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CRR07

Creditors' Remedies

NZ $55.00
incl GST
Michael Bos Mike Colson Jeremy Morley
Michael Bos
DLA Phillips Fox
Auckland
Mike Colson
Partner
Bell Gully
Wellington
Jeremy Morley
Director
PricewaterhouseCoopers
Wellington

Published: 27 August, 2007
Pages: 104

Introduction

The position that creditors take, when considering remedies available to them in respect of the non-payment by a debtor and its potential failure, are driven by a number of key issues including, inter alia:

  • the amount and terms of the debt
  • security held in respect of the debt, including guarantees
  • any ongoing relationship and terms of trade with the debtor
  • market and economic conditions
  • the overall financial and operational position of the creditor and the impact on total exposure that non-payment of the debt might have
  • timing and costs associated with seeking repayment of the amount owed and balancing up the legal and pragmatic options available to the creditor.

Underpinning all these matters, is that when professional advisers are asked to advise a creditor on the remedies available, they should not only be independent but also be seen as independent. Where solicitors, auditors, accountants or insolvency practitioners are approached to advise on remedies available they should first consider whether it may be more appropriate that a completely independent firm be appointed to advise in their place.

An instruction to recover a debt can take many different forms depending on the type of debt, the contractual arrangements and trading relationship between the parties, and the financial status of the debtor.

The client will always have the objective of seeking to recover the debt as quickly and cost efficiently as possible. Often clients assume that achieving payment will be straightforward. In their mind the debt is due and owing and therefore should be paid.

Of course this is not always the case. While on occasions, payment or an agreement to pay can be reached simply by issuing a letter of demand, this is frequently not the case.

Deciding what steps to take to recover a debt will be determined by the legal and factual considerations applying to the debt.

Accordingly, at the outset it is important to collect all the relevant information in relation to the debt. Collecting the right information at the outset can save a lot of time and costs (and possible embarrassment) by ensuring that the best available steps to recover the debt are undertaken. While collecting information regarding the terms of the debt and contractual arrangements between the creditor and debtor are necessary for establishing the legal basis for claiming the debt, other information regarding the relationship between the parties and the financial status of the debtor are equally important in determining the tactics to be employed in seeking to recover the debt.

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