Weathertight Homes Resolution Services Act 2002

1: Title
This Act is the Weathertight Homes Resolution Services Act 2002. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Preliminary provisions
3: Purpose
The purpose of this Act is to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for assessment and resolution of claims relating to those buildings. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
4: Overview
In general terms, this Act provides for the following matters:
a: Assessment and evaluation of claims in relation to leaky buildings Sections 7 to 12
i: submit their claim; and
ii: have it, and the nature of the particular problem, assessed and evaluated; and
iii: be provided with an assessor's report:
b: Mediation of claims Sections 13 to 21 mediation service that is available to dwellinghouse owners with eligible claims. The claiming owner and any of the other parties against whom the claim is made may agree to refer the claim to mediation, with provision for binding settlements by agreement:
c: Compulsory adjudication of claims Sections 22 to 55 whereby dwellinghouse owners can have their eligible claims referred to adjudicators whose powers and procedures are flexible and whose determinations, subject to appeal, are binding and enforceable:
d: Miscellaneous provisions Sections 56 to 64 that underpin the substantive provisions of this Act. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
5: Interpretation
In this Act, unless the context otherwise requires,— adjudication section 26 section 59 60 adjudicator section 24 approved arbitral tribunal section 2(1) Arbitration Act 1996 arbitration section 2(1) Arbitration Act 1996 assessor section 8 chief executive civil proceedings
a: arbitration; and
b: for the purposes of sections 16 54 Construction Contracts Act 2002 claim
a: is a leaky building; and
b: has suffered damage as a consequence of it being a leaky building claimant
a: who makes an application under section 9(1)
b: whose claim is transferred to mediation or adjudication under section 59 60 court of competent jurisdiction
a: a High Court; or
b: a District Court, if the amount claimed or in issue does not exceed the amount to which the jurisdiction of the District Court is limited in civil cases Department Disputes Tribunal section 4 Disputes Tribunals Act 1988 dwellinghouse
a: means any building, or any apartment, flat, or unit within a building, that is intended to have, as its principal use, occupation as a private residence; and
b: includes any gate, garage, shed, or other structure that is an integral part of the building; but
c: does not include a hospital, hostel, hotel, motel, rest home, or other institution eligible claim section 7(2) evaluation panel section 11 leaky building mediation mediator section 13 Minister notice of adjudication section 26 owner parties prescribed respondent working day
a: Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, and Waitangi Day; and
b: the day observed in the appropriate area as the anniversary of the province of which the area forms a part; and
c: a day in the period commencing with 25 December in any year and ending with the close of 15 January in the following year. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
6: Act binds the Crown
This Act binds the Crown. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Assessment and evaluation of claims
7: Criteria for eligibility of claims for mediation and adjudication services
1: A claim may be dealt with under this Act only if—
a: it is a claim by the owner of the dwellinghouse concerned; and
b: it is an eligible claim in terms of subsection (2)
2: To be an eligible claim, a claim must, in the opinion of an evaluation panel, formed on the basis of an assessor's report, meet the following criteria:
a: the dwellinghouse to which the claim relates must—
i: have been built; or
ii: have been subject to alterations that give rise to the claim— within the period of 10 years immediately preceding the date that an application is made to the chief executive under section 9(1)
b: the dwellinghouse is a leaky building; and
c: damage to the dwellinghouse has resulted from the dwellinghouse being a leaky building. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
8: Assessors
1: The chief executive must employ or engage persons to prepare reports on claims.
2: The chief executive must employ or engage only persons that, in the chief executive's opinion, are suitable to be appointed as assessors, having regard to their knowledge, skills, and experience. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
9: Application for assessor's report
1: An owner of a dwellinghouse who wishes to make a claim may apply to the chief executive to have an assessor's report prepared in relation to the claim.
2: An application must be in the approved form (if any) and must be accompanied by the prescribed fee (if any).
3: On receiving an application that complies with this section the chief executive must make an initial assessment as to whether the information in the application indicates that the claim meets or is capable of meeting the criteria set out in section 7
4: If the chief executive considers that the information does indicate that the claim meets or is capable of meeting those criteria, the chief executive must arrange for an assessor's report to be prepared on the claim.
