2.3 Unless the context requires otherwise, in these Rules words in the singular include the plural, and words in the plural include the singular.

2.4 Rules that are included in any Overview section of these Rules (for example, Rules  5.1 to 5.3) are intended to be a guide. If there is any conflict between an overview Rule and any other Rule, the other Rule prevails.

3.0 Purpose of Adjudication and Agreement to be bound

3.1 The purpose of Adjudication is to:

• (a) resolve a dispute in a manner that is fair, prompt, cost effective, and proportionate to the amount in dispute and the complexity of the issues involved; and
• (b) provide a Determination within 35 Working Days of the Commencement Date that is binding on the Parties (unless and until the Dispute is finally determined by arbitration, legal proceedings in a court or tribunal, or subsequent agreement between the Parties).

3.2 The Parties must not disrupt or delay the Adjudication or interfere with the purpose of Adjudication.

3.3 The Parties agree to comply without delay with these Rules and any Determination of the Adjudicator. See also Rule 11.8 (which requires compliance with any direction, ruling or request of the Adjudicator).

3.4 The Adjudicator, NZDRC, the Parties and their Representatives must act in the spirit of these Rules and make every effort to ensure that a Determination made under these Rules is enforceable.

4.0 Disputes that can be subject to Adjudication

4.1 Any kind of dispute that could be subject to arbitration or legal proceedings in a court or tribunal can also be subject to Adjudication.

4.2 However, a dispute cannot be subject to Adjudication if:

• (a) it would be contrary to public policy for the dispute to be determined by Adjudication (for example, criminal proceedings); or
• (b) the dispute is not capable of determination by Adjudication under any law (for example, because an Act requires that the dispute be determined by a particular court or determining body).

4.3 Examples of disputes that can be subject to Adjudication are:

• (a) disputes arising in relation to a Contract;
• (b) disputes arising in relation to a non-contractual legal relationship (such as a trust); and
• (c) disputes arising in relation to a cause of action in tort (such as a negligence or nuisance claim).

4.4 A dispute can be subject to Adjudication even if it is currently subject to arbitration or legal proceedings.

4.5 If the dispute arises in relation to a Contract, the dispute includes any question about the existence, validity or termination of the Contract.

4.6 An Adjudication Agreement can define the type of dispute that can or cannot be subject to Adjudication (see Rule 5.1 for an explanation of how the existence of an existing Adjudication Agreement affects the way in which Adjudication can be started).

5.0 How to start an Adjudication

Overview

5.1 Adjudication can be started whether or not there is an existing Adjudication Agreement in relation to the Dispute. If there is an existing Adjudication Agreement, one Party can start Adjudication by themselves by serving a Notice of Adjudication (see Rule 5.4). If there is no existing Adjudication Agreement, agreement is needed and the Parties must enter into an Adjudication Agreement first (see Rule 5.10).

5.2 Once a Notice of Adjudication has been sent (or an Adjudication Agreement entered into), an Application for Adjudication must be sent to NZDRC and the Deposit must be paid.

5.3 NZDRC will appoint an Adjudicator once the Application for Adjudication and the Deposit are received.

Starting Adjudication if existing Adjudication Agreement

5.4 If the Parties have an Adjudication Agreement that allows a Dispute to be subject to Adjudication, Adjudication can be started at any time by a Party to the Adjudication Agreement serving a notice of its intention to commence Adjudication on the other Parties (a Notice of Adjudication).

5.5 An Adjudication can be started in relation to a Dispute that involves more than one Contract, legal relationship or basis of claim if:

• (a) the parties to the Contract, relationship or basis of claim are the same (or a person who is Related to a Party);
• (b) there is a single Adjudication Agreement, or if there is more than one then the Adjudication Agreements are compatible; and
• (c) the Parties agree to a single Adjudication under these Rules.

5.6 Otherwise, an additional Adjudication may need to be started. See also Rules 6.9 to 6.11 (which prohibit counterclaims) and Rule 19.1 (which allows for Adjudications to be consolidated).

Form and minimum content of Notice of Adjudication 

5.7 The Notice of Adjudication must be in the form published on the NZDRC Website at the time the Notice of Adjudication is sent.

