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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 861
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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My (now ex) boyfriend and I started a business together 3 years

Customer Question

My (now ex) boyfriend and I started a business together 3 years ago. I did all of the paperwork, business day to day emails, registered the business name, did the books on MYOB, registered for GST, designed the website,designed all printed works, did his tax prep for the accountant, met the accountant etc etc. He worked the business as the tradesman, and it was ’his’ business , as I was still working as a teacher. For about 3 years I worked 5-20 hours on his business for him. We recently split and he hasn’t paid me one cent for all of the work I did, even tho there is no dispute I did all of this work. As there was no ’employment’ contract – I started this business from the very beginning with him – he has said I don’t get anything. As the business grew and thrived I always thought he would pay me - although I was happy to wait as it was his only income and I worked as a teacher - , and in pushing to be paid he broke up with me. I have written to him asking to be paid and he has ignored me. What can I do about the hundreds of hours I worked on his business? I did the Cert IV in Small business Management and the course lecturer said I could be considered a partner in the business. What would this mean?
Submitted: 12 months ago.
Category: Australia Law
Expert:  Leon replied 12 months ago.
Good Afternoon,

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

How long have you and your boyfriend being together, and where you living together during this time?

From what I can see, there is at least a 3 year relationship which would make you a defacto couple but if the relationship was longer than this, then you would be entitled to a share of his business under the property splitting laws.

Admittedly he would be entitled to any of your assets as well but depending on what the business is worth you can determine whether you wish to proceed down this path.

Customer: replied 12 months ago.

No - we weren't living together for any part of the relationship (we both have our own homes and children from previous relationships) and I have no interest at all in pursuing things in that vein.


Basically I just want to be paid for the hours I worked in the business - and in fact given that I probably worked 1500 hours over 3 years, I would like something. He has since paid off his own home, bought 3 cars (2 of them $90000 each) gone on 2 international holidays and bought a factory- and hasn't so much as given me a petrol voucher for the driving back and forth to his factory I did.

Expert:  Leon replied 12 months ago.
Good Evening

The only option you have is to commence proceedings agains him for the money.

You need to send him a letter of demand asking for the money and if that fails then commence proceedings with the Magistrates court. You can charge interest on the money plus the costs of filing.

Is there anything else I can assist you with?
Customer: replied 12 months ago.

What legal grounds would I have to start the proceedings in the Magistrates court? We didn't have a partnership agreement and there was obviously no 'employment agreement'. Would it end up being just my word against his? Do I have the grounds to be asked to be paid for ongoing work in a business without a contract??

Expert:  Leon replied 12 months ago.
Good Evening

Exactly what you have told me. You worked for him and he has refused to pay you.

You will need to show that there was some form of oral contract that you would assist him and in return he would pay you.

It is your word against his.

The contract does not have to be written. It can be oral. They are valid.

Is there anything else I can assist you with?
Customer: replied 12 months ago.

We never specifically talked about me 'working for him' and him paying me - as right from the beginning we started this together. As 'we' had started it together, and 'we' were working on it every weekend and some weeknights (he worked the trade work during the day) I assumed 'we' would benefit from it: that when he got on his feet he would start paying me. He would ask me to help do such and such a job, or such and such a job - all of the work was at his request. Everyone in his family saw me working for him, and his mother even assumed I was being paid.


 


. After 2 years when I started talking about being paid and him giving me what I deserved from the previous 2 years work, he then started pushing me out of the business - he hired a bookkeeper, he got someone else to upkeep the website etc. We ended up breaking up over because I asked to get paid and he refused.

Expert:  Leon replied 12 months ago.
Good Evening

When you say you started it together was it intended to be a partnership and you each share in the profits?


Customer: replied 12 months ago.

We were told (from the small business lecturer) that because we were doing it together there could be an assumption of a partnership - but I was happy for it to be his business although no agreement was made either way. He knew - because I told him - that I expected to get paid at some stage and he still asked me to do particular tasks: that is why I know he was aware I expected to be paid. He was paying everyone else who did things and not me. Is there anything in the legal system about being paid fairly for work done, without a contract. He was aware I didn't work 3 years and expect nothing for it.

Expert:  Leon replied 12 months ago.
Good Evening

From what you are telling me you have a claim.

The law will protect you and you have to show that there was the intention that you would be paid and when you finally demanded the payments he refused.

You should send him the letter of demand for starters.

You have a contract and that is verbal. It does not have to be written.

I hope this is of assistance.
Customer: replied 12 months ago.

