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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42653
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I need to know if I have a case of contract,

Customer Question

Hi, I need to know if I have a case for breach of contract, and if so, a legal letter to be written stipulating the contract has been breached and is now void.
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
Hi, I am still waiting to hear if you can help me or not?
Expert:  Leon replied 1 year ago.
Good Morning
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
My apology for the delay I am currently overseas and there is a time difference.
Can you please provide me with more details?
Customer: replied 1 year ago.
HI Leon, sorry for my delay, I was in bed by the time you responded.Ok, some background- I run a commercial fishing business, I have had a separation from a business partner with an agreement in place for the repayment of money he put into the business as a buy out. One of the conditions of the agreement we have in place states:
"Ashley Roberts-Thomson will not knowingly harm or hinder Queensland Sustainable Sealife PTY LTD or it's reputation, by way of disclosure of the running of the company, fishing methods, locations or by any other medium"Now, I lease a fishing license from a company who for the last 10 years has worked in a different fishery, still active in the industry, but not fishing for the same animals as I do. They own a license in my fishery, but the history in their fishing logbooks states that they have not fished for many many years. Within a couple of months of parting ways, Ashley approached them, and has started working with them. He has convinced them to take back the license they lease to me, so that he can fish with it while working for them. This has harmed by business significantly:
1) Created a competitor where there wasn't one before
2) He has approached several of the shops that I supply offering to sell the same animals to them
3) He has caused a MINIMUM 30-50% drop in my monthly sales ability due to the removal of this license.I believe this move has made Ashley in breach of our agreement, in particular the clause indicated above. What do you think?Thank you :)
Customer: replied 1 year ago.
Hi Leon, I really need to hear a response soon so I know if I am to persue this or not- I did pay the premium amount for a fast answer, which I am really not feeling like I am getting at the moment. Hopefully we can sort this out ASAP :)Cheers
Ryan
Expert:  Leon replied 1 year ago.
Good AfternoonThe clause makes no comment about not competing. It refers to them not disclosing anything about how you do business. This has not happened. Does it say anything about them not competing with you or contacting and taking away customers?
Customer: replied 1 year ago.
Its not competing with me that I have the real issue with- the main issue is him deliberately and significantly hindering my business by taking the license away for him to use with the other company.
Expert:  Leon replied 1 year ago.
The clause makes not mention of this. It simply says Ashley Roberts-Thomson will not knowingly harm or hinder Queensland Sustainable Sealife PTY LTD or it's reputation, by way of disclosure of the running of the company, fishing methods, locations or by any other mediumIt is about reputation. By taking the licence away is is competing but not affecting reparation. How long ago did your business part and your split and was it a company structure?
Customer: replied 1 year ago.
The way i took it is that Ashley is harming QSS P/Y by disclosure of a number of factors- including what we were catching on the license, what it's value is, where these fish are caught and how they are caught, which is exactly what is stated in the clause- he had to tell the other company in order for them to decide to give up the lease fees that I was paying them, and take the license back.the business split in late November- it has been a limited company for over a year. Both of us were directors, but obviously he resigned when the split went down. He still holds his 35% share in the company, which I am buying as of this month too.
Customer: replied 1 year ago.
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Expert:  Leon replied 1 year ago.
I am currently overseas and the phone call is not available. If he has disclosed the way you run the company and your fishing methods you can make an argument. If he was a director or shareholder, he can also be in breach of the Corporations law as a member going against the company. His undermining you to take the licence away can be a breach of the corporations act.He coud be in breach of his fiduciary duty. I hope this makes sense?
Customer: replied 1 year ago.
I just looked up Fiduciary Duty to make sure I understood.He has caused my business to suffer greatly by causing the end to the lease of the license I was fishing on.What I want to happen is to nullify the agreement between us if we can find a way to do that. What is your suggestion, and what do you need to know to establish whether a breach has occured sufficiently for a legal letter to be drawn up telling him that the agreement is nullified?Thanks.
Customer: replied 1 year ago.
I have just read that if a fiduciary breach has indeed occured, that one of the avenues of remedy is rescission of the contracts/agreements we entered into?
Expert:  Leon replied 1 year ago.
I am not sure that you can nullify the contract but you can seek damages from him for what he has done. If you can show that he and the other party colluded then you can sue them both for their actions. The contract may then be terminated. All of this is dependent on what evidence you can collect. You will need to speak to a Solicitor that practices in commercial law and give him all the details you have and the agreement you signed and then see what they tell you. If there is some form of collusion and anticompetitive behaviour that has occurred then the agreement can be overturned. It is not a simple process but this is what you have to do. I hope this makes sense and is of assistance. if there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me knowIf there is anything else in the future please do not hesitate to ask.Please do not forget to leave positive feedback.Good Luck with it.RegardsLeon
Customer: replied 1 year ago.