5.8 At a minimum, the Notice of Adjudication must contain this information:

• (a) a statement that the Claimant requires the Dispute to be subject to Adjudication under these Rules;
• (b) a brief description of the nature of the Dispute;
• (c) the names and contact details of the Parties and (if known) their Representatives, including details for electronic communication (if available);
• (d) identification of the Adjudication Agreement that is being relied on to start the Adjudication;
• (e) identification of the Contract, relationship or basis of claim that the Dispute relates to; and
• (f) an explanation of the compensation, relief or remedy that is sought.

5.9 A Notice of Adjudication that is missing any of the minimum information is invalid. However, the Claimant can fix the Notice of Adjudication by providing the correct information within five Working Days of receiving notice that the information was missing.

Starting Adjudication if no existing Adjudication Agreement

5.10 Adjudication is still available if the Parties do not have an Adjudication Agreement in place relating to a Dispute before the Dispute arises. In this case, the Parties may enter into an Adjudication Agreement agreeing to refer the Dispute to Adjudication instead of sending a Notice of Adjudication. The Adjudication Agreement must be in the form published on the NZDRC Website.

Application for Adjudication

5.11 An Application for Adjudication must be given to NZDRC within five Working Days of the Notice of Adjudication being served (or an Adjudication Agreement being entered into, if Rule 5.10 applies). This period of time can be extended by written agreement between the Parties.

5.12 The Application for Adjudication must be in the form published on the NZDRC Website at the time the Application for Adjudication is made.

Deposit

5.13 NZDRC will not appoint an Adjudicator or take any other steps in relation to the Adjudication until the Application for Adjudication is received and the Deposit is paid in full. Any person can pay the Deposit.

5.14 If a Claim is declined due to an issue of scope or jurisdiction, NZDRC may deduct an amount that is reasonable from the Deposit (having regard to the work done and costs, expenses or fees incurred by the Adjudicator) before refunding any balance.

Appointment of Adjudicator and Commencement Date

5.15 An Adjudicator can only be appointed by NZDRC. No other person (Party or otherwise) can appoint an Adjudicator.

5.16 NZDRC will appoint an Adjudicator when it has received an Application for Adjudication and the Deposit. Once received, NZDRC will use its best endeavours to make an appointment within three Working Days.

5.17 NZDRC will notify the Parties when an Adjudicator is appointed. The date of notification is the Commencement Date.

5.18 NZDRC will have regard to the selection and appointment criteria set out in Clause 1 of Schedule 1 when appointing an Adjudicator. However, NZDRC may appoint any person it thinks fit.

5.19 NZDRC can ask the Parties for any information it considers necessary (in its sole discretion) to enable it to appoint an appropriate Adjudicator, and the Parties must promptly provide that information.

Prior agreements and prior communications with a nominee

5.20 If the Parties have agreed that a particular person will be appointed as the Adjudicator, that agreement will be treated by NZDRC as an agreement to nominate an adjudicator. NZDRC will decide whether to appoint a nominee in accordance with Rules 5.15 to 5.19 (and, for example, can refuse to appoint a nominee as it thinks fit).

5.21 The Parties and their Representatives must not communicate with a nominee before an Adjudicator is appointed. This is important to preserve the impartiality and indepedndence of the Adjudicator. However, there can be a very limited amount of communication to ask about their suitability and availability.

6.0 The Adjudication Process

Overview

6.1 Every Adjudication starts with a Claim. The Claim must be served by the Claimant within five Working Days of the Commencement Date. If it is late, the Adjudication ends (see Rule 6.6).

6.2 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 6.18 and 6.19). If the Response, Reply or Rejoinder are late the Adjudication continues, but the Adjudicator must disregard the late Submission.

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

6.4 The Adjudicator will determine the Dispute based on the Submissions. No hearing will be held, but conferences, visits or inspections are possible (see Rule 11.10).

Claim

6.5 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.

6.6 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 Adjudication ends if the Claim is late.

Response

6.7 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.

6.8 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). If the Response is late the Adjudication will continue but the Adjudicator must disregard the Response.

No counterclaims, but defences and set-off permitted

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

6.10 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.

6.11 The Response can include a claim for set-off or abatement. However, the Respondent acknowledges that the maximum that the Adjudicator is able to award is limited to the proved value of the Claim. If the Respondent wants any additional relief, it must obtain the agreement of every other Party to the Adjudication or start its own Adjudication.

