NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
relevant material to the application, including facts that would support the position of another party. 10.2 Alternative Dispute Resolution Following Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649 (HC), it has been understood that arbitra - tion and other alternative dispute resolution is avail - able to determine private Commerce Act 1986 dis - putes, although arbitral tribunals do not have access to the full range of private remedies under the Com - merce Act. Furthermore, if parties were to seek to give effect to an anti-competitive arrangement through arbitration, it could be expected that the matter would be found not to be arbitrable. Alternative dispute resolution is not mandated under the Commerce Act (aside from negotiate/arbitrate reg - ulation in relation to certain regulated goods and ser - vices), but is mandated or enabled by sector-specific legislation. For example: • under the Fuel Industry Act 2020, disputes relat - ing to terminal gate pricing and fixed wholesale contractual terms (including Section 19, “Whole - sale contractual terms that limit ability of reseller to compete”) must be referred to mediation and then arbitration; and • under the Grocery Industry Competition Act 2023, suppliers or wholesale customers that are party to a dispute with a regulated grocery retailer may refer the dispute to the dispute resolution scheme provided for under the statute in certain circum - stances. There is no statutory regulation of litigation funding in New Zealand, which has led to uncertainty about the circumstances in which it is permitted. Historical - ly, the New Zealand courts considered that litigation funding offended the torts of champerty and mainte - nance, but the courts have since moved on from this position and have acknowledged the role that third- party litigation funding plays in facilitating access to justice. The courts now consider the permissibility of litigation funding by considering whether it amounts 11. Funding and Costs 11.1 Litigation Funding
to an abuse of process. In Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91, the Supreme Court held that a funding agreement would be an abuse of process if it amounted to an assign - ment of a cause of action to a third-party funder in circumstances where this was not permissible. A plaintiff who is funded by a third-party litigation funder is required to disclose the fact that there is a litigation funder, the identity of that litigation funder, and whether or not that funder is subject to the juris - diction of the New Zealand courts. Courts must also be advised if new funding arrangements are entered into at a later stage of the proceedings. 11.2 Costs Costs The New Zealand High Court Rules 2016 contains a sophisticated costs regime (and the rules of the Court of Appeal and, to a lesser extent, the Supreme Court contain similar costs regimes). The costs are at the discretion of the Court, but costs awards reflect a series of general principles applying to the determi - nation of costs, as follows. • The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. • An award of costs should reflect the complexity and significance of the proceeding. • Costs are generally to be assessed by apply - ing the daily recovery rate (specified in the High Court Rules) to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. The High Court Rules set out the amount of time considered reasonable for steps ordinarily involved in a pro - ceeding, which varies depending on the nature and complexity of the proceeding. • The appropriate daily recovery rate is intended to be approximately two-thirds of the daily rate con - sidered reasonable in relation to the proceeding or interlocutory application. • The appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved, or on the time actually spent by the solicitor or coun -
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