Legal eagles, Boys in Blue, bit of a Q 4 U

[mdnzz]

Ok the law is pretty clear on fraud for joe bloggs public. You present your check for goods knowing that you have no funds to cover it, bank persues complaint, charges follows, police prosecute and judge sentences you.
But what about businesses?
What if they knowingly order stock, onsell or receive payment for said stock, but don't pay the supplier.
How does this now become a civil matter not a criminal?
Unless of course its lots of money to involve the SFO.
Surely the senario is the same?
So why does Mr White Collar suddenly get protected from prosecution?
Also what if Mr White Collar was a Justice of the Peace and used his influence to gain credit?
Would this person then not be fit to be a JP?
Let alone a director of several companies using offshore financing to create new compaines in which to hide his dealings.

Some thoughts to ponder but some serious input would be appreciated all the same

Cheers

[Mom]

Ok the law is pretty clear on fraud for joe bloggs public. You present your check for goods knowing that you have no funds to cover it, bank persues complaint, charges follows, police prosecute and judge sentences you.

Cheers


Not true. That is not fraud, that is being an areshole :yes:

I once attempted to bring a fraud charge against a fella I sold a bike to. He paid for it by cheque (once upon a time that was acceptable business prectise). Deal was done, bike delivered, all good. Three of four days later I clear my mail and discover the cheque has bounced "PAYMENT STOPPED" blazoned accross it in big red letters. This turkey had bought the bike, paid for it, took possession then bounced the cheque deliberately.

A visit was in order. He said, nothing wrong with the bike, happy on all counts, just stopped payment on the cheque because I could really (or words to that effect). Cops not interested at all! I started off calling it theft, no, he showed intention to pay, so not theft. So then it is fraud, he took possession, nothing wrong with the bike, happy with the deal and stopped the cheque? Nope, that would be a civil matter Ma'am.

[Okey Dokey]

Geez, Mom, that is unbelievable!!! Some people really know how to work the system, don't they? Did you get the money or the bike back???

[JimO]

did u take the bike back

[slofox]

Not true. That is not fraud, that is being an areshole :yes:

I once attempted to bring a fraud charge against a fella I sold a bike to. He paid for it by cheque (once upon a time that was acceptable business prectise). Deal was done, bike delivered, all good. Three of four days later I clear my mail and discover the cheque has bounced "PAYMENT STOPPED" blazoned accross it in big red letters. This turkey had bought the bike, paid for it, took possession then bounced the cheque deliberately.

A visit was in order. He said, nothing wrong with the bike, happy on all counts, just stopped payment on the cheque because I could really (or words to that effect). Cops not interested at all! I started off calling it theft, no, he showed intention to pay, so not theft. So then it is fraud, he took possession, nothing wrong with the bike, happy with the deal and stopped the cheque? Nope, that would be a civil matter Ma'am.

I sold a youngish dude some booze which he paid for by cheque. Being a suspicious bastard I sighted his ID and also noted the rego of his car and got his contact details. Cheque bounced. I rang and his father answered - said he "didn't even know where he was". So I said "expect a visit from the law enforcement agents then sir".
I did go to the LEO's and they did follow it up (after me waiting around for three days to get to talk to one!!!) And he did get caught and he did go to court and got convicted and then - get this- I got the money!!!
So sometimes the police do do the goods......

[trustme]

I am no expert but if a business trades while insolvent , the directors can be prosecuted & held liable , trouble is many business people have their assets in a family trust , they own nothing so the courts / recievers cant get at the directors assets. It does suck.