Reply 

6.12 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.

6.13 The Reply must be strictly in reply to the Response. It cannot raise any new issues. It may include supporting documents.

6.14 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). If the Reply is late the Adjudication will continue but the Adjudicator must disregard the Reply.

Rejoinder

6.15 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.

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

6.17 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). If the Rejoinder is late the Adjudication will continue but the Adjudicator must disregard the Rejoinder.

Changes to Response, Reply or Rejoinder period

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

6.19 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). An extension 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.

Copies of contracts relied on

6.20 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 a statutory declaration. The declaration must be given to the Adjudicator and every other Party and should attach any supporting documents that are available.

On the papers determination

6.21 The Adjudicator will determine the Dispute based on the Submissions (but disregarding any Response, Reply or Rejoinder that is late). No hearing will be held, but the Adjudicator can decide to hold a conference, visit or inspection (see Rule 11.10).

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

End of Adjudication

6.23 The Adjudication ends when a Determination is given to the Parties and any time for correction or explanation has expired (see Rules 7.21 to 7.26) or if the Claimant fails to serve the Claim within time (see Rule 6.6).

6.24 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 10 or because there is a lack of jurisdiction for the Adjudication). The Adjudicator will notify the Parties and NZDRC if the Adjudication is terminated for this reason.

6.25 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, scope or jurisdiction

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

• (a) a direction, ruling or request of the Adjudicator;
• (b) any failure to comply with these Rules;
• (c) an irregularity affecting the conduct of the Adjudication; or
• (d) the Adjudicator’s scope or jurisdiction.

6.27 If an objection is not raised promptly, 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.

7.0 The Determination

What the Adjudicator can determine

7.1 The Adjudicator can only determine:

• (a) the Dispute, as defined in the Notice of Adjudication (or the Adjudication Agreement, if Rule 5.10 applies), and the matters set out in the Claim and any Response, Reply or Rejoinder;
• (b) any additional matters that the Parties may, at any time by written agreement, submit to the determination of the Adjudicator;
• (c) Costs (see Rule 12);
• (d) the Adjudicator’s jurisdiction to determine a matter (for example, if there is a dispute as to the validity of an Adjudication Agreement, the Adjudicator can make a decision on that); and
• (e) any matters that are necessary to carry out the Adjudicator’s role in accordance with these Rules.

7.2 In making a Determination, the Adjudicator must have regard to:

• (a) the applicable law;
• (b) these Rules;
• (c) the provisions of any Contract the Dispute relates to, and/or specialised meanings applicable to the Dispute (for example, trade usage or particular usage of the Parties);
• (d) the Notice of Adjudication (or the Adjudication Agreement, if Rule 5.10 applies);
• (e) the Claim;
• (f) any Response, Reply or Rejoinder that is served in time;
• (g) any other Submission or information, document or evidence provided by the Parties to the Adjudicator;
• (h) the results of any visit or inspection carried out by the Adjudicator or report of any Adjudicator-appointed expert (see Rules 11.11 to 11.16); and
• (i) any other matter the Adjudicator considers relevant.

Substance of Determination

7.3 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.

7.4 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.

7.5 If the Adjudicator determines that any Respondent is required to take action other than the payment of money, the Adjudicator must (so far as it is possible) also fix:

• (a) an amount of money payable if the Respondent fails or refuses to take that action; and
• (b) the date by which that amount is payable.

7.6 The Adjudicator can require the payment of general damages.

Interest

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

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

Contractual Disputes

7.9 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.

7.10 If there is no agreement on interest in the relevant Contract (whether as to payment generally or on any particulars), the Adjudicator can award interest as they consider appropriate. For clarity, this may include an award of simple or compound interest, and the award can be at such rates and with such rests as the Adjudicator considers appropriate.

Non-contractual Disputes

7.11 For all other Disputes, the Adjudicator can award interest as they consider appropriate. For clarity, this may include an award of simple or compound interest, and the award can be at such rates and with such rests as the Adjudicator considers appropriate.

Form of Determination

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

7.13 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.

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

7.15 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.

7.16 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.

