Section 5: After the Disputes Tribunal hearing

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1 Section 5: After the Disputes Tribunal hearing 5.1 What if I was unable to attend the hearing? If you do not attend your hearing because you did not receive the Notice of Hearing, or for instance, for one of the reasons below, you can file an Application for Rehearing. In the case of: sickness you should provide a medical certificate death of a close family member or friend you may be required to provide a death notice an accident or incident on the way to the hearing you may be required to produce evidence. Other reasons may also be acceptable. Contact the Disputes Tribunal as soon as possible after missing the hearing or receiving the order to check if you are eligible for a rehearing. It is unlikely you will be eligible for a rehearing if you did not attend your hearing because: you just forgot you had to work or had another commitment you misread the hearing date. You are expected to make alternative arrangements for work or other commitments. It is your responsibility to ensure you carefully read all the documents sent to you, to immediately request any changes and follow up with Tribunal staff if no response is received. 5.2 Case Study Two Manu s engine problem Manu has been having difficulties starting his car on cold winter mornings. He eventually takes his car to Jamie s Garage and Auto Repairs. He tells Jamie he needs the car the next day as he intends to go to Hastings. When Manu picks the car up he is charged $445 for an engine tune up and a fuel system clean. That night Manu leaves for Hastings but the very next morning he has the same engine problems. He rings Jamie who tells him to get the car back to Wellington so he can look at it. Manu tows the car to a Hastings garage where a distributor lead is replaced for $50, which fixes the problem. When Manu returns to Wellington he goes to see Jamie and tells him that the Hastings garage fixed the real problem. Manu says he wants his money back. Jamie refuses, claiming that the car needed to be tuned anyway and that the distributor problem must have occurred on the way to Hastings. Manu sends Jamie a letter the following week, threatening Disputes Tribunal proceedings if he doesn t get his money back. Jamie ignores the letter and does not respond to telephone calls. Manu fills out a claim form and the Dispute Tribunal sends Jamie a Notice of Hearing. Jamie does not receive the letter and the hearing goes ahead without him. The referee finds in favour of Manu. Jamie is sent the referee s decision ordering him to pay back Manu s $445.

2 Jamie rings the Disputes Tribunal to sort this out. When the staff member hears that Jamie did not receive the notice of hearing, he advises Jamie that a form to apply for a rehearing is available online or the staff member can send him one. The staff member also tells Jamie that he needs to apply for a rehearing within 28 days of the date of the decision unless very special circumstances apply. 5.3 What are the reasons for a rehearing? Either party can apply for a rehearing in the Disputes Tribunal or can lodge an appeal to the District Court against a decision if they believe they have grounds to do so. For the Tribunal to grant a rehearing of the dispute, the party applying will usually have to show that not all the relevant information was available, or that a mistake was made, or that something else went wrong that prevented a proper decision from being made. For example, a person might apply for a rehearing if: the referee made a material error in the amount of money a party has to pay as compensation (for example, incorrectly added up losses), or after a hearing at which the referee approved an agreement between the parties, a party discovers facts: o that are directly relevant to the dispute, and o that could not, with reasonable effort, have been obtained before the hearing, and o that would have had a bearing on whether the person would have agreed to the settlement. A rehearing will not be granted just because a person disagrees with the decision. 5.4 Can I appeal a Disputes Tribunal decision? You may appeal if you consider that: the proceedings were conducted by the referee in a manner which was unfair to you and prejudicially affected the result of the proceedings; or: that an inquiry carried out by an investigator was conducted in a manner which was unfair and prejudicially affected the result of the proceedings. You must give reasons why the inquiry or the hearing was unfair and how this prejudiced your case. These reasons could include: you brought up a relevant legal point that the referee did not take into account The referee did not allow witnesses to give evidence. the investigator did not disclose essential information when reporting to the Tribunal. 5.5 Case Study Three- The Brown s fence The Browns and the Wongs have been neighbours for five years, during which time they have rarely spoken to each other. Their two properties have been separated by a boundary hedge. In the summer of 2014 the hedge begins to die. The Browns want to destroy what is left of the hedge and erect a fence. They obtain a quote from a builder. The quote is for the construction of a two metre close-boarded fence. The proposed fence is to be built along the entire boundary between the two properties.

