Like the United Kingdom, New Zealand’s constitution is not found in a single document. It is derived from a variety of sources, including:

• legislation (including historical statutes from England);
• the Treaty of Waitangi/Te Tiriti o Waitangi;
• the common law; and
• established constitutional practices known as conventions.

A fundamental principle underpinning the constitution is the separation of the three branches of government: the executive, legislative and judicial. The three branches operate independently, and in accordance with the principle of comity.

Parliament is sovereign. It has the power to create, amend or repeal any law. Its decisions cannot be overturned by another body. New Zealand courts do not have the power to invalidate legislation passed by Parliament.

Because New Zealand is a common law jurisdiction, courts are bound by the principle of precedent, with lower courts bound to follow the decisions of higher courts. Cases from other common law jurisdictions, such as Australia and the United Kingdom, may be persuasive (but not are binding), although New Zealand law is becoming increasingly indigenised.

The New Zealand legal system is primarily adversarial. Parties put forward their position in written submissions and in oral argument.

New Zealand’s court system has four main levels.

• The District Court hears civil claims for up to NZD350,000, and most criminal trials. The Family Court and the Youth Court are divisions of the District Court. District Court decisions may be appealed to the High Court. The District Court also hears appeals from some specialist tribunals.
• The High Court hears civil claims for more than NZD350,000, as well as very serious or complex criminal trials, and applications for judicial review. It has unlimited civil jurisdiction. High Court decisions may be appealed (although leave may be required) to the Court of Appeal.
• The Court of Appeal only hears appeals. Its decisions can be appealed to the Supreme Court, but only if the Supreme Court grants leave.
• The Supreme Court is New Zealand’s highest court. It replaced the Privy Council (the superior court of other commonwealth countries) in 2004.

There are also specialist courts, including the Environment Court, Employment Court, Māori Land Court and Coroners Court.

New Zealand also has a range of specialist tribunals. Some have no right of appeal, while others have a right of appeal to the District Court or the High Court.

Time from commencement of a proceeding to trial varies depending on jurisdiction, location, the nature and complexity of the case, and any urgency accorded to it. As of 31 December 2024, the average time between the date on which a High Court civil proceeding is ready for hearing and its defended hearing date was 566 days. Matters can also be accorded urgent status, or decided on the papers in some circumstances.

The starting point is that the principle of open justice requires trials and appeal hearings to be open to the public. Judgments are a matter of public record, and the names of the parties to proceedings are published prior to hearings. Most procedural matters are heard in chambers.

On the application of parties or the judge’s own motion, parties or witnesses may be granted name suppression, evidence or judgments may be redacted, and the public may be cleared from the court.

Parties to a proceeding and members of the public may apply for access to court documents, including pleadings, submissions and evidence, under access to court document rules. The media may also apply to a court to record court hearings.

Rights of audience are typically restricted to lawyers (that is, barristers and/or solicitors holding a current practising certificate issued by the New Zealand Law Society), and to litigants in person.

Non-lawyer advocates are common in some areas of the law, including employment and accident compensation.

Litigants in person may apply to be assisted by a “McKenzie friend”, a support person who may sit beside the unrepresented party to civil litigation to provide support, take notes, make suggestions and give advice. They do not typically have appearance rights.

Foreign-qualified lawyers who do not hold a current practising certificate can provide legal services but cannot undertake any “reserved areas” of work for lawyers. Reserved areas typically relate to giving advice on litigation matters and appearing in court or a tribunal.

Third-party litigation funding is permitted but not specifically regulated in New Zealand. It is instead regulated by:

• general case management mechanisms (eg, stay and strike-out powers, and the power to order security for costs);
• case law principles;
• general statutes that may apply to litigation funding (eg, consumer protection legislation); and
• the torts of maintenance and champerty (the New Zealand Law Commission, New Zealand’s independent law reform body, has recommended the abolition of these torts and specific regulation of third-party litigation funding).

Third-party funding is available in respect of any type of civil proceeding, provided the arrangement does not constitute an impermissible assignment of a cause of action nor otherwise amount to an abuse of process.

Legal aid (a government-funded scheme to provide legal services to people who cannot otherwise afford it) is available for some lawsuits, including (in rare circumstances) representative actions.

Third-party litigation funding is available for both plaintiffs and defendants.

There are no formal limits on the amount a third-party funder will fund.

Third-party funders may fund all costs associated with bringing or defending a claim. This can include:

• legal fees and disbursements (including expert fees);
• court costs;
• security for costs;
• any monies payable under any adverse costs orders (if the funded party is unsuccessful); and
• claim administration costs.

Contingency fees – where legal fees are calculated as a proportion of any sum recovered – are prohibited.

Conditional fee arrangements, under which a lawyer agrees that some or all of their fees and expenses are payable only if the matter succeeds, are permitted. A conditional fee arrangement may include a premium but only if it is not calculated as a proportion of the amount recovered. Conditional fees may not be charged in criminal, immigration or family law matters.

There are no formal time limits by which a party to litigation should obtain third-party funding. In practice, however, third-party funding is typically obtained as early as possible. For funded plaintiff claims, this means third-party funding is often obtained before a proceeding is commenced.

There are no court-imposed rules on pre-action conduct in civil litigation in New Zealand.