Many years ago we priced to shift a factory, the manager stuffed around for weeks then suddenly it was all on . We had to have them shifted in 3 days so we had about 6 guys & three trucks going flat out for the next 3 days & complete the shift by the Friday night. Company promptly goes into reievership & restarts the next week as XYZ 1991 Ltd . We got sfa & could do nothing about it. The law has been tightened up since then & the arsehole [ who recently died ] could not do it now
It was an AK based company that manufactures & instals Sky TV aerials, the company has new owners who I believe are more ethical in their business dealings than the toe rag who died

[JimO]

i have just finished a large alteration on a house (i got paid for my bit) the builders havnt been paid for 12k worth of extras even though the owner asked for them to be done

[Skyryder]

Not true. That is not fraud, that is being an areshole :yes:

I once attempted to bring a fraud charge against a fella I sold a bike to. He paid for it by cheque (once upon a time that was acceptable business prectise). Deal was done, bike delivered, all good. Three of four days later I clear my mail and discover the cheque has bounced "PAYMENT STOPPED" blazoned accross it in big red letters. This turkey had bought the bike, paid for it, took possession then bounced the cheque deliberately.

A visit was in order. He said, nothing wrong with the bike, happy on all counts, just stopped payment on the cheque because I could really (or words to that effect). Cops not interested at all! I started off calling it theft, no, he showed intention to pay, so not theft. So then it is fraud, he took possession, nothing wrong with the bike, happy with the deal and stopped the cheque? Nope, that would be a civil matter Ma'am.

Yep and that's why the fucker's do this. No crime' no honour, no values and no integrity. Just like that Madoff guy who 'madof' with everones money.


Skyryder

[Brett]

Should said company fall over, and director has knowingly bought goods that he has no intention, or no way of, paying for, he can be held personally liable and held personally negligent for asa director...not just his company (which of course he can hind behind because he is a totaly separate entity to the company. Wreckless trading as a director can see you in big shitty.

[samgab]

There is a lot of confusion around theft and the law, and where the line is drawn to make a matter civil. I recently had to study all of this.
Here's a common scenario: Taxi driver takes Joe Bloggs from Auckland CBD to Manurewa. Joe asks before the taxi leaves what the fare will be. Taxi driver says it will be about $50. En route, they go over a bump, and Joe spills a drop of white wine on the seat. Upon arrival, the taxi driver says the fare is $80, and there is an extra $50 surcharge for spillage. Joe says that's ridiculous, there is no mark from the drop, and therefore throws $50 cash down and runs away.

Joe has committed theft, according to the law: True or false?

False, it's a civil matter.

Theft, according to the law is:
A person dishonestly and without claim of right, takes any property with intent to deprive the owner permanently of that property or of any interest in that property.
Or,
dishonestly and without claim of right, uses or deals with any property with intent to deprive the owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

But there is a section of the law that deals with deception:
Obtaining by deception or causing loss by deception

*

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
o

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
o

(b) in incurring any debt or liability, obtains credit; or
o

(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
o

(d) causes loss to any other person.

(2) In this section, deception means—
o

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
+

(i) knows that it is false in a material particular; or
+

(ii) is reckless as to whether it is false in a material particular; or
o

(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
o

(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

So that would seem to touch on the examples at the start of the thread.

http://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html#DLM329883

[Forest]

There is a lot of confusion around theft and the law, and where the line is drawn to make a matter civil. I recently had to study all of this.
Here's a common scenario: Taxi driver takes Joe Bloggs from Auckland CBD to Manurewa. Joe asks before the taxi leaves what the fare will be. Taxi driver says it will be about $50. En route, they go over a bump, and Joe spills a drop of white wine on the seat. Upon arrival, the taxi driver says the fare is $80, and there is an extra $50 surcharge for spillage. Joe says that's ridiculous, there is no mark from the drop, and therefore throws $50 cash down and runs away.

Joe has committed theft, according to the law: True or false?


I would have said the situation is an example of breach of contract.

[kevfromcoro]

just been to court.....
to cut a long story short.. i got my accountant to file my tax returns for the the last 2 years.fair enough
then i get a bill for $7500.for the fees.
so i took him to the distrutes tribuanall
well did i get shot to pieces.
laptops..spreedsheets ....calulators
i was fucked.walked out $3000 lighter.
$7500 for filing 2 years tax returns
fuck me

[samgab]

I would have said the situation is an example of breach of contract.

