Disputes process

You can use this guide to the main steps in the retirement villages’ disputes process if you are thinking about taking a complaint to a disputes panel or if you are involved in a dispute. 

 

Disputes flowchart

View or download and print a copy of the disputes process flowchart.

Disputes flowchart (PDF 49.7 KB, Sep 2013)

(PDF 49.7 KB, Sep 2013)

 

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1. Deciding to take a dispute to a disputes panel

Who can take a dispute

A dispute can be initiated by a resident or an operator. Disputes are most often between a resident and an operator but they may also be between a resident and another resident.

The disputes provisions in the Retirement Villages Act 2003 may also be used by:

  • A former resident
  • The personal representative of a resident such as a family member or a friend

The person who initiates the dispute by issuing a dispute notice is called the applicant. The person who the dispute is taken against is called the respondent. Together, they are known as the parties to the dispute.

A resident may involve a support person through the disputes process.  A resident may also appoint a lawyer to assist and represent the resident in the disputes process.

Types of dispute between a resident and the operator

Residents can issue a dispute notice to the operator about a decision the operator has made relating to:

  • The resident’s right to live in their unit or to use village services or facilities
  • Changes to the charges for outgoings or for access to services or facilities
  • Charges or deductions imposed on the resident because their right to live in the unit (their occupation right) has ended
  • Any decision the operator has made relating to money owed to the resident when the resident cancelled (avoided) the occupation right agreement for a breach by the operator
  • A breach of the Code of Residents' Rights
  • A breach of the Code of Practice

If there is some doubt or an issue about whether the dispute qualifies under section 53 of the Retirement Villages Act 2003 for referral to a disputes panel, then the panel member(s) determine if the dispute will be heard. If a dispute is referred to a disputes panel, a resident could consider obtaining legal advice or representation.

Types of dispute between a resident and another resident

A resident can also give a dispute notice to another resident about a dispute affecting their occupation right. This includes a dispute about someone in the other resident's unit with the other resident’s permission.

Types of dispute between the operator and a resident

If an operator has an issue with a resident that they have been unable to resolve despite making reasonable efforts, the operator may refer the dispute to a disputes panel 20 working days after they notified the resident of the dispute.

Operators can take a dispute on any matter relating to:

  • Residents’ rights to occupy their unit or right to access services or facilities
  • Changes to the charges for outgoings or charges for access to services or facilities
  • Charges or deductions imposed on residents because their right to live in the unit (their occupation right) has ended

A resident ending their occupation right agreement and seeking a refund (due to an alleged serious breach of the Act such as the operator not providing copies of required documentation to the resident prior to the occupation right agreement being entered into)

Disposal dispute between a former resident and the operator

If, in selling or otherwise disposing of a unit, the operator breaches the former resident’s occupation right agreement or the Code of Practice, the former resident (or their estate) can issue a dispute notice (provided the former resident was a resident in the village as at or after 1 February 2004). This type of dispute is called a disposal dispute.

Health and disability disputes are excluded

A resident cannot give a dispute notice about health or disability services. If a resident thinks a health or disability service provider has not complied with their rights under the Code of Health and Disability Services Consumers' Rights, the resident should first raise their concerns with the relevant provider. A health and disability consumer advocate can help resolve complaints. An advocate may report an unresolved complaint to the Health and Disability Commissioner or a resident can take their complaint directly to the Health and Disability Commissioner's Office.

For more information, see how to make a complaint at the Health and Disability Commissioner’s website.

How much does it cost?

There are no application fees for issuing a dispute notice. The operator is responsible for paying the costs incurred by the disputes panel, including their fees and expenses such as travel costs.

Each party is responsible for paying the costs and expenses of any witnesses they call to give evidence, and also for any support person or representative they engage, such as a lawyer or advocate.

However, the disputes panel may award some or all costs and expenses incurred to any party or to the operator where there is a dispute between residents.

No monetary limit

There is no monetary limit on disputes that can be taken to a disputes panel.

