PART 4: ADJUDICATION

16.0 Adjudication

Overview

16.1 Adjudication is a process for resolving Disputes by a neutral third-party person, called an Adjudicator, through a formal, structured decision-making process designed to resolve disputes fairly and impartially by applying relevant statutory and legal principles to the preferred evidence.

16.2 It involves an impartial and independent Adjudicator receiving, examining and reviewing the Submissions provided by the Parties and making a legally binding decision on the matters in Dispute, called a Determination.

16.3 Once an Adjudicator has been appointed under Rule 7.12, every Adjudication starts with a Claim. The Claim must be served by the Claimant within five Working Days of the Commencement Date (but see Rule 16.9).

16.4 A Claim may be followed by a Response and then, if the previous Submission was served, a Reply and a Rejoinder. These Submissions must be served within the relevant time periods, although the periods can be varied by the Parties or the Adjudicator (see Rules 16.9, 16.21 and 16.23). If the Claim is late the Adjudication ends. If the Response, Reply or Rejoinder are late the Adjudication continues, but the Adjudicator must disregard the late Submission.

16.5 Each Submission must be in reply to the previous one. No counterclaims are permitted.

16.6 The Adjudicator will determine the Dispute based on the Submissions, and any conferences, hearings, visits, or inspections (see Rule 21.12).

16.7 An Adjudication is not an arbitration. The provisions of the Arbitration Act 1996 do not apply to any Adjudication under these Rules.

Claim

16.8 Once an Adjudicator is appointed, the Claimant must serve a statement setting out the particulars of the claim (the Claim). The Claim must include:

• (a) the nature and basis of the claim;
• (b) the amount of compensation claimed, or other relief or remedy sought, including any claim for interest;
• (c) copies of any expert reports, witness statements or other documents the Claimant relies on; and
• (d) submissions on the factual and legal issues involved in the claim, and the Claimant’s contentions as to those issues.

16.9 The Claimant must serve the Claim on the Adjudicator and every other Party on or before the fifth Working Day after the Commencement Date (the Claim Period). The Adjudicator may allow additional time for the serving of the Claim if the Adjudicator considers that additional time is reasonably required for any reason (for example, due to the size or complexity of the Claim or in connection with Rules 6.1 and 6.2 above) and they are satisfied that granting an extension of time will not undermine the purpose of the Rules (see Rule 2.1). An extension of time can be made at the request of the Claimant. However, a request must be made before the expiry of the fifth Working Day, and the Adjudicator must disregard any late request unless there are extenuating circumstances. The Adjudication ends if the Claim is late.

Response

16.10 The Respondent may serve a statement in answer to the Claim (the Response). The Response must include:

• (a) what matters in the Claim are accepted or agreed;
• (b) what matters are disputed, with reasons why;
• (c) any defence to the Claim;
• (d) copies of any expert reports, witness statements or other documents the Respondent relies on; and
• (e) submissions on the factual and legal issues involved in the Claim and the Response, and the Respondent’s contentions as to those issues.

16.11 The Respondent must serve the Response on the Adjudicator and every other Party on or before the tenth Working Day after the Commencement Date (the Response Period) subject to Rules 16.21 and 16.23 below. If the Response is late, the Adjudication will continue, but the Adjudicator must disregard the Response.

No counterclaims, but defences and set-off permitted

16.12 The Response is not an opportunity for the Respondent to bring a counterclaim.

16.13 However, the Response can include defences to the Claim that are open to the Respondent (in fact or in law). It does not matter if the defences, or the matters that form the basis of the defences, have not been raised before.

16.14 The Response can include a claim for set-off or abatement. However, the maximum that the Adjudicator can award is limited to the proved value of the Claim.

Reply

16.15 The Claimant may serve a statement in answer to the Response (the Reply). The right to serve a Reply only applies if the Response is served within the Response Period.

16.16 The Reply must be strictly in reply to the Response. It cannot raise any new issues. It may include supporting documents and new evidence to the extent that it is relevant and in reply to the Response.

16.17 The Claimant must serve the Reply on the Adjudicator and every other Party on or before the fifteenth Working Day after the Commencement Date (the Reply Period) subject to Rules 16.21 and 16.23 below. If the Reply is late, the Adjudication will continue, but the Adjudicator must disregard the Reply.