5: If the chief executive does not consider that the information indicates that the claim meets or is capable of meeting those criteria, the chief executive must—
a: decline to arrange for an assessor's report to be prepared; and
b: advise the claimant of that decision and the reasons for it. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
10: Assessor's report
1: An assessor's report is a report setting out—
a: whether or not, in the assessor's opinion, the claim to which the report relates meets the criteria set out in section 7(2)
b: if the report states that the claim meets those criteria, the assessor's view as to—
i: the cause of water entering the dwellinghouse; and
ii: the nature and extent of any damage caused by the water entering the dwellinghouse; and
iii: the work needed to make the dwellinghouse watertight and repair that damage; and
iv: the estimated cost of that work; and
v: the persons who should be parties to the claim.
2: When an assessor's report is completed, the chief executive must—
a: give a copy of it to the claimant; and
b: refer it to an evaluation panel convened under section 11
3: The claimant may, within 10 working days after receiving the copy of the assessor's report, make a submission on the report to the evaluation panel to which the report has been referred. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
11: Evaluation panels
1: The chief executive must convene 1 or more evaluation panels.
2: An evaluation panel may consist of such number of persons as the chief executive thinks fit.
3: A member of an evaluation panel may also be an assessor, but an assessor may not be a member of an evaluation panel when that panel is considering an assessor's report prepared by that assessor. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
12: Evaluation of assessor's report
1: An evaluation panel must evaluate every assessor's report referred to it under section 10(2) section 7(2)
2: In evaluating an assessor's report under subsection (1)
a: must consider—
i: the assessor's report; and
ii: any submission made by the claimant under section 10(3)
b: is not required to consider any other information.
3: An evaluation panel must, in relation to each assessor's report referred to it,—
a: advise the claimant of its decision as to whether or not the claimant's claim complies with the criteria set out in section 7(2)
b: if it considers that the claim does not comply with those criteria, advise the claimant of its reasons for that view.
4: In the event that the evaluation panel determines that a claim does not meet the criteria set out in section 7(2)
5: The chief adjudicator, on receipt of a letter from the claimant seeking a review, must consider whether or not the decision of the evaluation panel appears to be manifestly unjust.
6: In the event that the chief adjudicator determines that the decision of the evaluation panel appears to be manifestly unjust, the chief adjudicator must refer the decision back to the evaluation panel for a new evaluation of whether or not the claim meets the criteria set out in section 7(2) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Mediation of claims
13: Mediation services
1: The chief executive must employ or engage persons to provide mediation services to assist persons to resolve, promptly and effectively, eligible claims.
2: The chief executive decides how the mediation services are to be provided.
3: Any of the mediation services may be provided, for example,—
a: by a telephone, fax, Internet, or email service; or
b: by specialists who—
i: respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or
ii: provide their services in the manner, and at the time and place, that are most likely to resolve the eligible claim in question; or
iii: provide their services in all of the ways described in this paragraph.
4: Subsection (3) subsection (2) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
14: Access to mediation services
1: The claimant and any of the other parties to an eligible claim may agree to refer the claim to mediation under this Act.
2: A referral to mediation must be in the approved form (if any) and must be accompanied by a fee of $200 (or such other amount as is prescribed).
3: The form must be signed by all parties to the mediation.
4: The owner of the dwellinghouse to which the claim relates is responsible for the payment of the fee referred to in subsection (2) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
15: Procedure in relation to mediation services
1: Where mediation services are provided, the mediator who provides the services decides what services are appropriate to the particular case.
2: The mediator, in providing those services,—
a: may, having regard to the object of this Act and the needs of the parties, follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the claim promptly and effectively; and
b: may receive any information, statement, admission, document, or other material, in any way that he or she thinks fit, whether or not it would be admissible in judicial proceedings.
3: A mediator does not have power to determine any matter, even if the mediator is required to do so by the parties. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
16: Confidentiality
1: Except with the consent of the parties or the relevant party, a person who—
a: provides mediation services; or
b: is a party to a mediation; or
c: is a person employed or engaged by the Department; or
d: is a person who assists either a mediator or a person to whom mediation services are provided— must keep confidential any statement, admission, or document created or made for the purposes of the mediation (including a settlement under section 17
2: No person who provides mediation services may give evidence in any civil proceedings, whether under this Act or any other Act, about—
a: the provision of the services; or
b: anything related to the provision of the services that comes to his or her knowledge in the course of the provision of the services.
