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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5361
Experience:  Dip Law LPAB - Sydney based lawyer
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I am enquiring about the following on a Service Practice

Customer Question

I am enquiring about the following on a Service Practice agreement I have to agree to. My question is the agreement is defined as Serviced Practice agreement For Joshua Sefo trading as NJF Excercise Physioligists Pty Ltd and the Agreement is between Joshua Sefo ABN ........ and The Exercise Pyhsiologist being the party named in Item 1 of the Schedule.....
My question is is this the correct method to define the two parties shoudn't it be between NJF Exercise Physioligist Pty Ltd and the The Exercise Physiologist being the party named in Item 1 of the Schedule.....
Submitted: 1 year ago.
Category: Australia Law
Expert:  kmslaw replied 1 year ago.

Hi my name is ***** ***** I am going to help you with your inquiry today. I am a solicitor in NSW

If your trading name is***** it should describe you as Joshua Sefo trading as The Exercise Physiologist. Is that what you are asking? If not, maybe attach the agreement and I'll have a look at it.

Customer: replied 1 year ago.
see attached
Customer: replied 1 year ago.
sorry I sent two copies in error
Expert:  kmslaw replied 1 year ago.

You're right, this agreement front page is wrong. Is Exercise Physiologists Pty Ltd your company and does it own the name The Exercise Physiologist? Or are you Joshua contracting with the company which is owned by someone else?

Expert:  kmslaw replied 1 year ago.

Who owns the company NJF Exercise Physiologists Pty Ltd and who owns the trading name The Exercise Physiologist?

Customer: replied 1 year ago.
I beleive the agreeemnt should be between NJF Exercies Physioligists and The Exercies Physioligist being th party named in Item 1 of the schedule......
Expert:  kmslaw replied 1 year ago.

Are you Joshua and do you own the trading name The Exercise Physiologist?

Expert:  kmslaw replied 1 year ago.

I think the agreement should be between Joshua Sefo trading as The Exercise Physiologist as one party and the other being NJF Exercise Physiologists Pty Ltd

Customer: replied 1 year ago.
The Exercise Physiologist is not a Trading Name is ***** ***** the person to be described at Item 1 of the Schedule my nephews partner will be that person, Joshua Sefo Trading as NJF Exercise Physiologists is the party offering the contract
Customer: replied 1 year ago.
My question is whether the definition of the parties to the agreement is legally correct at the top of page 2 of the agreement
Customer: replied 1 year ago.
I beleive the agreeemnt should be between NJF Exercies Physioligists and The Exercies Physioligist being th party named in Item 1 of the schedule......you seem to be confuded about the two parties involved
Customer: replied 1 year ago.
are you still there
Expert:  kmslaw replied 1 year ago.

Sorry I got called away. I'll have a look at this now

Customer: replied 1 year ago.
page 1 is not relevant page 2 is the relevant part defining the two parties to the agreement
Expert:  kmslaw replied 1 year ago.

"The Exercise Physiologist" is not a legal entity, it is a trading name, so it needs to be identified by the legal entity that owns it. So on page 2 it should say XXXX trading as The Exercise Physiologist. My question to you is who owns that trading name. I will check it now on the ABR wait a second

Expert:  kmslaw replied 1 year ago.

Australian Business Register says that "Exercise Physiologist" is a trading name owned by Hooman Atai. Is that one of the parties to the agreement? Or is the trading name wrong too?

Customer: replied 1 year ago.
I know it is not a legal entity but it will be defined in the schedule on page 12 this is the norm for service agreements of this type in the Allied Health area I am only concerned about the definifiton of the party offering the contract which I beleive should be NJF Exercise Physioligists Pty Ltd. I am asking should the agreement be between a person (ie Joshua Sefo) or the Business name he is Trading as.
Expert:  kmslaw replied 1 year ago.

Is Joshua Sefo the sole director of NJF Exercise Physiologists Pty Ltd? If so, then he has the option of trading in his own name as a sole trader or as a company NJF Exercise Physiologists Pty Ltd. You need to clarify with him which entity he is intending to trade with. That is not something that will be apparent from just looking at the document.

