judgment are not accounted for.


Estimate for a ‘3C’ High Court trial

A complex High Court claim that progresses to trial could cost a plaintiff $348,885. $239,470 of these costs would be recoverable if ‘3C’ costs and all disbursements were awarded except D10 and D16.

This estimate is made on the basis that the proceeding is complex, conducted by counsel of special skill or experience, and involving a large amount of time for each step. So the proceeding would be regarded as a ‘category 3, band C’ proceeding.

The estimate assumes two rounds of case management conferences, no interlocutory applications, discovery and document bundle disbursements of $1,000 a piece, a seven day trial conducted by two counsel and a one day judicial settlement conference conducted by one counsel.

The estimate accounts for the following steps and disbursements: 1; D1; D2; 3; 10; 11 (x2); 12; 13 (x2); 14; 15; 16; 18; 20; D10 ($1,000); 21; 30; 31; D16 ($1,000); 33; D18; 34 (7 days); D19 (7 days); 35; 36 (1 day judicial settlement conference); D20; 29; D15. Any costs to enforce judgment are not accounted for.


High Court insolvency proceedings

Obtaining a judgment is one thing, having it honoured is another thing entirely.

This part considers a situation where you have a judgment entitling you to payment of money but payment is not made. It looks at insolvency proceedings, which are one of the more common ways to attempt to achieve payment.

An insolvency proceeding against a corporation is an application to liquidate that corporation. An insolvency proceeding against a person is an application to adjudicate that person bankrupt.

Neither of these kinds of proceedings guarantee payment if liquidation or bankruptcy orders are made. They are insolvency proceedings after all. Other kinds of proceedings to enforce a judgment may be available, but the costs involved in these are perhaps not as predictable as they are for insolvency proceedings.

Straightforward insolvency proceedings are likely to be regarded as ‘1A’ proceedings. It may be arguable that a particular insolvency proceeding should be regarded as a ‘2B’ proceeding in some cases, but ‘3C’ categorisation will rarely be appropriate.

A bankruptcy proceeding involves the following steps and disbursements: 44; D27; D28; 45; D29; D30; D31; 46; 29; D32. The costs of these would total $3,566 if a proceeding was regarded as ‘1A’, and $6,473 if the proceeding was regarded as ‘2B’.

$2,974 would be recoverable if ‘1A’ costs and disbursements were awarded for the items described. $4,912 would be recoverable if ‘2B’ costs and disbursements were awarded. Note the step 29 cost to prepare orders for sealing may not be awarded because that is a cost that is not specifically provided for under the ‘bankruptcy’ heading in the cost schedule. It is, however, a necessary step and it has been included for that reason. Also, note that the costs estimates assume bankruptcy is ordered at the first hearing, although this is often not the case.

A liquidation proceeding involves the following steps and disbursements: 48; D33; 49; D34; D35; D36; 50; 29; D37. The costs of these would total $3,566 if a proceeding was regarded as ‘1A’, and $6,473 if the proceeding was regarded as ‘2B’.

Of these, $2,974 would be recoverable if ‘1A’ costs and disbursements were awarded for the items described. $4,912 would be recoverable if ‘2B’ costs and disbursements were awarded.

Note the step 29 cost to prepare orders for sealing may not be awarded because that is a cost that is not specifically provided for under the ‘company liquidation’ heading in the cost schedule. It is, however, a necessary step and it has been included for that reason. There is also no specific step for arranging the necessary advertisements for a liquidation application and issuing a ‘statement as to advertising’. A fee for such attendances could properly be expected although no corresponding costs award is likely. Finally, note that the costs estimates assume liquidation is ordered at the first hearing, although this is often not the case.


District Court costs

The appropriate District Court daily recovery rate depends on how a particular case is categorised. There are three categories of cases set out in rule 14.3 of the District Court Rules 2014. They are as follows.

Category 1: Proceedings of a straightforward nature able to be conducted by counsel considered junior.

Category 2: Proceedings of average complexity requiring counsel of skill and experience considered average.

Category 3: Proceedings that because of their complexity or significance require counsel to have special skill and experience.

The daily recovery rates provided for by schedule 5 of the District Court Rules 2014 are set out in the column titled ‘Rate (2/3)’ of the following table. Remembering that those rates are only intended to amount to two thirds of what is considered reasonable, the full rate is set out in the column titled ‘Rate (3/3)’.

