LA4022 Assignment Question 2020 copy PDF

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Civil Assignment You are a newly admitted lawyer in the firm of Gordon & Co Lawyers and your supervising partner has given you a new matter which she has asked you to deal with. She hands you correspondence which she has received from a previous client of the firm today. For your assignment, you are required to prepare all the necessary documentation that would appear on your client’s file based on these instructions and on the basis that you serve the Claim and Statement of Claim and proceed to default judgment. For the purposes of this assignment assume the following:The Claim and Statement of Claim is filed on 26 March 2020. The Claim and Statement of Claim is served on the other party on 27 March 2020 at 4.30pm. Only the law applicable to Queensland applies. Please note that footnoting is not required. Please not that you are not required to prepare a Disclosure Notice and Client Agreement.

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Wayne Enterprises Pty Ltd trading as Flying Fidgets

Gordon & Co Lawyers 13 Gotham Street TOWNSVILLE QLD 4810 4 March 2020 Dear Ms Gordon My company, Wayne Enterprises Pty Ltd, produces and sells fidget spinners – the best fidget spinners in the world, right here in Townsville. Over the years I’ve had an ‘interesting’ business relationship with the infamous Mr Joe Kerr who operates the well known business ACE Games and Entertainment. Let’s just say we’ve had our ups and downs since we first signed an agreement for me to sell my fidget spinners to him back on 1 April 2019 over a beer or two at my place. He lives just around the corner from me at 1 Villain Lane in North Ward. Like me, he runs his business from home. I’ve always had issue in getting payment from Joe Kerr. Our original agreement didn’t have an interest clause but because I didn’t need the money, I didn’t worry too much about it in the beginning. However, I began to resent him for taking advantage of my good nature and good fortune and so I changed my terms of trade a number of times in an attempt to secure payment from him more quickly with varying degrees of success. The changes I made are as follows: 

Amendment dated 1 October 2019: “In the event that payment is not received by the due date, you will be liable to pay interest at a rate of 8% per annum from the due date.”

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Amendment dated 1 December 2019: “In the event that payment is not received by the due date, you will be liable to pay interest at a rate of 9% per annum from the due date.”

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Amendment dated 1 February 2020: “In the event that payment is not received by the due date, you will be liable to pay interest at a rate of 10% per annum from the due date.”

Joe Kerr has always signed the various amended agreements on the dates I gave them to him because he knows I sell the best fidget spinners in the world and he distributes them world wide. Please let me know if you need a copy of them. My terms of payment are simply 14 days from the date of invoice.

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The outstanding invoices are as follows:31 August 2019 100,000 fidget spinners @ $0.40 each Total: $40,000.00 15 September 2019 150,000 fidget spinners @ $0.40 each Total: $60,000.00 30 September 2019 200,000 fidget spinners @ $0.40 each Total: $80,000.00 15 October 2019 200,000 fidget spinners @ $0.40 each Total: $80,000.00 31 October 2019 150,000 fidget spinners @ $0.40 each Total: $60,000.00 15 November 2019 120,000 fidget spinners @ $0.40 each Total: $48,000.00 30 November 2019 120,000 fidget spinners @ $0.40 each Total: $48,000.00 15 December 2019 100,000 fidget spinners @ $0.40 each Total: $40,000.00 31 December 2019 80,000 fidget spinners @ $0.40 each Total: $32,000.00 15 January 2020 60,000 fidget spinners @ $0.40 each Total: $24,000.00 31 January 2020 40,000 fidget spinners @ $0.40 each Total: $16,000.00 15 February 2020 20,000 fidget spinners @ $0.40 each Total: $8,000.00 29 February 2020 10,000 fidget spinners @ $0.40 each Total: $4,000.00

It’s my fault really, I’ve never chased him for payment. I’m not desperate for the money by any means but I don’t like that Joe Kerr thinks he can just do whatever he pleases and get

