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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22315
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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A NEW ZEALAND COMPANY OWES MONEY TO ANOTHER COMPANY OUTSIDE

Customer Question

A NEW ZEALAND COMPANY OWES MONEY TO ANOTHER COMPANY OUTSIDE NEW ZEALND, IS THERE ANY STATUS OF LIMITATIONS IN ORDER TO AVOID TO PAY THE DEBT?
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  LawTalk replied 1 year ago.
Good afternoon,
I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.
1. What country is the other company located in?
2. Where was the contract for the debt created? New Zealand or another country?
Doug
Customer: replied 1 year ago.
HI DOUG, MY NAME IS***** REPRESENT A NEW ZEALAND COMPANY, WHICH ENTERED INTO A SALES CONTRACT IN CUBA AND THE NEW ZELAND COMPANY WITH DOMICILE IN AUCKLAND, OWES TO A CUBAN DEPARTMENT A REBATE FOR A SALE OF A PRODUCT SINCE 2008. THE CUBAN LAW STATES THAT IN CASE THAT ANY AMOUNT IS OWED TO THE CUBAN GOVERNMENT OR ANY OF ITS ENTITIES NEVER APPLIES THE STATUS OF LIMITATIONS.
REVIEWING THE CONTRACT SIGNED BY THE NZ COMPANY ADDRESSED IN NZ AND THE CUBAN ENTITY HAS NO PLACE TO FULFILL WITH THE OBLIGATIONS IN THIS CASE THE PAYMENT. THEREFORE WE WOULD LIKE TO KNOW IF IN THE CONTRACT DOES NOT MENTION THE PLACE TO FULFILL WITH THE OBLIGATIONS, THE APPLICABLE COURT WILL BE THE JURISDICTION OF THE DOMICILE OF THE DEBTOR . UNDER THIS BASE IF OUR CLIENT IS SUED IN NEW ZEALAND BY THE CUBAN ENTITY OUR DEFENSE WOULD BE THE STATUS OF LIMITATION. IN OTHER WORDS, OUR DEFENSE IN THE NZ COURT WOULD BE THE STATUS OF LIMITATION O PRESCRIPTION TO CLAIM THE DEBT. THAT IS WHY WE REQUEST FROM YOU YOUR HELP INFORMING US WHAT IS THE PERIOD FOR THE STATUS OF LIMITATION.
HOW LONG DOES A CREDITOR HAS TO CLAIM A DEBT IN NZ?
HOW LONG DOES THE NZ LAW PROVIDES FOR THE FULFILLMENT OF OBLIGATIONS?
YOUR ANSWER WILL BE APPRECIATED
LUIS BARONA
Expert:  LawTalk replied 1 year ago.
Hi Luis,
Thanks for all the additional information.
The domicile of the debtor is not automatically the place where suit must be filed and where the statute of limitations on a debt will control.
However, the contract will be controlling, and even though there is nothing stated about where suit must be filed, if the contract itself contains a provision that the statute of limitations is waived, that waiver will be valid in both Cuba and in New Zealand.
A statute of limitations is something that may legally be waived in a contract. However, if only Cuba law holds that there is no applicable statute of limitations for debts to a governmental agency, then if you were sued in New Zealand, the statute of limitations would apply---which is presently 6 years. So under New Zealand law, the statute has already run and the Cuban agency could not successfully sue you in New Zealand.
If your company is sued in Cuba however, the Cuban court will apply Cuban law to the claim and nor limitation period will exist. The issue then is whether the Cuban judgment can be given full faith and credit through a New Zealand court such that the Cuban judgment holder can seek to collect on that judgment.
You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.
Please remember to rate my service to you so that I can be compensated for helping you.
I wish you and yours the best in 2015,
Doug
Customer: replied 1 year ago.
Doug thank you very much for your answer. At to this moment we want to let know that the contract DOES NOT PROVIDE:
1.- NEITHER THE PLACE OF PAYMENT ( CUBA OR NEW ZEALAND); and
2,. NOR AGREED WITHIN THE CONTRACT IN ANY CLAUSE THE WAVE OF THE STATUS OF LIMITATION.
Under the circumstances , If you were the lawyer of the Cuban Entity in your opinion which Court will have jurisdiction to sue the NZ Company, the Cuban Court or New Zealand´s Court.
If your answer is Cuba, within the New Zealand Laws it is there any article of the applicable Law,that provide that the applicable Law and Court will be New Zealand? that in the lack of mentioning the place ( Country and /or City and /or address) for the payment?
Your opinion will be appreciated.
Luis Barona
Expert:  LawTalk replied 1 year ago.
