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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 signed a deed of release prepared by my ex-employer and

Customer Question

I signed a deed of release prepared by my ex-employer and the director/state manager/shareholder of the business over a claim of $6000 I had against them both, the deed was signed by me and the director but named all three parties in the header between A (me), B (director) & C (company) - and named party C (the company) by Deed Poll which releases B & C from future claims on the project relating to the $6000 claim
the agreement stated that A, B & C would keep confidential the terms of the statement, deed and settlement and would not disclose any of the matters or details without the others written consent
about 6 months later an employee (unnamed at this stage) gave a reference check when I applied for work elsewhere and mentioned the legal matters and the settlement
the company cancelled the scheduled interview immediately and I was out of work for 6 months and have had trouble getting work since
additionally one of the senior managers made slanderous statements to an employment agency and again stated that I left because of a problem I had with the director amongst a host of serious defamatory statements
these comments are now permanently on record and were 'published' in accordance with "Dow Jones & Co. Inc. v Gutnick" several times including recently
is the Company liable for the breach of the deed of settlement
is the company liable for the defamatory comments of the manager
Submitted: 1 year ago.
Category: Australia Law
Expert:  Jared Pereira replied 1 year ago.

Hi my name is ***** ***** I am a Victorian solicitor. A deed of settlement is ultimately a contract between you and the company. The confidentiality clause is part of that contract, and a breach of the clause by the company or its employees or agents as is the case here, is a breach of contract which entitles you to damages. The quantum of the damages that you can claim is dependent on the damage you have suffered. Each time a company employee breached the confidentiality deed is a separate breach of the contract. You need to gather evidence if possible of each breach and then determine what injury this caused you. For example, when the first employee gave the reference and mentioned the past legal issues, was this the determinative factor in you losing the job you applied for? If so, then simplistically, since it took you 6 months to find another job (and mitigate your loss), your claim could be (6 months x lost salary from the job opportunity). I wouldn't rest my argument on defamation, though, since they may raise the defence of justification or fair comment. It is best just to treat the matter as a breach of contract since the damage is much more clearly provable. In addition, depending on the phrasing of your settlement deed, the breach of confidentiality may also allow you to resurrect your old claim that the deed was meant to settle, so you could also sue for that. I hope this has been of assistance. Regards, Jared.

Customer: replied 1 year ago.
the deed of settlement was signed by the director who is also the state manager and a shareholder, but it wasn't signed by the Company - only that it operated as a Deed poll in their benefit - although the pre-contract statements prior to entering the Deed clearly stated that the Company would hold private all details foreverthe agreement clearly states that it was between me, the director and the company and stipulated that all three parties would keep the deed confidential and secret - the company is now saying that they didn't sign it and therefore aren't liable - but as I understand it the Company should still be liable for the promise of the Deed - the deed in the benefit of the company as I understand Deeds is to give them the benefit of being able to sue me as a right without the need for the director involvementwith regard the defamation - there is no Fair Comment because that comments are untrue, not a honest opinion because this person gave me a performance review that was completely different, and as I understand it for fair comment, the comment must be based on facts that are truly stated (or absolutely privileged) and the comment must be fair. For honest opinion, all that is required is that the opinion be held honestly (almost regardless of what it is!), that the opinion was based on proper material and that it was on a matter of public interest.further - he wasn't asked to give a opinion, he was clearly asked to give a reference for the company no an opinion of his - I have the statement from the Agency that clearly states what they asked and what he saidthe opinion wasn't held honestly,
Customer: replied 1 year ago.
is the company still liable
Expert:  Jared Pereira replied 1 year ago.

Hi, I think it will be a challenge to enforce against a stranger to the deed. As you say, the company did not sign the deed poll, though elements therein are for the company's benefit. While the deed might purport to place obligations on the company, it did not sign. Thus, while it may sue under the deed for the benefit you promised by signing the deed, you cannot enforce against them since they did not sign. However, you may have an alternative - if you received something under the deed, let's say money, and this came from the company as a result of you entering the deed, then you could argue that there was a separate contract on the same terms as the deed and that the company is bound by this separate agreement. Further, depending on the phrasing of the deed, you could go against the director who did sign the deed, assuming he agreed to "procure" the company's compliance. Finally with respect to your point on defamation, you may have an action against each employee, but in addition, depending on whether they were authorised by the company or acting without the company's knowledge, the company may also be liable for defamation. Regards, Jared

Customer: replied 1 year ago.
im confused - the company isn't a stranger to the Deed,the deed clearly states - "between" A (me), B (the Director) and C (Company) - the parties
and clearly states - that A, B & C all agree to keep the matters confidentialwouldn't it be an implied term that party C (Company), as noted in one of the terms, maintain silence as promised, and that the party B (Director) who promised to keep the matters secret was also required to ensure that the company was silent at all times, including its employeesthe money was from party B (Director) not party C (company)if the promise in the Deed that says the party C (company) would keep silent, was made as a promise in the deed, and was therefore a representation by the party B (Director) would that be a misrepresentationsurely there is an action where a contract was induced by a false representation and promise that party C (Company) would keep silent at all times, even if it didn't sign the deedand isn't the obligation on the party B (director) to take the signed deed back to them and get thgem to sign itin considering whether a term should be implied, courts often apply the "officious bystander" test, asking: "What would the parties have said if an 'officious bystander' had suggested including the term in the contract?" If they would have said something like "of course" or "that goes without saying", this suggests the term should be implied.Whilst the term must be necessary (not merely reasonable), this does not mean the contract must be completely inoperable or ineffective without it. Rather, the term must be necessary for the contract to operate in the way that the parties, as reasonable people, must have intendedsince the parties had intended that party C, be a party to the deed and the terms agreed by the party C, wouldn't this be an implied term and therefore enforceable on the party C, the company
Customer: replied 1 year ago.
also, can I ask, deeds of settlement - Victoria, they have a 15 year statute of limitations for a breach, not six for a contractis that correct ..?
Customer: replied 1 year ago.
last one - Collateral Contract With A Third Party, as in tripartite collateral contracts
wouldn't the promise of the director, that if the Director makes a promise to Me who, in reliance on that promise, enters into a contract with the Company, the entry into the contract with Company constitutes the main contract and is also the consideration for the collateral contract constituted between the Director and Me on the basis of the Directors promise to Me. with one qualification that the contract between Me and the Company must provide a benefit to the Director
Customer: replied 1 year ago.
would the Collateral Contract with the company, the tripartite collateral contract have the same 15 year statute of limitations as the Deed of Settlement breach, or is that limited to 6 years as in normal contracts
Expert:  Jared Pereira replied 1 year ago.

Hi, I think you already seem to have made up your mind about this matter, so I shall respectfully ***** ***** and allow another expert to determine if they wish to answer. Best of luck and regards, Jared.

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. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Who is the director of the company? Was it the statemanager?