7.17 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

7.18 The Adjudicator will use reasonable endeavours to make their Determination within 25 Working Days of the date of receipt of the Response, or such longer period of time that:

• (a) is needed to reflect any longer period agreed for the Reply Period or Rejoinder Period under Rule 6.18 or allowed under 6.19; and/or
• (b) the Adjudicator considers necessary (for example, due to the size or complexity of the Claim).

7.19 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 or Rejoinder Period or other period specified by the Adjudicator for Submissions before making the Determination.

7.20 The Determination will be given to the Parties by NZDRC as soon as practicable after:

• (a) the Adjudicator has signed it; and
• (b) the Adjudicator’s Fee has been paid in full.

Period for correction or explanation

7.21 A Party may request a correction of the Determination or explanation of the directions in the Determination by following the process set out in Rules 7.22 to 7.26.

7.22 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.

7.23 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.

7.24 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.

7.25 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.

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

8.0 Effect and Enforcement of Determination

Determination is binding

8.1 The Determination is binding on the Parties, unless and until the Dispute is finally determined by arbitration, legal proceedings in a court or tribunal, or subsequent agreement between the Parties.

Relationship with other proceedings

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

8.3 The Determination must be complied with before a Party starts arbitration or legal proceedings to challenge a Determination. This Rule does not apply if the Parties have agreed otherwise.

Enforcement of Determinations for payment of money

8.4 Rules 8.5 to 8.7 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 8.7.

8.5 The Determination is a debt due and owing.

8.6 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.

8.7 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.

9.0 Representatives

9.1 A Party may appoint a Representative. 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 (or similar impediment) once an Adjudicator is appointed.

9.2 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.

9.3 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 sole discretion) that person’s appointment could create a possible conflict of interest (or similar impediment).

10.0 Withdrawal or settlement of a Claim

Overview

10.1 A Claim can be withdrawn at any time before a Determination is issued. It can be withdrawn unilaterally by the Claimant (see Rules 10.5 to 10.7) or by agreement between the Parties (see Rules 10.8 to 10.10). If the withdrawal is because the Parties have reached a settlement, they can ask the Adjudicator to record the settlement as a Determination. 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 

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

10.3 If there is a withdrawal, the Adjudicator does not need to make a Determination on the substantive matters (but see Rule 10.9 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 12.10 to 12.14.

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

Unilateral withdrawal by Claimant 

10.5 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.

10.6 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.

10.7 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 

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

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

10.10 A request to record the settlement terms must be from all of the Parties and must be given within three Working Days of giving the notice to the Adjudicator and NZDRC under Rule 10.8. 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.

11.0 The Role of the Adjudicator

Adjudicator must be suitable, impartial and independent 

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

11.2 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.

11.3 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.

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

Powers of Adjudicator

Procedure

11.5 The Adjudicator can conduct the Adjudication in any manner they think fit, having regard to the purpose of Adjudication (see Rule 3.1) and the principles of natural justice.

Power to make directions, rulings and requests, etc

11.6 The Adjudicator can make any directions, rulings or requests that they think fit. This is a general power, and the specific powers under Rule 11.10 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.

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

• (a) take the purpose of Adjudication into consideration (see Rule 3.1);
• (b) comply with the principles of natural justice;
• (c) act independently, impartially and in a timely manner; and
• (d) avoid incurring unnecessary expense.

11.8 The Parties must comply without delay with any direction, ruling or request of the Adjudicator made or given in accordance with these Rules. The Adjudicator can draw inferences from any failure of a Party to respond to any requests or comply with any directions or rulings.

11.9 The Adjudicator can make a Determination whether or not a Party responds to a request or complies with a direction or ruling of the Adjudicator.

Specific powers

11.10 The Adjudicator may:

• (a) request further written submissions, information or evidential material from the Parties, and set deadlines for the production of them, so long as the Adjudicator allows the other Parties an 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);
• (d) extend time periods in accordance with Rules 6.19 or 7.22;
• (e) conduct visits or inspections in accordance with Rules 11.11 to 11.14;
• (f) appoint an expert in accordance with Rules 11.15 and 11.16;
• (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 19.2);
• (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;
• (j) determine if Confidential Information can be disclosed under Rules 13.4 to 13.6 or otherwise permit disclosure of Confidential Information in accordance with Rule 13.7; and
• (k) adopt a measure in relation to information security or data protection (having first consulted with the Parties and NZDRC).

