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A court may award a range of remedies to you if your business succeeds in a New Zealand court case. One such remedy is an interlocutory order. However, it can be confusing whether this remedy is appropriate for your business and your court case. This article outlines:

  • what an interlocutory order is;
  • how you apply for an interlocutory order; and
  • what an interlocutory application without notice is.

What Are Interlocutory Orders?

An interlocutory order is an order made by the District Court or High Court. A court may award one

  • for either a current court proceeding or an intended proceeding; and 
  • concerning a matter of procedure or relief. 

These matters will be secondary and in relation to your main court case. The order may concern:

  • securing a new trial, for the same matter or a different issue;
  • striking out either the whole or part of an existing pleading, such as a guilty pleading; or
  • changing a previous interlocutory order.

How Do You Apply For an Interlocutory Order?

An interlocutory order is made either on the interlocutory application of:

  • a judge’s own initiative; or
  • a party.

Judge’s Initiative

A judge may give leave for an interlocutory order where they think it is necessary, even if:

  • neither party specifically makes a claim for the order; or
  • there is no current claim for relief. 

A Party

A party may choose to file an interlocutory application to seek relief. This application must clearly state:

  • the type of relief the party is seeking; 
  • the grounds that justify this relief, which would include a particular provision of legislation, a principle of law or a previous court decision; and
  • a synopsis of their argument.

This synopsis of their argument must contain: 

  • a description of the general nature of the case;
  • a chronological list of the material facts of the case;
  • the applicant’s key submissions or arguments; and
  • any relevant documents, authorities and evidence, which you must present by affidavit. 

After you file a a successful application with either a District Court or High Court, the court registrar will allocate you a hearing date for your application. Once the court issues this date, you should provide: 

  • a copy of the application; and
  • an affidavit supporting it to every party involved.

Notice of Opposition

The person against whom you make an interlocutory claim is known as the respondent. They can oppose the application by providing a notice of opposition, which they must file with the court and give to every party within:

  • ten working days after you distribute the application; or
  • three working days before the hearing, if the hearing date is within that ten-day period. 

This notice of opposition must include:

  • an acknowledgement that the respondent intends to oppose the application; and
  • the grounds for this opposition.

Finally, the respondent must provide a synopsis of their argument at least one working day before the hearing. This synopsis will include: 

  • any facts that the applicant did not include; 
  • any facts that the respondent disputes;
  • the respondent’s key arguments; and 
  • any other relevant documents.

Interlocutory Hearing

The hearing will usually occur in the court’s chambers. However, it can take place through phone call or video, either on the judge’s request or by application of the parties involved. This hearing will determine whether the applicant is successful in being awarded an interlocutory order.

Interlocutory Application Without Notice

When applying for an interlocutory order, you usually have to provide the other parties with a notice of the application. However, there are circumstances where you may wish to make an application to a judge without the knowledge of the other parties. This is known as an interlocutory application without notice. 

To get an order without notice, you must take all reasonable steps to ensure that the application covers all relevant material and complies with the requirements of an interlocutory application. 

As the other party does not have an opportunity to respond, you also need to include any defences or facts that any contesting party may rely on. This means you must file a memorandum that details:

  • the background to the proceedings;
  • the grounds on which you seek the order; and
  • all known relevant information, including any grounds of defence or opposition that any other party may rely on to oppose the application.

If these matters are not addressed, the judge is allowed to dismiss the interlocutory application.

On receiving the application, a judge must determine whether this case is appropriate to be heard without a notice. A judge may only accept an interlocutory application without notice when: 

  • an undue delay, or prejudice, to the applicant would occur if notice were required;
  • the application in question only affects the applicant;
  • the application is on a routine matter; 
  • you have a legal right to make an application without notice; or
  • the interests of justice require the court to not give the respondent any notice.

Key Takeaways

A New Zealand court can make a interlocutory order for the purposes of a current or intended proceeding and concerns either a matter of procedure or relief. If you believe that an interlocutory order will provide you with the type of relief you are seeking, you will have to file an interlocutory application. This application must contain the necessary requirements and you must provide a copy to any party involved in the proceedings. However, there are instances where you can file an interlocutory order without notice. If you would like help filing an interlocutory application, contact LegalVision’s New Zealand disputes lawyers on 0800 005 570 or complete the form on this page.

FAQs

What is an interlocutory order?

An interlocutory order is an order made by a court for the purpose of a current or intended proceeding and concerns either a matter of procedure or relief.

Can an interlocutory order be appealed?

An interlocutory order can be appealed, where necessary for the interests of justice.

What is an interlocutory application?

An interlocutory application is the application process to get an interlocutory order.

When can an interlocutory application be filed?

An interlocutory application can be filed before or during court proceedings. 

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