3: No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1)
4: Nothing in the Official Information Act 1982
5: Nothing in this section—
a: prevents the discovery or affects the admissibility of any evidence (being evidence that is otherwise discoverable or admissible and that existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or
b: prevents the gathering of information by the Department for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or
c: prevents the disclosure by any person employed or engaged by the chief executive to any other person employed or engaged by the chief executive of matters that need to be disclosed for the purposes of giving effect to this Act. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
17: Settlements
1: Where a claim is resolved, in whole or in part, by agreement, whether through the provision of mediation services or otherwise, any person—
a: who is employed or engaged by the chief executive to provide the services; and
b: who holds a general authority, given by the chief executive, to sign, for the purposes of this section, agreed terms of settlement,—may, at the request of the parties to the claim, and under that general authority, sign the agreed terms of settlement.
2: A person who receives a request under subsection (1)
a: explain to the parties the effect of subsection (4)
b: be satisfied that, knowing the effect of that subsection, the parties affirm their request.
3: A person who signs the agreed terms of settlement must give a statutory declaration in the approved form (if any) that the requirements of this section have been complied with.
4: Where, following the affirmation referred to in subsection (2) subsection (1)
a: those terms are final and binding on, and enforceable by, the parties; and
b: except for enforcement purposes, no party may seek to bring those terms before a court, whether by action, appeal, application for review, or otherwise. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
18: Enforcement of terms of settlement agreed or authorised
1: Any agreed terms of settlement that are, under section 17
2: The terms of settlement referred to in subsection (1)
3: Where any agreed terms of settlement include a requirement that a party to the claim pay money to the claimant, sections 48 49 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
19: Mediation services not to be questioned as being inappropriate
1: No mediation services may be challenged or called in question in any proceedings on the ground—
a: that the nature and content of the services was inappropriate; or
b: that the manner in which the services were provided was inappropriate.
2: Nothing in subsection (1) section 17 section 17 subsection (2) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
20: Independence of mediation personnel
1: The chief executive must ensure that any person employed or engaged to provide mediation services under section 13
a: is, in deciding how to handle or deal with any particular claim or aspect of it, able to act independently; and
b: is independent of any of the parties to whom mediation services are being provided in a particular case.
2: The chief executive, in managing the overall provision of mediation services, is not prevented by subsection (1)
3: Any such general instructions may include general instructions about the manner in which mediation services are to be provided in relation to particular types of matters or particular types of situations or both. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
21: Other mediation services
Nothing in this Act prevents any person seeking and using mediation services other than those provided by the chief executive under this Act. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Adjudication of claims
22: Right to refer claims to adjudication
1: The owner of a dwellinghouse that is the subject of an eligible claim has the right to refer the claim to adjudication, except as provided in subsection (3)
2: Subsection (1)
a: the submission to arbitration of any matter; or
b: the making of an arbitral award as a condition precedent to the pursuit of any other proceedings or remedy.
3: An owner of a dwellinghouse may not, however, refer an eligible claim to adjudication, or continue adjudication proceedings, if, and to the extent that, the subject matter of the claim is the subject of—
a: an arbitration that has already commenced; or
b: proceedings initiated by the claimant (including by way of counterclaim) by way of—
i: proceedings in a court or a Disputes Tribunal; or
ii: proceedings under section 177 Building Act 2004
4: Subsection (3) section 59 section 60
5: In this section, existing agreement or contract means an agreement or contract entered into before the commencement of this Act. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Subsection (3)(b)(ii) amended 31 March 2005 414 Building Act 2004 by substituting the words section 177 of the Building Act 2004 section 17 of the Building Act 1991 See subpart 4
23: Effect on other dispute resolution procedures
1: If a claimant who has referred a claim to adjudication under this Act initiates proceedings of a kind referred to in section 22(3)(a) (b)
a: the claimant must notify the adjudicator; and
b: that notification is to be treated as a notice of withdrawal under section 30
2: Nothing in this Act prevents the other parties to an adjudication from submitting any matter in relation to a claim to another dispute resolution procedure (for example, to the courts, to arbitration, or to mediation). This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
24: Appointment of adjudicators
1: Adjudication under this Act is performed by adjudicators appointed under this section.
2: Each adjudicator is appointed by the Governor-General on the recommendation of the Minister.
3: The Minister must recommend for appointment only persons that, in the Minister's opinion, are suitable to be appointed as adjudicators, having regard to their knowledge, skills, and experience.
