78. Limitation not barred by claims subsequently arising
[Repealed]
79. Absence beyond seas or imprisonment of a creditor not to be a disability
[Repealed]
80. Period of limitation to run as to joint debtors in New Zealand, though some are beyond seas
[Repealed]
81. Judgment recovered against joint debtors in New Zealand to be no bar to proceeding against others beyond seas after their return
[Repealed]
82. Part payment by one contractor, etc, not to prevent bar in favour of another contractor, etc
[Repealed]
Subpart 3. Sureties
83. Consideration for guarantee need not appear by writing
[Repealed]
84. A surety who discharges the liability to be entitled to assignment of all securities held by the creditor
Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, pays or satisfies such debt or performs such duty shall be entitled to have assigned to him, or a trustee for him, every judgment, specialty, or other security held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security is or is not deemed at law to be satisfied by the payment of the debt or performance of the duty.
85. Rights of surety in such case
Every such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and if need be, and upon a proper indemnity, to use the name of the creditor in any civil proceedings in order to obtain from the principal debtor or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person paying or satisfying such debt or performing such duty.
Such payment, satisfaction, or performance made by such surety shall not be pleadable in bar of any such action or other proceeding by him.
86. Rights of co-sureties, etc, as between themselves
A co-surety, co-contractor, or co-debtor shall not be entitled to recover from any other co-surety, co-contractor, or co-debtor by the means aforesaid more than the just proportion to which, as between those parties themselves, such last-mentioned person is justly liable.
Subpart 4. Interest on money
87. Interest on debts and damages
In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:provided that nothing in this subsection shall—
authorise the giving of interest upon interest; or
apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement, enactment, or rule of law, or otherwise; or
affect the damages recoverable for the dishonour of a bill of exchange.
In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt upon which interest is payable as of right, and in respect of which the rate of interest is not agreed upon, prescribed, or ascertained under any agreement, enactment, or rule of law or otherwise, there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as the court thinks fit for the period between the date as from which the interest became payable and the date of the judgment.
In this section the term the prescribed rate means the rate of 7.5% per annum, or such other rate as may from time to time be prescribed for the purposes of this section by the Governor-General by Order in Council.
Subpart 5. Lost instruments
88. Actions on lost instruments
In case of any action founded on any negotiable instrument, the court may order that the loss of such instrument shall not be taken advantage of, provided an indemnity is given to the satisfaction of the court or a Registrar thereof against the claims of any other person upon such negotiable instrument.
Subpart 6. Continued exercise of powers by judicial officers
88A. Judicial officers to continue in office to complete proceedings
A judicial officer whose term of office has expired or who has retired may continue in office for the purpose of determining, or giving judgment in, proceedings that the judicial officer has heard either alone or with others.
A judicial officer must not continue in office under subsection (1) for longer than a month without the consent of the Minister of Justice.
The fact that a judicial officer continues in office does not affect the power to appoint another person to that office.
A judicial officer who continues in office is entitled to be paid the remuneration and allowances to which the officer would have been entitled if the term of office had not expired or the officer had not retired.
In this section, judicial officer means a person who has in New Zealand authority under an enactment to hear, receive, and examine evidence.
Subpart 7. Miscellaneous provisions and rules of law
88B. Restriction on institution of vexatious actions
If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any court and that any civil proceeding instituted by him in any court before the making of the order shall not be continued by him without such leave.
Leave may be granted subject to such conditions (if any) as the court or Judge thinks fit and shall not be granted unless the court or Judge is satisfied that the proceeding is not an abuse of the process of the court and that there is prima facie ground for the proceeding.
No appeal shall lie from an order granting or refusing such leave.
89. Administration suits
[Repealed]
90. Stipulations not of the essence of contracts
Stipulations in contracts as to time or otherwise which would not, before 13 September 1882 (the date of the coming into force of the Law Amendment Act 1882), have been deemed to be or to have become the essence of such contracts in a court of equity shall receive in all courts the same construction and effect as they would have theretofore received in equity.