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2. Issuing a dispute notice

Timeframes for issuing a dispute notice

Resident issues a dispute notice

If a complaint has not been resolved then, once 20 working days has passed since the complaint was made, the resident, former resident or their representative, may issue the other party with a dispute notice and have the issue dealt with by a disputes panel.

Residents cannot give the notice more than six months after they first made the complaint unless both sides agree to a longer time.

If the dispute is between residents and doesn’t involve the operator, the person giving the dispute notice must also give a copy to the operator.

A resident who is involved in a dispute can also tell the statutory supervisor about the dispute or otherwise involve them in it.

Former resident issues a dispute notice

In disposal disputes, the former resident (or their estate) must wait nine months after the unit has become available to the operator to be disposed of before they can give a dispute notice. They do not, however, have to make a complaint first.

Operator issues a dispute notice

An operator can give a dispute notice 20 working days after notifying a resident of a dispute and making reasonable attempts to resolve it.

Who else gets a copy of the dispute notice?

The operator must provide a copy of the dispute notice to the village’s statutory supervisor if the operator thinks the outcome may affect either:

  • A significant number of the village’s residents
  • The general operation of the village
  • The operator’s rights and obligations under the deed of supervision

The operator must also give a copy of the notice to the:

  • Retirement Commissioner
  • Statutory supervisor in disposal disputes
  • Disputes panel (once appointed)

Information included in the dispute notice

The dispute notice must be in writing, and must:

  • Identify the particular decision or action the applicant is concerned about
  • Identify the person or people the dispute is with
  • State the grounds on which the applicant is disputing the particular decision or action
  • State what has been done so far to try to resolve the dispute

It doesn't matter if this notice fails in some trivial or technical way to meet these requirements: if it substantially meets them, the notice is valid.

There are no application fees for giving a dispute notice.

Form for a dispute notice

A dispute notice may be issued using form 1, which is on the New Zealand Legislation website.

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3. Appointment of a disputes panel

The operator has 20 working days from the date of receiving or giving the dispute notice to appoint one or more independent people to sit on the panel.

In disposal disputes, the panel must have at least three members, one of whom chairs the panel. The chair must be a retired judge or an experienced lawyer.

Selecting panel members

The panel members are selected from a list approved by the Retirement Commissioner. The operator must consult with the other parties about who to choose before appointing the panel.

See the list of people who are approved as disputes panel members.

The operator must provide the Retirement Commissioner with a copy of the dispute notice and copies of all the documents relating to the appointment of disputes panel member(s).

Panel’s responsibilities

Once appointed, the disputes panel conducts the whole dispute resolution process. The panel is responsible for:

  • Deciding what information they need
  • Holding a pre-hearing consultation with the parties
  • Making the arrangements for a hearing, including giving the notice of hearing to the parties
  • Conducting the hearing
  • Making and notifying the decision in writing, with findings of fact and reasons
  • Providing all the relevant papers, documents and other material to the Retirement Commissioner

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4. Information gathering and consultation

The disputes panel can require the applicant to provide more information, in writing, about the dispute or the respondent to reply.

Replying to a dispute notice

The respondent may reply to the dispute notice setting out what they accept and reject, or the panel can require them to reply to the dispute notice.

A reply to a dispute notice may be set out using form 2, which is on the New Zealand Legislation website.

Consultation

The disputes panel must consult the parties before the hearing. This may be by way of a pre-hearing meeting or any other method that allows everybody to communicate with each other (such as a teleconference call).

The panel must consult the parties about:

  • Whether to hold a hearing
  • Where and when to hold the hearing (it’s usually expected to be at the retirement village)
  • How long the hearing is likely to take
  • Whether any part of the hearing should be held in private or any part of the proceedings should not be published. Hearings are otherwise in public and the proceedings as well as the decisions are published
  • Identifying the issues in dispute
  • What evidence is to be presented and how it is to be given
  • Arranging for the parties to exchange evidence
  • Allowing any party to be represented, including by a lawyer

Witnesses

Any party may also ask witnesses (such as a statutory supervisor, lawyer, family member or other resident) to give evidence at the hearing. Unless the disputes panel decides otherwise, the person calling the witness must pay fees, allowances and travel expenses in accordance with the scale set out in the Schedule of the Witnesses and Interpreters Fees Regulations 1974  (go to the website and click Statutory Regulations).