4: One adjudicator is appointed by the Governor-General as the chief adjudicator.
5: The provisions of Part 1 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
25: Manner of provision of adjudication services
1: The chief adjudicator decides how the adjudication services under this Act are to be provided.
2: Adjudication services may be provided, for example,—
a: by a telephone, fax, Internet, or email service; or
b: by adjudicators who—
i: respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or
ii: provide their services in the manner, and at the time and place, that are most likely to resolve the claim in question; or
iii: provide their services in all of the ways described in this paragraph.
3: Subsection (2) subsection (1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Procedure for initiating adjudication
26: How to initiate adjudication
1: Adjudication is initiated by a claimant in relation to an eligible claim serving written notice, in the approved form and manner, of the claimant's intention to refer the claim for adjudication (the notice of adjudication
a: the other party or parties to the adjudication; and
b: the Department.
2: The notice of adjudication must state—
a: the date of the notice; and
b: the nature and a brief description of the claim and of the parties involved; and
c: the relief or remedy that is sought; and
d: the names and addresses of the parties to the adjudication; and
e: if available, the addresses that the parties have specified for the service of notices.
3: Every copy of the notice that is served on another party to the adjudication must be accompanied by a copy of the assessor's report that relates to the claim, and may be accompanied by any other documents.
4: The copy of the notice that is served on the Department must be accompanied by a fee of $400 (or such other amount as is prescribed), less the amount of any fee for mediation services paid by the claimant under section 14 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
27: Assignment of adjudicator to claim
The chief adjudicator must assign an adjudicator to act in relation to a claim to which a notice under section 26 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
28: Response to adjudication claim
1: A respondent may serve on the adjudicator a written response to the adjudication claim—
a: within 25 working days after receiving that claim; or
b: within any further time that the parties to the adjudication agree; or
c: within any further time that the adjudicator may allow if the adjudicator considers that, in the circumstances, the additional time is reasonably required to enable the respondent to complete the written response.
2: The response may be accompanied by any other documents.
3: The respondent must serve a copy of the response and any accompanying documents on the claimant and every other party to the adjudication, either before or immediately after they are served on the adjudicator. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Conduct of adjudication proceedings
29: Jurisdiction of adjudicators
1: In relation to any claim that has been referred to adjudication, the adjudicator is to determine—
a: the liability (if any) of any of the parties to the claimant; and
b: remedies in relation to any liability determined under paragraph (a)
2: In relation to any liability determined under subsection (1)(a)
a: the liability (if any) of any respondent to any other respondent; and
b: remedies in relation to any liability determined under paragraph (a) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
30: Withdrawal of adjudication proceedings
1: An adjudication claim may be withdrawn if—
a: the claimant serves written notice of withdrawal on the adjudicator, unless a respondent objects to the withdrawal and the adjudicator recognises a legitimate interest on the respondent's part in obtaining a determination in respect of the claim; or
b: the parties agree on the withdrawal.
2: An adjudicator is not required to determine a claim withdrawn in accordance with this section. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
31: Termination of proceedings by adjudicators
An adjudicator must terminate the adjudication proceedings if the adjudicator considers, on reasonable grounds, that the proceedings should not have commenced, or should not be continued, in terms of section 22(3) 23(1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
32: Consolidation of adjudication proceedings
If 2 or more adjudication proceedings are pending, the adjudicator may, with the written consent of all of the parties to those adjudication proceedings, determine those adjudication proceedings at the same time. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
33: Joinder of parties
1: An adjudicator may order that a person be joined as a respondent in an adjudication if the adjudicator considers that—
a: the person ought to be bound by, or have the benefit of, an order of the adjudicator; or
b: the person's interests are affected by the adjudication; or
c: for another reason it is desirable the person be joined as a respondent.
