I report here on a two day trial, Bartercard vs Down – CIV 2014-096-428, currently adjourned, probably until September 2018 when it will continue to generate heat in the courtroom. I share the factual here [paraphrased in parts for efficiency] and give my detailed commentary in a further post. It’s a trial that could be hugely significant to the International Commercial Barter industry, for Bartercard is a big name in the business, and the issues raised in it have widespread & general significance.
“Everybody ready?” the
pretty young thing Court Taker checks with both parties. Smiles all round, a thumbs up and she’s off to get the Judge. He arrives and notes that this is the longest running court case on the Lower Hutt books and that it was good to finally be having the hearing. “Whatever happens from here,” he says confidently, “This court will be dealing with it!”
“However did it get to this?” more than one person has pondered . . . four years of conflict; a top trader p*ssed off with Bartercard for closing his account . . . “All I want to do is trade!” he repeats time after time . . . a huge bill for a man supposedly made impecunious by the big ‘Bad’ Bartercard . . . threats of bankruptcy . . . claims of lies and hidden motives . . . crooked lawyers . . . legal tricks . . . a HIgh Court counterclaim struck out . . . judicial frustration (even anger) . . . a [claimed] biased judge . . . and now . . . the trial begins.
New Zealand legal processes are adversarial* and are divided into two streams, Commercial and Criminal. This is a commercial dispute, and the Plaintiff (Bartercard) has first whack at things – they present their case by way of their Barrister (Jonathon Haig). They then present their witnesses whom have usually prepared an Affidavit beforehand stating their version of the story and then the Defendant (Nicholas Down) has his Barrister (Chris Nicholls)
attack cross-examine those witnesses. The Plaintiff wraps up with a closing statement. The Defendant wraps up with his closing statement. The Judge judges. Everybody goes home happy. [Yeah right!]
This trial was set down for a Simplified Trial without counterclaim, meaning that the whole thing was scheduled to be heard over two days. Every component of the trial had guidelines for completion within certain court appointed time frames, all subject to the judge’s discretion. Witnesses for example were limited to one hour each. [Yeah right!] After two days Bartercard’s witnesses were not completely cross-examined and Down hadn’t even taken the stand!
Jonathon Haig presented Bartercard’s case. It really was quite simple, he explained. Mr Down had joined Bartercard, signed a personal guarantee, and agreed to the Bartercard Rules. Bartercard had complied with all due processes and terminated Down’s account properly and so the trade overdraft balance was due, in cash, some $87,000.00 thank you very much! Oh, and also interest too, please . . . make that $120k and rising as the multiple delays kick in. Dreary but efficiently and accurately, Haig wrapped up his initial summation and called his first witness, (Anthony Vryenhoek).
‘Ants’ as he is called by those within Bartercard circles got a roasting from the outset. Chris Nicholls is a criminal lawyer, specialising in Family Law & Criminal. Imagine parking tickets on steroids and he-said-she-said scraps over the kids and the family home on steroids. I call him the Bulldog Barrister because he launched into a tirade on this poor dude and wouldn’t let up. First the Bulldog Barrister established that Ants represented the company in an affidavit and had no clues what the case was all about. Secondly he wasn’t personally involved in any of the events that were being examined at the trial. Clearly uncomfortable on the witness stand, he squirmed for a couple of hours until things lightened quite a bit. “You didn’t expect to be here as a witness did you?” – “Nope!” and then the one that made a smile . . . “You don’t want to be here do you?” – and a very quick reply this time – “Nope!” to which the Bulldog Barrister’s chuckle combined with body language and a muttering, “I bet you don’t” brings a smile to my dial.
Finally, putting us all out of our misery, well Ants’ only really, Hiag chips in . . . “Objection your honour! Repeating the questions. We’re not getting anywhere and we have limited time available!” The judge: ” I think from your questions I’ve got the picture Mr Nicholls! Enough!” . . . smart judge! Bye Bye Ants . . . until next time you’re off the hook. The only thing that you’ve contributed to the case is that you just did what you were told, but that’s enough!
Now it’s the credit controller’s turn, and another roasting, but this time it’s a little more than two and a bit hours. Dale Chetty comes across as a nice-guy . . . he stood up quite well with his answers and presented quite professionally – he answered the Bulldog Barrister’s questions fully and frankly and again, like Ants, he wasn’t involved in any of the critical events relating to the trial, but yes indeed he did write his Affidavit in association with the Rotorua lawyers and yes he did stand behind it. His job was to ensure that the currency didn’t devalue through bad debts and no, he didn’t make the decision to terminate Down’s account but there were many reasons why he would have terminated it . . . Like the fact that Downs was an auctioneer and that they didn’t want him in the system because it lifted the prices of goods. “Yes!” shouts Down and turns to me beaming! “Now we’ve got ’em!”
I’m incredulous too, and afford Nicholas a smile. “EXCUSE ME Dale? Ummm, I don’t think you should have said that Mr Chetty!” The cross-examination of Chetty continues, most parties totally unaware of the significance of what has just occurred, in open court in New Zealand.