Limitation periods are governed primarily by the Limitation Act 2010, which includes variations and discretions where there are issues concerning minority (youth), incapacity, abuse and gradual processes.

Fraud or concealment will impact the applicable limitation period. Where a defendant’s fraud means that a claimant did not know, and ought reasonably not to have known certain facts, and the claimant later gains that knowledge, the claimant has three years to bring their claim – even if they are outside generally applicable limitation periods.

Other statutes contain their own limitation periods that may take precedence over the Limitation Act 2020.

New Zealand courts have confirmed that, in representative actions, time stops running for all potential class members whenever a proceeding is commenced as a representative action, regardless of whether the court allows it to continue on that basis.

A document initiating a civil proceeding (a statement of claim) may be served outside of New Zealand without leave of the court in certain circumstances, including where it concerns a claim:

• relating to a contract made or performed in New Zealand, or governed by New Zealand law;
• in tort where damage was sustained in New Zealand;
• concerning New Zealand land; or
• against a person domiciled or ordinarily resident in New Zealand.

Where leave of the court is required, it may be granted if the applicant establishes:

• that the claim has a real and substantial connection with New Zealand;
• that New Zealand is the appropriate forum; and
• any other relevant circumstances that support an assumption of jurisdiction.

Jurisdictional requirements that have an Australian element are subject to a bespoke regime, the Trans-Tasman Proceedings Act 2010, which helps give effect to the Closer Economic Relations Agreement between New Zealand and Australia, signed in 1983. The Act creates a regime to streamline the processes for managing and resolving civil and criminal proceedings where elements of the proceedings span both countries.

Civil proceedings are typically initiated by filing a statement of claim and notice of proceeding in a court of first instance. The statement of claim sets out the plaintiff’s claim, the facts necessary to establish it, and the relief sought. The plaintiff must also file a notice of proceeding – a standard form document that explains the implications of being served with a statement of claim.

Once the court has endorsed the statement of claim and notice of proceeding, the plaintiff must serve them on the defendant, together with documents referred to or relied on in preparing the statement of claim (initial disclosure).

On 1 January 2026, the court rules regulating proceedings in New Zealand’s High Court will change significantly, when the High Court (Improved Access to Civil Justice) Amendment Rules 2025 (“New Rules”) come into force. Under the New Rules, initial disclosure will need to include all adverse documents that the party giving disclosure knows to exist or has good reasonable to believe exist, and for which they have taken reasonable steps to check for the existence of. Initial disclosure will also need to be verified by affidavit.

A plaintiff may file amended statements of claim, with leave of the court being required in some instances (eg, where a cause of action has arisen since the filing of the statement of claim).

Once the court has accepted a statement of claim for filing, the plaintiff must serve the statement of claim and notice of proceeding on the defendant. Initial service must be in person, that is, the plaintiff must locate the defendant and bring the document to their attention unless the defendant agrees to accept service by another means (such as email). If the defendant is a legal person, service can be effected at their registered address.

The first document filed and served by each party is required to provide an address for service (generally the address of the party’s solicitor, including an email address). The party may then be served at that address.

A defendant may be served outside New Zealand: see 3.3 Jurisdictional Requirements for a Defendant.

If a defendant who has been properly served with a statement of claim fails to file a statement of defence in response, the plaintiff can apply for judgment by default. The proceeding then moves to a formal proof hearing. The defendant does not need to be notified of the hearing. The plaintiff must appear at the hearing and provide evidence to satisfy the judge that the statement of claim was properly served and that the causes of action are made out, and to enable the judge to assess any damages. The defendant may only file a statement of defence with the court’s leave.

An abbreviated procedure for judgment by default exists for liquidated demands and claims for the return of property.

New Zealand does not have a specific class actions regime. The primary mechanism for seeking collective redress is a representative action commenced under rule 4.24 of the High Court Rules 2016. This rule allows one or more persons to sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding.

A representative action may be brought in two ways:

• as of right with the consent of the other persons who have the same interest; or
• by the High Court granting an application to commence a representative action brought by the intended representative plaintiff(s).

Where leave is required, it has been routine for representative actions to be brought on an opt-in basis. In 2020, the Supreme Court of New Zealand confirmed that opt-out orders could be made in appropriate cases. Opt-in and opt-out mechanisms do not define the class of persons with the same interest on whose behalf proceedings are brought. Rather, they are used to limit membership of the class.

The principles governing the application of rule 4.24 are as follows.

• The rule should be applied to serve the interests of expedition and judicial economy. Single determination of issues that are common to class members reduces costs and duplication of effort, and avoids the risk of inconsistent findings.
• Access to justice is also important. Representative actions make claims affordable that would otherwise be unaffordable for an individual claimant. They deter misconduct by undermining the assumption that minor but widespread harm will not result in litigation.

• The test is whether the parties to be represented have the same interest in the proceeding as the named parties. “Same interest” means a significant common interest in the resolution of any question of law or fact arising in the proceeding.
• A representative order can be made for only some issues in the claim.
• It must be for the benefit of other class members that the plaintiff can sue in a representative capacity.
• The court should take a liberal and flexible attitude in determining whether there is a common interest – it is not a high threshold.
• A representative action should not:
1. be allowed where it would deprive a defendant of a defence it could have relied on in a separate proceeding against one or more class members; nor
2. allow a class member to succeed where they would not have in an individual claim.

