Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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New Zealand

Judicature Act 19081

Public Act 1908 No 89

Date of assent: 4 August 1908

Part 1 The High Court

[…]

Schedule 2 High Court Rules

Part 1 Rules of general application

[…]

Subpart 7—International co-operation

1.22 Communication with foreign court

  • This rule applies if, and to the extent that, the court is required, or wishes, to seek the co-operation of a court in another country when dealing with an application under these rules.

  • The court is entitled to communicate with the foreign court if—

    • the parties consent; and

    • the communication is not prohibited by the law of the other country.

  • When the court acts under subclause (2) it must give the parties to the proceeding an opportunity to be heard on the form of the communication.

  • The communication and any reply must be treated as part of the record of the proceeding or interlocutory application.

[…]

Part 5 Commencement of proceedings and filing of documents

[…]

Subpart 10—Statement of defence and appearance

[…]

5.49 Appearance and objection to jurisdiction

  • p. 3618A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.

  • The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.

  • A defendant who has filed an appearance may apply to the court to dismiss the proceeding on the ground that the court has no jurisdiction to hear and determine it.

  • The court hearing an application under subclause (3) must,—

    • if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; but

    • if it is satisfied that it has jurisdiction to hear and determine the proceeding, dismiss the application and set aside the appearance.

  • At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.

  • The court hearing that application must,—

    • if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but

    • if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.

  • To the extent that an application under this rule relates to service of process effected outside New Zealand under rule 6.27 or 6.28, it must be determined under rule 6.29.

    • (7A) But both this rule and rule 6.29 are subject to section 27(1) of the Trans-Tasman Proceedings Act 2010, which provides that a New Zealand court cannot stay a civil proceeding before it on forum grounds connected with Australia otherwise than in accordance with subpart 2 of Part 2 of that Act.

  • The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding.

  • If the appearance set aside has been filed in relation to a proceeding in which the plaintiff has applied for judgment under rule 12.2 or 12.3, the court—

    • must fix the time within which the defendant may file and serve—

      • a notice of opposition; and

      • an affidavit by or on behalf of the defendant in answer to the affidavit by or on behalf of the plaintiff; and

    • may, under subclause (8), give any other directions that appear necessary regarding any further steps in the proceeding.

[…]

Part 6 Service

[…]

Subpart 4—Service out of New Zealand

6.29 Court’s discretion whether to assume jurisdiction

  • If service of process has been effected out of New Zealand without leave, and the court’s jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—

    • that there is—

      • a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

      • p. 3619the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

    • that, had the party applied for leave under rule 6.28,—

      • leave would have been granted; and

      • it is in the interests of justice that the failure to apply for leave should be excused.

  • If service of process has been effected out of New Zealand under rule 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

  • When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.

  • […]

6.32 Service outside New Zealand

  • An originating document permitted under these rules to be served outside New Zealand may be served by a method—

    • specified in rule 6.1; or

    • permitted by the law of the country in which it is to be served; or

    • provided for in rules 6.33 and 6.34.

  • Subclause (1) is subject to subclauses (3) and (4).

  • When a convention relating to service of process is in force between New Zealand and the country where service is to be effected, service must be effected in accordance with a method provided for, or permitted by, that convention.

  • No service outside New Zealand is valid if effected contrary to the law of the country where service is effected.

    • […]

Part 7 Case management, interlocutory applications, and interim relief

[…]

Subpart 9—Interim relief in respect of overseas proceedings

7.81 Interim relief in support of overseas proceedings

  • On the application of a party or an intended party to judicial proceedings commenced or to be commenced outside New Zealand (overseas proceedings), the court may, if the court thinks it just to do so, give interim relief in support of the overseas proceedings.

  • These rules apply to an application under subclause (1) as if the overseas proceedings for which support is sought had been commenced under these rules.

  • Subclause (1) does not apply to—

    • an application for an interim payment under subpart 5:

    • an application for discovery under subpart 3 of Part 8:

    • an application in relation to evidence under Part 9:

    • an application for a freezing order under Part 32.

  • Before making an order under this rule, the court must be satisfied that there is a real connecting link between the subject matter of the interim relief and the territorial jurisdiction of the court.

  • p. 3620An order under subclause (1) must not be inconsistent with interim relief granted in the overseas proceedings by the court outside New Zealand.

  • This rule does not apply to a civil proceeding commenced or to be commenced in an Australian court.

  • […]

Part 15 Disposal other than by trial

Subpart 1—Dismissal or stay without trial

15.1 Dismissing or staying all or part of proceeding

  • The court may strike out all or part of a pleading if it—

    • discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

    • is likely to cause prejudice or delay; or

    • is frivolous or vexatious; or

    • is otherwise an abuse of the process of the court.