2: An adjudicator may make an order under subsection (1)
3: Where an adjudicator makes an order under subsection (1)
a: the adjudicator must also order the claimant to serve a notice that complies with section 26
i: the person joined as a respondent; and
ii: the other parties to the adjudication; and
iii: the Department; and
b: section 28
4: Nothing in subsection (3)(a) section 26(4) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
34: Removal of party from proceedings
An adjudicator may, on the application of any party or on the adjudicator's own initiative, order that a person be struck out as a party to the adjudication proceedings if the adjudicator considers it fair and appropriate in all the circumstances. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
35: Duties of adjudicator
1: An adjudicator must—
a: act independently, impartially, and in a timely manner; and
b: avoid incurring unnecessary expense; and
c: comply with the principles of natural justice; and
d: disclose any conflict of interest to the parties to an adjudication; and
e: if paragraph (d)
2: If a party agrees to an adjudicator continuing to act under subsection (1)(e) subsection (1)(d) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
36: Powers of adjudicator
1: An adjudicator may—
a: conduct the adjudication in any manner that he or she thinks fit, including adopting an inquisitorial process; and
b: request further written submissions from the parties to the adjudication, but must give the relevant parties an opportunity to comment on those submissions; and
c: request the parties to the adjudication to provide copies of any documents that he or she may reasonably require; and
d: set deadlines for further submissions and comments by the parties; and
e: appoint an expert adviser to report on specific issues (as long as the parties are notified before the appointment is made); and
f: call a conference of the parties; and
g: carry out an inspection of the dwellinghouse to which the claim relates (as long as the consent of the owner or occupier is obtained before entry to any land or premises is made); and
h: request the parties to do any other thing during the course of an adjudication that he or she considers may reasonably be required to enable the effective and complete determination of the questions that have arisen in the adjudication; and
i: issue any other reasonable directions that relate to the conduct of the adjudication.
2: The parties to the adjudication must comply with any request or direction of the adjudicator made or given in accordance with this section.
3: If the owner or occupier referred to in subsection (1)(g)
4: An adjudicator also has the powers specified in Part 2 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
37: When adjudicator's powers not affected
The adjudicator's power to determine a claim is not affected by—
a: the failure of a respondent to serve a response on the claimant under section 28
b: the failure of any of the parties to—
i: make a submission or comment within the time allowed; or
ii: provide specified information within the time allowed; or
iii: comply with the adjudicator's call for a conference of the parties; or
iv: do any other thing that the adjudicator requests or directs. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
38: Adjudicator may draw inferences and determine claim based on available information
If any failure of the kind referred to in section 37
a: draw any inferences from that failure that he or she thinks fit; and
b: determine the claim on the basis of the information available to him or her; and
c: give any weight that he or she thinks fit to any information provided outside any period that he or she requested or directed. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
39: Other provisions relating to adjudication proceedings
The provisions of Part 2 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Adjudicator's determination
40: Adjudicator's determination: timing
1: An adjudicator must determine a claim—
a: within 35 working days after the end of the period referred to in section 28(1) section 28(1)
b: within any further time that the parties to the adjudication agree.
2: An adjudicator must give a copy of the determination to every party to the adjudication as soon as practicable after making a determination. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
41: Adjudicator's determination: form
1: An adjudicator's determination—
a: must be in the approved form (if any); or
b: if there is no approved form,—
i: must be in writing; and
ii: must contain the reasons for the determination; and
iii: in a case where the adjudicator determines that a party to the adjudication is liable to make a payment, must include a statement setting out the consequences for the party if the party takes no steps in relation to an application to enforce the adjudicator's determination by entry as a judgment.
2: Within 2 working days after the date on which a copy of the determination is given to the parties to the adjudication under section 40(2) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
42: Adjudicator's determination: substance
1: An adjudicator may make any order that a court of competent jurisdiction could make in relation to a claim in accordance with principles of law.
2: However, if an adjudicator makes an order under subsection (1)
3: If an adjudicator determines that a party to the adjudication is liable to make a payment to another party, the adjudicator may make that determination subject to any conditions that the adjudicator thinks fit.
4: An adjudicator may determine that the liability of a party to the adjudication depends on another party to that adjudication meeting any conditions that the adjudicator may impose.
5: If a claim is settled by agreement between the parties before the adjudicator's determination is given, the adjudicator—
a: must terminate the adjudication proceedings; and
b: if requested by the parties, may record the settlement in the form of a determination on agreed terms. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
43: Costs of adjudication proceedings
1: An adjudicator may determine that costs and expenses must be met by any of the parties to the adjudication (whether those parties are or are not, on the whole, successful in the adjudication) if the adjudicator considers that the party has caused those costs and expenses to be incurred unnecessarily by—
a: bad faith on the part of that party; or
b: allegations or objections by that party that are without substantial merit.