Category Rate (2/3) Rate (3/3)
1: Straightforward proceedings / junior counsel $1,180 $1,770
2: Average proceedings / average counsel $1,780 $2,670
3: Significant or complex proceedings / special counsel $2,640 $3,960

Various steps that may be taken by parties to a court case are described at schedule 3 of the District Court Rules 2014. That schedule also sets out how long it may take to complete each step. Three different time estimates are given for each step. They are ranked ‘A’ for the least through to ‘C’ for the greatest amount of time considered reasonable. The rankings are described as ‘bands’ by rule 14.5(2) of the District Court Rules 2014 as follows:

(2) A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

(a) to band A, if a comparatively small amount of time for the particular step is considered reasonable; or

(b) to band B, if a normal amount of time for the particular step is considered reasonable; or

(c) to band C, if a comparatively large amount of time is considered reasonable.

The table that follows sets out:

Columns 1 and 2: some of the steps described in schedule 4 of the District Court Rules 2014; and

Columns 3 to 5: a range for legal fees calculated by reference to daily recovery rate 1, time estimate band A, rate 2 band B and rate 3 band C. The daily recovery rates used are the full “(3/3)” rates referred to above.

Estimated disbursements involved in particular steps are also set out in the row immediately below the relevant step. Disbursements are indicated by the letter ‘D’ in the column titled ‘Step’. Fees payable to the District Court are provided for by the District Court Fees Regulations 2009.