Rejoinder

16.18 The Respondent may serve a statement in answer to the Reply (the Rejoinder). The right to serve a Rejoinder only applies if the Reply is served within the Reply Period.

16.19 The Rejoinder must be strictly in reply to the Reply. It cannot raise any new issues, but it may include supporting documents.

16.20 The Respondent must serve the Rejoinder on the Adjudicator and every other Party on or before the eighteenth Working Day after the Commencement Date (the Rejoinder Period) subject to Rules 16.21 and 16.23 below. If the Rejoinder is late, the Adjudication will continue, but the Adjudicator must disregard the Rejoinder.

Changes to Response, Reply or Rejoinder Period

16.21 The Adjudicator must extend the Response Period, the Reply Period and the Rejoinder Period to the same extent the Claim Period is extended under Rule 16.9.

16.22 Parties may change the Response Period, Reply Period or Rejoinder Period by agreement in writing. To be effective, any change must be notified to the Adjudicator before the expiry of the relevant period.

16.23 The Adjudicator may allow additional time for the Response Period, the Reply Period or the Rejoinder Period if the Adjudicator considers that additional time is reasonably required for any reason (for example, due to the size or complexity of the Claim and the Respondent has insufficient time to prepare a Response as a result, or in connection with Rules 6.1 and 6.2 above). An extension of time can be made at the request of any Party or on the Adjudicator’s own initiative. However, a request must be made before the expiry of the relevant period, and the Adjudicator must disregard any late request unless there are extenuating circumstances.

Copies of Contracts relied on

16.24 The Parties are expected to provide copies of any Contracts relied on. However, if a Party is unable to do so for any reason (for example, in a case where there is an oral Contract) it is enough if the Party provides the information in the form of an affidavit. The affidavit must be given to the Adjudicator and every other Party and should attach any supporting documents that are available.

Presumption that Determination will be made on the papers

16.25 The Adjudicator will determine the Dispute based on the Submissions (but disregarding any Response, Reply or Rejoinder that is late) and any conferences, visits or inspections (see Rule 21.12).

16.26 However, on request by a Party, the Adjudicator must decide whether to hold an oral hearing for the presentation of evidence or for oral argument. The Adjudicator may, after conferring with the Parties, hold such hearings as they consider appropriate and must fix the date, time, form, procedure, and place of hearing. Unless otherwise agreed by the Parties, the Adjudicator may hear witnesses and conduct hearings by any means they consider efficient and effective and at any location they consider appropriate in all the circumstances. A hearing may take place in person, by video or telephone conference, or by any combination of these methods.

End of Adjudication

16.27 The Adjudication ends when a Determination is given to the Parties and any time for correction or explanation has expired (see Rules 17.22 to 17.27) or if the Claimant fails to serve the Claim within time (see Rule 16.9).

16.28 The Adjudicator can also end the Adjudication on their own initiative if they consider it unnecessary or impossible to continue the Adjudication (for example, because the Claim is withdrawn under Rule 20 or because there is a lack of jurisdiction for the Adjudication). If the Adjudication is terminated for this reason, the adjudicator will notify the parties and NZDRC.

16.29 The death of a Party does not end the Adjudication and the deceased person will be substituted with their legal representative. This Rule does not apply if the Parties have agreed otherwise, or if a cause of action is extinguished by law on the death of a person.

Objections to process or jurisdiction

16.30 A Party must promptly raise any objection they have to:

• (a) a direction, ruling or request of the Adjudicator;
• (b) any failure by another Party or the Adjudicator to comply with these Rules;
• (c) an irregularity affecting the conduct of the Adjudication; or
• (d) the Adjudicator’s jurisdiction.
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16.31 If an objection (other than in respect of Rule 16.30(d) above) is not raised within two Working Days of the event, a Party is deemed to have waived their right to object later. This Rule does not apply if the Party can show that, at the relevant time, they did not know about the grounds for objection and could not (with reasonable diligence) have discovered the grounds for objection.

16.32 The Adjudicator may choose to make a ruling on jurisdiction issues before or as part of the Determination of the substantive issues.

Mediation

16.33 If, during the Adjudication, the Parties advise the Adjudicator in writing that they have agreed to refer their Dispute to Mediation, the Adjudicator must stay the proceedings to facilitate the conduct of the Mediation. All time limits under these Rules will be extended by the duration of the Mediation.