There is no express requirement to provide clients with a cost estimate for potential litigation at the outset. A lawyer has a professional obligation, however, to inform their client of the nature and consequences of significant decisions on the conduct of litigation. This may include an obligation to advise about the likely costs associated with the litigation. If requested, a lawyer must provide a fee estimate, and inform the client promptly if it becomes apparent that the fee estimate is likely to be exceeded.

Parties can make a wide range of interlocutory (pre-trial) applications, including procedural applications about case management and discovery, and applications for interim remedies such as injunctions (see 6. Injunctive Relief).

Interlocutory applications may only be brought after any close of pleadings date fixed by the court with leave. Leave is also required to appeal against interlocutory decisions.

The New Rules provide that only certain dispositive applications will be dealt with at an early stage of a proceeding; non-dispositive applications will generally be determined at a later stage (see 4.7 Application/Motion Timeframe).

Parties can apply for early judgment on some or all issues in dispute, or to strike out the other party’s case, before trial by applying for:

• summary judgment;
• strike-out; or
• dismissal for want of prosecution.

A party must apply for summary judgment, which may be granted the court is satisfied that:

• a defendant has no defence to claim or any part of it; or
• none of the plaintiff’s claims can succeed.

The court may also give summary judgment on liability, and direct a trial about quantum.

Summary judgment is unlikely to succeed where a case turns on disputed facts. Summary judgment applications must be made at the time a statement of claim or a statement of defence is served, or at a later stage but only with leave of the court.

The court may strike out all or any part of a pleading (which sets out a parties’ claim or defence) if it:

• does not disclose any reasonably arguable claims (ie, the claim must be clearly untenable);
• is likely to cause prejudice or delay;
• is frivolous or vexations; or
• is otherwise an abuse of the court’s process.

Strike-out applications are determined on the pleaded facts, without reference to evidence.

Dismissal for want of prosecution is available where a party is guilty of inordinate and inexcusable delay that has seriously prejudiced the other party.

In addition to the early judgment applications described in 4.2 Early Judgment Applications (summary judgment, strike-out and dismissal for want of prosecution), two other dispositive applications that are commonly made before trial are:

• protest to jurisdiction (where a defendant objects to a court’s jurisdiction to hear and determine the proceeding); and
• judgment on admission (which enables a party to apply to the court for judgment on any facts admitted by the other party). This process is often used by regulators in enforcement processes where the parties have agreed that certain facts will be admitted, to enable the court to issue judgment on the relief that the parties have agreed is appropriate (eg, a pecuniary penalty).

A judge may, at any stage of a proceeding, make an order adding as plaintiff or defendant a person who ought to have been joined, or whose presence is necessary to adjudicate on and settle all questions involved in the proceeding. The order may be made upon application by a party or non-party, or of the court’s own volition, and on such terms as the court considers just. A person cannot be added as a plaintiff without that person’s consent.

A defendant can apply for an order that a plaintiff must pay a sum of money as security for the defendant’s costs where:

• the plaintiff is resident or a corporation (or a subsidiary of a corporation) incorporated outside of New Zealand; or
• there is reason to believe that the plaintiff will be unable to pay the defendant’s costs if the plaintiff is unsuccessful; and
• it is just in all the circumstances to make an order for security for costs, balancing the interests of the plaintiff and defendant.

Security for costs are typically paid into and held by the court.

Costs on defended interlocutory applications follow the costs principles that apply to substantive proceedings.

The key costs principle is that the party who fails should pay costs to the successful party. The amount of costs is determined by reference to a “scale” in the High Court Rules. The scale sets out recovery rates and time allowances for steps in a proceeding, and these vary according to the complexity of the matter. Scale costs represent a portion of a party’s actual legal costs. In rare circumstances, increased costs or indemnity costs (ie, full/solicitor-client costs) may be awarded. The courts retain an overriding discretion in relation to costs.

Ordinarily, costs on opposed interlocutory applications must be fixed at the time the interlocutory application is determined.

Currently there are no formal timeframes for the determination of interlocutory applications. Parties may request that an interlocutory application is dealt with on an urgent basis.

Under the New Rules, only a small number of interlocutory applications will be dealt with at an early stage of a High Court proceeding. These include applications to add or remove parties, for security for costs, which raise a protest to jurisdiction, for summary judgment, and to strike out. These are referred to as “dispositive” applications.

The New Rules envisage that non-dispositive applications will be filed before service of factual evidence only in exceptional circumstances, and that it will be exceptional for any such applications to be determined before a judicial issues conference.

Parties can request that an application is dealt with on an urgent basis.

At the time of writing, discovery is available in most civil proceedings. Parties must co-operate on discovery and inspection processes. The default position is that a party is required to conduct a reasonable search for and to disclose documents that are, or have been, in that party’s control and:

• on which that party relies;
• adversely affect that party’s case;
• adversely affect another party’ case; or
• support another party’s case.

In some large or complex cases, “tailored” discovery – involving more or less discovery than the “standard” discovery described above – may be ordered. A party must disclose all documents, including commercially confidential documents, in a list attached to an affidavit. Discovery does not include the taking of witness testimony.

