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Judgment, appeals, and enforcement in the High Court
Important note on currency
This section was originally published on CourtKeys in 2015 and subsequently revised prior to 2020. While it remains useful for understanding general legal concepts and processes, some information may now be out of date. Updated and revised material is included in Civil Litigation for Non-Lawyers. This article is provided for general information only and does not constitute legal advice.
Judgment
The judge may give his or her decision at the end of the hearing or otherwise take some time to reflect and issue a written decision later on. That is called a ‘reserved’ decision. Judgments must typically be ‘sealed’ with a seal of the Court before they can be enforced. Part 11, Subpart 2 of the High Court Rules 2016 sets out how judgments must be sealed with the seal of the court and issued by a Court Registrar to whoever requested the sealed order. That party is required to then serve the sealed judgment on the other parties.
Appeals
Appeals against High Court decisions may be advanced in the Court of Appeal, but there is also a possibility to have them dealt with by the Supreme Court. The Supreme Court is the highest court in New Zealand.
The route to the Court of Appeal depends on the nature of the High Court decision at issue. That is as per section 56 of the Senior Courts Act 2016:
56 Jurisdiction
(1) The Court of Appeal may hear and determine appeals—
(a) from a judgment, decree, or order of the High Court:
(b) under the Criminal Procedure Act 2011:
(c) from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2) Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b) granting summary judgment.
(5) If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6) If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
The route to the Court of Appeal is further complicated by it depending on who in the High Court made the decision at issue. The procedure could be different if an Associate Judge made the decision rather than a Justice. That is because of section 27 of the Senior Courts Act 2016:
27 Appeals against decisions of Associate Judges
(1) A party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings.
(2) Section 56 applies to an appeal under subsection (1).
Subpart 6 of part 20 of the High Court Rules 2016 provides for applications for leave to the Court of Appeal.
Section 69 of the Senior Courts Act 2016 deals specifically with appeals to the Supreme Court against decisions of the High Court in civil proceedings. It provides:
69 Appeals against decisions of High Court in civil proceedings
The Supreme Court may hear and determine an appeal by a party to a civil proceeding in the High Court against a decision made in the proceeding, unless—
(a) an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or
(b) the decision is a refusal to give leave or special leave to appeal to the High Court or the Court of Appeal; or
(c) the decision is made on an interlocutory application.
Appeals to the Supreme Court may only be heard with leave of that Court. That is as per section 73 of the Senior Courts Act 2016.
Enforcement
Part 17 of the High Court Rules 2016 sets out various options you may have to enforce a High Court judgment. These can involve the use of forms found at Schedule 1 of those Rules.
Enforcement options are set out at Rules 17.3:
17.3 Method of enforcing judgments
(1) A judgment may be enforced by 1 or more of the following enforcement processes:
(a) an attachment order:
(b) a charging order:
(c) a sale order:
(d) a possession order:
(e) an arrest order:
(f) a sequestration order.
(2) Subclause (1) is subject to the rules in this Part.
(3) No enforcement process may be issued until any period specified in the judgment for payment or performance has expired.
An insolvency process may be an appropriate alternative in cases where the judgment involves payment of money and the ‘judgment debtor’ does not seem to have property that could be sold in order to pay. A ‘judgment debtor’ is a person or organisation who has had a court order made against them, whereas the ‘judgment creditor’ has the benefit of such an order. An ‘insolvency process’ includes bankruptcy (where the judgment debtor is a natural person) and liquidation (where the judgment debtor is a corporation).
Attachment orders
A proceeding for an ‘attachment order’ is a process whereby, so long as the High Court is satisfied of certain criteria, it may make an order requiring an amount of a judgment debtor’s wages is deducted by their employer and paid to the judgment creditor. The ‘judgment debtor’ being a person who has had a court order made against them, whereas the ‘judgment creditor’ has the benefit of such an order.
Subpart 4 of part 17 of the High Court Rules 2016 provides for attachment orders. Form E 3 is an attachment order template.
Charging orders
Charging orders may be registered against certain property. The effect of a charging order is that, if a judgment debtor wants to sell the property, they will need to go through the judgment creditor first. The judgment creditor can then require payment from the sale proceeds as a condition of removing the charge. The judgment creditor can also apply to have charged property sold (upon a sale order) to pay a judgment debt from the proceeds of the sale.