2: If the adjudicator does not make a determination under subsection (1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Appeal from adjudicator's determination
44: Right of appeal
1: A party to a claim that has been determined by an adjudicator may appeal on a question of law or fact that arises from the determination.
2: An appeal must be filed in—
a: the District Court if the amount at issue does not exceed $200,000; and
b: the High Court if the amount at issue exceeds $200,000.
3: For the purposes of subsection (2)
a: the amount of any money required to be paid under the determination by the person filing the appeal (including any amount determined under section 42(2)
b: if the appeal relates to a determination in which the adjudicator has declined to require payment of any amount of money (or money's worth in terms of section 42(2) section 42(2)
4: A claimant may abandon so much of a claim to which an appeal relates as exceeds $200,000 in order to bring the appeal within the jurisdiction of the District Court.
5: Where an appeal is commenced by a person who is required to pay money to a party to a claim, the person may bring the appeal within the jurisdiction of the District Court by paying the other person the difference between the amount required to be paid under the determination and $200,000.
6: Section 182 Building Act 2004 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Subsection (6) amended 31 March 2005 414 Building Act 2004 by substituting the words Section 182 of the Building Act 2004 Section 17(3) of the Building Act 1991 See subpart 4
45: Procedure for commencing appeal
1: An appeal under section 44
2: The notice must be filed—
a: within 20 working days after the date of the determination to which the appeal relates; or
b: within any further time that the relevant court may allow on application made before or after the expiration of the period referred to in paragraph (a) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
46: Determination of appeal
1: In its determination of any appeal, the court may do any 1 or more of the following things:
a: confirm, modify, or reverse the determination or any part of it:
b: exercise any of the powers that could have been exercised by the adjudicator in relation to the claim to which the appeal relates.
2: A determination under subsection (1)
a: has effect as if it were a determination made by an adjudicator for the purposes of this Act; and
b: is a final determination of the claim.
3: Subsection (2)(b) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
47: Effect of appeal on adjudicator's determination
An appeal under section 44 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Enforcement of adjudicator's determination
48: Duty to comply with adjudicator's determination
A party to the adjudication must comply with an adjudicator's determination. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
49: Enforcement of adjudicator's determination
1: Every adjudicator's determination is deemed to be an order of the District Court, and, subject to this section, may be enforced accordingly.
2: Where application is made to a District Court for the issue of any process to enforce an adjudicator's determination provided for by section 42(2)
3: If that party does not file in the Court, within 10 working days after receiving notice of the application, a notice of objection in the prescribed form, the order may, after the expiry of that period, be enforced under subsection (1)
4: The notice referred to in subsection (3)
5: If the party against whom enforcement is sought files the notice referred to in subsection (3) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Miscellaneous matters relating to adjudication
50: Parties may be represented at adjudication proceedings
1: A party to a claim that has been referred to adjudication may be represented by the representatives (whether legally qualified or not) that the party considers appropriate.
2: Subsection (1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
51: Adjudication proceedings usually to be in public
1: Except as provided in subsection (2)
2: An adjudicator may, on the application of any party to the proceedings, and after having due regard to the interests of the parties and to the public interest, order that the whole or any part of the proceedings be held in private.
3: An adjudicator may, on the application of any party to the proceedings, and after having due regard to the interests of the parties and to the public interest, make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings at any hearing before the adjudicator (whether held in public or in private), but no such order may prohibit the publication of any decision of the adjudicator.
4: Despite any order made under subsection (3) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
52: Records of adjudication
1: The chief executive is responsible for ensuring the safe custody of the records and papers relating to adjudications conducted under this Act for the time being in the chief executive's possession or under the chief executive's control.
2: Except where an adjudicator otherwise orders under section 51 clause 13
3: Any person may, on application to the chief executive and on payment of the prescribed fee (if any), require the chief executive to supply to that person a true copy of any record or paper for the time being in the custody or under the control of the chief executive and available for public inspection under subsection (2)
4: A certificate, given under the hand of an adjudicator, to the effect that any such copy is a true copy of the paper to which it relates is, in the absence of proof to the contrary, sufficient evidence that it is a true copy of that record or paper. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
53: Adjudication determinations to be made available
1: The chief executive must give public notice of every determination of an adjudicator.
2: Copies of each determination of an adjudicator, which must include the adjudicator's reasons for each determination, must be available by purchase from the Department at a reasonable price.