The first day is done to the words of Chris Nicholls ringing in my ears, “This whole thing is just a joke!” His beefs are multiple . . . “Your witnesses aren’t witnesses; they weren’t even there at the time; they are just repeating the same tired old story dished up by somebody (who isn’t even here in court) from up in Head Office somewhere. There is no case to answer your honour!”
“I know they’re lying! I know from fighting [for a million years] in courtrooms that these dudes are not spilling the beans, but I’ll get ’em! I’ll get ’em!” he says, storming out of the courtroom.
Day Two starts with a two hour fight over a two page document between two Barristers who probably both don’t give two hoots about whether a guy gets to go bankrupt or not as a result of their scheduled two day courtroom antics. Boston Legal eat your heart out . . . for first-up Haig plonks down a signed Affidavit from the mystery man in Head Office who DID issue the instructions to terminate Down’s account!
Haig: This, your honour is an Affidavit from the man central to the case. We got it late last night to answer the Bulldog’s questions about why the Plaintiff terminated the Defendant’s account! It is critical to the case and must be tabled in the interests of justice, Your Great Honour!
Bulldog Barrister: But, but, but [Your Even Greater Honour] I showed yesterday that these turkeys didn’t have a case – they sent down one guy who admitted that he joined the company after these events transpired and another one I called – both who weren’t even proper witnesses and look, look, look here, see, I even have an Application to strike out this whole sorry procedure right here in my hands. [Seems like all Barristers burn the midnight oil!] How can these
fools guys even contemplate introducing the key evidence after four years of jerking Mr Down around? [Well something like that, anyway if you read body language and tone of voice with the actual words used].
Judge: It’s important to the case, so I’ll allow it, which will mean that Mr Nicholls you will want to cross-examine the witness, I presume? “You betcha I do!” Bulldog Barrister retorts. Judge smiles, and you can see him thinking, “How ever did I know that?” but politely states that this will surely delay the trial until June? July? August? September? OMG! But it continues for the rest of the day nonetheless. “Call Dale Chetty please!” and the roasting continues.
Boston Legal got its airing again when one of the people involved did something they shouldn’t have and this was all resolved behind closed doors . . . oops! Yet another skeleton to come out in due course if/when appropriate. Best behaviour now boys, please!
This trial is an atypical trial as far as I can ascertain. It started in early 2014 and reached the courtroom in April 2018 close to four years later. Judge Tuohy, the Wellington judge who handled it until Hastings J took it over called the case “crap” in early 2017 for good reason. It’s had a lot of twists and delays, mostly as a result of Bartercard’s actions, certainly totally for the first three years and mostly by way of objections to Down’s attempted actions in the last year. The procedural story and pretty much agreed facts is that sometime before they closed Down’s’ account, Bartercard terminated Down’s ability to trade. An auctioneer for a couple of decades, and some 15 years in the Bartercard system, Down could not do what he wanted to do, and thus couldn’t and didn’t reduce his trade overdraft, one that fluctuated wildly as he traded big and small. At $85k on account closure, this was about half of what he maxed out at – $160k. Not fair he claimed, and when sued for cash, he said effectively “f*** off!” Bartercard on the other hand presented a narrow case – the documents; the procedure; the debt. We can do it. We did do it. Now you will pay!
The original claim stated that Down’s account was terminated because he was auctioneering and Nicholas’ defence in early 2017 related to this first claim. It was a strong defence because autioneering is not prevented in the Rules. Bartercard however altered their claim four days prior to a scheduled hearing in two meaningful ways – first, under prompting from Tuohy J to detail the actual reason why they closed his account and to relate that back to their Rules they changed the reason that they terminated his account; secondly they also slipped in interest charges, something they forgot to do in the original claim.
Down attempted to introduce a counterclaim but was refused by Hastings J in early 2017 (“This case is the oldest on our files, and I don’t want any more delays!” sort of thing) and Down’s High Court attempt at counterclaiming was knocked back on technicality, without prejudice, which means that he is free to commence his own counterclaim case against Bartercard at any stage in the future – before, during or even after this case is finalised.
A settlement conference in December 2016 was a disaster – Bartercard’s representative wasn’t able to negotiate. Down has claimed that his File Notes make it clear that he is a target to be deliberately bankrupted. He believes that it is entirely a personal vendetta. Even if Bartercard win, they’ll never get anything. One has to question why they haven’t walked or settled long ago, which does tend to support Down’s claim that there is something sinister afoot.
I have performed a support role for Nicholas Down from 19/3/2017 and have been his McKenzie Friend at court until the court appointed Chris Nicholls took over using Legal Aid two weeks before trial. I have also attempted to assist both parties resolve their differences [yes, I can talk to those whom I blog about!] but unsuccessfully.
I mentioned that something sinister is likely afoot and that I will provide my commentary in a following post. Next I dive into what I see as the motivation behind this case; I extract the key issues for Nicholas Down from information already brought out in open court and I comment on the significance of two of the critical admissions by witnesses to date. I’m sure there will be more too, when the trial resumes.
* Two opposing parties presenting their cases to a judge, as opposed to the inquisitional system where a judge will enquire of all parties in order to establish truth/justice.