Posted by Kalev Crossland on May 25 2020 in News

Well, I was back in the saddle last week for some liquidators – a three-day, live hearing, in the High Court with a clever judge, breathing witnesses in the flesh and an opponent after my life. We were of course ‘spaced out’ as Jacinda recommended and held the case in one of the Auckland High Court building’s largest courtrooms. This made it difficult in the sense that my trusty junior Jesvin, could not easily shuffle notes to me which normally helps me look polished and accomplished. But on the plus side I did not have any opposing counsel’s usual ‘tsking’ and hushed guffawing within earshot as sometimes happens in the shark tank of corporate litigation. 


Side-note, it was a painful limp up to the District Court for a criminal defence matter this week. The limp occasioned on the first morning of Level 3, when yours truly promptly injured himself off the Beachhaven channel, whilst engaged in 2020’s hot new sport – wing-foiling (Google it). I had escaped the house for the water like a bat out hell after a couple of months’ being confined to biking and surf-skate-boarding. Surgery beckons Friday week to remove three pieces of broken off bone that are currently partying up in my left knee joint.

But all in all, it is great to see the courts getting closer to being in full swing – albeit not open to the public and subject to the usual sign in checks we have all become used to. Respect and thanks must go to those wonderful court staff, security people and our judges that have steadfastly carried on the critical jobs to keep the wheels of justice in motion. We really do have some solid people in our country working not only in our courts, but medical centres, chemists and supermarkets.

As to business disputes, I would observe that if you are a defendant, there are a myriad of available excuses to delay your impending case. And if you are a plaintiff I am afraid things are more difficult – as well as delays that can be juiced from our lockdown, there are new temporary laws that directors of companies, mortgagors, tenants, debtors can invoke to keep creditors at bay (call us for more info). But probably fair enough, though such persons do need to be able to link impecuniosity to the lockdown to take advantage of such laws.

Quite aside from that, the reality is that liquidity is flowing as freely as water firing out of a water blaster on another sunny Auckland weekend (not). As such, I would counsel businesspeople to recognise our new economic order. You might have a great case, but if your defendant cannot pay a judgment, or tenant cannot pay, then its refraining us back to AC/DCs anthemic ‘Dirty Deeds Done Dirt Cheap’ scenario. Plaintiffs, you might want to cut a deal quickly and - most likely - take a hit. Defendants, just focus on the achievable, don’t bother arguing the merits in your settlement dialogue. I have seen a few good offers to settle disputes made shortly pre-Covid get hooked back once the party offering it quickly re-evaluated their financial position. But the same still applies now. Those around in 1987 will remember that it got bad, then got worse through 1988-91. So, unless you can sit on your position for a couple of years (and collect now valuable statutory interest rates), see a street-smart lawyer or accountant to help you settle your business disputes. There are a few hungry mediators that are now working remotely and maybe with lower fees. Clearing off these disputes will increase your bandwidth to focus on how you are going to turn a dollar in our new environment.

Kalev Crossland | Partner
t +64 9 300 8755 | Kalev.Crossland@shieffangland.co.nz

This paper gives a general overview of the topics covered and is not intended to be relied upon as legal advice.