Visits and inspections

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

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

11.13 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 observations at the visit or inspection.

11.14 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

11.15 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.

11.16 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.

Adjudicator is immune

11.17 The Adjudicator is not liable for anything done or not done in carrying out their role as Adjudicator unless the Adjudicator acts fraudulently. See also Rule 15.

12.0 Costs

Overview

12.1 There are two types of Costs: the Adjudicator’s Fee and the Parties’ own costs and expenses. The Parties must pay the Adjudicator’s Fee in equal proportions and must pay their own costs and expenses (see Rule 12.5). However, the Adjudicator can make a different determination on Costs in some circumstances (see Rules 12.7 and 12.8). The Determination will not be given to the Parties until the Adjudicator’s Fee has been paid in full (see Rule 7.20).

Amount of Adjudicator’s Fee

12.2 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 expert or legal advice (including any fees and expenses of any expert appointed by the Adjudicator under Rule 11.15); and
• (c) any other reasonable costs relating to the conduct of the Adjudication.

12.3 For Low Value Claims (as that term is defined on the NZDRC Website), the Adjudicator’s Fee is the amount that is fixed in respect of Low Value Claims in accordance with the terms and conditions set out on the NZDRC Website at the time of the Notice of Adjudication (or, if there is no existing Adjudication Agreement, at the time of the Application for Adjudication).

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

Who pays Costs

12.5 The Parties must pay the Adjudicator’s Fee in equal proportions (but see Rule 12.15 for liability). The Parties must pay their own costs and expenses of the Adjudication (for example, legal fees or experts’ fees).

12.6 However, regardless of who was successful in the Adjudication the Adjudicator may make a different determination about payment of Costs in accordance with Rules 12.7 or 12.8.

Adjudicator can make different determination

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

• (a) the Claim or the Response was without substantial merit; or
• (b) a Party acted in a contemptuous or improper manner during the Adjudication.

12.8 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 without substantial merit.

12.9 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

12.10 If the Claim is withdrawn under Rule 10, the Adjudicator may make a Determination on Costs on their own initiative or on request by a Party.

12.11 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 10.8 if the withdrawal is by agreement between the Parties, as applicable).

12.12 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 12.5; or
• (b) in accordance with different determination under Rule 12.7 or 12.8.

12.13 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 10.8).

12.14 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

12.15 Regardless of any agreement or Determination on Costs, the Parties are jointly and severally liable to pay the Adjudicator’s Fee, as well as any costs and expenses incurred by NZDRC in recovering any overdue money, on a full indemnity basis.

12.16 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.

13.0 Confidentiality

Adjudication is confidential

13.1 The Adjudicator must conduct the Adjudication in private.

13.2 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.

13.3 Confidential Information means all non-public materials and information that relate to the Adjudication or to a Determination and includes:

• (a) all Submissions, information, documents or evidence provided to the Adjudicator by a Party;
• (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.

Permitted disclosures

Disclosure to pursue a legal right or comply with law, etc

13.4 Confidential Information can be disclosed to the extent necessary to:

• (a) participate in arbitration or legal proceedings or pursue a legal right (for example, to prosecute the Dispute in arbitration or court proceedings, to enforce the Determination, or to publish a correction of a statement in a defamation claim);
• (b) comply with any law or other compulsory process (for example, a governmental request for information or a court order); or
• (c) seek professional advice or satisfy information requests of potential acquirers, investors or lenders (so long as the recipient of the Confidential Information agrees in writing and in advance to keep the Confidential Information confidential).

13.5 A person must notify the other Parties of an intended disclosure under Rule 13.4 a reasonable time before they make the disclosure. The notification must include full details of the intended disclosure and an explanation of the reason for it.

13.6 If an intended disclosure under Rule 13.4 arises during the Adjudication, the notice under Rule 13.5 must also be given to the Adjudicator and NZDRC. The Adjudicator will determine whether the disclosure meets the requirements of Rule 13.4 after each Party is given an opportunity to be heard.

Other disclosures 

13.7 A person can also request permission of the Adjudicator to disclose Confidential Information during the Adjudication for other reasons. The Adjudicator may permit disclosure if they are satisfied that disclosure will not undermine the purpose of Adjudication (see Rule 3.1), after the other Parties are given an opportunity to comment on the request.

