Calderbank Letters

If you have been represented by a lawyer in a civil dispute, you may have heard the legal term ‘Calderbank letter’ or ‘Calderbank offer’. The word ‘Calderbank’ is actually a surname, and it originates from the English Court of Appeal case, Calderbank v Calderbank, in 1975. Although the decisions from English cases are not automatically binding in Australia, it has nevertheless been adopted by the Australian judicial system. Australian courts aim to achieve dispute resolution in three ways: litigation management; referral of matters to alternative dispute resolution; and the use of costs orders to penalise parties who reject settlement offers. One way to make a settlement offer is through a Calderbank letter. This article will explain why Calderbank letters are important to clients and examine its essential elements and legal consequences.

What is a Calderbank letter?

A Calderbank letter is an informal offer of settlement which carries potential costs benefits for the party making that offer (‘the offeror’). If several conditions are satisfied, the Court will consider making a costs order after the substantive issues are solved at trial.

Why are Calderbank letters important?

Calderbank letters encourage proper compromise of litigation so that the dispute can end as soon as possible. The potential for Courts to impose costs orders discourages stubborn resistance and unreasonable behaviour by the parties. If the matter is settled early, both parties will save significant legal costs and stress. By encouraging settlement, the substantial case load in NSW courts will also be eased and consequently reduce delays and facilitate greater access to justice for the public.

Case summary of Calderbank v Calderbank [1976] Fam 93

Prior to 1976, informal offers of settlement could not be raised in Court because they were not admissible. The decision of Calderbank is the first time where the Court recognised informal offers of settlement and featured costs orders in favour of the offeror.

Court:

English Court of Appeal

Facts:

The case concerned a matrimonial property dispute between Mr Calderbank (husband) and Mrs Calderbank (wife). Mrs Calderbank, who financially supported her family for 17 years, sought a declaration that she was the sole beneficial owner of the matrimonial home. However, Mr Calderbank refused to leave the matrimonial home and applied for a property adjustment order. Before the matter went to trial, Mrs Calderbank offered Mr Calderbank another house, which was worth 12,000 pounds in exchange for Mr Calderbank leaving the matrimonial home. Mr Calderbank rejected this offer. At trial, the Court ordered a lump sum payment of 10,000 pounds to Mr Calderbank from the proceeds of the sale of the matrimonial home. Unhappy with the outcome, Mrs Calderbank appealed on two grounds:

1. The Court had no legal jurisdiction to make such a property division.

2. Mr Calderbank should not be entitled to legal costs because he declined a reasonable pre-trial settlement offer. Mrs Calderbank submitted that she should have her costs paid by Mr Calderbank as her pre-trial offer was greater than the lump sum awarded by the trial judge.

Decision:

The Court of Appeal dismissed the first ground and accepted the second ground. The Court outlined that an offer of settlement, although inadmissible as to the substantive issues of the case, can still be relevant when the Court turns to making cost orders. It was subsequently held that this principle would not only apply in family court proceedings but to all civil proceedings.

Elements of a Calderbank letter

Below is a non-exhaustive list of requirements for a Calderbank letter.

1. The letter includes a statement that the offer is made in accordance with the principles from Calderbank v Calderbank [1976] Fam 93.

2. The letter must indicate the period that the offer will remain open. A reasonable period would be 14 days.

3. Some courts have demanded that the letter provide reasons why the offer should be accepted. This can be achieved by raising the offeree’s low prospects of success and the weaknesses in their case.

4. The letter needs to be precise so that the judgment and order can be readily compared. Ideally, the amount should exclude costs and interests.

5. The letter must represent a genuine offer of compromise.

6. The letter must clearly show the words “without prejudice”. This way, it cannot be given in evidence as an admission of liability.

7. The offeror bears the burden of drafting an offer that is clear enough for the court to make the determination as to the reasonableness of the rejection of the offer. The Supreme Court of Victoria in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) provides guidance in this aspect. The Court should consider the following factors:

– The stage of the proceeding at which the offer was received;

– The time allowed to the offeree to consider the offer;

– The extent of the compromise offered;

– The offeree’s prospects of success, assessed as at the date of the offer;

– The clarity with which the terms of the offer were expressed;

– Whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.

Conclusion

A Calderbank letter must contain an offer that is genuine, precise and not bettered by the offeree upon judgment. Reaching a compromise through a Calderbank letter is generally a better solution than continuing expensive and drawn-out court proceedings. Before you write an offer to the other side, you should contact a lawyer for a consultation. Our litigation team have over 10 years of experience in representing clients across all levels of court.