  • If the court strikes out a statement of claim or a counterclaim under subclause

  • (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

  • Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

  • This rule does not affect the court’s inherent jurisdiction.

[…]

Part 32 Freezing orders

[…]

32.2 Freezing order

  • The court may make an order (a freezing order), on or without notice to a respondent in accordance with this Part.

  • A freezing order may restrain a respondent from removing any assets located in or outside New Zealand or from disposing of, dealing with, or diminishing the value of, those assets.

  • An applicant for a freezing order without notice to a respondent must fully and frankly disclose to the court all material facts, including—

    • any possible defences known to the applicant; and

    • information casting doubt on the applicant’s ability to discharge the obligation created by the undertaking as to damages.

  • An application for a freezing order must be made by interlocutory application under Part 7 or originating application under Part 19, which Parts apply subject to this Part.

  • An applicant for a freezing order must file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the respondent for any damage sustained in consequence of the freezing order.

  • […]p. 3621

Reciprocal Enforcement of Judgments Act 19342

Public Act 1934 No 11

Date of assent: 28 September 1934

Part 1 Reciprocal enforcement of judgments

[…]

3 Application of this Part

  • This Part shall extend to the United Kingdom.

  • (1A) Nothing in this Part applies or extends to a judgment that is given in or by a superior court or an inferior court of Australia.

  • (1B) Subsection (1A) does not, however, prevent a judgment given in or by a superior court or an inferior court of Australia from being a registrable Australian judgment under subpart 5 of Part 2 of the Trans-Tasman Proceedings Act 2010.

  • (1C) Subsection (1A), and the amendments to, and revocations of orders under, this Part effected by Schedule 2 of the Trans-Tasman Proceedings Act 2010, do not, however, affect the application of this Part to a judgment given in or by a superior court or an inferior court of Australia before the commencement of subpart 5 of Part 2 of that Act.

  • If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being extended to money judgments given in the superior courts of any part of the Sovereign’s dominions outside the United Kingdom, or given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement within that part of the Sovereign’s dominions or in that foreign country, as the case may be, of money judgments given in the superior courts of New Zealand, he may by Order in Council direct—

    • that this Part shall extend to that part of the Sovereign’s dominions or to that foreign country; and

    • that such courts as are specified in the Order in Council shall, for the purposes of this Part, be deemed superior courts of that part of the Sovereign’s dominions or of that foreign country.

  • (2A) The fact that a particular court is not specified in an Order in Council is not taken to imply that the court is not a superior court for the purposes of this Act.

  • Any money judgment of a superior court of a country to which this Part extends, other than a money judgment of such a court given on appeal from a court, not being a specified inferior court, which is not a superior court, shall be a judgment to which this Part applies, if—

    • it is final and conclusive as between the parties thereto; and

    • there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and

    • it is given after the coming into operation of the Order in Council directing that this Part shall extend to that country: provided that nothing in this paragraph shall apply with respect to judgments given in the United Kingdom or in any other part of the Sovereign’s dominions to which Part 1 of the Administration of Justice Act 1922 applied immediately before the passing of this Act.

  • (3A) [Repealed]

  • p. 3622For the purposes of this section a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.

  • The Governor-General may by a subsequent Order in Council vary or revoke any Order in Council previously made under this section.

  • [Repealed]

3A Application of this Part to judgments of inferior courts

  • If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being extended to money judgments given in all or some inferior courts of a country to which this Part extends, substantial reciprocity of treatment will be assured as respects the enforcement in that country of money judgments given in all or some inferior courts of New Zealand, the Governor-General may, by Order in Council, direct that such inferior courts of that country as are specified in the order, are specified inferior courts for the purposes of this Part.

  • Any money judgment of a specified inferior court shall be a judgment to which this Part applies if—

    • it is final and conclusive as between the parties to it; and

    • there is payable under the judgment a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and

    • it is given after the coming into operation of the Order in Council directing that the inferior court is a specified inferior court for the purposes of this Part.

  • [Repealed]

  • [Repealed]

  • For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.

  • The Governor-General may by a subsequent Order in Council vary or revoke any Order in Council previously made under this section.

3B Application of this Part to non-money judgments

  • If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being extended to some or all non-money judgments given in any superior courts of any country to which this Part extends, substantial reciprocity of treatment will be assured as respects the enforcement in that country of all or some non-money judgments given in the superior courts of New Zealand, the Governor-General may, by Order in Council, direct that such non-money judgments of the superior courts of that country as are specified in the order are specified non-money judgments for the purposes of this Part.

