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Ask James D. Ford Your Own Question
James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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To: Commercial services contract litigation lawyer. 1 If

Customer Question

To: ***** ***** contract litigation lawyer.
1 If there is nothing re which court would have jurisdiction in an
agreement for services of a commercial nature to be provided by a
professional firm located in Victoria to a client in NSW to be paid
for by direct debit of the client's bank account in NSW, would the
only court with jurisdiction be that closest to the client's residence
or place of business?
2 Is there a legal principle whereby one can send an Australian cheque
between Australian states with the writing "IN FULL AND FINAL
SETTLEMENT" and once it has been deposited by the recipient  would
this provide a full answer to any legal action instituted? Could you
point me to the latest law on this in NSW and Victoria, with the
recipient and potential claimant being in Victoria and the potential
defendant and writer of the cheque being in NSW? Is there a specific
way in which the covering letter enclosing it should describe the
cheque?
Submitted: 1 year ago.
Category: Australia Law
Expert:  James D. Ford replied 1 year ago.

Hi,

Re: Jurisdiction

Can you please advise whether there are any standard terms of trade as you have indicated there was no agreement.

I assume that the professional services firm, would at the very least have standard terms of trade, which would normally specify that the Courts of Victoria have exclusive jurisdiction, and that the laws of Victoria apply.

If there is nothing agreed with regard to jurisdiction, or applicable laws, then the claim can be lodged in the NSW (the state of the Defendant)... or depending on how the cause of action has arisen... the value and nature of the claim.. it could be lodged in the the relevant small claims tribunal (VCAT or NCAT).. the Victorian Courts or the Federal Courts.

MAGISTRATES' COURT ACT 1989 (VIC) - SECT 100

Extent of jurisdiction

(1) The Court has jurisdiction, subject to subsection (2)—

(a) to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limit; and

(b) to hear and determine any claim for equitable relief if the value of the relief sought is within the jurisdictional limit; and

....

(4) The Court does not cease to have jurisdiction in respect of a cause of action because—

(a) part of the cause of action arose outside Victoria—if a material part of it arose in Victoria; or

(b) the whole cause of action arose outside Victoria—if the defendant resided within Victoria at the time of being served with the complaint.

Re: Settlement

I would highly recommend a Deed of Settlement be prepared by your lawyer and signed by all parties prior to any moneys being paid. This will ensure that the payment is in full and final settlement of the matter.

What you are suggesting with offering a cheque with the words "In Full and Final Settlement..." with the acceptance being evidenced by the banking of the cheque... might be possible, (I would need to conduct legal research to be able to advise further) however... in these matters it is best that nothing be left to doubt... therefore, a Deed of Settlement is highly recommended.

Please advise if you would like me to send you a quote for legal service to prepare the Deed of Settlement.

Kind Regards,

James