Hi Luis,
As the Cuban entity can no longer sue in NZ because the statute of limitations has passed, the only way to get a judgment would be to sue in Cuba.
As your contract was with Cuba to provide something to the Cuban government---a contract to be performed in Cuba, I believe there is a legal basis for them to sue you in Cuba and get a judgment. NZ law will not have any effect on a court trial in Cuba. And I have no knowledge of any NZ law which would prevent Cuba from suing you in Cuba and applying Cuban law to the suit. Something like that would have had to have been set out in the contract to begin with.
Please remember to rate my service to you.
I wish you and yours the best in 2015,
Doug
Customer: replied 1 year ago.
Doug:Please clarify to me the following:1.- What would be the Courts Jurisdiction according to New Zealand Law, if in a Contract, it is not mentioned the place or domicile for the fulfillment of the obligations and specifically the place for the payment of a debt by the Debtor?2.-Assuming that our client is sued in Cuba, according to the Cuban Law, the Cuban Entity tries to enforce the judgment in New Zealand, at our client´s domicile (p.e. Auckland) by means of an attachment, it is in New Zealand any legal procedure to reject the petition of the Cuban Judge to prevent any attachment or any other action to protect our client, taking into consideration that, due the Status of Limitation as occurred in our client´s favor?RegardsLuis Barona
Expert:  LawTalk replied 1 year ago.
I am unable to further assist you in this matter, and I am going to opt out of your question and open this up for other professionals.
Your question is being placed back in the question list for other professionals to see, and to respond to. You do not have to stay online for the question to be active. Should another professional pick it up, you should be alerted by email unless you actively disable this feature.
There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying other professionals' access to it.
I apologize for any inconvenience and wish you well in your future.
Doug
Expert:  Chris The Lawyer replied 1 year ago.
If you have a Cuban court judgment you can try to enforce this in New Zealand. However to do so you would need to persuade the New Zealand court that it had jurisdiction, and the limitation argument could be raised as a defence.
Customer: replied 1 year ago.
CHRIS: I WOULD LIKE TO RECEIVE THE ANSWERS ACCORDING TO MY QUESTIONS PLEASE!1.- What would be the Courts Jurisdiction according to New Zealand Law, if in a Contract, it is not mentioned the place or domicile for the fulfillment of the obligations and specifically the place for the payment of a debt by the Debtor?2.-Assuming that our client is sued in Cuba, according to the Cuban Law, the Cuban Entity tries to enforce the judgment in New Zealand, at our client´s domicile (p.e. Auckland) by means of an attachment, it is in New Zealand any legal procedure to reject the petition of the Cuban Judge to prevent any attachment or any other action to protect our client, taking into consideration that, due the Status of Limitation as occurred in our client´s favor?RegardsLuis Barona
Expert:  Chris The Lawyer replied 1 year ago.
If the contract does not specify the law which applies, there are a number of tests which apply in New Zealand. The courts look first at the place where the cause of action arose. They enquire where the contract was made, and where the breaches took place. If the contract was formed at least in part in New Zealand and the breaches took place here, then the court then undertakes a check of the most convenient court, using a principle called forum conveniens. This considers where the witnesses are located, and the other factors.
Expert:  Chris The Lawyer replied 1 year ago.
If a Cuban court has made a judgment this will not be able to be enforced in New Zealand automatically. Only Commonwealth judgments can be enforced like that. You would need to bring a proceeding to apply for a New Zealand judgment based on the Cuban court judgment and any defences including limitations, could be raised.

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