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N Cal Attorney
N Cal Attorney, Attorney
Category: Business Law
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Experience:  Since 1983
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We have prepaid $89K AUD for an import shipment for seafood

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We have prepaid $89K AUD for an import shipment for seafood product from a company based inThailand and we have been unable to receive any product or a refund for 12 months - his business is based in Thailand and when we threatened legal action he threatened to go bankrupt. He is trading and we have regular contact with the manager, however there is always an excuse as to why they cannot give us a refund or deliver the product. We have offered them a repayment plan of $20K per month to repay this debt, however they will not agree to this - they just keep saying they are working on a solution. Are there any solutions?
The only solution may be to sue. Is there a written contract?
Customer: replied 7 years ago.

No, there is no written contract. The previous GM here paid it in good faith. We have two invoices from the supplier requesting payment in two instalments (which were paid totalling approx $89K), however there was no physical written contract re this. If we sue, do we seek the advice of an attorney in Thailand? Any idea of costs or what our chances of recovery would be?

We have to determine where the contract was made and where it was to be performed.

Who made the offer, where, and who accepted, where?
Did the seller agree to deliver to you in Australia. or just to deliver it to a shipper in Thailand?
Customer: replied 7 years ago.
The offer was made over the phone (according to a fax I have here on the vendors letterhead) and our previous GM would have accepted the offer, then we had a letter faxed to us on the vendor's letterhead with a company seal stamped and signed by the Managing Director (the person we have been dealing with trying to get a refund) requesting us to pay in advance AUD $44993 to be paid directly to their bank account. He stated in this fax that shipment delivered to Australia would be ETD April 2008. We had a second request under similar circumstances. Our previous GM has dealt with this vendor in the past for a couple of years and has prepaid for stock and has never had any issues.......until now.
So the offer was made in Thailand and accepted in Australia, and the vendor agreed to tender performance in Australia. IMHO the Courts of Australia have jurisdiction over this contract and yotu can sue the Thai seller in Australia. The contract was made in and to be performed in Australia, and those are both bases for Australia to assert jurisdiction.

http://www.hg.org/law-firms/Commercial-Law/Australia/Brisbane.html lists commercial lititgation attorneys in your area. I would contact a local attorney to pursue this.

If the Thai seller is suddenly served in Thailand with a lawsuit filed in Queensland they might decide it is cheaper to obey the contract or give you a refun than it would be to fight a losing lawsuit in Australia.

I hope this information is helpful.
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