13.8 If a Party wants to involve a non-party to the Adjudication (for example, a fact or expert witness, or a translator) in the Adjudication, the non-party must agree to keep Confidential Information confidential before they can be involved. This agreement must be recorded in the form published on the NZDRC Website and a copy of the agreement signed by each non-party must be given to the Adjudicator and the other Parties as a condition of the non-party’s participation in the Adjudication.

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

Breach of confidentiality

13.10 A breach of confidentiality made during the Adjudication can be dealt with by the Adjudicator in any way they consider appropriate (for example, by issuing directions requiring the defaulting Party to act or refrain from acting in a particular way, or making a Determination for sanction or costs).

14.0 Data Protection

14.1 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 11.10(k) (which allows an Adjudicator to adopt an information security or data protection measure in relation to a particular Adjudication).

15.0 Exclusion of Liability and Indemnity

15.1 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).

15.2 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 statutory, fiduciary or equitable)). This release does not apply to the extent that the Adjudicator or NZDRC has acted fraudulently.

15.3 If a claim is brought against the Adjudicator or NZDRC despite Rule 15.2, the Parties (jointly and severally) indemnify the Adjudicator and NZDRC in respect of that claim.

15.4 Words of the Adjudicator or NZDRC (for example, written statements or oral comments) cannot be used in any action for defamation, libel, slander or any similar complaint.

15.5 After the Adjudication has ended (see Rules 6.23 – 6.25), 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.

16.0 Effect of Adjudication Agreement

Adjudication before other dispute resolution processes

16.1 If an Adjudication Agreement requires the Parties to submit a Dispute to Adjudication:

• (a) the Parties must submit the Dispute to Adjudication first (as a condition precedent) before seeking any other remedy at law; and
• (b) no arbitration or legal proceedings in relation to that Dispute can be started or continued until the Adjudication ends (for example, by a Determination being issued or the Claim being withdrawn – see Rules 6.23 and 6.24).

16.2 Rule 16.1 does not apply if the Parties agree otherwise in writing.

16.3 Rule 16.1(b) does not apply if, in the circumstances, not starting the arbitration or legal proceedings would result in the Dispute being time-barred.

Enforcement and interpretation of Adjudication Agreements

16.4 An Adjudication Agreement in any Contract must be treated as an agreement independent of the other terms of the Contract.

16.5 A decision by the Adjudicator that a Contract is not valid or binding does not necessarily mean that the Adjudication Agreement is not valid or binding.

17.0 Application of these Rules

17.1 These Rules may be amended from time to time by NZDRC.

17.2 An Adjudication will be conducted in accordance with the Rules in effect at the time of the Notice of Adjudication (or, if there is no existing Adjudication Agreement, at the time of the Application for Adjudication).

17.3 However, if the Parties have agreed in writing that a particular version of the Rules be applied:

• (a) the Adjudication will be conducted in accordance with that version of the Rules; but
• (b) the Parties are taken to have agreed in writing that the Adjudicator’s Fees in effect at the time of the Notice of Adjudication (or, if there is no existing Adjudication Agreement, at the time of the Application for Adjudication) will apply to the Adjudication.

17.4 To facilitate the administration of Adjudications, the Registrar may issue practice notes that supplement, regulate or implement these Rules.

18.0 Communications and Notices

Communications must be in writing

18.1 All communications (including any notices, applications, requests or Submissions that need to be given or served under these Rules) must be in writing. The preferred method is electronic communication, such as email (see Rules 18.4 to 18.9).

Communications to NZDRC or the Adjudicator

18.2 All communications to NZDRC must be addressed to the Registrar.

18.3 All communications to the Adjudicator (or a person nominated as an Adjudicator):

• (a) before they are appointed must be sent to the Registrar (but see Rule 5.21 for when limited communication directly with a nominee may be allowed); and
• (b) after they are appointed must be sent directly to the Adjudicator but must be copied to the Registrar and every other Party to the Adjudication.

Electronic communication (email, etc)

18.4 Electronic communication is the preferred method of communication. Electronic communication means email or any other electronic means of communication that provides a record of its transmission, receipt or delivery. It includes the use of any designated electronic filing system operated by NZDRC.