  • If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being extended to all or some non-money judgments given in any inferior courts of a country to which this Part extends, substantial reciprocity of treatment will be assured as respects the enforcement in that country of all or some non-money judgments given in the inferior courts of New Zealand, the Governor-General may, by Order in Council, direct that such non-money judgments of such of the inferior courts of that country as are specified in the order, are specified non-money judgments for the purposes of this Part.

  • Every Order in Council made under subsection (1) or subsection (2) shall specify the non-money judgments by reference to—

    • the kinds of proceedings in which the non-money judgments are given; and

    • the kinds of non-money judgments.

  • A specified non-money judgment shall be a judgment to which this Part applies if it was given after the coming into operation of an Order in Council made under subsection (1) or subsection (2), as the case may be, in relation to that judgment.

  • [Repealed]

  • The Governor-General may by a subsequent Order in Council vary or revoke any Order in Council previously made under this section.

4 Application for, and effect of, registration of judgment

  • p. 3623A person, being a judgment creditor under a judgment to which this Part applies, may apply to the High Court at any time within 6 years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the said court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:

    • provided that a judgment shall not be registered if at the date of the application—

    • it has been wholly satisfied; or

    • it could not be enforced in the country of the original court.

  • Subject to the provisions of this Act with respect to the setting aside of registration,—

    • a registered judgment shall, for the purposes of enforcement, be of the same force and effect; and

    • proceedings may be taken on a registered judgment; and

    • the sum for which a judgment is registered shall carry interest; and

    • the High Court shall have the same control over the enforcement of a registered judgment—

    • as if the judgment had been a judgment originally given in the High Court on the date of registration:

    • provided that the judgment shall not be enforced so long as, under this Part and the rules of court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.

    • (2A) A judgment may only be enforced if, and to the extent that, at the time the proceedings for enforcement are or are to be taken, the judgment is capable of being enforced in the country of the original court.

  • Where a sum payable under a judgment that is to be registered is expressed in a currency other than New Zealand currency, the judgment is to be registered—

    • if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed, in that currency; or

    • in any other case, as if it were for an equivalent amount in New Zealand currency, based on the rate of exchange prevailing on the day of the application for registration.

  • If at the date of the application for registration of a judgment the judgment of the original court has been partly satisfied, the judgment shall not be registered in respect of the whole sum payable under the judgment of the original court, but only in respect of the balance remaining payable at that date.

  • If, on an application for the registration of a judgment, it appears to the High Court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments those judgments could properly have been registered, the judgment may be registered in respect of the provisions aforesaid but not in respect of any other provisions contained therein.

  • In addition to any sum of money payable under the judgment of the original court, including any interest which by the law of the country of the original court becomes due under the judgment up to the time of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the original court.

5 Rules of court

  • The power to make rules of court under section 51C of the Judicature Act 1908 shall, subject to the provisions of this section, include power to make rules for the following purposes:

    • for making provision with respect to the giving of security for costs by persons applying for the registration of judgments:

    • for prescribing the matters to be proved on an application for the registration of a judgment and for regulating the mode of proving those matters:

    • for providing for the service on the judgment debtor of notice of the registration of a judgment:

    • p. 3624for making provision with respect to the fixing of the period within which an application may be made to have the registration of the judgment set aside and with respect to the extension of the period so fixed:

    • for prescribing the method by which any question arising under this Act whether a judgment to which this Part applies can be enforced in the country of the original court, or what interest is payable under a judgment under the law of the original court, is to be determined:

    • for prescribing any matter which under this Part is to be prescribed.

  • Rules made for the purposes of this Part shall be expressed to have, and shall have, effect subject to any such provisions contained in Orders in Council made under section 3 as are declared by the said orders to be necessary for giving effect to any agreement made by or on behalf of the Government of New Zealand in relation to matters with respect to which there is power to make rules of court for the purposes of this Part.

6 Cases in which registered judgments must, or may, be set aside

  • On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the High Court is satisfied—

    • that the judgment is not a judgment to which this Part applies or was registered in contravention of the foregoing provisions of this Act; or

    • that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

    • that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

    • that the judgment was obtained by fraud; or

    • that the enforcement of the judgment would be contrary to public policy in New Zealand; or

    • that the rights under the judgment are not vested in the person by whom the application for registration was made.

  • On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment may be set aside if the High Court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.

  • For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (4), be deemed to have had jurisdiction—

    • in the case of a judgment given in an action in personam—

      • if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court; or

      • if the judgment debtor was plaintiff in, or counterclaimed in, the proceedings in the original court; or

      • if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or

      • if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or

      • if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place:

      • [Repealed]

    • p. 3625in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situate in the country of that court:

    • in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b), if the jurisdiction of the original court is recognised by the law of the registering court.