91. Damages by collision at sea
[Repealed]
92. Discharge of debt by acceptance of part in satisfaction
An acknowledgement in writing by a creditor, or by any person authorised by him in writing in that behalf, of the receipt of a part of his debt in satisfaction of the whole debt shall operate as a discharge of the debt, any rule of law notwithstanding.
93. Provisions of 9 Geo IV, c 14, ss 1 and 8, extended to acknowledgments by agents
[Repealed]
94. Judgment against one of several persons jointly liable not a bar to action against others
A judgment against 1 or more of several persons jointly liable shall not operate as a bar or defence to civil proceedings against any of such persons against whom judgment has not been recovered, except to the extent to which the judgment has been satisfied, any rule of law notwithstanding.
94A. Recovery of payments made under mistake of law
Subject to the provisions of this section, where relief in respect of any payment that has been made under mistake is sought in any court, whether in civil proceedings or by way of defence, set off, counterclaim, or otherwise, and that relief could be granted if the mistake was wholly one of fact, that relief shall not be denied by reason only that the mistake is one of law whether or not it is in any degree also one of fact.
Nothing in this section shall enable relief to be given in respect of any payment made at a time when the law requires or allows, or is commonly understood to require or allow, the payment to be made or enforced, by reason only that the law is subsequently changed or shown not to have been as it was commonly understood to be at the time of the payment.
94B. Payments made under mistake of law or fact not always recoverable
Relief, whether under section 94A or in equity or otherwise, in respect of any payment made under mistake, whether of law or of fact, shall be denied wholly or in part if the person from whom relief is sought received the payment in good faith and has so altered his position in reliance on the validity of the payment that in the opinion of the court, having regard to all possible implications in respect of other persons, it is inequitable to grant relief, or to grant relief in full, as the case may be.
95. Limitation of time within which wills may be impeached
[Repealed]
96. Jurisdiction as to costs in administration suits
[Repealed]
97. Court empowered to grant special relief in cases of encroachment
[Repealed]
98. Custody and education of infants
[Repealed]
98A. Proceedings in lieu of writs
Where, immediately before the commencement of the Judicature Amendment Act (No 2) 1985,—
the court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari, or any other description; or
in any proceedings in the court for any relief or remedy any writ might have issued out of the court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the court or of course,—
then, after the commencement of that Act,—
the court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
the court shall not issue any such writ; and
the court shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the High Court Rules; and
proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the High Court Rules.
Subject to the High Court Rules, this section does not apply to—
the writ of habeas corpus; or
any writ of execution for the enforcement of a judgment or order of the court; or
any writ in aid of any such writ of execution.
99. In cases of conflict rules of equity to prevail
Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter the rules of equity shall prevail.
99A. Costs where intervener or counsel assisting court appears
Where the Attorney-General or the Solicitor-General or any other person appears in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make such order as it thinks just—
as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or
as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or
as to the payment by the Attorney-General or the Solicitor-General or that other person of any costs incurred by any of those parties by reason of his so doing.
Where the court makes an order pursuant to subsection (1)(b), the Registrar of the court shall forward a copy of the order to the chief executive of the Ministry of Justice who shall make the payment out of money appropriated by Parliament for the purpose.
99B. Technical advisers
The Court of Appeal or the Supreme Court may appoint a suitably qualified person (a technical adviser) to assist it by giving advice in an appeal in a proceeding involving a question arising from evidence relating to scientific, technical, or economic matters, or from other expert evidence, if the court is of the opinion that, in considering the evidence, it is desirable to have expert assistance.
The technical adviser must give the advice in such manner as the court may direct during the course of the proceeding on any question referred to the technical adviser.
Advice given by a technical adviser—
is information provided to the court; and
may be given such weight as the court thinks fit.
[Repealed]
99C. Appointment and other matters
A technical adviser may be appointed by the Court of Appeal on its own initiative or on the application of a party to the proceeding.
A technical adviser may be removed from office by the Court of Appeal for disability affecting performance of duty, neglect of duty, bankruptcy, or misconduct proved to the satisfaction of the court.
