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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I live in Australia - not sure if you can help
, I want

Customer Question

Customer: I live in Australia - not sure if you can help
JA: Thanks. Can you give me any more details about your issue?
Customer: I want to sue my accountant for negligence. He wrote a commercial contract and a settlement agreement that the other party have defaulted on. He sold my shares in the company when 50% were meant to be held as per the contract but were transferred without my consent, so I had no security on 500K. Just after some advise, I have a Debt recovery lawyer and a barrister working on it now. Are accountants allowed to write commercial contracts?
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Submitted: 10 months ago.
Category: Australia Law
Customer: replied 10 months ago.
I believe the accountant has referred the issue to hi indemnity insurance. they have filed a defence. They have also made an offer of $20k to go away. As of today my claim is now for $150k because the party that bought the business are now in default. The first contract had vendor finance for 2 years with 50% of purchase price upfront 50% after 2 years. My accountant at the time was working for us and them (conflict of interest). We worked for the company we sold for 2 years then the accountant advised us in a meeting that the vendors did not have the money to pay us. We entered into a Settlement agreement prepared by the accountant to get our money within 6 months. 2 weeks after signing the agreement the accountant sacked both of us. We won in unfair dismissal and sacked the accountant of 30years service. There was some funny business going on with the owners and the accountant with lots of unskilled staff turning up (immigration Scam). We have advised Immigration. After six months we were due to collect the balance owing. They did not pay. We challenged it in the Magistrates court and lost due to the terminology of the settlement agreement. The other party have since sold the business and are now in default. We have already set a court date. We are also going to add the monies owed to our claim against the accountant for negligence. What are our chances of winning the case that has now put us in a financial crisis.
Expert:  Leon replied 10 months ago.

Good Afternoon

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.

Whether they are allowed to draw them up is not the issue. What the issue is you relied on their professionalism and I suspect they advised you they knew what they were doing.

They failed in their duty of care to protect you.

You can sue them for negligence but you have to show that they have breached their duty to you and as a result you have suffered loss.

This si something that you have to see a Solicitor in person for and provide them with a full background and details of what was discussed and what was to happen before the agreement was drafted.

There is a conflict of interest working for 2 parties that are at opposing ends of an agreement.

I cannot tell you the chances of success. But being a negligence claim and insurance companies involved the no win no fee solicitors such as Maurice Blackburn would take this on for you.

You also have to get a copy of the judgement from the Magistrates Court.

It is not a simple matter but you may have a claim for negligence. I hope this makes sense and is of assistance.

Customer: replied 10 months ago.
Thanks the line of text which let us down was "6 monthly payments of $5000 until the balance is finalised" we lost in the fast track system. The indemnity insurance lawyers are using this to protect the accountant. I thought that accountants cannot write commercial contracts.
Customer: replied 10 months ago.
The insurance company have made an offer of 20K. My lawyer is going to add the balance to the existing claim against the Accountant. From 40K to 150K.
Expert:  Leon replied 10 months ago.

Good Afternoon

You tried to enforce the agreement in the courts against the other party not against the accountant. I am not sure how they can use this to protect the accountant.

You can write one yourself. There is no law that says Solicitors have to draw them up. It is just more sensible to have Solicitors draw them up as they do this all the time.

Customer: replied 10 months ago.
the main question is can Accountants write commercial contracts.
Expert:  Leon replied 10 months ago.

Good Afternoon

Yes they can.