  • Notwithstanding anything in subsection (3), the courts of the country of the original court shall not be deemed to have had jurisdiction—

    • if the subject matter of the proceedings was immovable property outside the country of the original court; or

    • except in the cases mentioned in subparagraphs (i), (ii), and (iii) of paragraph (a) and in paragraph (c) of subsection (3), if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

    • if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court

7 Powers of High Court on application to set aside registration

  • If, on an application to set aside the registration of a judgment, the applicant satisfies the High Court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the High Court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by a competent tribunal.

  • Where the registration of a judgment is set aside under the last preceding subsection, or solely for the reason that the judgment was not at the date of the application for registration enforceable in the country of the original court, the setting aside of the registration shall not prejudice a further application to register the judgment when the appeal has been disposed of or if and when the judgment becomes enforceable in that country, as the case may be.

  • Where the registration of a judgment is set aside solely for the reason that the judgment, notwithstanding that it had at the date of the application for registration been partly satisfied, was registered for the whole sum payable thereunder, the High Court shall, on the application of the judgment creditor, order judgment to be registered for the balance remaining payable at that date.

8 Judgments which can be registered under this Act not to be enforceable otherwise

No proceedings for the recovery of a sum payable under a judgment to which this Part applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in New Zealand.

[…]

Trans-Tasman Proceedings Act 20103

Public Act 2010 No 108

Date of assent: 31 August 2010

[…]p. 3626

Part 2 Trans-Tasman proceedings

[…]

Subpart 2 – New Zealand courts declining jurisdiction on grounds that Australian court is more appropriate forum

21 Guide to this subpart

  • This subpart is about when a New Zealand court may stay a proceeding on the grounds that an Australian court is the more appropriate court to determine the matters in issue.

  • The New Zealand court may only stay the proceeding if the defendant applies for the proceeding to be stayed. The defendant must make the application within 30 working days after being served with the initiating document for the proceeding, or such shorter or longer period that the court considers appropriate.

  • The New Zealand court may only stay the proceeding if it is satisfied that an Australian court has jurisdiction to determine the matters in issue and that it is the more appropriate court to determine those matters. In determining whether the Australian court is the more appropriate court, the New Zealand court must take certain matters into account. They are set out in section 24(2).

  • However, if the parties have made an exclusive choice of court agreement that designates either an Australian court or a New Zealand court as the court to determine the matters in issue, the New Zealand court’s order as to whether or not to stay the proceeding must be consistent with that agreement (see section 25).

22 Application for stay of New Zealand civil proceeding on grounds that Australian court is more appropriate forum

  • A defendant in a civil proceeding commenced in a New Zealand court may apply to the court for an order staying the proceeding on the grounds that an Australian court is the more appropriate court for the proceeding.

  • The proceeding may be one commenced in the New Zealand court before the commencement of this subpart, but only if an initiating document for it was served on the defendant in Australia under subpart 1.

  • The application must be made—

    • within 30 working days of the New Zealand court after the day on which the defendant was served with the initiating document for the proceeding; or

    • if, before or after the end of the period in paragraph (a), the plaintiff or defendant applies to the New Zealand court for a shorter or longer period—within any shorter or longer period the New Zealand court considers appropriate.

23 Hearing on, or other determination of, application

  • The New Zealand court may determine the defendant’s application under section 22 without a hearing.

  • However, the New Zealand court must determine the defendant’s application under section 22 with a hearing if any of the following requests it to do so:

    • the plaintiff; and

    • the defendant; and

    • p. 3627any other person who is required or permitted, by regulations under subsection (5)(a), to be served with the defendant’s application.

  • The request must be made—

    • within 10 working days of the New Zealand court after the day the defendant made the application; or

    • if, before or after the end of the period in paragraph (a), a person referred to in subsection (2) applies to the New Zealand court for a shorter or longer period— within any shorter or longer period the New Zealand court considers appropriate.

  • The defendant, the defendant’s counsel, or both may, despite section 38 (but subject to the rest of subpart 4), appear remotely in the hearing if—

    • the defendant was served, or purportedly served, in Australia under section 13 with an initiating document for a proceeding; and

    • the New Zealand court is determining with a hearing the defendant’s application under section 22 for an order to stay the proceeding; and

    • the defendant has made to the New Zealand court within the period (if any) prescribed for the purposes of this paragraph by regulations under subsection (5)(b) a request to appear remotely in the hearing; and

    • a remote appearance medium is, or can reasonably be made, available.