17.0 Determination

What the Adjudicator can determine

17.1 The Adjudicator can only determine:

• (a) an eligible Dispute, as defined in the Notice of Dispute and the matters set out in the Claim and any Response, Reply or Rejoinder;
• (b) Costs (see Rule 24);
• (c) the Adjudicator’s jurisdiction to determine a matter (for example, if there is a dispute about the eligibility of the Claim or if there is a dispute as to the existence of a Contract, the Adjudicator can make a decision on that); and
• (d) any matters that are necessary to carry out the Adjudicator’s role in accordance with these Rules.

17.2 A Determination must be made in accordance with principles of law and these Rules. In making a Determination, the Adjudicator must have regard to:

• (a) the provisions of any Contract the Dispute relates to;
• (b) specialised meanings applicable to the Dispute (for example, trade usage or particular usage of the Parties);
• (c) the Notice of Dispute;
• (d) the Claim;
• (e) any Response, Reply or Rejoinder that is served in time;
• (f) any other Submission or information, document or evidence provided by the Parties to the Adjudicator;
• (g) any oral Submission or evidence presented at a conference or hearing; and
• (h) the results of any visit or inspection carried out by the Adjudicator or report of any Adjudicator-appointed expert (see Rules 21.13 to 21.18) and any comment provided by the Parties on those results or reports.

Evidence and admissibility

17.3 Each Party will bear the burden of proving the facts relied upon to support its Claim or any affirmative defence.

17.4 The admissibility, relevance, weight, and materiality of any evidence offered by the Parties will be determined by the Adjudicator.

17.5 The Adjudicator may receive in evidence any statement, document, information, or matter that may, in their opinion, assist them to deal effectively with the Dispute before them, whether or not the statement, document, information, or matter would be otherwise admissible in a court of law.

Substance of Determination

17.6 If an amount of money is claimed by the Claimant, the Adjudicator must determine:

• (a) the Respondent’s liability to pay that money (if any), including any conditions on that liability;
• (b) the amount payable (or conditionally payable);
• (c) the date on which the payment must be made or becomes payable; and
• (d) the conditions on which it becomes payable.

17.7 If no amount of money is claimed by the Claimant, the Adjudicator must determine any questions in dispute about the rights and obligations of the Parties (for example, whether there has been a breach or repudiation of a supply agreement or non-compliance with the Grocery Supply Code or wholesale supply obligations). The Adjudicator can make orders for specific performance (for example, that a Party must act or refrain from acting in a particular way to remedy a breach and/or reduce or prevent loss or damage).

17.8 The Adjudicator can require the payment of general damages as compensation for loss or damage suffered by a Supplier or Wholesale Customer.

Interest

17.9 The Adjudicator can award interest in any Adjudication in relation to the recovery of money.

17.10 Interest may be awarded whether or not the amount has been paid before the Determination is made.

17.11 For Disputes that arise in relation to a Contract, interest will be awarded on the terms agreed in the Contract, including any terms as to the rate of interest, the period for which interest is payable, and the whole or any part of the sum that interest is payable on.

17.12 If there is no agreement on interest in the relevant Contract (whether as to payment generally or on any particulars), and for non-contractual Disputes, the Adjudicator can award interest compounding monthly at a rate equal to the monthly small to medium-sized enterprise (SME) overdraft rate published by the Reserve Bank of New Zealand.

Form of Determination

17.13 The Determination must be in writing and be signed and dated by the Adjudicator.

17.14 A failure to sign and date a Determination does not affect the validity of a Determination. The Adjudicator will use their best endeavours to fix any failure to sign or date a Determination within three Working Days of receiving notice of the defect.

17.15 The Determination must contain the reasons for the Determination. This Rule does not apply if the Parties have agreed otherwise.

17.16 The extent of reasons given by an Adjudicator will be proportionate to the time available to the Adjudicator to make the Determination, the nature and number of matters for Determination, and the amount of money at issue in the Dispute or value of the Dispute.

17.17 The Adjudicator must submit the Determination in draft form to NZDRC for scrutiny before signing a Determination. Without affecting the Adjudicator’s independence and autonomy, the Registrar may:

• (a) make recommendations directed to identifying errors in computation, any clerical or typographical errors, or errors of a similar nature in the Determination; and
• (b) draw to the Adjudicator’s attention any points of substance or internal inconsistencies in the Determination.