I know that he was aware I expected payment of some sort because we did split up for a month after 2 years - he said in that month (when we weren't together): 'I was going to pay for us all to have a holiday together' and 'I was going to pay to have your kitchen renovated if you wanted it' but conveniently didn't do these things after we got back together even though I waited another year. Is that kind of thing helpful if it went to court - he knew a payment of some sort was owing but refused when it came down to it. He also said at one point: how much do you want? How much do you want to make you happy?? I roughly went over the hours I worked (1500 at $40 an hour and came to $60000) - I said half of that. He broke up with me a week later.

Expert:  Leon replied 12 months ago.
Good Evening

What you are now describing is a defacto relationship and you can claim more than just wages.

You need to look at the work arrangement for the claim for wages.

What you have described to me what you have you have a valid claim.

You have to decide what you wish to claim is it just the work you did or more.
Customer: replied 12 months ago.

I don't want to claim more than wages - I just use that to show he knew he needed to pay me in some way. Is that valid? The claim for wages is what I want to look at.


There wasn't a particular work arrangement: we started a business together, we worked on it together at nights and the weekend (I went to his home office), he got all of the profits (which I didn't mind at the beginning when it was his only income and I taught) , when I asked for my share he started elbowing me out, making excuses and then finally refused, breaking up with me.

Expert:  Leon replied 12 months ago.
Good Evening

The discussions about the payment are the key there. Booking holidays etc points more to defacto relationships.

In your claim you need to focus on the discussions about payment and what you agreed on when you started the business.

Does that make sense?
Customer: replied 12 months ago.

There wasn't anything agreed to when we started the business. Nothing. There were no discussions about payment. Where does that leave me? Will I have worked for 3 years on this business for nothing?

Expert:  Leon replied 12 months ago.
Good Evening

In our discussions you said that he would pay you when he was making money. When you asked to be paid he then pushed you out.

I take the initial agreement about being paid when he was making money was at the beginning or after the business started correct?
Customer: replied 12 months ago.

No, I said I assumed he would pay me when the business started making money as we were doing all of the work together, it was a business we started together. He didn't say he would, he didn't say he wouldn't. When it did start making money and I asked he would avoid, then started doing the things I mentioned - edge me out, 'say' he would pay for a holiday etc etc. In the end he broke up with me - because I was asking to be paid. How can that be fair?

Expert:  Leon replied 12 months ago.
Good Evening

You have a claim. You can claim as a partner that has not received a share.

You can show the work that you have done.

If I was your solicitor I would be suggesting claiming as a defacto.

What he has done is not fair and you have contributed to his business and you have a claim.

The courts would give you your money.

You should get more detailed advise form a Solicitor that practices in WA and they will also tell you to go with the defacto aspect because you have a greater chance of success.

I hope this is of assistance.

Customer: replied 12 months ago.

But wouldn't the defacto part be a whole split of property thing? I was divorced 6 years ago - that's the last thing I want to do = and we never lived together - always had 2 houses. He made it perfectly clear he didn't want to live together - wouldn't that imply we weren't defacto?

Expert:  Leon replied 12 months ago.
Good Morning

Not always. you can agree to ech keep what you have and just split the business.

You do not have to live together to be defacto. You have to be in a relationship. Living together is only part of it.

Section 4AA of the Family law act defines a defacto. Here is the section.

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html

It is something that you can consider to get this over and done with and be paid.

You will need a solicitor to assist and draft the letter.

As I said last night you do have a claim.

I hope this is of assistance.
Customer: replied 11 months ago.

Thanks for all of the information - if I do wished to pursue it as a Defacto, would that also be through the Magistrates court or would it then be through family court?


 


If I just went to magistrates court as originally intended, would I pursue it as a Trader/consumer relationship or just as a debt to be recovered?

Customer: replied 11 months ago.
Relist: Other.
Still haven't received an answer to last query
Expert:  Leon replied 11 months ago.
Good Evening

My apology for the delays but I am travelling at the moment and currently in Hong Kong.

You have to commence proceedings in the Family Court of WA.

If you took the matter to the Magistrates Court you would sue for unpaid wages or if you can show it was a partnership then you can sue for 50% of the business as a silent partner and argue that he held your share as trustee.

You keep telling me you started this together and it does point to a partnership.

Because there is nothing in writing it is your word against his and the court will have to decide who it beleives.

It is a fair amount of money and I would get more detailed advise from a Solicitor that practices in commercial law and also family law. Just to get a better indication of your entitlements and strength of you case.

I cannot judge that on here all I can do is provide you with some guidance and what I can see is that you have a claim as defacto based on what you have described and I think that is your best option. I do understand you do not want to go down this path but there is no harm in getting more detailed advise.

Is there anything else I can assist you with?

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