-4away with it. I suspect the market for fidget spinners is not what it used to be and he might not be able to sell them at the prices he used to. I’ve been through the courts before, but it’s been a while – back when I was selling freeze guns to Mr Freeze and his wife Nora. I was very impressed with how your law firm handled that case for me. Could you please assist me again and get payment from Joe Kerr? I’m not concerned about the costs but I do like to understand the process and timeframes involved. Regards

Bruce Robert Wayne Flying Fidgets 1 Manor Street, North Ward

-5Assignment notes Read your facts and be clear about what you are being asked. You don’t have to assume any facts yourself, that an offer is made, or part payment has been made. All the facts you need are in the question. Only thing you will need to work out for yourself is either an ABN or an ACN number. And tell her whether it is an ACN or an ABN. You can make up a Court reference number if you want. You need to have a file note that states that it is filed. Make sure you have a good handle on the timeline. What invoices were sent when. What terms were in the agreement between the parties at the relevant times and when they took effect in that timeline. The dates and times of your invoices in terms of when they are due. What terms and conditions were in effect in those relevant times and put that timeline overlay over the actual dates as to when you might have a weekend or a public holiday when you are working out your 28 days. If you can use a real calendar for this year and map out when these happens. Don’t launch into do the documents. Get those dates etc right then proceed to do the assignment. You will need to make the dates of your relevant documents fit as well. I haven’t given you dates for when you send a letter of demand by. I have given you dates for when the court documents are filed. So, you need to work backwards and make sure whatever dates you have put in on your letter of demand as to how long you are giving them to respond will fit with all those dates. In the assignment the claim and the statement of claim is filed on the 26th of March. If you for example sent a letter out on the 20 th March that is not going to work. That does not allow for 7 days. Letter of demand. Don’t over think it. you are asking for money that is due. Who you are acting for? Why are you writing? How much you say is owing and when you want payment by What is going to happen when you don’t receive payment. Look at see what is owing at the date of the letter of demand that may or not include interest. There is no right or wrong about including interest on the letter of demand. If there is interest owing and it is due claim it in the letter of demand. Letter of demand can be sent on the same day as receiving the client’s correspondence. There is no right or wrong date for sending letter of demand other than the time period for responding to it must hit before the 26 th of March. You must be clear that if you don’t make payment for the amount you are claiming in the letter of demand what is going to happen. In other words, you are going to sue. You haven’t been given any offers or settlements- you are asking to be paid the full amount. Letters to the client Your first letter was your instructions from your client. So, remember the deal, you get the instructions then you act on those instructions. Then you respond back to your client and the process keeps repeating itself. It is important for your marks what your client is asking you to respond to. Don’t just write a standard letter to your client. Look at what you have been ask and advise them what you have done and when you will be in contact with them. Each contact you will advise the client what you are going to do next. Client is told what has just happened then advised

-6what will happen next and when you will be in contact. So, they are sure as to what is happening. What sort of things you would include in the letter? You talk about that you sent the letter of demand. What time frame they must respond to that letter. If they don’t that, that you will commence proceedings. What those proceedings might be and where they might be, and the general process is. You might tell them about if they don’t respond you can do through to a default judgement. You might want to talk about if there are any points to note in respect to the interest of the invoices. Advise them on any points you feel they need know about. You have told them you would come back after a period of time after letter of demand is sent. You have come back to them. So, you give them a call and let them know you haven’t received a response from the other side, and you check they have received any money. Then confirm your client’s instructions and they want to proceed with the claim and statement of claim and if there is anything you agreed to in the instructions Or they it would as simple as he confirms he or she had not received payment and I was instructed to proceed to a claim and statement of claim. Your file must have a record of every communication. Whether it be a copy of an email, file note of a telephone discussion or file note of face to face discussion. Make sure you have a record. Put in a file note what you said to the client. You don’t have to create the email or a letter to be sent to the client each time you need to contact a client. Claim and Statement of Claim. (Hardest part of the assignment). Check whether you must serve it to other states. If you do, then you will be looking at the service and execution of process act. if you do then you must submit a form one in that act. In the claim don’t take any parts you have to complete in the claim for granted. There is half marks for each item you put in here. When you put which court there is mark. When you pick which town there is a mark When you pick the plt and the defendant there is a mark. There is a mark for everything. So, don’t rush. Take some time and go through your notes as to how we work out the jurisdiction As to how we got to the parties. Make sure you get the parties names right. Put the full name. if it is business, it will be trading as …. If it is a company, it will be a pty ltd with an ACN number. You will need to pick if someone is a business or a company. If it is a company, then you must put an ACN. If it is a business, then you will but Trading as….. You can put an ABN number if you like. In terms of a claim, there are always three parts to a claim. 1. Claim 2. Interest 3. Costs. The interest. You might have different types of interest. Whether it be under an agreement or in the act.