District Court Costs Schedule
Step Description Estimate
Commencement 1A 2B 3C
1 Preparing notice of claim or statement of claim (receiving instructions, researching facts and law, and filing and serving those documents) $1,328 $4,005 $11,880
D1 District Court filing fee $200
D2 Process service fee $200
2 Response or defence by defendant (receiving instructions, researching facts and law, and preparing and serving response or statement of defence) $1,328 $4,005 $7,920
D3 District Court filing fee $75
3 Preparing and serving information capsule by plaintiff and defendant $1,770 $5,340 $11,880
4 Filing notice of proceeding, filing response and information capsules under rule 2.15, and preparing, filing, and serving notice of pursuit of claim under rule 2.15 $443 $668 $990
5 Preparing, filing, and serving originating application $1,770 $5,340 $15,840
D4 District Court filing fee $200
D5 Process service fee $200
6 Preparing and serving notice of opposition $1,770 $4,005 $11,880
7 Other pleadings and notices: 1A 2B 3C
7.1 Counterclaim $885 $1,335 $3,960
D6 District Court filing fee $200
D7 Process service fee $200
7.2 Claims between defendants $885 $2,670 $7,920
D8 District Court filing fee $200
D9 Process service fee $200
7.3 Commencement of proceedings against third parties, including notice of claim $1,328 $4,005 $11,880
D10 District Court filing fee $200
D11 Process service fee $200
7.4 Pleading in response to other party’s amended pleading (payable regardless of outcome except where formal or consented to) $531 $1,068 $2,970
D12 District Court filing fee $75
8 Judicial settlement conference: 1A 2B 3C
8.1 Preparation for judicial settlement conference $443 $668 $990
D13 District Court scheduling fee $900
8.2 Appearance at judicial settlement conference The time occupied by the judicial settlement conference measured in quarter days
9 Interlocutory proceedings and related steps: 1A 2B 3C
9.1 Notice to answer interrogatories $531 $2,670 $7,920
9.2 Answer to interrogatories $531 $2,670 $7,920
9.3 Notice to admit facts $531 $1,335 $3,960
9.4 Admission of facts $531 $1,335 $3,960
9.5 List of documents on discovery $885 $2,670 $15,840
9.6 Production of documents for inspection $885 $2,003 $7,920
D14 Copying/scanning/indexing/(digital) storage costs
9.7 Inspection of documents $708 $2,670 $15,840
9.8 Filing and serving memorandum in anticipation of judicial conference $354 $668 $2,970
9.9 Appearance at judicial conference $531 $801 $1,188
9.10 Preparing and filing interlocutory application (excluding summary judgment application) and supporting affidavits $443 $1,068 $3,960
D15 District Court filing fee $250
9.11 Preparing and filing opposition to interlocutory application (excluding summary judgment application) and supporting affidavits $443 $1,068 $3,960
D16 District Court filing fee $90
9.12 Preparing written submissions $885 $2,670 $7,920
9.13 Preparation of bundle for hearing $443 $1,068 $3,960
D17 Printing/binding costs
9.14 Appearance at hearing of defended interlocutory application (excluding summary judgment application) for sole or principal counsel Appearance in court measured in quarter days
D18 District Court hearing fee for each half-day or part half-day after the first half-day $900
9.15 Second and subsequent counsel if allowed by court Fifty percent of allowance for appearance for principal counsel
9.16 Sealing order or judgment $354 $534 $792
D19 District Court sealing fee $50
10 Summary judgment application (additional to costs in items 1 to 5): 1A 2B 3C
10.1 Preparing and filing summary judgment application and supporting affidavits $443 $1,068 $5,940
D20 District Court filing fee $250
10.2 Preparing and filing opposition and supporting affidavits $443 $1,068 $5,940
D21 District Court filing fee $90
10.3 Preparing for hearing of defended summary judgment application The time occupied by the hearing measured in quarter days
10.4 Arguing defended summary judgment application for sole or principal counsel Appearance in court measured in quarter days
D22 District Court hearing fee for each half-day or part half-day after the first half-day $900
10.5 Second and subsequent counsel if allowed by court Fifty percent of allowance for appearance for principal counsel
11 Obtaining judgment without appearance (additional to costs in items 1 to 7): 1A 2B 3C
11.1 By default/admission $354 $534 $1,188
D23 District Court filing and sealing fee $90
D24 Process service fee $200
11.2 By formal proof (including affidavit preparations) $531 $801 $1,584
D25 District Court scheduling fee $900
D26 District Court hearing fee for each half-day or part half-day after the first half-day $900
D27 District Court sealing fee $50
D28 Process service fee $200
Short trial 1A 2B 3C
12 Preparation $885 $1,335 $1,980
D29 District Court scheduling fee $900
13 Appearance at hearing $1,770 $4,005 $5,940
D30 District Court hearing fee for each half-day or part half-day after the first half-day $900
Simplified trial 1A 2B 3C
14 Preparation $1,770 $3,338 $9,900
D31 District Court scheduling fee $900
15 Appearance at hearing Twice the time occupied by the hearing measured in half days
D32 District Court hearing fee for each half-day or part half-day after the first half-day $900
  Full trial 1A 2B 3C
16 Preparation for hearing following setting down or direction for trial if trial does not eventuate: 1A 2B 3C
16.1 Plaintiff’s preparation of affidavits or written or oral statements of evidence to be used at hearing $2,213 $6,008 $13,860
16.2 Plaintiff’s preparation of lists of issues and authorities, selecting documents for common bundle of documents, and all other preparation $2,213 $6,008 $13,860
16.3 Defendant’s preparation of affidavits or written or oral statements of evidence to be used at hearing $1,770 $5,340 $11,880
16.4 Defendant’s preparation of lists of issues and authorities, selecting documents for common bundle of documents, and all other preparation $1,770 $5,340 $11,880
17 Preparation: 1A 2B 3C
17.1 Where case proceeds to hearing Twice the time occupied by the hearing measured in half days
D33 District Court scheduling fee $900
17.2 Where case proceeds by formal proof $1,770 $2,670 $3,960
18 Appearance at hearing: 1A 2B 3C
18.1 For sole or principal counsel Appearance in court measured in half days
D34 District Court hearing fee for each half-day or part half-day after the first half-day $900
18.2 Second and subsequent counsel if allowed for by court Fifty percent of allowance for principal counsel
18.3 Appearance for formal proof Appearance in court measured in quarter days
D35 District Court hearing fee for each half-day or part half-day after the first half-day $900
  Enforcement and other steps 1A 2B 3C
19 Enforcement of judgment or order: $708 $1,068 $1,584
19.1 Application for charging order $708 $1,068 $1,584
D36 District Court filing fee $250
D37 Process service fee $200
19.2 Completion of financial statement under section 84A of Act $177 $267 $396
D38 District Court filing fee $65
19.3 Application for assessment of financial means under section 84C of Act $177 $267 $396
D39 District Court filing fee $80
19.4 Application for financial assessment hearing $177 $267 $396
D40 District Court filing fee $130
D41 District Court process service fee $50
19.5 Each attendance at financial assessment hearing (if the judgment debtor attends) $177 $267 $396
19.6 Application for arrest warrant if debtor fails to appear at financial assessment hearing or contempt of enforcement proceedings hearing $177 $267 $396
19.7 Application for contempt of enforcement proceedings $354 $534 $792
D42 District Court filing fee $200
D43 District Court process service fee $50
19.8 Each attendance at contempt of enforcement proceedings hearing (if the judgment debtor attends) $177 $267 $396
19.9 Application for attachment order under section 84G(1)(c) of Act (excluding application to vary, discharge, or suspend attachment order and filing agreed attachment order in accordance with section 79(5C) of Act) $177 $267 $396
D44 District Court filing fee $50
D45 Process service fee $200
19.10 Application to vary, discharge, or suspend attachment order $177 $267 $396
D46 Process service fee $200
19.11 Agreeing terms of attachment order and filing agreed attachment order in accordance with section 79(5C) of Act $89 $134 $198
19.12 Application for warrant of enforcement: recovery of chattels/seizure of property/recovery of land $354 $534 $792
D47 District Court filing fee $200
D48 Process service fee $200
19.13 Preparing and filing interlocutory application (excluding an application to vary, discharge, or suspend attachment order) and supporting affidavits $443 $1,068 $3,960
D49 District Court filing fee $250
D50 Process service fee $200
19.14 Application for warrant of committal $354 $534 $792
D51 District Court expenses
19.15 Application for writ of arrest $354 $534 $792
D52 District Court expenses
19.16 Garnishee proceedings $708 $1,068 $1,584
D53 District Court filing fee $250
D54 Process service fee $200
19.17 Third party claim proceedings (including service) $708 $1,068 $1,584
19.18 Other enforcement process $708 $1,068 $1,584
20 Other steps in the proceeding not specifically mentioned As allowed by court
21 Commencement of appeal (including assessing original decision, noting appealable points, and filing and serving notice of appeal and points of appeal) $354 $1,335 $7,920
D55 District Court filing fee $200
D56 Process service fee $200
22 Commencement of response to appeal $354 $534 $1,980
23 Case management (as for ordinary proceeding) $177 $534 $1,584
24 Preparing of case on appeal $885 $1,335 $3,960
24A Preparation of written submissions $885 $4,005 $11,880
25 Appearance at hearing as principal counsel The time occupied by the hearing measured in quarter days
D57 District Court hearing fee for each half-day or part half-day after the first half-day $900
26 Second and subsequent counsel, if allowed by court Fifty percent of allowance for appearance by principal counsel