Disclaimer:

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel is noted for his experience in settling a complex family law matter concerning the division of matrimonial property. Furthermore, he has appeared in Courts across New South Wales for criminal matters ranging from traffic offences to assault charges to bail applications. Daniel also has extensive knowledge and experience to prepare and advise on commercial leases and contracts for the sale of land.

He has a keen interest in obtaining the best possible outcome for his clients in the most cost-efficient way. Clients appreciate Daniel’s responsiveness, business acumen and ability to deliver advice that is easy to understand.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

Does your case have reasonable prospects of success?

“What are my chances of winning?” – A very common question that a client would ask his or her lawyer, especially in the early stages of the case. To answer this question, the lawyer needs to read the client’s materials and be familiar with the applicable law. In short, lawyers must not provide legal services unless they reasonably believe that the case has reasonable prospects of success. This obligation is enshrined in Schedule 2 of the Legal Profession Uniform Application Act 2014 (NSW) [LPUAA]. The meaning of the phrase ‘without reasonable prospects of success’ is ‘so lacking in merit or substance as to be not fairly arguable’ (Justice Barrett in the New South Wales Supreme Court Case, Degiorgio v Dunn (No 2) [2005] NSWSC 3). This article will delve deeper into the meaning of this phrase with the support of a case summary of Lemoto v Able Technical Pty Ltd & 2 Others [2005] NSWCA 153 and examine the consequences faced by lawyers if they fail to discharge this obligation.

The Legal Profession Uniform Application Act 2014 (NSW)

The LPUAA applies to solicitors and barristers. It features provisions about costs in civil claims in the Local Court, District Court and Supreme Court, where there are no reasonable prospects of success. The relevant provisions are outlined below:

(1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(4) A plaintiff’s claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.

Advising on prospects of success of a case is an essential task for all litigation lawyers. Being able to do so accurately requires many years of experience. The lawyer needs to understand the facts of the client’s case, read all the available evidence, compare similar cases, and apply the current laws. Both the Plaintiff’s lawyer and the Defendant’s lawyer need to advise their respective clients on prospects of success. Our case summary of Lemoto will explain the standard expected by the Courts to discharge the obligation.

After the client is advised the prospects of success and the cost estimate of the matter, he or she can make an informed decision about going to court. Litigation is not only expensive, but it can also be stressful and drag on for over a year. If the prospect of success is low, the client may choose cost-effective options such as negotiating with the other side or withdrawing the case completely.

Case summary

The decision of Lemoto examines the principles governing the application of the phrase “reasonable prospects of success”.

Court:

New South Wales Court of Appeal

Parties:

Appellant: Mr Lemoto was the solicitor for the third respondent.

First Respondent: Able Technical Pty Limited, employer of the third respondent, a labour / hire agency.

Second Respondent: B & C Mailing Pty Limited.

Third Respondent: Christine Stoddart, who had suffered an injury to her lower back on 11 October 1999 from lifting boxes while working at the second respondent’s premises.

Facts:

On 26 November 2001, the appellant filed a Statement of Claim in the District Court seeking damages on the third respondent’s behalf. In those proceedings, the first and second respondents were named as the first and second defendants respectively. The matter was referred to arbitration and the third respondent lost. The third respondent sought a rehearing and lost again. The District Court Judge made costs orders against the appellant pursuant to s 198M, Part 11, Division 5C of the Legal Profession Act (LPA). The purpose of Part 11, Division 5C of the LPA is to deter lawyers from representing a client whose case had no reasonable prospects of success. The appellant sought leave to appeal against the costs orders.

Decision:

The Court of Appeal allowed the appeal and discharged the costs order because the District Court Judge failed to accord procedural fairness to the appellant. The District Court Judge did not inform the appellant of the precise basis upon which he had apparently formed the view that the appellant had provided legal services to the third respondent without reasonable prospects of success.

Furthermore, the Court commented that a costs order should not be made against a lawyer because a case was unsuccessful. That proposition is not weakened because one party lost twice. The third respondent had an adverse outcome for reasons largely connected to the District Court Judge’s assessment of her credibility. Therefore, the third respondent’s claim did have reasonable prospects of success.