17.18 Unless the Parties have agreed otherwise, a monetary determination will be expressed in the currency of the relevant Contract, or currency most closely connected to the Dispute (in the case of a non-contractual Dispute).

Timing of Determination

17.19 The Adjudicator must make their Determination within 25 Working Days after the Dispute is referred to the Scheme, or such longer period of time that:

• (a) is needed to reflect any longer period agreed for the Claim Period, Response Period, Reply Period, or Rejoinder Period under Rules 16.9, 16.21, or allowed under Rule 16.23; and/or
• (b) the Adjudicator considers necessary (for example, due to the size or complexity of the Claim or to allow for the determination of a preliminary point of law by the High Court or an oral hearing).

17.20 However, to give the Parties time to make Submissions, the Adjudicator must wait until the end of the Response Period and (if applicable) any Reply Period, Rejoinder Period or other period specified by the Adjudicator for Submissions before making the Determination.

17.21 NZDRC will give the determination to the Parties as soon as practicable after the Adjudicator has signed it.

Period for correction or explanation

17.22 A Party may request a correction of the Determination or an explanation of the directions in the Determination by following the process set out in Rules 17.23 to 17.27.

17.23 A request must be served on the Adjudicator and every other Party and must be made within two Working Days of the date on which a copy of the Determination is given to the Parties. The Adjudicator may extend this period of time if they consider that additional time is reasonably required to make the request.

17.24 A request may ask the Adjudicator to:

• (a) correct any errors in computation, any clerical or typographical errors, or any errors of a similar nature in the Determination; and/or
• (b) give further explanation of a direction, or part of a direction in the Determination that is not clearly expressed so that the Parties can action the directions of the Determination.

17.25 If the Adjudicator considers the request is justified, the Adjudicator will use their best endeavours to make the correction or give the explanation within three Working Days of the date on which a copy of the Determination is given to the Parties. The Adjudicator may, where appropriate, extend the time for compliance with any orders or directions made in the Determination as a result of any request for correction.

17.26 The Adjudicator may also correct any errors in computation, any clerical or typographical errors, or any errors of a similar nature in the Determination on their own initiative. Any corrections of this kind must be made within three Working Days of the date on which a copy of the Determination is given to the Parties.

17.27 No additional fees can be included in the Adjudicator’s Fee for the correction or explanation.

18.0 Effect and Enforcement of Determination

Determination is binding

18.1 The Determination is binding on the Parties, unless and until the Dispute is finally determined by legal proceedings in a court (see Rules 18.9 and 18.11) or subsequent agreement between the Parties.

Relationship with other proceedings

18.2 The Determination has full effect even if legal proceedings in relation to the Dispute are started or are in progress.

18.3 A Party may apply for a stay of enforcement while the Determination is challenged. Unless a stay is granted, the Determination must be complied with. This Rule does not apply if the Parties have agreed otherwise.

Enforcement

18.4 A Determination must be treated as an order of the District Court and may be enforced accordingly.

Enforcement of Determinations for payment of money

18.5 Rules 18.6 to 18.8 apply to a Determination that requires the payment of money (whether conditional or not). In these clauses, Relevant Date has the meaning set out in Rule 18.8.

18.6 The Determination is a debt due and owing.

18.7 If a Party fails to pay an amount due (in whole or in part) under the Determination by the Relevant Date, the Party who is owed the money may recover the unpaid portion of the amount as a debt due in any court of competent jurisdiction, as well as the reasonable costs and expenses of recovery properly incurred.

18.8 The Relevant Date is the later of:

• (a) the date that is three Working Days after the date on which a copy of the Determination is given to the Parties;
• (b) the date for payment specified by the Adjudicator in the Determination; or
• (c) if applicable, the date of satisfaction of any conditions imposed in the Determination.
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Appeals on questions of law

18.9 A Party who is not satisfied with a Determination may appeal to:

• (a) the District Court if the Amount at issue does not exceed $350,000 or if no amount was claimed; or
• (b) the High Court if the Amount at issue exceeds $350,000.

18.10 An appeal may be brought only on a question of law.

18.11 Appeals against a decision of the District Court or the High Court under Rule 18.9 (the first appeal court) may be brought only with the leave of the first appeal court.