The New Rules will abolish discovery from most civil proceedings in the New Zealand High Court, replacing it with new disclosure rules. The shift is intended to promote access to justice by reducing the complexity, time and cost often associated with discovery and with High Court civil litigation more generally. The disclosure regime will:

• require a bundle of documents, including adverse documents, to be provided for initial disclosure when a party serves their first pleading (see 3.4 Initial Complaint);
• allow further disclosure as agreed by the parties or by court order;
• allow judges to limit the extent of further disclosure; and
• require parties to file factual witness statements before any opposed further disclosure requests are resolved, except in limited circumstances.

At the time of writing, parties may apply to the court to obtain discovery from a non-party. There must be grounds for belief that a non-party has or had documents that would be discoverable if the person was a party. The documents must be relevant to issues in dispute in the proceeding, and the tests for standard or tailored discovery (see 5.1 Discovery and Civil Cases), and for proportionality, must be satisfied.

From 1 January 2026, the New Zealand High Court Rules will not contain an express power to order non-party disclosure. However, the amended rules require a judge to consider at a judicial issues conference whether any further disclosure is needed. In theory, this could include disclosure from non-parties.

Please see 5.1 Discovery and Civil Cases regarding the general approach to discovery and disclosure in New Zealand.

In some abbreviated civil proceeding processes, evidence is adduced by affidavits or an agreed statement of facts, and discovery is only available in limited circumstances. One example is judicial review applications, in which the court is asked to review decisions involving the exercise of public power. Such applications are regulated by the Judicial Review Procedure Act 2016, which provides (and will continue to provide after the New Rules come into force) that the court may order discovery and/or document production.

New Zealand recognises legal privilege. Categories of privilege commonly arising in civil litigation include the following.

• Solicitor-client privilege: for confidential communications made in the course of and for the purpose of seeking or receiving legal advice. This privilege applies to external and in-house counsel, although communications with in-house counsel will not be privileged to the extent that they do not involve legal advice.
• Litigation privilege: for documents prepared for the dominant purpose of preparing for a proceeding that has begun or is reasonably apprehended.
• Settlement negotiation privilege: for confidential communications made in connection with an attempt to settle or mediate a dispute.

The party(ies) holding the privilege may waive privilege by voluntarily disclosing or consenting to the disclosure of the information, or by putting the information in issue in the proceeding.

Under the current regime, the starting point is that parties are required to list privileged documents in their affidavit of discovery documents but are not required to provide them for inspection. Under the New Rules, privileged documents or document extracts must be described in an initial disclosure affidavit, but any privileged documents do not need to be listed in that affidavit.

Documents that meet the test for discovery (or, under the New Rules, for disclosure) and are not privileged must be disclosed. Discovery can be made subject to confidentiality restrictions in certain cases. Under the New Rules, the default position is that parties are not required to disclose confidential documents.

In addition, documents may be withheld to protect the identity of a journalist’s source, confidential information or information that might reveal a confidential source of information, or a communication or information relating to matters of state.

A party can apply for an interim or permanent injunction requiring the counterparty to take certain action, or preventing the counterparty from taking certain action. An interim injunction may be granted if:

• there is a serious question to be tried in the substantive claim; and
• the balance of convenience and overall justice favours the granting of the injunction.

At this stage of the test, the court may consider whether damages are an adequate remedy for the impugned act or omission.

Parties may apply for freezing orders, which prevent the respondent from dealing with certain property. Freezing orders may be granted where the applicant has a good arguable case on the substantive claim, and can demonstrate a risk that the respondent will dispose of assets so as to defeat the claim (for example, by moving them to another jurisdiction).

Anti-suit injunctions may be available where:

• New Zealand is the natural forum for the dispute;
• there is a strong reason to refuse relief, despite the applicant’s legitimate interest; and
• the ends of justice require an injunction to be granted.

Interim injunctive relief can be sought on an urgent basis. The applicant should advise the court of the urgent status of the application when it is filed (and ideally in advance of filing), and explain the basis for urgency in the application itself. If grounds for urgency are made out, the court may determine the application without notice. In exceptional circumstances, a judgment may be delivered within 24 hours.

Injunctive relief can be obtained without notice to the respondent. The applicant must establish a need to bring the application without notice, including urgency or a likelihood that the respondent will dissipate funds upon receiving notice of the application.

The applicant’s lawyer must certify that the application grounds are made out, and that all reasonable enquiries and steps have been made or taken to ensure that the application contains all relevant information, including any opposition, defence or facts that another party might rely on (Lawyers practising in New Zealand owe a professional obligation not to certify the truth of any matter unless they believe on reasonable grounds that the matter certified is true, after having taken appropriate steps to ensure the accuracy of the certification.)

Injunctions brought without notice are determined on an interim basis, following which the respondent has an opportunity to be heard.

A party seeking an injunction is typically required to give a signed undertaking to pay damages to compensate the other party for any damage sustained through the injunction. There is no general requirement to pay security for these damages, although a court may grant an injunction on the condition that the applicant pays security.

Injunctive relief may be granted against the worldwide assets of the respondent, with or without notice to the respondent, to prevent the respondent from removing any assets in or outside of New Zealand, or from disposing, dealing with or diminishing the value of those assets. As with other without notice procedures, an applicant must fully and frankly disclose all material facts to the court, including any possible defences. The applicant must give a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the respondent for any damage arising as a result of the freezing order.