Subpart 5 of part 17 of the High Court Rules 2016 provides for charging orders, and forms E 4 to E 7 are relevant.
Land may be charged by a charging order, as well as other property as set out at rule 17.53:
17.53 Personal property may be charged
A charging order may charge all personal property, including—
(a) debts payable by or accruing due from the Crown to the liable party that are not excepted by section 26 of the Crown Proceedings Act 1950:
(b) a debt or sum of money due or accruing due to the liable party, including money—
(i) due or accruing due to the liable party by a public body; or
(ii) standing to the credit of the liable party in a proceeding or interlocutory application; or
(iii) standing to the credit of the liable party in the possession of a Sheriff or court officer:
(c) the right or interest of the liable party in a partnership:
(d) shares held by the liable party in any company that—
(i) is incorporated in New Zealand; or
(ii) has a registry in New Zealand in which transfers of shares may be registered:
(e) the estate, right, or interest in possession, remainder, reversion, or expectancy (whether vested or contingent) in any land, or in any money, shares, or other personal property, held under or because of any express or implied trust for the liable party.
Sale orders and possession orders
Subpart 6 of part 17 of the High Court Rules 2016 deals with sale orders and possession orders. These orders are what they say: A sale order requires that property is sold and a possession order requires property to be given over to someone. In both cases they empower an ‘enforcing officer’ or ‘sheriff’ to take possession of property and deliver it up to someone or sell it.
Forms E 7 and E 8 are templates for sale and possession orders respectively.
Arrest orders and sequestration orders
Subpart 7 of part 17 of the High Court Rules 2016 deals with arrest orders and sequestration orders. These tend to be used to incentivise compliance on an interim basis though, rather than fully and finally disposing of all matters in a case.
An arrest order empowers an ‘enforcing officer’ to arrest a person and bring them before the High Court. They may then be committed to prison for disobedience if they have not complied with an earlier court order.
To ‘sequestrate’ something mean to confiscate it until a party’s contempt of court is cleared. A sequestration order authorises a ‘sequestrator’ to take possession of real estate or personal property to that end.
Rules 7.61 to 7.67 apply to sequestrators ‘with all necessary modifications’, and forms E 8 to E 12 are relevant.
Bankruptcy
Bankruptcy is an insolvency process for natural persons. It is provided for by the Insolvency Act 2006 and part 24 of the High Court Rules 2016. Forms B 1 through to B 17 of those Rules are relevant.
When a person is declared bankrupt a government executive called the ‘Official Assignee’ takes over that person’s property. Then that property may be sold to pay the bankrupt person’s debts. A bankruptcy typically lasts for three years, but they can be shortened or lengthened in some circumstances.
Liquidation
Liquidation is an insolvency process for companies and other kinds of corporations. In relation to companies, this process is provided for by part 16 of the Companies Act 1993. Part 31 of the High Court Rules 2016 also applies, and forms C 1 to C 16 are relevant.
A ‘liquidator’ is appointed when a company is placed into liquidation. That person takes over the property and affairs of the company with a view to paying the debts it owes. Liquidators may sell company property or make other arrangements to that end. In some cases they are able to sell the business of the company and make payments from the sale proceeds. Sometimes they may keep a company trading, pay its debts, end the liquidation process and allow the company to continue on its way. However, many liquidations end with companies being wound up and a list of unhappy creditors who have been told they will never be fully paid. That tends to happen when a company is in such a bad way there is no realistic prospect of recovering enough value to pay its debts.
Disclaimer
All legal information published on this website is general information about New Zealand law only. It is not legal advice or a substitute for legal advice. It does not address specific circumstances of any particular individual or entity. It may not reflect current law, practice or legal requirements. No warranty, guarantee or undertaking is made about the accuracy or completeness of the information, or about results that may be obtained from the information. No responsibility or liability is assumed or accepted for any actions taken or not taken based on use of the information, or for any direct or indirect losses or damage of any kind arising from use of the information. Specific legal advice should be obtained from a lawyer about any circumstances.