Yeah, they had a verbal contract of sorts to begin with, and the conditions changed with the spillage. There are hundreds of variations of this story, but it all amounts to the same thing: The party that feels injured can take the other party to disputes tribunal to try to resolve it if they can't between just the two of them (and it's just a small amount, <$7500). There aren't any criminal charges, as it's just a civil matter.
It only becomes a criminal matter if, say, the taxi driver chases down and beats the guy or something.

http://www.justice.govt.nz/pubs/courts-publications/115-disputes-tribunal.html

[Patrick]

Here's a common scenario: Taxi driver takes Joe Bloggs from Auckland CBD to Manurewa. Joe asks before the taxi leaves what the fare will be. Taxi driver says it will be about $50. En route, they go over a bump, and Joe spills a drop of white wine on the seat. Upon arrival, the taxi driver says the fare is $80, and there is an extra $50 surcharge for spillage. Joe says that's ridiculous, there is no mark from the drop, and therefore throws $50 cash down and runs away.

Joe has committed theft, according to the law: True or false?

False, it's a civil matter.



No theft at all.

Did the cabbie have a Liquor Licence?

Allowing passengers to consume alcohol in his taxi is a no no.. Cabbie should shut up.

[mdnzz]

I think there is too much focus on the taxi fare, putting that aside does the original senario relate to theft or civil?
I believe it theft and reading the quotes from SAMGAB it would point this direction as well (plus also advice from law firm).
Also as pointed out Mr White Collar is a JP, therefore meant to uphold the law and be an upstanding community member.
Would this not make his situation worse because of his position of trust in society?

[samgab]

I think there is too much focus on the taxi fare, putting that aside does the original senario relate to theft or civil?
I believe it theft and reading the quotes from SAMGAB it would point this direction as well (plus also advice from law firm).
Also as pointed out Mr White Collar is a JP, therefore meant to uphold the law and be an upstanding community member.
Would this not make his situation worse because of his position of trust in society?

Yeah, I didn't mean to drag it off topic, I was just using a hypothetical example to try to illustrate that there is confusion about what are criminal and what are civil matters...

[samgab]

A large aspect that determines whether it is a civil or a criminal matter comes down to what is called "mens rea" or guilty mind.
It has to do with the INTENT.
If the person INTENDS to defraud, and does so dishonestly with intent to deceive, then it would likely be a criminal act; probably fraud rather than theft.
On the other hand, if the person doesn't intend to defraud but rather has a dispute about the value of goods or services, then it's civil.
Then there is the matter of PROVING that the person had the "mens rea" to commit fraud....
If the person attempts to pay a certain amount, though lesser than the agreed upon amount, and claims to have a valid reason for doing so, then it's civil. If on the other hand they pay nothing at all, and it can be proven that they entered the agreement without ever having the intention of paying anything, then it's fraud, and is a criminal matter, to oversimplify as much as possible.

[HenryDorsetCase]

Ok the law is pretty clear on fraud for joe bloggs public. You present your check for goods knowing that you have no funds to cover it, bank persues complaint, charges follows, police prosecute and judge sentences you.
But what about businesses?
What if they knowingly order stock, onsell or receive payment for said stock, but don't pay the supplier.
How does this now become a civil matter not a criminal?
Unless of course its lots of money to involve the SFO.
Surely the senario is the same?
So why does Mr White Collar suddenly get protected from prosecution?
Also what if Mr White Collar was a Justice of the Peace and used his influence to gain credit?
Would this person then not be fit to be a JP?
Let alone a director of several companies using offshore financing to create new compaines in which to hide his dealings.

Some thoughts to ponder but some serious input would be appreciated all the same

Cheers

I dont have time to address this ATM but might get back to it.

Just so you know, if you give someone a cheque and then subsequently cancel it, or stop payment, or bounce it, the bounced cheque becomes a separate cause of action that will enable a summary judgment to be obtained, irrespective of anything else.

a client of ours found that out the hard way....

[mdnzz]

I dont have time to address this ATM but might get back to it.

Just so you know, if you give someone a cheque and then subsequently cancel it, or stop payment, or bounce it, the bounced cheque becomes a separate cause of action that will enable a summary judgment to be obtained, irrespective of anything else.

a client of ours found that out the hard way....

Thanks

But in this senario cheques are not actually the issue, it would rather be one of obtaining goods and services on credit(invoiced to account, usual T&C's applies), not paying for it while continuing to obtain more goods and services from others on credit.
Mr White Collar then dodges the bill collectors through a series of managers/employees.
Mr White Collar then enlists further offshore financial(same partners) backing to open other businesses with which the same senario applies.
Meanwhile all businesses are running at a loss.
Mr White Collar and offshore partners continue to start up new companies with limited shares, eg:1000 shared usually between 2-3 partners.

I'm no legal beagle and certainly not a financial genius, but I always thought the safest business practise was to invest in companies that ran at a profit not a loss.

I must have missed something in economics I guess

[Patrick]

I think there is too much focus on the taxi fare, putting that aside does the original senario relate to theft or civil?
I believe it theft and reading the quotes from SAMGAB it would point this direction as well (plus also advice from law firm).
Also as pointed out Mr White Collar is a JP, therefore meant to uphold the law and be an upstanding community member.
Would this not make his situation worse because of his position of trust in society?

Hey!!!

This is about the taxi fare now, totally hijacked, as always... And now you bring it back to topic? Man........:gob:

[dipshit]

He said, nothing wrong with the bike, happy on all counts, just stopped payment on the cheque because I could really

So you won't be dealing with DangerousBastard again then I presume?

Sounds like the sort of thing he would do and then have some long winded BS story how it was justifiable.

[Cr1MiNaL]

If a business purchases goods from a supplier and pays by cheque even though they know they do not have the funds to cover it is not illegal. They have time to arrange for a temporary overdraft, biz flexi etc with their bank managers. If there is no money to cover and no arrangement has been made, it is obvious that the bank will dishonour or bounce the cheque. I.e the supplier does not get paid on time - this is not fraud, it is knows as accounts receivables or debtors. If the business does not pay at all at the end of the financial year the suppliers will write off the debt owed this is knows as - bad debts. There is always a contingency for bad debts in any business and other repecossions follow. Nothing illegal with any of this, in fact it is quite common in business.


YR64L.

[Winston001]

But in this senario cheques are not actually the issue, it would rather be one of obtaining goods and services on credit (invoiced to account, usual T&C's applies), not paying for it while continuing to obtain more goods and services from others on credit.

Mr White Collar then dodges the bill collectors through a series of managers/employees.

Mr White Collar then enlists further offshore financial(same partners) backing to open other businesses with which the same senario applies.
Meanwhile all businesses are running at a loss.

Mr White Collar and offshore partners continue to start up new companies with limited shares, eg:1000 shared usually between 2-3 partners.


Ok. What you describe appears fraudulent. Proving fraudulent intent however is another matter entirely. The person you describe sounds as though they are acting deliberately and in a sophisticated way. Proving criminal intent can be very difficult.

The Registrar of Companies maintains a register of Banned Directors and anyone associated with a few companies falling over gets put on the list. Such directors are sometimes prosecuted under criminal law too.

Apart from that, a director has a legal obligation to ensure the company is solvent at all times ie. if it sold up, all the bills would be paid. Sounds simple but it isn't. A director may trade running up bills believing a contract is confirmed, only to lose it. Bugger.

A director is personally liable if the company trades as insolvent. The police say this is civil, so the creditors or the Liquidator have to sue him.

As for being a JP, that is only relevant on sentencing if he is convicted of a crime. It certainly won't help him.