3 The Browns send a fencing notice to the Wongs stating that the fence is to be built and that the Wongs are required to pay half the proposed cost of $2194. The fencing notice states: Fencing Act 1978 Fencing Notice TO: Mr and Mrs Wong, 27 Downtown Abbey Street, Johnsonville Please take notice that I desire that a fence be erected between your said property and my adjoining property at 29 Downtown Abbey Street, Johnsonville in accordance with the following particulars: 1. Our common boundary is 18 metres long. 2. The proposed height of fence is 1.8 metres. 3. The close-boarded style. 4. The use of a contractor to construct the fence. 5. The estimated cost of $2194 to be shared equally at $1097 each. o Labour (including GST) $789 o Materials (including GST) $ Materials are to be paid for by 30 June Date of commencement of work 30 May Within 21 days of receipt of this notice you may object to any of the above particulars and make your counter proposal. Within the same time, if you claim you are not liable to pay for fencing, you may notify me accordingly and supply the name and address of the person who is liable for fencing in connection with your property. If no objection is received, I will proceed with the fencing in accordance with this notice and you will be deemed to have agreed to the proposals set out in this notice and will be liable to share the cost accordingly. This notice is given under the Fencing Act Dated this 23rd day of April Signed J Brown 29 Downtown Abbey Street, Johnsonville. When the Wongs receive the notice they are unhappy. They think that the hedge is adequate, and that the cost of the fence is too high. Within 21 days of receiving the notice they file a cross-notice stating their objection to the proposed fence. After sending the notice and the cross-notice, the parties are still unable to come to an agreement about the fence. The Browns refer the matter to the Disputes Tribunal (under section 24A of the Fencing Act 1978).

4 At the hearing each party tells their version of the dispute. The Browns say that the hedge is no longer adequate and that it provides them no privacy. This is why they wish to build a more suitable fence between the two properties. They show photos of what the hedge used to look like and what it currently looks like. The Wongs then tell their side of the story. They are unhappy because the Browns did not even discuss the matter with them. The first they knew of the proposed fence was when they received the Brown s Fencing Notice. They say the proposed fence is too expensive and that the hedge is still an adequate fence. They also have some reservations about precisely where the boundary lies between their properties. They feel that they are being harassed because they are recent immigrants. They are unsure about why the hearing is taking place and are having difficulty expressing themselves because of their limited English skills. The referee says that, as the parties are neighbours, it would be better for their future relationship if they could agree on how the dispute should be resolved. The referee suggests that one option would be for the parties to agree to erect a style of fence that is cheaper to build. The referee tells the Wongs that unless an agreement is reached the decision will have to be made for them. The Wongs take this to mean that they must come to an agreement. They say that they don t want an expensive fence. The Browns say that they will be happy with a cheaper type of fence, provided that the fence is at least two metres high. The parties eventually agree to get quotes from different builders for various types of fence. They also agree that they will build a fence which is at least two metres high. The referee then puts the parties agreement in writing. After the hearing the Wongs tell a friend that they felt they had no alternative but to agree to the solution offered at the hearing. Their friend goes with them to the local Community Law Centre and explains how the Wongs had found it hard to defend their case at the hearing because of their limited English skills. The lawyer suggests that they lodge an appeal to the District Court because they were unaware of their rights and had felt pressured into making the agreement. 5.6 What can I do if the other party does not comply with a Disputes Tribunal order? If the Disputes Tribunal makes an order in your favour and the other party does not comply you have a number of options. However you cannot take any action until the date by which payment is to be made that is written in the order has passed. If the other party doesn t comply your options include: Applying to the court for enforcement action. There is a fee for this, but this fee is added on to the amount payable by the debtor. Hiring a debt collection agency to collect the debt on your behalf. (They may charge a set fee or a percentage of the debt). Hiring a solicitor to act on your behalf. A formal letter from a solicitor setting out the costs of enforcement action may be enough to get the person to act.