19.0 Representatives

19.1 A Party may appoint a Representative (but is not required to). The manner of appointment differs before and after the Adjudicator is appointed to ensure that the appointment does not create a possible conflict of interest once an Adjudicator is appointed.

19.2 Before an Adjudicator is appointed, a Party must notify NZDRC and every other Party of the name and contact details of any Representative they have appointed for the Adjudication.

19.3 Once an Adjudicator is appointed:

• (a) a Party who wants to appoint a Representative or change their Representative must notify the Adjudicator, NZDRC and every other Party of the name and contact details of their proposed Representative;
• (b) the Adjudicator’s prior approval must be obtained before that proposed Representative is appointed; and
• (c) the Adjudicator may withhold approval if they consider (in their discretion) that person’s appointment could create an apparent or actual conflict of interest.

20.0 Withdrawal or Settlement of Claim

Overview

20.1 A Claim can be withdrawn at any time before a Determination is issued. It can be withdrawn unilaterally by the Claimant (see Rules 20.5 to 20.7) or by agreement between the Parties (see Rules 20.8 to 20.10). If the withdrawal is because the Parties have reached a settlement, they can ask the Adjudicator to record the settlement as a Determination on agreed terms. A unilateral withdrawal by the Claimant will not take effect if the Adjudicator considers that the Respondent has a legitimate interest in obtaining a Determination.

Timing and effect of withdrawal

20.2 A Claim can be withdrawn at any time before a Determination is issued by following the processes set out in this Rule.

20.3 If there is a withdrawal, the Adjudicator does not need to make a Determination on the substantive matters (but see Rule 20.9 for the Adjudicator’s ability to record the terms of a settlement in a Determination on agreed terms). The Adjudicator may make a Determination on Costs (see Rules 24.10 to 24.14).

20.4 A new Adjudication (with a new Notice of Dispute and Application for Dispute Resolution) can be started if the Claim is withdrawn unless the Dispute has been determined under another dispute resolution process.

Unilateral withdrawal by Claimant

20.5 The Claimant can initiate a withdrawal unilaterally by serving a notice of withdrawal on the Adjudicator, the Respondent and NZDRC (a Notice of Withdrawal). However, the Claim will not be withdrawn if the Adjudicator considers that the Respondent has a legitimate interest in obtaining a Determination.

20.6 To assist the Adjudicator in considering whether there is a legitimate interest, the Respondent can object to the withdrawal by giving notice to the Adjudicator and the Claimant within three Working Days of receipt of the Notice of Withdrawal (a Notice of Objection). The Adjudicator may (in their sole discretion) have regard to a Notice of Objection that is late.

20.7 The Adjudicator will promptly notify the Parties and NZDRC if they consider the Respondent has a legitimate interest in obtaining a Determination.

Withdrawal by agreement between the Parties

20.8 A Claim can be withdrawn by the Parties giving written notice to the Adjudicator and NZDRC that they have reached agreement to withdraw the Claim. The agreement to withdraw the Claim must be recorded in writing and a copy of the agreement must be attached to the notice.

20.9 If the Claim is withdrawn due to the Parties settling the Dispute, the Parties can jointly request that the Adjudicator records the terms of the settlement in the form of a Determination on agreed terms.

20.10 A request to record the settlement terms must be from all the Parties and must be given within three Working Days of giving the notice to the Adjudicator and NZDRC under Rule 20.8. If the Adjudicator receives a request within the timeframe, the Adjudicator will record the terms of settlement and issue a Determination on agreed terms. The Adjudicator is not required to give reasons for such Determination.

21.0 The Role of the Adjudicator

Adjudicator must be suitable, impartial and independent

21.1 The Adjudicator must be suitable, impartial and independent of the Parties. See Schedule 1 of these Rules for the selection and appointment criteria for Adjudicators.

21.2 Any person who is asked to act as an Adjudicator must give NZDRC the written declaration set out in clause 1.3 of Schedule 1 of these Rules.

21.3 The Adjudicator has a continuing duty to immediately disclose to the Parties and NZDRC any circumstances arising which may be likely to give rise to justifiable doubts about their suitability, impartiality or independence in the eyes of any of the Parties. This duty starts at the time of the Adjudicator’s appointment and continues until the Adjudication ends.

21.4 An Adjudicator’s appointment can be revoked, and a new Adjudicator appointed in accordance with the provisions of Schedule 1 of these Rules (for example, by a Party issuing a Challenge Notice).