New Zealand courts may grant injunctive relief that affects non-parties, but only in exceptional circumstances, including:

• anti-suit injunctions (to restrain the commencement or continuation of proceedings before a foreign court);
• anti-enforcement injunctions (restraining a party from enforcing a judgment obtained in a foreign jurisdiction); and
• asset preservation and proprietary orders.

In November 2025, the Supreme Court reinstated worldwide anti-suit and anti-enforcement injunctions granted by the High Court (and discharged by the Court of Appeal) in relation to a default judgment obtained in Kentucky (Kea Investments Ltd v Wikeley [2025] NZSC 156).

Failure to comply with an injunction, or an undertaking given in lieu of an injunction, is a contempt of court. A finding of contempt may be enforced not only against a party, but also against a non-party or other person bound by the order or undertaking. The court must only enforce a finding of contempt of court if it is satisfied beyond reasonable doubt that:

• the order has been made in clear, unambiguous terms;
• the respondent had proper notice of those terms; and
• the respondent knowingly failed to comply with the order without reasonable excuse.

If so satisfied, the court may impose a fine or a sequestration order, order the arrest and imprisonment of a person, and/or order a person to complete community work.

In ordinary civil proceedings, a trial process is currently as follows.

• The plaintiff files written opening submissions shortly before trial.
• The plaintiff delivers an opening argument.
• The plaintiff calls their fact and/or expert witnesses, who:
1. read their written evidence into the record and/or give their evidence in chief orally;
2. may be cross-examined by the defendant; and
3. may be re-examined by the plaintiff only on matters arising from cross-examination.
• The defendant files a short written opening and delivers an opening argument.
• The defendant calls their fact and/or expert witnesses (following the same process as for the plaintiff’s witnesses).
• The defendant and then the plaintiff deliver closing submissions.

The same process will apply under the New Rules, except in ordinary proceedings the default process will be streamlined in the following ways:

• the plaintiff and the defendant must file opening submissions before the trial;
• evidence in chief may be in the form of a witness statement;
• a party may raise with the judge whether or to what extent they need to cross-examine any witness; and
• each party may only call one expert witness on a particular topic (with experts being required to conference before trial).

Most defended proceedings are subject to case management. Where a proceeding is subject to case management, the parties are usually required to file a joint memorandum or separate memoranda addressing case management matters within a certain time after a defence being filed. Such matters may include:

• issues arising from the pleadings or parties;
• proposed discovery orders and timetable;
• any interlocutory applications;
• readiness for trial;
• timetable directions to trial;
• hearing requirements; and
• anything else discussed between the parties.

Parties are expected to have conferred on these matters before filing a memorandum.

The court may then direct a case management conference to address those matters, or allocate a trial date and make any directions to ready the proceeding for trial. Further case management conferences, issues conferences and pre-trial conferences may also be convened.

Under the New Rules, the default position for ordinary proceedings is that the first judicial conference will be held after the parties have exchanged factual witness statements. Parties must file position papers and a bundle of key materials for the conference. Case management conferences may also be scheduled by the court of its own initiative or on the application of a party, but will cease to be a standard feature of the pre-trial process.

Jury trials are only available in civil cases for defamation, false imprisonment or malicious prosecution. Such proceedings must be heard by a jury if either party requests it, unless the judge considers that the trial is likely to involve complex questions of law that are not appropriate for trial by jury.

The starting point is that relevant evidence (ie, evidence that has a tendency to prove or disprove anything of consequence to the determination of the proceeding) is admissible. However, relevant evidence must be excluded if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on or needlessly prolong the proceeding.

These general rules are given more specific expression in relation to (for example):

• (non-expert) opinions, which are admissible if necessary to help a witness express something they heard, saw or otherwise experienced;
• hearsay, which is only admissible if the circumstances provide reasonable assurance that it is reliable;
• veracity evidence, which is only admissible if it is substantially helpful to the court;
• previous consistent statements of a witness, which are admissible only in certain circumstances; and
• evidence of uncommunicated subjective intentions of contractual parties’ views of a contract.

Expert evidence is admissible if the judge or jury is likely to obtain substantial help from the expert in understanding other evidence in the proceeding, or ascertaining any relevant fact. Experts are subject to an overriding duty to assist the court impartially on relevant matters within their expertise: they must not be advocates for the party who engages them.

Most expert evidence is called by the parties. Judges may appoint an independent expert, however, on their own initiative, to inquire into and report back on any question of fact. The court may also direct the parties’ experts to participate in a conference in the absence of the parties’ lawyers, attempt to reach agreement, and produce a joint report on the matters on which they agree and continue to disagree, including the reasons for their disagreement.

Under the New Rules, the default position is that a party may call only one expert per topic, and experts must conference before trial, as noted in 7.1 Trial Proceedings.

As set out in 1.3 Court Filings and Proceedings, the principle of open justice means that hearings are usually open to the public. Judicial decisions are a matter of public record, and the names of parties to proceedings may be published prior to the hearing.

The High Court may exclude the public from a hearing, including where legislation confers a discretion to do so and under its inherent jurisdiction, frequently to protect sensitive information or privacy. Orders excluding the public or restricting publication must not go further than necessary to protect those interests. Generally, the threshold for excluding the public is high, given the importance of the principle of open justice.

Judges may clear criminal courts where necessary to avoid prejudice to fair trial rights, maintenance of the law, the safety of any person, or national security.