As with the High Court costs estimates set out above, costs schedules referred to on this page cannot be regarded as perfectly accurate. Sometimes steps take less time than indicated by the schedules and sometimes they take more time. Steps that are not accounted for by the schedules may need to be taken and, as shown above, estimates are not provided for every single step that is accounted for. Keep the variable factors affecting costs in mind. Those are as described at the beginning of this page. Reference to the costs schedules can, however, be useful to provide a general idea of the kinds of costs that could be involved in a court case.


Estimate for a ‘1A’ District Court short trial

With reference to the District Court costs schedule, a straightforward District Court claim that progresses to a short trial could cost a plaintiff $7,915. Of these, $6,026 would be recoverable if ‘1A’ costs and disbursements were awarded for the items described.

That is on the basis that the proceeding is straightforward, conducted by counsel considered junior, and involving a small amount of time for each step. So the proceeding would be regarded as a ‘category 1, band A’ proceeding.

The estimate assumes one case management conference, no interlocutory applications and a one day trial conducted by a single counsel.

The estimate accounts for the following steps and disbursements:1; D1; D2; 4; 9.8; 9.9; 12; D29; 13; D30 (1 day); 9.16; D19. Any costs to enforce judgment are not accounted for.


Estimate for a ‘2B’ District Court simplified trial

An average District Court claim that progresses to a simplified trial could cost a plaintiff $42,299. Of these, $29,516 would be recoverable if ‘2B’ costs and all disbursements were awarded except D14.

This estimate is made on the basis that the proceeding is average, conducted by counsel considered average, and involving a normal amount of time for each step. So the proceeding would be regarded as a ‘category 2, band B’ proceeding.

The estimate assumes two case management conferences, a one day judicial settlement conference, no interlocutory applications, document discovery costs of $500 and a two day trial. It accounts for the following steps and disbursements: 1; D1; D2; 4; 8.1; D13; 8.2 (1 day); 9.1; 9.3; 9.5; 9.6; D14 ($500); 9.7; 9.8 (x2); 9.9 (x2); 14; D31; 15 (2 day trial); D32; 9.16; D19. Any costs to enforce judgment are not accounted for.


