Perseverance needed to secure Disputes Tribunal result

MANY OF you may be in the position post-Christmas having bought great deals anonymously online, which don’t turn out the way you had expected.

That ‘‘new condition’’ children’s swingset you bought to use as a wonderful present has actually ended up being little more than a rusted eyesore.

When these too-good-to-betrue-deals can’t be resolved between the buyer and seller, the buyers often turn to the Disputes Tribunal.

If the disputed amount is less than $15,000, for a minimal filing fee and some of your time, you could have the dispute determined for you.

The tribunal can be used for resolving commercial and personal disputes, as potential defendants can include individuals as well as companies. It can’t, however, be used for undisputed debt collection.

The tribunal’s judge is called a referee and his or her role is to get you both to agree to a settlement. If you can’t, then the referee will make the decision for you and that decision will be binding as if it were a District Court judgment. Therein lies the problem. If the decision goes your way, you have to get the money out of the losing party. The decision therefore needs to be enforced. For enforcement, you need to go to the District Court. This takes more time and, often, money.

People often get to this stage and give up, especially if they realise they are not going to be able to recover the amount owed to them. The first step is usually to find out everything that you don’t currently know about the person’s financial position, through a process called an order for examination.

The order for examination process requires the debtor to attend court in front of a registrar and give full details about their financial situation under oath.

If they don’t bother to turn up, then the registrar can issue a warrant for their arrest.

If it’s clear that they can afford to pay off your debt in periodic instalments, the registrar can order that payments be made.

However, if they can’t afford to repay you in cash, then you will be left looking at another remedy.

There are several types of other orders that could be applied for in the District Court. A charging order, for example, may be placed against their property to protect the money owed to you.

A garnishee order requires other people to pay money owed to your debtor to you instead.

An attachment order may require the debtor’s employer to deduct some of his or her wages and pay it to you directly. This can also be applied to beneficiaries by being attached to their Work and Income benefits.

You can even apply for a sale order to seize and sell their property, keeping in mind that the costs of storage and sale of some items could make this process not worth the final sale price.

If these fail or aren’t worth initially pursuing, then you could apply for the debtor to be made bankrupt.

At some of the enforcement steps along the way, you can have costs awarded to you, if you have a lawyer represent you.

Getting proper legal advice can be helpful if you’re looking at some of the more difficult remedies.

Usually getting some basic advice early on as to the direction you should take is wise. Rachael Robertson is a partner in Christchurch law firm Corcoran French. Information given in Your Law is not a substitute for legal advice.