Transcripts of Supreme Court oral arguments are typically published online; most other hearings are not transcribed and/or published online. A person seeking to have a transcript prepared must obtain the leave of the court by demonstrating a “good reason in the interests of justice” for that transcript to be prepared.

A feature of the adversarial common law system is that the judge’s role is that of a procedural referee during trial, primarily tasked with ensuring that the trial is conducted, and evidence adduced, in a lawful way.

Judges are also able to ask witnesses any questions that justice requires, although in practice this is usually limited to clarification of the witness’s evidence. The parties then have a right to cross or re-examine the witness on the matters raised by the judge.

In most civil cases, judgment is reserved and given at a later date, along with detailed written reasons. Oral judgments delivered immediately after a hearing are increasingly rare. On occasion, a results judgment may be given in advance of reasons.

See 1.2 Court System regarding the average timeframe between commencement of a complex High Court civil proceeding and trial. That timeframe may depend on the complexity of the proceeding (including the number of parties and interlocutory steps), the length of trial and when the court can accommodate it. Simple claims may be determined much more quickly.

The typical duration of hearings that do not involve oral evidence from witnesses is a matter of days. Trials for complex commercial disputes, especially those involving expert evidence, can take weeks or months.       

Court approval (leave) is not required to settle a lawsuit, except where:

• an interim order (eg, an interim injunction) has been granted;
• an undertaking has been given to the court;
• the terms of a representative order (see 3.7 Representative or Collective Actions) provide that the representative action be settled or discontinued only with leave of the court;
• a plaintiff wishes to discontinue a proceeding in which there is more than one plaintiff (in which case, leave or the consent of the other plaintiff(s) is required); or
• a plaintiff wishes to discontinue a proceeding against a particular defendant(s) where there is more than one defendant (in which case, leave or the consent of the other defendant(s) is required).

Parties can agree that a settlement will remain confidential. Typically, the court will only be informed that the matter has settled, and that the proceeding is discontinued. The fact that the proceeding has been discontinued, however, is not confidential.

Where the terms of a settlement have been recorded in an agreement and a party breaches the terms, the other party may sue for breach of contract, subject to any alternative dispute resolution mechanisms contained in the agreement.

Alternatively, the parties may use a Tomlin order to formalise the settlement of proceedings. The parties agree on the terms of settlement and submit them to the court for approval, often resulting in the proceedings being stayed except for the purpose of enforcing the settlement terms.

A settlement agreement may be set aside on the same grounds as any other contract, such as mistake and misrepresentation.

Civil remedies that a court may award include:

• damages;
• prohibitory or mandatory injunctions;
• specific performance (requiring the defendant to perform a contract);
• restitution or accounts for profits (requiring the defendant to pay the successful plaintiff the amount by which they have benefitted from their wrongdoing);
• freezing and seizing orders (including charging orders, caveats, search orders and preservation of property orders);
• proprietary remedies (including constructive or resulting trusts, equitable liens, subrogation and recission);
• contribution; and
• declaratory relief.

An award of damages will attempt to put the plaintiff in the position they would have been in had a contract been performed, or had a tort not been committed (subject to the steps the plaintiff took or should have taken to mitigate loss).

Damages are intended to compensate a party for the losses they have actually suffered. Depending on what is appropriate in the circumstances, a plaintiff may elect to seek damages on an expectation or reliance basis. Beyond these principles, there are few proscriptive rules governing the calculation of damages.

Punitive or exemplary damages are available where the defendant’s conduct is egregious, requiring condemnation and/or deterrence. Such damages are awarded rarely, and with care to avoid double punishment for the same conduct.

A clause stipulating a consequence for breach of a contractual term will be unenforceable if the consequence is out of all proportion to the legitimate interests of the innocent party in performance of the primary obligation. Legitimate interests in performance include an interest in enforcing performance or some appropriate alternative to performance. A consequence will be out of all proportion if it is exorbitant when compared with those legitimate interests.

Because New Zealand has a state-provided accident compensation scheme, compensatory damages for personal injury may not be claimed.

Under the Interest on Money Claims Act 2016, the courts are generally required to award interest in every money judgment as compensation for delay in payment, including the period before judgment, unless the Act expressly provides otherwise. The period for calculating interest begins on the day the cause of action arose or, if the amount was not quantified, on a later specified date, and ends when the judgment debt is paid in full. Under the Act, interest may not be claimed on costs awarded nor on exemplary damages ordered before the dates on which costs are awarded or judgment is given for exemplary damages.

Interest is calculated using an online calculator, which uses simple interest based on recent observations of the retail six-month term deposit rate, plus a small premium. This interest rate applies unless another statute applies or the parties have agreed on a different interest rate for breach of contract (provided the agreed interest rate is not an unenforceable penalty).

Domestic judgments can be enforced using enforcement orders, as follows.