5 Using the District Court Enforcement actions are special powers that only a court has to collect debt or property. These actions are generally carried out by the Collections Unit of the District Court. There is a fee for each application that you make. The fee must be paid at the time you make your application. The list of fees is set out in the Paying civil enforcement fees form available here. If you intend to pay by credit card you will need to complete this form (it can be completed online), print it and include it with your application. If you wish to use the District Court to collect your debt, you will need to: Choose the appropriate enforcement option(s) listed below Apply to the District Court for each step of the enforcement process Ensure you have a copy of the order. You can ask the Court to take any of the following actions against the other party (debtor): issue an attachment order require the filing of a financial statement order an assessment of financial means issue a warrant to seize property conduct a financial assessment hearing issue a charging order initiate contempt proceedings If a financial statement is filed: If the creditor files a financial statement, a deputy registrar will assess the information provided and if satisfied that the debtor has the financial capacity may: set out new payment terms and conditions (such as instalments), or direct that a court enforcement action begin, for example: - make deductions from the debtor s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property). If an assessment of financial means is required If the creditor files an application for an assessment of financial means, a deputy registrar will contact the debtor to assess his or her financial situation. If satisfied that the debtor has the financial capacity they may: set out new payments terms and conditions (such as instalments), or direct that a court enforcement action begin, for example: - make deductions from the debtor s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property). If a financial assessment summons is issued The financial assessment hearing summons may be served by the creditor, their agent or the bailiff. The summons can be served on the debtor personally or it can be left with someone (who appears to be over the age of 14 years) at the debtor s home or work address.

6 The debtor will be ordered to appear at Court for a hearing at a specific date, time and location. The debtor must attend this hearing unless they pay the full debt before the hearing, in which case the hearing will be cancelled. If the debtor does not attend this hearing, a warrant for their arrest may be issued. At the hearing the debtor s financial situation will be assessed by a deputy registrar on behalf of the creditor. The creditor will usually be at the hearing. If satisfied that the debtor has the financial capacity, the deputy registrar may: set out new payment terms and conditions (such as instalments), or direct that a court enforcement action begin, for example: - make deductions the debtor s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property). The debtor should bring all relevant financial documents with them to the financial assessment hearing such as bank statements, payslips, and evidence of other income and expenses. Court Enforcement Options Money debts Attachment order to wages or benefit: If you know that the other party (the debtor) is employed or receiving a benefit, the District Court can order that payments be deducted directly from the debtor's income and paid to you. This is known as an attachment order. You cannot apply online for an attachment order, but the application form can be downloaded from: The fee for an application for an attachment order is $50. Post the completed application form to the Central Processing Unit, DX: SX10042, Wellington or you can take it to your nearest District Court. Once the attachment order is set up it is your responsibility to monitor the payments. The court does not check if payments are made. Agreed attachment order: You may reach agreement with the other party (the debtor) to enforce the debt through an attachment order. If so, the details will be recorded in the order by the referee. Post a copy of your order and the $30 filing fee to the Central Processing Unit DX: SX10042, Wellington or take it to your nearest District Court. If you are posting to the Central Processing Unit and paying by credit/debit card, complete the paying civil enforcement fee form. You can download the form from:

7 Once received the agreed attachment order can be processed immediately. For further information on enforcement see the collections website: What if I don t obey an order of the Disputes Tribunal? If you do not comply with the order, the creditor (the other party) can take one of a number of enforcement actions. They may use the services of their solicitor or a debt collection agency and request that these fees are recovered when the debt is paid or ask the Court to take enforcement action, which will add a filing fee to the amount the debtor must pay. The creditor can add the cost of these fees to the amount owed by the debtor and request that they are recovered when the debt is paid. A filing fee is a fee collected for an application is made to the Tribunal. To enforce an order of the Tribunal in the District Court, the creditor does not have to pay a filing fee, see Disputes Tribunal Act For Disputes Tribunal orders, when the application is filed by the creditor, the filing fee can be added to the debt.

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