-7If it is costs. You might have different types of costs. If you have those you must on list them. If there is a company as a defendant, you want to notionally do an ASIC search and note it in a file note that you have carried out an ASIC search. If it is a company though, you would be given all the facts in terms of service. You need to work out whether it is an individual trading as a business name or whether it is a company name for both parties. When do page two of your claim your particulars, you are putting your name, your clients name and the service address- which is you. Once you start acting for a client then the service address is your firm address. When you are serving the defendant, you need to put the address as to where you are serving them. (There is marks for everything). Make sure you get the right address of where you are serving the defendant. Statement of Claim Don’t over think this. There is not marks for getting the perfect wording. There is marks for getting the general gist of what you need to put to make a claim in the court. It doesn’t matter if your wording is perfect. It is just for you to understand the basic elements that need to go into the pleadings. The basic elements are: three parts 1. The background.  Who are the parties?  Why have they got they have jurisdiction to sue?  Who are they- they run a business; they sell stuff? A business is not a separate legal entity the rules under s109X of the Corporations Act for serving a company apply only to a company. A business cannot be served the way you would serve a company. Second part Is the version of the story. So, you will be setting out there is an agreement between the parties and what the terms of the agreement are. What the terms are as to the due date. If there is interest what the terms are as to interest. You will then be saying this is the total of those invoices. This is the key part to setting up what the parties agreed to. The next part is the defendant has breached those terms. The defendant has done what they said they would do by failing to pay whatever the sum is by the due dates. The next part you need to say, despite demand the defendant has failed or refused or neglected to pay the sum of X. that is important because you need to in order to claim your costs. You need to have sent your letter of demand, you need to have it listed so you can rightly claim the costs and not have an issue with that. Then you would set out your various interest calculations. You can enclose the court calculations if you wish. For the assignment I want to see that you know how to calculate it because you wont always be able to use the court calculator. You must show the calculations with the full formula and the full calculations of the interest in your pleadings. Remember you are claiming interest back to the day interest back to the date the cause of action arose. So, the first date an invoice became overdue. That is the first day you can start claiming interest.

-8The last date will be the date you file the claim and statement of claim. In practise the court would want you to include the court calculations