• Charging orders prevent a judgment debtor from disposing of property (land or personal property) so as to defeat a judgment creditor’s claim. They are a precursor to rather than a means of enforcement.
• Attachment orders require the debtor’s employer to pay the creditor a proportion of the debtor’s income. This payment must not prevent the debtor from paying necessary day-to-day expenses. The creditor must first cross-examine the debtor in court to determine an amount they can afford to pay.
• Sale and possession orders permit a court enforcement officer to take possession of and sell the property of the debtor to compensate the creditor.
• Sequestration orders authorise the sequestrator to enter and take possession of all real and personal property of the person against whom it is directed, and to obtain the rents and profits from it pending compliance.
• In extreme cases, arrest orders are available for contempt of court for persistently failing to comply with a court order (as noted in 6.7 Consequences of a Respondent’s Non-Compliance). Committal warrants may be used to commit a person to a term of imprisonment not exceeding six months. Fines or community work may also be ordered.

The procedure for enforcing a foreign judgment in New Zealand varies depending on the origin of the judgment.

• For judgments from a country covered by the Reciprocal Enforcement of Judgments Act 1934, the person seeking to enforce the judgment must apply to the High Court to register a judgment. Registration may be set aside for reasons such as fraud or if enforcement would be contrary to New Zealand public policy.
• For Commonwealth country judgments except for Australia, a memorial must be filed in the High Court (without notice) to register the judgment as a New Zealand judgment under the Senior Courts Act 2016.
• For judgments from Australian courts, the judgment must be registered in a New Zealand court under the Trans-Tasman Proceedings Act 2010.
• For judgments not covered by these enactments, enforcement may be available at common law.

Ordinarily, judgments can be appealed from the District Court to the High Court, from the High Court to the Court of Appeal, and from the Court of Appeal to the Supreme Court. Leave may be required for a second appeal. Leave is always required for appeals to the Supreme Court. Decisions of specialist courts and tribunals, and certain decisions of regulators like the Commerce Commission, are also appealed to specific courts.

As an alternative to an appeal, a party may apply to the High Court to judicially review a decision of a tribunal or inferior court. A judicial review is concerned with the decision-making process rather than the merits of the decision itself.

If a court makes an uncontroversial error, such as a typographical mistake or incorrect calculation, a party may apply to recall the judgment. If, however, a party considers the judge has come to an incorrect decision on the facts or law, that is properly the subject of an appeal.

If there is no right of appeal, an intended appellant must seek leave of the court to bring an appeal, including when:

• appealing a procedural/interlocutory decision;
• bringing a second appeal (against a decision of the High Court made on appeal from the District Court); and
• bringing any appeal to the Supreme Court.

An applicant for leave to appeal to the High Court or Court of Appeal must identify an arguable error in the judgment that is of such significance (to the applicant or the public) as to warrant incurring further delay. This is a high threshold. Leave will only be granted if it is in the interests of justice.

The threshold is higher for a second appeal, particularly for leave to appeal to the Supreme Court, which will only be granted if hearing the appeal is necessary in the interests of justice (ie, it involves a matter of general importance or commercial significance, or to avoid a substantial miscarriage of justice).

The procedure for taking an appeal depends on the specific court, tribunal or authority involved, as well as any relevant legislation. Generally, the process begins by filing a notice of appeal or an application for leave to appeal in the appropriate court or tribunal.

The timeframe for lodging an appeal is typically governed by the enactment conferring the right of appeal or, if the enactment is silent, by the applicable court rules.

The triggering event for the appeal period is usually the date the decision appealed against is given or communicated to the appellant, regardless of when reasons are provided or when formal steps, such as entering or sealing the decision, occur.

Appeals are often by way of rehearing. This means the appeal court is able to consider all the material presented to the original decision-maker and come to its own judgment. This evidence is presented to the appeal court by way of a transcript of the original hearing; the court does not hear from the witnesses directly a second time. New evidence will only be admitted, with leave of the appeal court, where there are special reasons for doing so.

The appeal court may defer to the original decision-maker on its assessment of the credibility of witnesses (having heard from them first hand) or its assessment of the facts, if the original decision-maker is an expert body.

Where the decision under appeal involves the exercise of judicial discretion, the appellant must show that the judge erred in law, failed to consider a relevant point (or considered an irrelevant point) or was plainly wrong.

Certain decisions may only be appealed on points of law, including decisions of the Environment Court and Immigration Tribunal.

New Zealand courts typically have the power to make any order they think just on granting an appeal or leave to appeal, including by imposing conditions. Conditions commonly include payment of security for costs, but may also include any other requirements the court considered appropriate in the circumstances.

New Zealand appellate courts have broad powers to make any order they think just. In general, when granting an appeal, the appellate court will quash the decision of the court at first instance (in whole or in part) and substitute its own. An appellate court may also direct the first instance court to rehear the matter (or any part of the matter).

Parties are responsible for paying their own litigation costs, including legal fees and court filing and hearing fees, unless they arrange other funding.

Where a party is successful, they are usually entitled to scale costs and disbursements (see 4.6 Costs of Interim Applications/Motions). The court has broad discretion as to costs, and may reduce scale costs or increase a costs award up to the actual costs, disbursements and witness expenses reasonably incurred by a party (see 11.2 Factors Considered When Awarding Costs).

Disbursements are expenses incurred for a proceeding that would ordinarily be charged separately from legal professional services in a solicitors’ bill of costs. They include court fees and expert witness fees.

The courts often encourage parties to agree the costs and disbursement to be paid. If agreement cannot be reached, the parties may be invited to make brief written submissions, for the court to determine on the papers.

Costs decisions may be appealed. The appellant must show an error of law or that the decision was clearly wrong.

