General commercial litigation

Background law

“Commercial litigation” is a catch-all phrase for any litigation or dispute arising from commercial activities or transactions.

Commercial disputes may arise from the competitive nature commerce; interpretations of contracts or other sources of obligation on the question of which party should perform to what standard, what has to be paid, and who will bear the loss or risk of any specified event; transactions that have gone wrong; and/or governance issues, both procedural and substantive.

Commercial litigation can involve obligations from a number of different, sometimes overlapping, sources of law, including by way of examples:

Contracts for performance;
The law of agency;
Judicial review of the exercise of State power;
Rules imposed by statute absolutely, such as those of the Companies Act 1993, the Financial Reporting Act 1993, the Securities Act 1978, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, the Fair Trading Act 1986 and the Income Tax Act 2007, etc;
Terms implied by statute into contracts and non-contractual commercial relationships, such as those of the Sale of Goods Act 1908 and the Consumer Guarantees Act 1993;
Background general law (for example, the common laws of tort and restitution);
Trusts and trust-like obligations;
The rights and obligations between shareholders and companies;
The rights and obligations between directors and companies;
The rights and obligations between securities' issuers and investors;
Company constitutional arrangements; and
The criminal law.

Frequently encountered issues

Disagreements over whether there is a contract; the interpretation of contracts; and how far obligations under contracts extend;
Which obligations prevail when there are conflicting obligations;
Whether a contract has been validly repudiated by failure to perform and/or properly cancelled;
Whether and to what extent statutory or other obligations exist and/or may be implied into the particular problem;
Whether deficiencies of formality or procedure can invalidate particular transactions and the consequences of that;
Shareholders' disputes and Section 104 applications by shareholders claiming abuse of power or corporate oppression by management;
The extent of directors' obligations and the thresholds at which personal liability may possibly be incurred for certain conduct;
Whether a decision maker has exercised his or her discretion on proper grounds;
Creditors seeking remedies or advice against debtors, including in circumstances of liquidation and insolvency, and vice-versa;
Whether the statutory demand process of Section 289 of the Companies Act 1993 has been correctly followed;
The measure of remedy the Courts may provide in a particular situation; and
Governance and constitutional procedures, interpretations and disputes.

What you should provide when instructing us

A narrative of what has happened, your situation and your point of view;
Copies of all relevant correspondence and documents you have, which have a bearing on the issue;
Copies of any Court documents you have filed or been served to date.

About Us

Peter McCutcheon is a Barrister and Solicitor, specialising in commercial and relationship property litigation. Peter has an economics degree, a post graduate banking diploma (with distinction), and a law degree from the University of Auckland (with honours). Peter's more general litigation practice areas are commercial litigation, relationship property litigation, shareholders' disputes, insolvency and company liquidations, caveat disputes, estate disputes and criminal law. Peter is committed to providing excellent legal services to companies and people who understand value.