Ok. So you don't think the harm or hinder clause can be used to simplify things? He has harmed and hindered the business with his actions- by disclosing our fishing methods, locations and catch to the other party.
Expert:  Leon replied 1 year ago.
Good Afternoon,It is the outcome of their actions. The harm and losses are what you want to be compensated for. You have to show that this was caused as a result of his breaches of the Corporations Act and also the Agreement that he had with the company. To be successful you have to show the breach. This is where his liability is. It is not in the outcome. If he has not breached anything the outcome will not be compensated. If he has breached something then he outcome will be compensated. I hope this is clearer?
Customer: replied 1 year ago.
Ok, so in order to show that he has breached the agreement between us by causing the license to be taken from me for him to use, I can show that the license used to have my name on it as a nominated fisherman, and now it has his. I can also show text messages from him saying that he is now in charge of the license and associated paperwork.
Customer: replied 1 year ago.
Sorry, that was terribly written- I hope you understood what I was trying to say there.
Expert:  Leon replied 1 year ago.
You have to show that what he did, is a breach of the agreementThat shows what he has done. But you have to revert back to the agreement you have with him and also the Corporations act that as an officer he has acted in a way that impacted on the company.I completely understand
Customer: replied 1 year ago.
Ok. Proving it is not a problem. What I really want is to initiate the action with an official letter informing him that because of these reasons we are considering the agreement terminated effective immediately. Is this something you can write on some kind of official letterhead (for a fee of course) and email to him on my behalf, or will I have to go to another solicitor for that?I need to arrange something fast so don't risk my boat- part of the agreement was that my boat is secured on the PPSR against this agreed amount.Thanks again :-)
Customer: replied 1 year ago.
Then if he saw that he has a case he would have to initiate legal avenues right?
Expert:  Leon replied 1 year ago.
You simply write to him and advise his actions are a breach of the Agreement and also the Corporations Act. If he does not reverse what he has done and reinitiate the licence into your name you will commence action for compensation for the breach. You should see a Solicitor that practices in this area to do all this. I cannot as I am not able to take on the case and I am here to give information. The PPSR is only available to lenders and there has to be an agreement to allow registration of the item on the PPSR. Good luck.
Customer: replied 1 year ago.
I looked it up on the PPSR and he has secured the boat on the register. I had to pay to look at his holding over my boat!I think it's because our actual agreement is a repayment agreement for money he put into the business, rather than a sale agreement or something.I don't want to take action against him, i just want the agreement to be terminated and his holding over my boat to be cancelled. Then he will be out of my life and I can try and rebuild my business. Is it acceptable for me to write to him informing him that I deem the agreement to be terminated and that I will not be paying him any more, and that his holding over my boat will also be terminated accordingly?
Expert:  Leon replied 1 year ago.
Good Evening,Ok.You can aim to have that done and not sue him for the breach. The letter can be without prejudice, so he cannot use it against you, and it can say that you are prepared to settle if he releases the boat from the PPSR.Any settlement should be in writing so that he cannot come back at you.
Customer: replied 1 year ago.
Ok, do I just have to state in the letter "this letter is being sent without prejudice" for it to be considered that way?
Expert:  Leon replied 1 year ago.
Just put the heading "Without Prejudice" on the letterWe usually place it in Bold before the body of the letterThen they cannot use it in court against you
Customer: replied 1 year ago.
Is there a section of the Corporations Act 2001 that you can point me towards, that would apply to what we have spoken about with regard to his potential breach of his fiduciary duty as a shareholder?
Customer: replied 1 year ago.
If you can let me know ASAP that would be great :)
Customer: replied 1 year ago.
I have found the answers to my questions from another source. Like I said, I paid for the fastest response time, and I am a bit disappointed that even though you are overseas you still took on an urgent question, knowing full well your response times would be limited. You have helped me, but I cannot justify $100 for the speed and detail that I had paid for this question, when I have just had to pay for another lawyer to advise me further so that I wouldn't miss my deadline with this response to the person I am dealing with. I hope you understand.
Expert:  Leon replied 1 year ago.
The following is a detailed list and explanation of his dutieshttp://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/welcome-aboard/member-duties/corp-act-2001-c.aspxI am sorry for the delay but have been flying back form Frankfurt and was not able to log on while flying and there was noone else online that could assist you.All the best