Powers of Adjudicator

Procedure

21.5 The Adjudicator can conduct the Adjudication in any manner they think fit, having regard to the purpose of the Rules (see Rule 2.1) and subject to the principles of natural justice.

Power to make directions, rulings and requests

21.6 The Adjudicator can make any directions, rulings or requests that they think fit. This is a general power and the specific powers under Rule 21.12 do not limit this general power. Directions, rulings or requests can be made at the request of any Party or on the Adjudicator’s own initiative.

21.7 When making any directions, rulings or requests, or taking any other actions under these Rules, the Adjudicator must:

• (a) take the purpose of the Rules into consideration (see Rule 2.1);
• (b) comply with the principles of natural justice;
• (c) act independently, impartially and in a timely manner; and
• (d) avoid incurring unnecessary expense.
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Adjudicator may draw inferences and determine the Dispute based on available information.

21.8 The Parties must comply without delay with these Rules and any direction, ruling or request of the Adjudicator made or given in accordance with these Rules.

21.9 The Adjudicator’s power to determine a Dispute is not affected by any failure of a Party to comply with these Rules, respond to any requests or comply with any directions or rulings.

21.10 The Adjudicator may draw any reasonable inferences they think fit from any such failure and give any weight they think fit to information that was asked for or directed to be provided but was provided later than requested or directed.

21.11 The Adjudicator can make a Determination on the basis of the information available to them whether or not a Party complies with these Rules or responds to a request or complies with a direction or ruling of the Adjudicator.

Specific powers

21.12 The Adjudicator may:

• (a) require the Parties to comply with a reasonable request for Submissions, documents, evidential material, or other information, and set deadlines for the production of them, so long as the Adjudicator allows the other Parties a reasonable opportunity to comment on them;
• (b) request a Party to provide copies of any documents that the Adjudicator may reasonably require;
• (c) convene a conference of the Parties if the Adjudicator considers it desirable (for example, to clarify any aspects of the matters in dispute or the Parties’ Submissions, or to discuss timetabling and procedural matters);
• (d) extend time periods in accordance with Rules 16.9, 16.23 or 17.23;
• (e) conduct visits or inspections in accordance with Rules 21.13 to 21.16;
• (f) appoint an expert in accordance with Rules 21.17 and 21.18;
• (g) direct a Party to provide a translation of a document or exhibit if that document or exhibit is not in the language of the Adjudication, or determine the language to be used in the Adjudication (see Rule 28.14);
• (h) limit the number of Representatives present at any conference, visit or inspection, to allow for the efficient conduct of the Adjudication;
• (i) request a Party to do something during the Adjudication that the Adjudicator considers is reasonably required to enable the complete and effective determination of the Dispute; and
• (j) adopt a measure in relation to information security or data protection having first consulted with the Parties and NZDRC (see Rule 26.1).
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Visits and inspections

21.13 To assist in making the Determination, the Adjudicator may visit or inspect land, premises, property, goods, documents, technologies, samples, or any other items relevant to the Dispute.

21.14 Visits or inspections must be carried out by the Adjudicator in the presence of all Parties unless otherwise agreed.

21.15 The Parties must be given reasonable notice to enable them to be present at any visit or inspection. However, unless a Party has good reason not to attend a visit or inspection, their failure to attend will not affect the Adjudicator’s ability to make the visit or inspection or decide an issue based on their observations at the visit or inspection.

21.16 The consent of the owner or occupier of any land or premises must be obtained before entry is made. If the owner or occupier is a Party, that Party’s consent must not be unreasonably withheld.

Adjudicator-appointed expert

21.17 To assist in making the Determination, the Adjudicator may appoint an expert to report to them on specific issues. In deciding whether to appoint an expert, the Adjudicator must consult the Parties. This Rule does not apply if the Parties agree otherwise in writing.

21.18 If the Adjudicator appoints an expert:

• (a) the Adjudicator must define the expert’s terms of reference, and notify these to the Parties;
• (b) the Parties must give the expert any relevant information, or produce or give access to any relevant land, premises, property, goods, documents, technologies, samples, or any other items, and allow the expert to carry out appropriate steps (including taking of samples or photographs, weighing, observing any process, or testing); and
• (c) a copy of any report produced by the expert must be given to the Parties, and the Adjudicator must invite the Parties to submit written comments on the report.