Interest. When you do the interest, you are going to calculate how much is due to the date that you file your claim and statement of claim. Also be calculating a per day rate because from that date forward if they had to pay after that day how much extra they must add on to the interest. The Rule 150(3) Notice at the back of the statement of claim has got a chunk of marks in it. There is a mark for every number in there. There is about 9 lines It is important. If you get these correct, then the rest of your assignment will flow in terms of numbers. If you get it wrong, then you will be in strife. The whole idea is to give the defendant a very precise advice as to what they need to pay right here and now to make the claim go away. Also state an amount of X interest accruing at a rate of X per day til judgement. You can work out if they don’t make payment today, but they make it tomorrow etc, you can work out the amount because you have said how much that amount is going to change each day. what you’re claiming and the figures on the form. The amount of the claim- this is the amount of the invoices that are due. (if there are some that are not due don’t add them in.) Interest- you will have to look at what your interest is.  whether you are two different types or not.  If you have an agreement, it is because of what’s on your facts. If there is not agreement don’t add one in.  If there is no agreement you can claim as a fall back under s58 of the Civil Proceedings Act. the rate will be in there. The rate is on the court calculator. Costs- the X amount is the total of the Filing fees, Service fees and Professional fees.  If you are suing a company, you may do an ASIC search and you can claim the fee as well.  It is not wrong if you don’t, it is just better that you do so you can claim the full amount for your client.  In practise you should always do an ASIC search on your client to prove that they are the entity they say they are, and it exists and are real  However, you can’t claim an ASIC search for your own client from the defendant.  Filing fees- You are looking at the Supreme Court of Queensland Act 1995  Then there are two sub parts 1. You claim the filing fees are under the Uniform Procedure (Fees) Regulation 2009. 1. Filing fees- the fees you pay to the court to file the document.  Make sure the one you look at includes the ACF. Which is the appeal cost fund fee.  You generally would have at least three copies unless there are more parties.  You file one for the court, one for you and as many as defendants to serve.  You hand over a credit card or a cheque. 2. Professional fees. The professional fees are under the Uniform Procedure Rules 1999. 2. Service

-9Service can be done of two ways for you to claim as a fee.  It is either claimed via: o Post for example o You personally hand it over then you can claim it as a professional fee. o Marker will be lenient about the way it is claimed because we don’t spend a lot of time on this subject. o What is more important is getting the method of service correct. o So, look at the fee reg and the rules then look at what you can claim for service and claim one of them. 3. Professional Fees  Professional fees are how much you can claim as a solicitor on the standard scale. The work you have done.  These schedules have a fee for everything that you can claim.  Go to the back page that has a list of fixed paid items.  In the fixed cost items, there is one for costs for issuing a claim and statement of claim. Use that.  Then you add all those up and you get the amount. Interest add them all up as per what you have on the first page. All those amounts had a different per day rate for the individual interest. Add them up then that is the on going per day rate of interest. Lastly, there is an amount that you fill that you state if you don’t pay these and if then we have to go through to judgement will also be able to claim the judgement costs incurred In that respect.  So, go back to the professional costs in the back of the schedule and in the professional costs the fixed cost items and put the fee in for costs for obtaining for obtaining judgment under chapter 9-part provision 2 Form 150 (3) is also a key part of the assignment and helps with the flow of the rest of the assignment. You file the claim and statement of claim. You have to have some evidence on your file that you have filed it.  Which court,  what you filed,  how many copies  how much you paid  That you had to hand over a cheque or credit card to pay for it. Once you have filed a court document then you will have to serve it. How you serve it will depend on  The facts  What you decided the entities were (Company or business)  How you were to serve. o You need to work out will you serve it via personal service or by post. Now you report back to client and let them know you have filed and served. Advise what you have done. Importantly, client wants to know, and you will be marked when the effective day of service will be. Therefore, they will have 28 days. So, what day will be day 29.

- 10 So you will be saying them you will be contacting them again to start the process. You wait 28 days then on 29 th day you will phone your client to ascertain whether they have received payment. The client will say no I haven’t received payment. Then you confirm the instructions to proceed. You check the court to prove no defence has been filed Magistrate- you phone them District and Supreme- you will do an E-court search. Now you need to prove service. So, you would do an Affidavit of Service. Same form as affidavit You need to state how you served it. If you are serving it via personal service (face to face), you need to state in the affidavit  They checked their name. So, they confirmed who they were serving.  The affidavit refers to a date and importantly, a time that the document was served.  Copies of the claim and statement of claim to your affidavit. If you are serving by post, the things you would put into your affidavit of service would be  When you sent the letter  A copy of the letter as well the claim and statement of claim.  How you knew that was the correct address to send it to.  What would be ordinary course of post, the date that the letter would arriv...