A technical adviser may resign office by notice in writing to the Court of Appeal.
The remuneration of a technical adviser must—
be fixed by the Court of Appeal; and
include a daily fee for any day on which the technical adviser is required to assist the court.
Civil or criminal proceedings may not be commenced against a technical adviser in relation to advice given to the Court of Appeal in good faith under section 99B.
99D. Procedure and rules relating to technical advisers
The Court of Appeal may adopt any procedures and practices in relation to the advice of a technical adviser as it considers just, but those procedures and practices are subject to any rules referred to in subsection (2).
Rules may be made under section 51C relating to—
the appointment of technical advisers, including (without limitation)—
the information to be given to the parties to an appeal, before a technical adviser is appointed for the appeal,—
about the persons who are considered suitable for appointment; and
about the matters on which the assistance of the proposed technical adviser is to be sought:
the submissions that those parties may make to the Court of Appeal about the proposed appoint- ment of a technical adviser and the assistance to be given by the technical adviser:
the conduct of proceedings involving technical advisers.
100. Independent medical examination
Where the physical or mental condition of a person who is a party to any civil proceedings is relevant to any matter in question in those proceedings, the High Court may order that that person submit himself to examination at a time and place specified in the order by 1 or more medical practitioners named in the order.
A person required by an order under subsection (1) to submit to examination may have a medical practitioner chosen by that person attend that person’s examination.
The court may order that the party seeking the order pay to the person to be examined a reasonable sum to meet that person’s travelling and other expenses of and incidental to the examination, including the expenses of having a medical practitioner chosen by that person attend that person’s examination.
Where an order is made under subsection (1), the person required by that order to submit to examination shall do all things reasonably requested, and answer all questions reasonably asked of that person, by the medical practitioner for the purposes of the examination.
If a person ordered under subsection (1) to submit to examination fails, without reasonable excuse, to comply with the order, or in any way obstructs the examination, the court may, on terms, stay the proceedings or strike out the pleading of that person.
This section applies to the Crown and every department of the public service.
Nothing in this section affects the provisions of the Workers’ Compensation Act 1956.
100A. Regulations
Notwithstanding anything in sections 51 and 51C, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
prescribing the matters in respect of which fees are payable under this Act:
prescribing scales of fees for the purposes of this Act and for the purposes of any proceedings before the High Court or the Court of Appeal, whether under this Act or any other enactment:
prescribing the fees, travelling allowances, and expenses payable to interpreters and to persons giving evidence in proceedings to which this Act applies:
in order to promote access to justice, empowering Registrars or Deputy Registrars of the High Court and the Court of Appeal to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund, in whole or in part, such a fee that has already been paid, if satisfied on the basis of criteria specified under paragraph (da) that—
the person otherwise responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued:
prescribing, for the purposes of the exercise of a power under paragraph (d), the criteria—
for assessing a person’s ability to pay a fee; and
for identifying proceedings that concern matters of genuine public interest:
empowering Registrars or Deputy Registrars of the High Court and the Court of Appeal to postpone the payment of a fee pending the determination of—
an application for the exercise of a power specified in paragraph (d); or
an application for review under section 100B:
making provision in relation to the postponement, under the regulations, of the payment of any fee, which provision may (without limitation) include provision—
for the recovery of the fee after the expiry of the period of postponement; and
for restrictions to apply (after the expiry of the period of postponement and so long as the fee remains unpaid) on the steps that may be taken in the proceedings in respect of which the fee is payable:
providing for the manner in which an application for the exercise of a power specified in paragraph (d) or paragraph (db) is to be made, including, without limitation, requiring such an application to be in a form approved for the purpose by the chief executive of the Ministry of Justice:
altering or revoking any rules relating to fees contained in the High Court Rules or the Court of Appeal Rules or any other rules of court.
No fee is payable for an application for the exercise of a power specified in subsection (1)(d) or (db).