22.0 Consolidation

22.1 An Adjudicator who has two or more Adjudications that are subject to the same governing law can determine those Adjudications at the same time if all the Parties to those Adjudications agree in writing.

23.0 Adjudicator is immune

23.1 The Adjudicator is not liable for anything done or not done in carrying out their role as Adjudicator unless the Adjudicator intentionally breaches any obligation or duty or acts fraudulently. See also Rule 27.

24.0 Costs

Overview

24.1 There are two types of Costs: the Adjudicator’s Fee and the Parties’ own costs and expenses. The Respondent must pay the Adjudicator’s Fee and the Parties must pay their own costs and expenses (see Rule 24.5). However, the Adjudicator can make a different determination on Costs in some circumstances (see Rules 24.7 and 24.8).

Amount of Adjudicator’s Fee

24.2 The Adjudicator is entitled to be paid a fee for carrying out their role in the Adjudication (the Adjudicator’s Fee). The Adjudicator’s Fee includes an amount payable for the time the Adjudicator is engaged in their role, as well as any costs, expenses or fees incurred in relation to:

• (a) travel, accommodation, meals, taxis, couriers, and personal vehicle mileage charges;
• (b) communications, secretarial and administration services, transcription services, interpreters, and any fees and expenses of any expert appointed by the Adjudicator under Rule 21.17;
• (c) hearing room hire and catering charges; and
• (d) any other reasonable costs relating to the conduct of the Adjudication.

24.3 For Low-Value Claims (as defined on the NZDRC Website), the Adjudicator’s Fee is the amount fixed in accordance with the terms and conditions set out on the NZDRC Website at the time of the Application for Dispute Resolution.

24.4 For all other Claims, the Adjudicator’s Fee will be an amount that is reasonable having regard to the work done and costs, expenses or fees incurred by the Adjudicator.

Who pays Costs

24.5 The Respondent must pay the Adjudicator’s Fee. The Parties must pay their own costs and expenses of the Adjudication (for example, legal fees or experts’ fees).

24.6 However, regardless of who was successful in the Adjudication the Adjudicator may make a different determination about payment of Costs in accordance with Rules 24.7 or 24.8.

Adjudicator can make a different Determination on Costs

24.7 The Adjudicator may make a different Determination about payment of the Adjudicator’s Fee if the Adjudicator considers that:

• (a) the Claim was frivolous, vexatious and/or without substantial merit;
• (b) a Party acted in a contemptuous or improper manner during the Adjudication;
• (c) the Claim amounts to an abuse of process; or
• (d) costs have been incurred unnecessarily if a Claim is declined due to an issue of jurisdiction or as a result of withdrawal of the Claim.

24.8 The Adjudicator may make a different Determination about the Parties’ own costs and expenses if the Adjudicator considers that a Party has caused those costs and expenses to be incurred unnecessarily by:

• (a) bad faith on the part of that Party; or
• (b) allegations or objections by that Party that are frivolous, vexatious and/or without substantial merit; or
• (c) if a Claim is declined due to an issue of jurisdiction or as a result of withdrawal of the Claim.

24.9 If the Adjudicator is replaced during the Adjudication, NZDRC will determine the share of the Adjudicator’s Fee that is appropriate to be paid to each Adjudicator in the circumstances.

Costs on withdrawal

24.10 If the Claim is withdrawn under Rule 20, the Adjudicator may make a Determination on Costs on their own initiative or on request by a Party.

24.11 A request for a Determination on Costs must be served on the Adjudicator and every other Party and must be made within three Working Days of the withdrawal notice (either the Notice of Withdrawal if the withdrawal is unilateral, or the notice to the Adjudicator and NZDRC under Rule 20.8 if the withdrawal is by agreement between the Parties, as applicable).

24.12 A Determination on Costs on withdrawal can confirm that the Parties must pay Costs (or any part of the Costs) up to the date of withdrawal:

• (a) in accordance with Rule 24.5; or
• (b) in accordance with a different Determination under Rule 24.7 or 24.8.

24.13 However, a Determination on Costs cannot vary an agreement on Costs between the Parties that is:

• (a) agreed after the Adjudication has started; and
• (b) notified to the Adjudicator before the Determination on Costs is made (for example, by attaching a copy of the agreement to a Party’s Submissions on Costs, or by the agreement being included in a Settlement Agreement notified under Rule 20.9).