A request to a witness to a hearing may be may be made using form 3, which is on the New Zealand Legislation website.

Notice of hearing

The disputes panel gives a notice of hearing to each party at least a week beforehand. This includes:

  • Information about the issues to be addressed
  • Reference to the relevant provisions of the Retirement Villages Act or the regulations
  • The procedure to be followed
  • A warning about what could happen if a party doesn’t attend the hearing

If either party wishes to apply to the disputes panel for an order relating to holding the hearing in private, excluding anyone from the hearing, or the publication of proceedings, they must use form 8, which is on the New Zealand Legislation website.

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5. Hearing a dispute

The disputes panel conducts a hearing unless either:

  • The applicant withdraws the dispute notice in writing
  • The parties agree not to have a hearing
  • Neither party appears at the hearing
  • The disputes panel decides not to hear the dispute after consulting the parties

The panel can refuse to hear the dispute if it believes that:

  • The dispute is vexatious, frivolous or an abuse of process
  • The dispute should be heard in a court
  • This particular panel should not hear the dispute for any other reason, in which case the operator must appoint another disputes panel

For more information about what to do in any of these circumstances, see section 15 and sections 20-24 of the .

What happens at the hearing

The panel must conduct the hearing in a way that is most likely to resolve the dispute fairly and speedily. All parties are entitled to be at the hearing and to speak.

The usual procedure is as follows (however the parties can agree, or the disputes panel can decide, to change this procedure):

  1. First the person who gave the dispute notice (the applicant) states their case and brings forward evidence to support it.
  2. Next the person receiving the dispute notice (the respondent) states their case and brings forward their evidence.
  3. The respondent may then address the disputes panel generally on the case and the applicant may reply to this.

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6. Making a decision

Deciding the decision

The disputes panel must decide the dispute according to "the general principles of the law" relating to the matter and "the substantial merits and justice" of the case.

The panel can:

  • Amend the occupation right agreement
  • Order either side to comply with their obligations under the occupation right agreement, under the Code of Residents' Rights, or under the Code of Practice
  • If the dispute is with the operator and is about money, order the resident or the operator to pay or refund the other an amount of money
  • If the dispute is with another resident, order either side to return property valued up to $1,000 or pay up to $1,000 in compensation to the other
  • Order either side to pay costs to the other

Decisions in disposal disputes

In disposal disputes, in addition to its usual powers, the panel can order the operator to:

  • Market the unit in a particular way or at a particular price
  • Pay compensation to the former resident
  • Pay interest to the former resident

If none of those options is appropriate, buy the former resident’s interest in the unit at a certain price and within a certain time, or, if they don’t have an interest in it, pay them a certain amount within a certain time

In deciding a disposal dispute, the disputes panel must take into account the:

  • Relevant real estate market
  • Age and condition of the village
  • Effect on other residents and on the financial stability of the village

Advising the decision

The disputes panel gives a written decision that sets out its findings on the facts and the reasons for its decision. The panel's decisions are enforceable in the courts. A decision can also be appealed to the courts through a rehearing in accordance with the process set out in section 75 of the Act.

The panel decision must be notified using form 7, .

Awarding costs

The disputes panel may award costs and expenses to the successful party or to an unsuccessful applicant if it was reasonable to bring the dispute before a panel. If the dispute is between residents, the disputes panel may award costs to either party or to the operator.

In deciding on costs, the disputes panel takes into account how reasonable it is to award the costs, the amount or value of the matters in dispute, the importance of the dispute to the parties, and the conduct of the parties.

Any award of costs or expenses must be recorded in the form 7, which is on the New Zealand Legislation website.

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7. Making an appeal

Any party to a dispute resolution may appeal against the decision of a disputes panel within 20 working days of the decision.  Appeals will be heard by either the District Court or High Court in accordance with section 75 of the Act.  The decision of the court hearing the appeal is final.

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Related Information

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