  • The Governor-General may, by Order in Council, make regulations—

    • requiring or permitting the defendant’s application under section 22 for a stay to be served on people other than the plaintiff and the defendant:

    • prescribing a period for the purposes of subsection (4)(c).

24 Order of stay of proceeding

  • On an application under section 22, the New Zealand court may, by order, stay the proceeding if it is satisfied that an Australian court—

    • has jurisdiction to determine the matters in issue between the parties to the proceeding; and

    • is the more appropriate court to determine those matters.

  • In determining whether an Australian court is the more appropriate court to determine the matters in issue between the parties to the proceeding, the New Zealand court must not take into account the fact that the proceeding was commenced in New Zealand, but must take into account the following matters:

    • the places of residence of the parties or, if a party is not an individual, its principal place of business:

    • the places of residence of the witnesses likely to be called in the proceeding:

    • the place where the subject matter of the proceeding is situated:

    • any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be instituted (other than an exclusive choice of court agreement to which section 25(1) applies):

    • the law that it would be most appropriate to apply in the proceeding:

    • whether a related or similar proceeding has been commenced against the defendant or another person in a court in Australia:

    • the financial circumstances of the parties, so far as the New Zealand court is aware of them:

    • any other matters that the New Zealand court considers relevant.

25 Exclusive choice of court agreements

  • On an application under section 22 (and despite section 24) the New Zealand court—

    • must, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates an Australian court as the court to determine the matters in issue between the parties to the proceeding; and

    • must not, by order, stay the proceeding, if satisfied that an exclusive choice of court agreement designates a New Zealand court as the court to determine those matters.

  • p. 3628However, subsection (1)(a) does not apply to an exclusive choice of court agreement if the New Zealand court is satisfied that—

    • it is null and void under the law (including, without limitation, the rules of private international law) of Australia; or

    • under New Zealand law, a party to it lacked the capacity to conclude it; or

    • giving effect to it would lead to a manifest injustice or would be manifestly contrary to New Zealand public policy; or

    • for exceptional reasons beyond the control of the parties to it, it cannot reasonably be performed; or

    • the court designated by it as the court to determine the matters in issue between the parties to the proceeding has decided not to determine those matters.

  • However, subsection (1)(b) does not apply to an exclusive choice of court agreement if the New Zealand court is satisfied that it is null and void under the law (including, without limitation, the rules of private international law) of New Zealand.

  • Exclusive choice of court agreement, in relation to matters in issue between parties to a proceeding, means a written agreement between those parties that—

    • designates the courts, or a specified court or courts, of a specified country, to the exclusion of any other courts, as the court or courts to determine disputes between those parties that are or include those matters; and

    • is not an agreement the parties to which are or include 1 or more individuals acting primarily for personal, family, or household purposes; and

    • is not a contract of employment (including, without limitation, a collective agreement).

26 Power to make stay subject to conditions

An order under section 24 or 25 may be made subject to any conditions the New Zealand court considers are appropriate in order to facilitate, without delay or undue expense, the determination of the matters in issue between the parties to the proceeding.

27 How this subpart affects New Zealand court’s powers to stay proceedings

  • A New Zealand court cannot stay a civil proceeding before it on forum grounds connected with Australia otherwise than in accordance with this subpart.

  • However, this subpart does not affect any power of the New Zealand court to stay the proceeding on any other grounds.

28 No restraint of proceedings

  • A New Zealand court must not restrain a person from commencing a civil proceeding in an Australian court on the grounds that the Australian court is not the appropriate forum for the proceeding.

  • Also, a New Zealand court must not restrain a party to a civil proceeding before an Australian court from taking a step in that proceeding on the grounds that the Australian court is not the appropriate forum for the proceeding.

29 Suspension of limitation periods for claims made earlier in stayed proceedings in Australian courts

  • This section applies if—

    • a claim is made in a proceeding commenced in an Australian court (the Australian proceeding) that is later stayed by an order of the Australian Court made under the Australian Act on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue between the parties to the proceeding; and

    • p. 3629the claim is to be made again in a proceeding commenced in a New Zealand court (the New Zealand proceeding) after the staying of (and, if applicable, before any deadline stated in the condition of that order staying) the Australian proceeding.

  • For the purposes of every applicable limitation period or defence under New Zealand law, the New Zealand proceeding is to be treated as commencing at the time the Australian proceeding commenced.

[…]

The act is reproduced from <www.legislation.govt.nz> (last accessed on 28 January 2016).

The act is reproduced from <www.legislation.govt.nz> (last accessed on 28 January 2016).

The act is reproduced from <www.legislation.govt.nz> (last accessed on 28 January 2016).