24.14 The Adjudicator must make the Determination on Costs as soon as practicable after giving the Parties an opportunity to make Submissions on Costs.

Liability to pay

24.15 Any agreement about how the Costs are to be apportioned (including an agreement that a Party is to indemnify another Party in relation to those Costs) is not binding on the Parties if that agreement was made before the Dispute arose.

25.0 Confidentiality

Adjudication is confidential

25.1 The Adjudicator must conduct the Adjudication in private.

25.2 Any person involved in the Adjudication (including the Parties, their Representatives, the Adjudicator, and NZDRC) must keep Confidential Information confidential, and must not publish, communicate or otherwise supply (disclose) that information to any non-party.

25.3 Confidential Information means all non-public materials and information that are shared or covered in, or in the course of, the Adjudication or Determination and includes, but is not limited to:

• (a) all Submissions, information, documents, or evidence provided to the Adjudicator by a Party, or an expert appointed by the Adjudicator;
• (b) any direction, ruling, request, or Determination of the Adjudicator;
• (c) any documents used or generated by a Party, Representative or advisor in the preparation or process of Adjudication; and
• (d) any documents given to or generated by NZDRC for the purpose of the Adjudication.

25.4 If a Party seeks to involve, or is required to involve in the Adjudication, a non-party, including a Representative, fact or expert witness, translator, interpreter, or any other person, that Party must secure the non-party’s advance agreement to preserve the confidentiality of the Confidential Information. This agreement must be recorded in the form provided in Schedule 3 to these Rules, and a copy of the Confidentiality Agreement signed by each non-party must be provided to the Adjudicator by that Party as a condition of that non-party’s participation in the Adjudication.

Permitted disclosures

Disclosure to pursue a legal right or comply with any law

25.5 Confidential Information can be disclosed only to the extent necessary to:

• (a) enforce or challenge the Determination; or
• (b) comply with any law or other compulsory process (for example a court order).

25.6 A person must notify the Parties and NZDRC of an intended disclosure under Rule 25.5 as soon as practicable before they intend to make the disclosure. The notification must include full details of the intended disclosure and an explanation of the reason for it.

Other disclosures

25.7 NZDRC may collect information relating to the Adjudication for statistical or research purposes and may publish that information. NZDRC must not publish Confidential Information or any information in a form that could reasonably be expected to identify any particular Party, person or Adjudicator.

26.0 Data Protection

26.1 The Adjudicator or NZDRC may issue directions in relation to information security or data protection (for example, by implementing a cybersecurity protocol, requiring the use of a particular electronic information system, or adopting measures to protect personal information). The directions are binding on the Parties and, in the case of a direction issued by NZDRC, on the Adjudicator. However, the directions are not binding to the extent they conflict with any applicable law or other mandatory provision. See also Rule 21.12(j) (which allows an Adjudicator to adopt an information security or data protection measure in relation to a particular Adjudication).

27.0 Exclusion of liability and indemnity

27.1 The purpose of this Rule is to give the Adjudicator and NZDRC (including its agents and employees) the widest immunity from liability that the law will allow. Any reference to NZDRC in these clauses includes a reference to the agents and employees of NZDRC (including the Registrar).

27.2 The Adjudicator and NZDRC are not liable for any act done or not done in relation to the Adjudication or these Rules. The Parties release the Adjudicator and NZDRC from all liability of any kind (including negligence, misrepresentation, breach of contract, or breach of duty of any kind including fiduciary or equitable). This release does not apply to the obligations in respect of confidential information in Rules 25.1 to 25.4 above or to the extent that the Adjudicator or NZDRC has acted fraudulently or has intentionally breached any obligation or duty.

27.3 If a claim is brought against the Adjudicator or NZDRC despite Rule 27.2, the Parties (jointly and severally) indemnify the Adjudicator and NZDRC in respect of that claim.

27.4 Words of the Adjudicator or NZDRC (for example, written statements or oral comments) made or given during the course of the Adjudication cannot be used in any action for defamation, libel, slander, or any similar complaint.

27.5 After the Adjudication has ended (see Rules 16.27 to 16.29), the Adjudicator and NZDRC have no obligation to make any statement about the Adjudication, and no Party can ask the Adjudicator or NZDRC to give evidence in legal proceedings arising in relation to the Adjudication.