Expert:  kmslaw replied 1 year ago.

I think it might be best to talk over the phone about this one

Customer: replied 1 year ago.
At what cost
Expert:  kmslaw replied 1 year ago.

It says $39

Customer: replied 1 year ago.
Let me put this to you first.
If Page one states as it does that Joshua Sefo is trading As NJF Exercise Physiologists then shouldn't the agreement be between his Trading Name and the other party
Expert:  kmslaw replied 1 year ago.

hang on I've got to take a call. Should be 5 mins

Expert:  kmslaw replied 1 year ago.

The call is over. NJF Exercise Physiologists is not a registered trading name. As I said before, the cover page is incorrect anyway as you can't be a sole trader trading as a company name.

Customer: replied 1 year ago.
does that mean that this agreement is invalid
Expert:  kmslaw replied 1 year ago.

No it means if you haven't signed it yet you need to discuss it with whomever drafted it to establish who the correct parties are that are contracting together under it. Have you signed it?

Customer: replied 1 year ago.
not yet but I know that NJF Exercise Physioligists have been around fro ages they have an office in Maroochydoore and I know one of the owners see www.njfwellness.com.au
Customer: replied 1 year ago.
however putting all that aside16 September 2015 02:28
If Page one states as it does that Joshua Sefo is trading As NJF Exercise Physiologists then shouldn't the agreement be between his Trading Name and the other party
Expert:  kmslaw replied 1 year ago.

The page you are referring to says "Joshua Sefo trading as NJF Exercise Physiologists Pty Ltd". It makes no legal sense. You cannot be a person operating under the trading name as a company name. Is there something unclear about that for you?

Customer: replied 1 year ago.
my real question is about the definition of the parties on page two should the main party to the contract be NJF Exercise Physioligists
Expert:  kmslaw replied 1 year ago.

Hello. As I said before, I don't think you will be able to resolve this one without going to a phone call. I'm going to opt out now because I can see that you are getting twisted around with my advice. I'm being as clear as I can without the phone call.

Customer: replied 1 year ago.
do I get an Invoice for my costs
Customer: replied 1 year ago.
totally unsatisfactory response to my original question side tracked by the page 1 detail
Expert:  Patrick H. replied 1 year ago.

Hello,

I see the previous expert has opted out, but I will try to assist you in their place:

Confusion seems to have arisen because the drafter of the agreement appears to have mixed up the concepts of a sole trader, trading name and company. These are common mistakes, but can fatally flaw a contract of this type.

As the previous expert advised it makes no sense to have an individual trading as a company name, so "Joshua Sefo trading as NJF Exercise Physiologists Pty Ltd is wrong. They are different legal entities. It would make sense to have an individual or a company say they are trading under a business name (which is not a separate legal entity, but just a name used to describe the business).

The agreement on the cover sheet says the agreement is for:

-Joshua Sefo trading as NJF Exercise Physiologists Pty Ltd (which makes no sense because an individual cannot trade as a coporation. Either the Individual is the party or the Corporation)

page two lists the parties as:

-Joshua Sefo (with his personal ABN number) but with no reference to the corporation NJF Exercise Physiologists); and

-The Exercise Physiologist which is just a trading name, not a legal entity, and is therefore not capable of being a party to a contract. Moreover, it does not even appear to be a currently registered business name.

So as written in make both parties unclear. The First party is either intended to be Joshua Sefo OR NJF Exercise Physiologists Pty Ltd, but it can't be both. The Second party is presumably meant to be the owner of the business name The Exercise Physiologist but the current owner of that business is not apparent from the agreement.

As it stands this agreement is very likely to result in legal issues due to uncertainty as to who the parties to the agreement are.

As to how to fix the problem, before proceeding the person representing the first party, presumably Joshua Sefo, must decide whether he is contracting personally, or on behalf of his company (assuming he is authorised to represent that company) and the owner of the business name The Exercise Physiologist needs to have their name, not their trading name, set out on the contract.

I trust this assists.

Please rate my answer.

Patrick

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