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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22624
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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We have retained the last 10 percent payment for a milking

Customer Question

We have retained the last 10 percent payment for a milking plant we purchased until the matters we believe need the suppliers attention have been cleared up. In addition to this we believe there was a degree of misrepresentation which we would like to negotiate on. The seller claims the issues were to be put to them in writing in the first month following commission. I haven't seen this contract. We have made numerous, the seller being unavailable and not returning calls, and the salesman who visited failed to address issues. Emails can be produced listing the issues, there is never response. I finally talked to the owner and assured him the money was there, but that we need the matters addressed. We went through them in an "as if" scenario of what the supplier would do if we paid the last 10 percent. Three matters were agreed on, and two needed further negotiation.I offered to deposit the payment with a mediator who then would pass it on once negotiated and recorded things were done. He refused. I sent him a summary of the conversation hoping to encourage further settlement of dispute. No response.. Now the matter has been passed to a collectors agency and we are unsure of the process from here. I have phoned the agency and asked to be assigned with a person who will deal with the matter exclusively so we don't have to explain ourselves to many different people. Two phone calls, in both they have said they will ask a supervisor but have not phoned back. We feel as if we are getting deeper and deeper into the unknown and need some wise advice.
Submitted: 5 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 5 months ago.
Generally debt collectors don't deal with disputed debts. Your best option is to take this to the Disputes Tribunal which you can do as the person claimed against. You should tell the debt collector that you are doing this and that they must show this as a disputed debt. In the Tribunal you don't need a lawyer and can explain your case and the referee will rule what should be paid. The process is pretty straightforward and you can make your claim online. The link is below for that
Expert:  Chris The Lawyer replied 5 months ago.
Customer: replied 5 months ago.
Hi Chris
Thanks for that. Just looked at the disputes tribunal and the amount in dispute is in excess. The 10% we have retained is between 60 and 70,000 but they appear to now be claiming around $90,000 for delay in payment, and threatening that we pay their court costs.Kathy
Customer: replied 5 months ago.
Not sure if the $61 involves being able to respond. Let me know if you didn't get the email about the disputes tribunal ( which would be ideal) not handling cases involving larger amounts.
Expert:  Chris The Lawyer replied 5 months ago.
Rude or useless?
Expert:  Chris The Lawyer replied 5 months ago.
Sorry the last was intended for another answer
Expert:  Chris The Lawyer replied 5 months ago.

You are out of the Disputes Tribunal as you realise due to the limited jurisdiction. I suggest that you continue to repond to the debt collector as i suggested, but tell the supplier and the debt collector that sending to a debt collector is inappropriate since you have offered to place the money with a stakeholder to await the outcome of negotiation. They will need to file a claim in the District Court and for this you will need to brief a lawyer and argue the work was not adequate

Customer: replied 5 months ago.
Is there any way we an legally oblige them to go in to a process of mediation, or even arbitration before we go to the expense of taking it through the courts and engaging a lawyer. If it does go to court, From your observations, is this the kind of thing that we might successfully defend ourselves? Would a lawyer we engage be completely honest with us and only take the case on if there was a very strong chance of us reaching a reasonable settlement? How do we go about selecting a lawyer with good skill and good repute, as we are very much out of our depth and not really in touch with those in this sector. Is there any way we can find out if this company is likely to go in to liquidation ? They have agreed that there are leaking valves that will be replaced free of charge, and said it will be paid for by the parent company in Ireland. But first we must pay the last 10 percent. Is there a way we can oblige them to at least address this issue? Would we be advised to contact the parent company or do we expect the parent company to be very much on the side of their franchise holder? Thanks for answering these questions.
Expert:  Chris The Lawyer replied 5 months ago.

Some contracts do have mediation and arbitration clauses so you should check what your contract says. You cannot force mediation or arbitration however without such a clause.

In my experience cases like this are won on expert evidence. i recommend you get an engineering expert to look at this machine and provide an opinion. This may well persuade the manufacturer/supplier that they have a real risk if this goes to court.

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