18.5 A communication can be given or served by electronic communication. This Rule applies whether or not any Contract relevant to the Dispute allows electronic communication.

18.6 A Party can nominate an email address or other means of electronic communication as their preferred method of communication. The nomination must be notified to NZDRC, the Adjudicator, and every other Party (for example, by including it in the Application for Adjudication).

18.7 If a nominated email address or other means of electronic communication is notified, any communication may be given or served in that manner, and any communication delivered or served in that manner will be considered as having been received by the Party.

18.8 If there is no nominated email address or other means of electronic communication, but electronic communication has been used regularly in the Parties’ previous dealings, any communication may be given or served in that manner. This Rule does not apply if the Adjudicator or NZDRC directs otherwise.

18.9 In the absence of any proof to the contrary, an electronic communication is considered to be given or served on the day it is transmitted and is considered to be received on the same day.

Other forms of communication

18.10 A communication can also be given or served in the following ways:

• (a) by physically delivering it to the addressee;
• (b) by delivering it to the place of business, usual residence or usual mailing address of the addressee; or
• (c) if, after reasonable efforts to give delivery in another manner, it is sent to the addressee’s last known place of business, usual residence or mailing address, by registered letter or any other means that provides a record of the attempt to deliver it.

18.11 In the absence of proof to the contrary, a communication given or served under Rule 18.10 is considered to be given or served on the day it is delivered and is considered to be received on the same day.

19.0 General Provisions

Consolidation

19.1 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 of the Parties to those Adjudications agree in writing.

Time and Language of adjudication

19.2 Unless otherwise agreed between the Parties:

• (a) any period of time under these Rules is to be calculated in accordance with New Zealand Standard Time (UTC + 12) or New Zealand Daylight Savings Time (UTC + 13) as applicable; and
• (b) the language of the Adjudication will be English (or such other language determined by the Adjudicator under Rule 11.10).

Working days

19.3 A Working Day means a day of the week other than:

• (a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, Matariki, the Sovereign’s birthday, and Labour Day;
• (b) a day in the period commencing on 24 December in a year and ending on 5 January in the following year;
• (c) if Waitangi Day, Anzac Day or Matariki falls on a Saturday or a Sunday, the following Monday;
• (d) any provincial holiday in New Zealand (such as Auckland Anniversary Day) that is observed as a public holiday in the province in which an act is to be done; and
• (e) if a Party notifies the other Parties, the Adjudicator and NZDRC that they reside in a country other than New Zealand, any day that is a public holiday in the country or province in which that Party resides.

19.4 A Working Day ends at 11:59 pm on that day.

Calculation of time

19.5 When calculating any period of time referred to in these Rules, the day of the act or event is not included in the period of time. The period starts on the first Working Day after the date of the act or event.

19.6 For example, an Application for Adjudication must be given to NZDRC within five Working Days of the Notice of Adjudication being served (see Rule 5.11). A Notice of Adjudication can be served by emailing it (see Rule 18.5). If a Notice of Adjudication is emailed on a Friday, the five-Working-Days period does not start until the following Monday. Assuming there are no public holidays in that week and every day is a Working Day, the fifth Working Day is the Friday. This means that the Application for Adjudication must be given to NZDRC no later than 11:59 pm on that Friday.

19.7 Time periods under these Rules are calculated in Working Days. If a period is agreed or specified that is not calculated in Working Days, and the last day of such a period is not a Working Day, the period will be extended to the first Working Day that follows.

No storage of documents

19.8 Documents provided to the Adjudicator or NZDRC will be destroyed after the expiry of three calendar months from the end of the Adjudication. If a Party wants any original document returned to them, they must ask the Adjudicator or NZDRC to return it before the end of the three months and pay the reasonable costs of returning it.

Authority of NZDRC

19.9 All decisions of NZDRC under these Rules (for example, a decision to appoint an Adjudicator or revoke an Adjudicator’s appointment) are administrative in nature. They are final and binding on the Parties and the Adjudicator, and are not subject to appeal to NZDRC. NZDRC is not required to explain the reasons for its decision.

19.10 By agreeing to Adjudication, the Parties and Adjudicator are deemed to agree not to apply to any court, judicial authority or other body for relief in relation to NZDRC’s jurisdiction or authority under these Rules. This Rule does not apply if NZDRC acts fraudulently.