100B. Reviews of decisions of Registrars concerning fees
Any person who is aggrieved by any decision of a Registrar or Deputy Registrar under regulations made under section 100A(d) may apply for a review,—
in the case of a decision by the Registrar or a Deputy Registrar of the Court of Appeal, to a Judge of that court:
in the case of a decision by a Registrar or Deputy Registrar of the High Court, to a Judge or an Associate Judge of that court.
An application under subsection (1) may be made within 20 working days after the date on which the applicant is notified of the decision of the Registrar or Deputy Registrar, or within any further time that the Judge or Associate Judge allows on application made for that purpose either before or after the expiration of those 20 working days.
Applications under this section may be made on an informal basis.
Reviews under this section are—
conducted by way of rehearing of the matter in respect of which the Registrar or Deputy Registrar made the decision; and
dealt with on the papers, unless the Judge or Associate Judge directs otherwise.
On dealing with an application for a review of a decision of a Registrar or Deputy Registrar, the Judge or Associate Judge may confirm, modify, or reverse the decision of the Registrar or the Deputy Registrar.
No fee is payable for an application under this section.
101. Words imputing unchastity to women actionable without special damage
[Repealed]
Schedule 1. Enactments Consolidated
[Schedule 1 omitted due length – full text is available online at: http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147652.html?search=ts_act%40bill%40regulation%40deemedreg_judicature+act_resel_25_a&p=1]
Schedule 2. High Court Rules
[Schedule 2 omitted due length – full text is available online at: http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147653.html?search=ts_act%40bill%40regulation%40deemedreg_judicature+act_resel_25_a&p=1]
Schedule 3. Rules of the Court of Appeal
[Repealed]
Amendment Act 1. Judicature Amendment Act 1910
Public Act: 1920 No 27
Date of assent: 21 November 1910
Commencement: 21 November 1910
1. Short Title
This Act may be cited as the Judicature Amendment Act 1910, and shall form part of and be read together with the Judicature Act 1908.
3. Execution of instruments by order of the High Court
Where any person neglects or refuses to comply with a judgment or order of the High Court or Court of Appeal directing him to execute any conveyance, contract, or other document, or to indorse any negotiable instrument, the High Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed or that such negotiable instrument shall be indorsed by such person as the High Court may nominate for that purpose; and in such case the conveyance, contract, document, or instrument so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it.
This section shall not affect any action or other proceeding already commenced in any court, or invalidate anything heretofore lawfully done, or validate anything already declared to be invalid in any proceedings heretofore taken in any court.
4. Court or Judge to have discretion in cases coming within paragraphs (c) and (d) of section 3 of the Imprisonment for Debt Limitation Act 1908
In any case coming within the exceptions specified in paragraphs (c) and (d) of section 3 of the Imprisonment for Debt Limitation Act 1908, or within either of those exceptions, any court or Judge making the order for payment, or having jurisdiction in the action or proceeding in which the order for payment is made, may inquire into the case, and (subject to the provisoes contained in the said section 3) may grant or refuse, either absolutely or upon terms, any application for a writ of attachment, or other process or order of arrest or imprisonment, and any application to stay the operation of any such writ, process, or order, or for discharge from arrest or imprisonment thereunder.
Amendment Act 2. Judicature Amendment Act 1952
Public Act: 1952 No 24
Date of assent: 16 October 1952
Commencement 16: October 1952
1. Short Title
This Act may be cited as the Judicature Amendment Act 1952, and shall be read together with and deemed part of the Judicature Act 1908 (hereinafter referred to as “the principal Act”).
2. Offices of the High Court
Amendment(s) incorporated in the Act(s).
Every office of the court heretofore established shall be deemed to have been lawfully established.
Amendment Act 3. Judicature Amendment Act 1972
Public Act: 1972 No 130
Date of assent: 20 October 1972
Commencement 20: October 1972
1. Short Title
This Act may be cited as the Judicature Amendment Act 1972, and shall be read together with and deemed part of the Judicature Act 1908 (hereinafter referred to as “the principal Act”).
Please check out our other thought-provoking articles if you did like this one:
