D&E interim Assignment PDF

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D&E interim 2020 assessment.
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THE UNIVERSITY OF MELBOURNE Juris Doctor

LAWS90140 Disputes and Ethics Assignment Semester 2, 2020 To be submitted:

Monday 21 September via LMS before 10:00am AEST

INSTRUCTIONS FOR CANDIDATES Please read ALL of these instructions carefully, they may vary between subjects. 1. Mark value. This examination is worth 20% of your total assessment for this subject. 2. Questions. There are ONE question. 3. Word limit. The word limit for your assignment is 1000 WORDS. This excludes footnotes, provided the footnotes contain references only. All substantive discussion in footnotes must be included in the word tally. Word Limit Code 1 applies. Information on Word Limit Codes can be accessed via the JD LMS Community. 4. Referencing. In preparing your answer, you may consult any printed or written material. All other references must conform to the Australian Guide to Legal Citation (4th Edition, 2018). A bibliography is not required. 5. Submission and cover sheet. As of 2020, you don’t need to use a Law School coversheet. Put these details on the first page of your submission (and in the header or footer): a. Your student ID number (not your name) b. Subject code and subject name c. A word count All papers must be submitted electronically via LMS Canvas under Assignments, please ensure you submit under the correct subject and assignment. If you encounter problems submitting via LMS you MUST follow the instructions regarding Canvas Support on the Canvas assignment link. 6. Plagiarism & Originality. Answers must be the sole, original work of each student. Students are strictly prohibited from consulting each other or any other person in relation to this exam. All pieces of assessment will be put through an electronic plagiarism check and will be retained for future plagiarism checking. This exercise is subject to all the rules governing assessment in the Melbourne Law School and the university. It is your responsibility to be aware of all those rules, including the rules on academic misconduct. See www.academichonesty.unimelb.edu.au for more information. 7. Late Submission: A penalties apply for late submissions. Please visit the JD LMS Community for further information. 8. Queries. If you have any queries regarding the assignment, please contact the Academic Support Office at [email protected]. Students are not permitted to make direct contact with the lecturer about the assignment. Please note that any clarification or corrections will be sent as a Canvas announcement. Ensure LMS Canvas notifications are enabled and you check your student email account.

Assessment Instructions Assume the following: 1. You are a junior lawyer employed by Parker Law, a law firm in Melbourne. You work in the firm’s commercial team. You are supervised by a partner named Tilda Swintek, who specializes in small commercial matters. 2. One day in mid-2019, you and Tilda met a prospective client named Mrs Ella Mikro. 3. Mrs Mikro is an elderly widow, who lives with her daughter and her daughter’s family. In broken English, Mrs Mikro told you a story which you have noted down as follows: a. In mid-2018, Mrs Mikro met a man named John Cooke at a grocery store, Mr Cooke initiated playful banter, which Mrs Mikro reciprocated, and then they chatted outside the store for some time. Over the weeks that followed, they ran into each other fairly frequently at the shopping village, and always stopped to chat. Eventually, Mr Cooke invited Mrs Mikro to meet him for coffee, and they then met at the cafe every day, before becoming romantically involved. “I did not know that I would have love again”, said Mrs Mikro. b. Four months after their first meeting at the grocery store, they met at their usual cafe, and Mr Cooke told Mrs Mikro that he had run into some business difficulties. In tears, he explained to Mrs Mikro that he needed $20,000 to repay a loan to a former business partner. Mr Cooke said that if he did not repay the former business partner within two weeks, the business partner would commence foreclosure proceedings on Mr Cooke’s home. Mrs Mikro replied: “I have $100,000 in savings, but it is with the bank for safe-keeping. I am going to leave it to my daughter”. Mr Cooke seemed offended and hurt, and he wiped away tears as he told Mrs Mikro that he feared losing his house and that there was nobody who could help him, apart from Mrs Mikro. c. Mr Cooke then excused himself and went outside to make a telephone call, which lasted a while and seemed very jovial. When he returned, he told Mrs Mikro that he’d had an idea. He then went down on one knee and pulled a small leather case from his jacket pocket. It contained a gold-coloured ring, set with a sparkling stone. He asked Mrs Mikro to marry him. She accepted. He then apologised for burdening her with his worries, which, he said, were “remnants of a more reckless time in my business career”. They talked some more and imagined a small wedding celebration with her family in attendance. d. Mr Cooke said: • “I have another proposal for you. It’s an exciting one, though not as romantic as my first proposal. I don’t want you to worry about my worries. I can take care of them, and, once I have, we can get on with our lives together. If you could make a loan to me of $20,000, I could use it to repay the $20,000 that I owe. And, to show my gratitude, I would let you in on an opportunity to invest the remaining $80,000 in my friend’s business. His name is Tom Baker and he is the man I was speaking to when I popped outside a few minutes ago. He found out today that he has won a public competitive tender for a huge contract to build a sea-patrol drone for the Commonwealth government. He told me that for a select few initial investors, which you’d be, he would guarantee returns of 200% per year. That’s better than leaving it in your savings account. You’d be able to build your nest egg and leave your daughter even more money than you’d hoped. I would invest in it myself, but I don’t have any money. What do you think? It’s the opportunity of a lifetime!”

e. Mrs Mikro said that she would think it over. That evening at home, Mrs Mikro hid the engagement ring she had accepted from Mr Cooke. She did not tell her daughter about her engagement to Mr Cooke or about the possible loan and business venture because she knew that her daughter would disapprove of all of them. But, she wants to lend Mr Cooke the money, in order to do what is needed to ensure that Mr Cooke does not lose his home. Also, for the benefit of her daughter, she would like to earn more on her savings than the 3% she currently earns at the bank, and the prospect of 200% returns on the $80,000 appeals to her. But, she decided that she owed it to her daughter to take some precautions. So, she called Mr Cooke and asked him if he could get a lawyer to draw up some documents so that their dealings “would be legal”, as she put it. f. At their next cafe meeting, Mr Cooke gave Mrs Mikro an envelope containing a document entitled “Loan Agreement”. He explained that he had used a standard form loan agreement, instead of getting a lawyer to draft something, because lawyers are “all sharks who charge like wounded bulls”. As for the investment in his friend’s business, Mr Cooke said that no documents were needed because it would be “a handshake deal, which is how all seasoned business-people do things, because if they didn’t honour their deals, nobody would deal with them again. I would transfer the $80,000 to my friend’s company on your behalf. So, you’d need to send the $100,000 to me initially”. g. Mrs Mikro said that she has “come to see Parker Law so that they can check whether the loan document is in order and legal”. Tilda told Mrs Mikro that she needed a few minutes to confer with you in private. While Mrs Mikro waited in the conference room, you and Tilda went into another room and looked over the document entitled “Loan Agreement”. Tilda then said: “It is a completely standard loan agreement with a normal rate of interest and a classic repayment schedule over a five-year period, and its other terms are completely standard and fair to both parties. But, still, I have some questions I’d like to address before deciding whether to take on this matter.” You and Tilda went back into the room, and then Tilda said, “Mrs Mikro, thank you for visiting our firm today. We will need to get back to you in a few days about whether we can take you on as a client”. Mrs Mikro replied, “Mr Cooke needs this money within about a week or he is going to get in trouble. And, if I don’t give him the loan, I will miss out on Mr Baker’s investment, which is a once-in-a-lifetime opportunity for someone like me”. Tilda gave Mrs Mikro an understanding look and they shook hands. You escorted Mrs Mikro to the reception area and said goodbye. You went straight to Tilda’s office. Tilda provided you with the following instructions: “Interesting matter. It reminds me of a New South Wales Court of Appeal decision that I studied at law school. Dominic v Riz, I think it was. While I was waiting for you, I did an internet search and saw that, five years ago, in Melbourne, two men named Tom Baker and Leo Ferris were convicted of conspiracy to defraud in relation to a series of romance scams. That’s concerning, but it is completely outside my expertise and practice area. My suggested approach is as follows: • •

We limit the retainer to advising Mrs Mikro on the loan agreement, which is squarely within my expertise and practice area. It is a completely standard and fair loan agreement and the amount at stake in the loan is only $20,000. As for the investment, I want to steer clear of that whole can of worms. To fortify our position, I think we should say that we are happy to advise her on the loan, provided that she is willing to sign a statement we will prepare, confirming that she understands that (a) we are not offering any advice in

relation to any investments that she may be considering, including, without limitation, any investment with Mr Tom Baker and (b) she should seek financial advice in relation to any investment she is considering. I imagine that she will be happy to sign such a statement. On my recollection of the Court of Appeal’s decision in Dominic v Riz, the approach I’ve suggested seems safe. However, it’s been a long time since I read the decision, and my recollection might be flawed. So, I need you to read the Court of Appeal’s decision in Dominic v Riz. Then, I need you to write me a memorandum giving me your opinion on whether, if we took my suggested approach to this matter, the Court of Appeal’s reasoning would absolve us of responsibility, in negligence law, for whatever might occur in relation to the investment with Mr Tom Baker. Please state (a) your reasons for your opinion and (b) any recommendations you may have for how I should approach this matter.

Your task: 1. You must read (i) the New South Wales Court of Appeal’s decision in Dominic v Riz [2009] NSWCA 216 and (ii) the Dal Pont “Prepare for discussion” readings prescribed for Part 8 in the Reading Guide. You may refer to any of the other course materials from weeks 1 to 6 (inclusive) as you consider useful. Ensure all resources are appropriately referenced. You should not do any research beyond these prescribed materials. 2. Your goal is to produce a well-structured, clear and concise response to Tilda’s request that is likely to be helpful to her in deciding whether or not to take on Mrs Mikro as a client....