1.1 In these Terms of Reference, unless the context otherwise requires, the following expressions have the following meanings:
“Act” means the Financial Service Providers (Registration and Dispute Resolution) Act 2008;
“Applicable Monetary Limit” means:
a) the sum of $1,500 (plus GST, if GST applies) per week where the claim against a Participant relates to a product that provides regular payments (as distinct from a lump sum); or
b) the sum of NZ$200,000 (plus GST, if GST applies), in any other case, for a claim against a Participant;
“Assessment” means a written document prepared on behalf of the Scheme pursuant to paragraph 13.1(a) that summarises the Complaint, analyses the issues and sets out whether the Complaint is upheld and if so what remedy, if any, is appropriate;
“Award” means a written decision, with reasons, made by the Ombudsman on behalf of the Scheme in relation to a Complaint that:
a) is binding on the Participant in the circumstances set out in paragraph 13.1(d); and
b) includes a direction that the Participant undertake remedial action permitted by paragraph 14 and set out in the Award;
“Business” has the same meaning as in the Act;
“Complaint” means an expression of dissatisfaction about a Participant, where a response or resolution is explicitly or implicitly expected from the Participant;
“Complainant” means a person or body that. at the time of making the Complaint to the Scheme, is:
a) a person or group of persons, whether acting jointly or severally;
b) the trustees of a family trust including a corporate trustee (if the family trust carries on a business it must be a Small Business);
c) a club or an incorporated society;
d) a unit title body corporate or a body corporate of a company title building which is occupied for residential or Small Business purposes;
e) a Small Business;
“Constitution” means the Constitution of the Scheme;
“Consumer Credit Contract” has the same meaning as in the Credit Contracts and Consumer Finance Act 2003;
“Consumer Goods” has the same meaning as in the Credit Contracts and Consumer Finance Act 2003;
“Deadlock” represents the point in time at which the Participant has fully considered a Complaint through its internal Complaints procedure and has decided that the Complaint cannot be resolved by that procedure or the Scheme considers Deadlock has been reached under paragraph 8.2;
“Enforcement Action” has the same meaning as in section 83J of the
Credit Contracts and Consumer Finance Act 2003;
“Final Decision on Jurisdiction” means a written decision, with reasons, made by the Ombudsman on behalf of the Scheme pursuant to paragraph 7.2 as to whether or not a Complaint is within the Scheme’s jurisdiction;
“Financial Markets Authority” means the regulatory authority established under the Financial Markets Authority Act 2011;
“Financial Services” means any financial services provided in New Zealand by a financial services provider registered under the Act;
“Minister” means the Minister of the Crown who is for the time being responsible for Part 3 of the Act;
“Month” means calendar month;
“Nominated Representative” has the same meaning as in the Financial Advisers Act 2008;
“Ombudsman” means the Insurance & Financial Services Ombudsman appointed in accordance with Clause 13.1 of the Constitution;
“Participant” means each individual, company or organisation which becomes a Participant in the Scheme in accordance with Clause 9 of the Constitution;
“Qualifying Financial Entity” has the same meaning as in the Financial Advisers Act 2008;
“Recommendation” means a written decision, with reasons, made by the Ombudsman on behalf of the Scheme pursuant to paragraph 13.1(b) as to whether or not a Complaint has been upheld and, if upheld, what remedial action permitted by paragraph 14 the Participant should undertake;
“Scheme” means the Insurance & Savings Ombudsman Scheme Incorporated until 1 November 2015 and the Insurance & Financial Services Ombudsman Scheme Incorporated from that date on;
“Small Business” means a Business that has no more than 19 full-time equivalent employees;
“Subsidiary” has the meaning given in section 5(1) of the Companies Act 1993 as if “company” in that definition included any body corporate whenever and wherever incorporated including outside of New Zealand;
“Terms of Reference” means these Terms of Reference as amended from time to time in accordance with the Constitution.