Costs are at the discretion of the court, which will apply general principles to the determination of costs, including that:

• the party who fails should pay costs to the party who succeeds;
• costs should be assessed by the methodology described in 11.1 Responsibility for Paying the Costs of Litigation;
• an award of costs should not exceed the costs actually incurred by the party; and
• costs determinations should be predictable and expeditious.

The court may reduce or award no costs if:

• the losing party brought or defended the proceeding in the public interest (for example, knowing the outcome of the proceeding would set an important precedent);
• the successful party was only partially successful, and was unsuccessful on points that increased the time and cost of the proceeding; or
• the successful party otherwise increased the time and cost of the proceeding by its conduct – for example, by failing to comply with court rules, or failing to accept a reasonable settlement offer.

The court may increase costs, up to all of the costs reasonably incurred by the successful party, if (for example):

• the nature of the proceeding or step in it is such that the time required substantially exceeded the time allocated under the costs methodology;
• the party opposing costs contributed unnecessarily to the time and cost of the proceeding or a step in it; or
• a contract between the parties provides for increased costs.

Interest may be awarded on costs awards. It is calculated using the online calculator (see 9.3 Pre-Judgment and Post-Judgment Interest), running from the date costs were awarded.

ADR is widely recognised and actively encouraged as a means of resolving disputes that is often faster and cheaper than litigation, and may also ensure confidentiality. For example, mediation is a cornerstone of employment dispute resolution, with around 70% of employment disputes being resolved through mediation. Adjudication for construction contract disputes is enshrined in statute.

Before a first case management conference, parties are required to consider whether ADR is suitable to facilitate settlement prior to trial. A judge may also convene a judicial settlement conference for the purpose of assisting the parties in negotiating a settlement.

Under the New Rules, the High Court will consider at a judicial issues conference whether any steps should be taken to settle the dispute by means of ADR and, if not:

• why that is the case;
• whether there are any steps that can be taken to maximise the chances that the dispute can be resolved through ADR or otherwise; and
• whether there are any steps that should be taken to minimise the matters in dispute through ADR or otherwise.

A number of private institutions offer ADR, including the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ) and the New Zealand Dispute Resolution Centre. Contractual ADR clauses often provide for the appointment of a mediator or arbitrator by the parties’ agreement, or by (for example) the President of AMINZ if no agreement is reached after a period of time.

The conduct of arbitration is governed by the Arbitration Act 1996, which adopts the UNCITRAL Model Law. The Arbitration Act provides for a mandatory set of rules for both domestic and international arbitrations, and a number of optional rules that can be adopted in domestic arbitrations on the agreement of the parties. Among these are the option to refer preliminary questions of law to the High Court, and the right to appeal to the High Court on questions of law. If the parties opt out of these rules, an arbitral award can only be challenged as described in 13.3 Circumstances to Challenge an Arbitral Award.

There are specific subject matters that may not be referred to arbitration in New Zealand. The High Court may set aside an arbitral award if it finds that the subject matter of the dispute is not capable of settlement by arbitration under New Zealand law, or if the award is in conflict with the public policy of New Zealand.

Unless the parties to a domestic arbitration have agreed to the right to appeal on questions of law, there is no right to appeal or apply for judicial review of an arbitral award in court.

A party may apply to the High Court to have an arbitral award set aside. This requires proof of some procedural irregularity in the making of the award. Examples of procedural irregularities include that the party was not given notice of the arbitration or allowed to present its case, and that the award went beyond the terms of the dispute submitted to arbitration. The High Court may also set aside an arbitral award if the dispute was not capable of arbitration, or if the award is inconsistent with New Zealand public policy.

Upon being served with an application to enforce an arbitral award, a party may file its own application seeking an order refusing recognition and enforcement of the award. Until this application is determined, the original enforcement application is stayed.

There is one procedure for enforcing foreign and domestic arbitral awards in New Zealand. Awards may be entered as a judgment of the High Court by letter to the court registry, with the agreement of all parties.

As highlighted throughout this chapter, the New Rules amount to a sea change in the way that civil litigation is conducted in the New Zealand High Court. They are designed to disincentivise current practices that impede an efficient and effective civil justice system by, for example:

• abolishing discovery in ordinary proceedings;
• requiring parties to serve their factual evidence at the outset; and
• using judicial issues conferences to seek to narrow the issues in dispute and to promote ADR.

The New Rules come into force on 1 January 2026.

Class actions are a key area of growth for commercial disputes, notwithstanding the absence of a specific statutory class actions regime. That growth may be enhanced by a 2024 Court of Appeal judgment confirming that the High Court has jurisdiction to make common fund orders (CFOs) (Simons v ANZ). CFOs address the issue of “free rider” claimants who get the benefit of a successful outcome in a class action without contributing to a funder’s costs. CFOs address this issue by imposing payment terms agreed by a litigation funder and signed-up class members on all class members.

Two other areas likely to see growth in the near future are:

• climate change-related litigation, buoyed by a 2024 Supreme Court decision overturning a decision to strike out a statement of claim alleging tort causes of action against greenhouse gas emitters or makers of greenhouse gas-emitting products (Smith v Fonterra); and
• litigation drawing on tikanga Māori (the customs, practices and values of Māori), following the Supreme Court’s decision in Ellis v R, which emphasised the role of tikanga in developing the New Zealand common law.