Estimate for a ‘2B’ District Court full trial

An average District Court claim that progresses to a full trial could cost a plaintiff $73,931. Of these, $52,270 would be recoverable if ‘2B’ costs and all disbursements were awarded except D14.

The estimate is on the basis that the proceeding is average, conducted by counsel considered average, and involving a normal amount of time for each step. So the proceeding would be regarded as a ‘category 2, band B’ proceeding.

The estimate assumes two case management conferences, a one day judicial settlement conference, no interlocutory applications, document discovery costs of $700 and a five day trial. It accounts for the following steps and disbursements: 1; D1; D2; 4; 8.1; D13; 8.2 (1 day); 9.1; 9.3; 9.5; 9.6; D14 ($700); 9.7; 9.8 (x2); 9.9 (x2); 17.1 (5 day trial); D33; 18.1 (5 days); D34; 9.16; D19. Any costs to enforce judgment are not accounted for.


Estimate for a ‘2B’ District Court summary judgment

The estimated costs to complete a simplified or full trial provide incentive to settle or otherwise resolve claims early. Summary judgment can resolve appropriate cases without the full expense of a trial. For plaintiffs, an appropriate case for a summary judgment application is where the defendant has no defence to a claim. Where a defendant makes a summary judgment application it must show that the plaintiff cannot succeed with a claim. This is as provided by rule 12.2 of the District Court Rules 2014.

Summary judgment applications are typically advanced by plaintiffs either at the time they file a statement of claim, after they have received a response by the defendants or after discovery and inspection has occurred.

If a summary judgment application is advanced by a plaintiff at the time an average District Court claim is filed, then the costs to hear and determine that application could be $12,547. Of these, $8,898 would be recoverable if ‘2B’ costs and disbursements were awarded for the items described below.

The estimate is on the basis that the proceeding is of an average nature able, to be conducted by counsel considered average, and involving a normal amount of time for each step. So the proceeding would be regarded as a ‘category 2, band B’ proceeding.

The estimate assumes a one day hearing conducted by one counsel, and accounts for the following steps and disbursements: 1; D1; D2; 10.1; D20; 10.3 (1 day); 10.4 (1 day); D22; 9.16; D19. Any costs to enforce judgment are not accounted for.


Estimate for a ‘3C’ District Court full trial

With reference to the District Court costs schedule, a complex District Court claim that progresses to a full trial could cost a plaintiff $157,968. $108,162 of these costs would be recoverable if ‘2B’ costs and all disbursements except D14 were awarded.

The estimate is made on the basis that the proceeding is complex, conducted by counsel of special skill and involving a large amount of time for each step. So the proceeding would be regarded as a ‘category 3, band C’ proceeding.

The estimate assumes two case management conferences, a one day judicial settlement conference, no interlocutory applications, document discovery costs of $900 and a five day trial conducted by two counsel. It accounts for the following steps and disbursements: 1; D1; D2; 4; 8.1; D13; 8.2 (1 day); 9.1; 9.3; 9.5; 9.6; D14 ($900); 9.7; 9.8 (x2); 9.9 (x2); 17.1 (5 day trial); D33; 18.1 (5 days); D34; 9.16; D19. Any costs to enforce judgment are not accounted for.


Estimate for a ‘3C’ District Court summary judgment

The estimated costs to complete a full ‘3C’ trial provide incentive to settle or otherwise resolve claims early. Summary judgment can resolve appropriate cases without the full expense of a trial. For plaintiffs, an appropriate case for a summary judgment application is where the defendant has no defence to a claim. Where a defendant makes a summary judgment application it must show that the plaintiff cannot succeed with a claim. This is as provided by rule 12.2 of the District Court Rules 2016.

Summary judgment applications are typically advanced by plaintiffs either at the time they file a statement of claim, after they have received a response by the defendants or after discovery and inspection has occurred.

If a summary judgment application is advanced by a plaintiff at the time a complex District Court claim is filed, then the costs to hear and determine that application could be $28,132. Of these, $19,288 would be recoverable if ‘3C’ costs and disbursements were awarded for the items described below.

This estimate is made on the basis that the proceeding is complex, conducted by counsel of special skill, and involving a large amount of time for each step. So the proceeding would be regarded as a ‘category 3, band C’ proceeding.

The estimate assumes a one day hearing conducted by one counsel, and accounts for the following steps and disbursements: 1; D1; D2; 10.1; D20; 10.3 (1 day); 10.4 (1 day); D22; 9.16; D19. Any costs to enforce judgment are not accounted for.

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