3: Every notice published under subsection (1) clause 6 Defamation Act 1992 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
54: Adjudicators not compellable witnesses
An adjudicator may not be required to give evidence in any civil proceedings on anything connected with an adjudication that has come to his or her knowledge in the course of adjudication proceedings. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
55: Application of other enactments to adjudications
1: For the purposes of the Limitation Act 1950 section 9(1)
2: Adjudications must be treated as—
a: proceedings for the purposes of section 24 Insolvency Act 1967
b: actions or proceedings for the purposes of section 42 Corporations (Investigation and Management) Act 1989
c: legal proceedings for the purposes of section 248 Companies Act 1993 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 Miscellaneous provisions
56: Service of notices
Any notice or any other document required to be served on, or given to, any person under this Act, or under any regulation made under this Act, is sufficiently served if—
a: the notice or document is delivered to that person; or
b: the notice or document is left at that person's usual or last known place of residence or business in New Zealand; or
c: the notice or document is posted in a letter addressed to the person at that person's place of residence or business in New Zealand; or
d: the notice or document is sent in the approved manner (if any). This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
57: Mediator or adjudicator may decline to deal with claim
1: A mediator or an adjudicator may decline to deal with a claim if, in the opinion of the mediator or adjudicator,—
a: the subject matter of the claim is trivial; or
b: the claim is frivolous or vexatious; or
c: the claimant is not pursuing the matter in good faith.
2: In any case where a mediator or adjudicator decides to decline to deal with a claim, the mediator or adjudicator must inform the parties of that decision and state the reasons for that decision. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
58: Transfer of claim to court
An adjudicator may order a claim to be transferred to a District Court or the High Court in its ordinary civil jurisdiction if—
a: the claim presents undue complexity; or
b: the claim presents a novel claim; or
c: the subject matter of the claim is related to the subject matter of proceedings that are already before the court— so that, in the adjudicator's view, it is more appropriate for a court to determine the claim. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
59: Transfer of proceedings from court
1: Where proceedings relating to a claim have been commenced in a District Court, a District Court Judge may, on the application of any party, or on the Judge's own motion, order that the proceedings be transferred to mediation or adjudication.
2: Where proceedings relating to a claim have been commenced in a High Court, a High Court Judge may, on the application of any party or on the Judge's own motion, order that the proceedings be transferred to mediation or adjudication.
3: Where proceedings are transferred under subsection (1) (2)
4: An order to transfer proceedings under subsection (1) (2)
a: the parties to the proceedings agree to the transfer; or
b: the Judge making the order believes that the transfer is in the best interests of justice. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
60: Transfer of proceedings from arbitration
1: Where an arbitration relating to a claim has commenced, the arbitral tribunal may, with the agreement of the parties to the arbitration, order that any proceedings before it be transferred to mediation or adjudication.
2: Where proceedings are transferred under subsection (1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
61: Exclusion of liability
1: An adjudicator, a mediator, an assessor, or a member of an evaluation panel is not under any civil or criminal liability for anything done, or omitted to be done, in the course of the exercise or intended exercise of any of the adjudicator's or mediator's or assessor's or member of the panel's functions, duties, or powers under this Act.
2: Subsection (1) This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
62: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing fees for the purposes of this Act:
b: prescribing forms for the purposes of this Act:
c: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
63: Rules of Court: District Courts
1: In addition to all other powers conferred by the District Courts Act 1947
2: Rules may be made under subsection (1)
a: the Chief District Court Judge; and
b: 2 or more members of the Rules Committee established under section 51B Judicature Act 1908
3: In the absence of any rules under this section, or in any situation not covered by any of those rules, the rules in relation to civil proceedings for the time being in force under the District Courts Act 1947 This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007
64: Legal Services Act 2000
1: Section 4(1) Legal Services Act 2000 paragraph (a) civil proceedings or the Domestic Violence Act 1995 the Domestic Violence Act 1995 sections 22 to 55 of the Weathertight Homes Resolution Services Act 2002
2: Section 7(1) Legal Services Act 2000
p: proceedings before an adjudicator under the Weathertight Homes Resolution Services Act 2002. This Act was repealed 1 April 2007 126 Weathertight Homes Resolution Services Act 2006 See sections 128 to 160 See clause 2 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007