1.2 For the purpose of these Terms of Reference:
a) Financial Services provided by a Subsidiary of a Participant that is not itself a Participant are deemed to have been provided by the Participant; and
b) reference to the provision of Financial Services includes reference to their non-provision.
1.3 These Terms of Reference will apply to a Complaint made to the Scheme on or after 1 July 2015, where Deadlock was reached in accordance with paragraph 8 on or after 1 July 2015.
2.1 The Scheme:
a) authorises the Ombudsman to exercise all powers and discretions conferred on the Scheme by these Terms of Reference; and
b) permits the Ombudsman to delegate any of those powers and discretions (other than the power to make Final Decisions on Jurisdiction, decisions to include information under paragraph 10.3b), Recommendations and Awards) to any employee or contractor engaged by the Scheme.
3.1 The Scheme’s principal powers and duties are:
a) to resolve, without charge to the Complainant, Complaints arising out of the provision of Financial Services by a Participant and to do so in a way that is accessible, independent, fair, accountable, efficient and effective; and
b) to promote and publicise the Scheme to consumers and Small Businesses and to encourage and provide advice to Participants on the development and maintenance of good complaint-handling practices.
A Complaint about a Participant may be made to the Scheme by completing the Scheme’s complaint form and providing the information required by that form. The Complaint may be hand delivered to the Scheme or sent by email, fax or post.
5.1 Subject to paragraph 5.2 and any other legal rules relevant to the provision of the services, the Scheme has the power to consider Complaints made by a Complainant about Participants relating to:
a) breaches of contract by the Participant;
b) breaches of statutory obligations by the Participant;
c) breaches of industry codes by the Participant; and
d) non-compliance with relevant industry practice.
5.2 The Scheme will only consider (or continue to consider) a Complaint made to the Scheme where the Scheme is satisfied that:
a) the claim against the Participant made in the Complaint either:
i) represents a monetary amount not more than the Applicable Monetary Limit; or
ii) is part of a larger claim (representing whatever monetary amount) that has been accepted by the Participant and that part represents a monetary amount not more than the Applicable Monetary Limit;
b) the Complaint is made either:
i) by or on behalf of the person to whom, or for whom, or for whose benefit, the Financial Services were provided (the Scheme has no power to consider a Complaint against a Participant from a person who is an uninsured third party in a claim relating to that Participant); or
ii) by a person who has provided a guarantee or security for, or repayment of, the Financial Service;
c) the subject matter of the Complaint has not previously been considered by the Scheme or, if this has occurred, that relevant new evidence is available;
d) prior to the date the Complaint was made to the Scheme:
i) proceedings had not been commenced in any court, or tribunal, or before any arbitrator or ombudsman, or any other body involved in dispute resolution to consider and/or determine the subject matter of the Complaint; or
ii) the subject matter of the complaint had not been to a mediation in which a resolution had been agreed to by the Complainaint; or
iii) the Complainant had not agreed to be bound by the terms and conditions of a full and final settlement agreement with the Participant;
e) there is not a more appropriate forum to deal with the Complaint, for example, another independent or statutory Complaints or conciliation procedure;
f) the Complaint is not lacking in substance and is being pursued reasonably by the Complainant and not in a trivial, frivolous or vexatious manner, or in bad faith; and
g) the Participant has not given the Scheme a notice that the Complaint is to become a test case in accordance with paragraph 15.3 of these Terms of Reference.
5.3 Nothing in these Terms of Reference will prevent the Scheme from considering a Complaint, that is otherwise outside the Scheme’s jurisdiction, if the Participant consents.
11.1 The Scheme may decide the method and process to be used to resolve the Complaint. This may include:
c) mediation; or
d) making a decision about the Complaint in accordance with the process set out in paragraph 13.
11.2 At any time a Complaint is under consideration by the Scheme, it may be resolved by agreement between the Complainant and the Participant and the agreement will be binding on both the Complainant and the Participant.