The determination process – what to expect
Determinations are made by an independent decision-maker
Determination is an informal adjudicative process involving the parties (who have agreed to participate and be bound by the determination) and a decision-maker.
The NZCRS has a panel of decision-makers who are mostly retired High Court judges. They will be assigned to cases dependent on availability. Decision-makers and experts will comply with the Code of Conduct in the High Court Rules.
The decision-maker will hear from the parties and make a final binding decision about the dispute, taking into account the insurance policy and relevant legal principles (including legislation, case law, and natural justice). A determination gives parties a much greater degree of flexibility compared to litigation.
If you are interested in seeking a determination, talk to your case manager. Homeowners must try resolving their claim through some form of mediation before entering the determination process.
- Paul Heath KC
- Rhys Harrison KC
- Peter Whiteside KC
- Lester Chisholm CNZM
- Nick Davidson KC
- Dame Judith Potter
Before the determination
Before entering the determination process, you will need to agree to the Dispute Resolution Agreement Contract. It is critical that you understand the process you are beginning, and you must provide the NZCRS with evidence that you have received legal advice on the contract and the process – we can provide access to free legal advice.
After you have signed the Dispute Resolution Agreement Contract, neither you nor the other party can leave the determination process. The only exception is where both parties agree to end the determination process, or where the decision-maker decides that special circumstances warrant it.
The NZCRS schedules dates and times for the determination as soon as all the parties and a decision-maker are available. The determination will usually take a day, but some can be longer or shorter.
The NZCRS will pay for the costs of the decision maker and the costs of running the meeting. We may look to recover these costs from the insurer or Toka Tū Ake EQC. Remember you will need to pay for your own experts’ time to attend the meeting, and the costs of legal representation.
Who attends an NZCRS determination?
The people who attend a determination are those who want to resolve the disputed claim and a decision-maker. This usually means the policy holder, the insurer, and the decision-maker. Lawyers, representatives, experts, and support people may also attend.
People can represent themselves at determination. However, lawyers can be very helpful in assisting parties to present their case – particularly in gathering the facts and setting out the law. Be aware that you will have to pay for your own experts for the determination. The NZCRS strongly recommends legal support throughout the process.
Preparing for the determination
You will be asked to participate in a telephone conference with the appointed decision-maker shortly after appointment. At that telephone conference a timetable will be set for delivering evidence and submissions summarising the issues of the case to the decision-maker. This must be in written form. The conference will also address whether a site visit is appropriate.
The evidence and submissions will be read by the decision-maker in advance of the hearing. If the decision-maker decides that they need some clarification on an engineering or other technical issue, or would like some engineering technical support, then they can request that information directly from Engineering New Zealand (ENZ). ENZ will engage an independent engineer to assess the issue and provide whatever feedback the decision maker needs. The cost of this engineering advice will be met by the NZCRS.
During the determination
Determination is different to other court or tribunal processes. It takes place in a less formal setting and gives parties a much greater degree of flexibility than litigation. For example, on procedural matters such as when the adjudication will take place (often resulting in a speedier outcome) or on the type of documents exchanged (the decision-maker may request evidence that may not be admissible in Court).
The decision-maker may also choose to ask questions of parties or their experts to inform their decision. The process will be more inquisitorial than adversarial. By signing the Dispute Resolution Agreement Contract, parties agree that the process is entirely confidential, and that the decision will be binding and final (this means it cannot be appealed).
The determination process anticipates that the case is ready for hearing and that all relevant evidence has been obtained. Because of this, the timeframe between the application and the determination hearing is short. In most cases, this timeframe should be no more than 3 months.
The following guidelines will apply:
- Due to the flexible nature of the process, the decision-maker will make directions as to the process to be followed, as appropriate to the issues of the case.
- In appropriate cases the decision-maker may undertake a site visit if requested by a party.
- The decision-maker will take an inquisitorial approach and may ask for information or documents or any other material that may assist in determining the dispute. Decision-makers will question the witnesses.
- In special circumstances, the decision-maker may, after consultation with the parties, engage an independent expert from one of the NZCRS panels, such as a structural engineer, or quantity surveyor, to assist with technical issues arising in the determination. Any documentation prepared by an expert for the decision-maker will be provided to the parties.
- The decision-maker may receive and consider any evidence or material which he or she considers would assist in determining the dispute, whether or not that information would be legally admissible in a Court.
- The parties may make brief submissions (whether at the opening or closing of the adjudication or both), present their evidence, and have their experts present their reports.
- The decision-maker may allow conferral or questioning of any party or person together or separately and before or at adjudication if he or she considers it appropriate.
- A decision-maker will be allocated from the panel depending on availability and workload. Where a homeowner has or is likely to have more than 1 case for determination, where possible the same decision-maker will be allocated to the cases.
Determinations are final and binding
The decision-maker will provide a written decision of the dispute including brief reasons, generally within 21 days of the meeting. This decision is confidential unless the parties otherwise agree to make the decision public.
All parties are bound by the outcome of a determination and cannot appeal it. This is the advantage of the process – it is final and binding.
The terms of the decision will be enforceable through the courts. For example, if a payment is not made, then you will be able to apply to the court to have the decision enforced.