Costs claims against lawyers and other disciplinary actions

Section 99 of the Civil Procedure Act 2005 (NSW) contains provisions for clients and opposing party to seek personal costs against lawyers in relation to an unsuccessful claim or defence. Lawyers are protected by professional indemnity insurance against claims for personal costs.

Alternatively, clients could lodge a complaint to the Office of the Legal Services Commissioner (OSLC) if their lawyer demonstrated unsatisfactory professional conduct or professional misconduct. If the lawyer is guilty, he or she could face consequences including removal from the Roll of Legal Practitioners, suspension of practicing certificate or a fine.

Conclusion:

Lawyers in New South Wales have an obligation to not provide legal services in a civil case unless it has reasonable prospects of success. The consequences faced by lawyers for failing to discharge this obligation include costs orders and complaints to the OSLC. The case of Lemoto is one example where a costs claim against a lawyer did not succeed. Before you initiate any court proceedings, you should contact a lawyer for a consultation. Our litigation team have over 10 years of experience in representing clients across all levels of court.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel is noted for his experience in settling a complex family law matter concerning the division of matrimonial property. Furthermore, he has appeared in Courts across New South Wales for criminal matters ranging from traffic offences to assault charges to bail applications. Daniel also has extensive knowledge and experience to prepare and advise on commercial leases and contracts for the sale of land.

He has a keen interest in obtaining the best possible outcome for his clients in the most cost-efficient way. Clients appreciate Daniel’s responsiveness, business acumen and ability to deliver advice that is easy to understand.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

An introduction to motor vehicle accidents

No one wants to be in a car accident: cars are expensive to fix and the person at fault is not always obvious. There are two types of damages (or loss) in motor vehicle accidents, namely personal injury and property damage. Personal injury includes bruises, broken bones and even death, while property damage includes dents and scratches to a car. This article will focus on the concept of negligence and the initial steps you should take in the event of a car accident.

Negligence

The most common motor vehicle accident claim is brought in negligence. To prove negligence in Court, the plaintiff (person commencing court proceedings) must prove:

A) that the defendant owed the plaintiff a duty of care;

B) the defendant breached that duty; and

C) the plaintiff suffered damage from the breach of duty.

In the context of driving, all drivers owe a duty to other road users, their passengers, and pedestrians. Examples of where a driver breaches a duty of care include failing to keep a proper lookout; failing to maintain a safe stopping distance; and driving under the influence of drugs.

Initial steps

If you are involved in a motor vehicle accident, we suggest the following steps to be taken:

1.Stop and exchange details.

Under regulation 287 of the Road Rules 2014 (NSW), you must stop at the scene of the accident and share details about your name, address, vehicle registration number and any other information to identify the vehicle. It is important that you capture multiple pictures of the car damage for your own record. These pictures will not only become part of your evidence, but they will assist with determining who is at fault and the amount of damage. Obtaining the other driver’s mobile phone number is useful if you decide to seek compensation in the future.

Generally, you do not need to call the police unless someone is killed or injured in the accident; or the other driver did not stop and exchange details with you.

2.Contact your insurance provider.

Explain to your insurance provider about the details of the car accident and advise whether you would like to make a claim. Your level of cover will determine what action your insurance provider will take and how much money you can recover. The three most common types of insurance cover are:

– Comprehensive is the highest level of cover which covers the damage to your car and other cars regardless of fault.

– Third Party Property Damage only covers damage to other cars.

– Compulsory Third Party (also known as a Green Slip) only covers injuries or deaths from a car accident which you may be liable for.

3.Contact witnesses

Witnesses play a significant role in Court. You should contact any witnesses and obtain a statement while memories are still fresh. The effort needed to find them and seek their assistance is usually justified. Relevant details in the witness’ statement include date and time of collision; traffic conditions; and direction and speed of vehicles at point of impact. Witnesses who are neither relatives nor acquaintances to you are more readily believed in Court. Footage from your dash cam, if you have one, is also another valuable piece of evidence which will be considered in Court.

Conclusion

Proving negligence in respect of motor vehicle accidents is not always straight forward. If you only have Compulsory Third Party Insurance, then you should seek a lawyer to make a claim or defend against a claim. Our civil litigation team at Legal Point Lawyers has profound experience in motor vehicle accident claims so you can be assured that you will get the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel is noted for his experience in settling a complex family law matter concerning the division of matrimonial property. Furthermore, he has appeared in Courts across New South Wales for criminal matters ranging from traffic offences to assault charges to bail applications. Daniel also has extensive knowledge and experience to prepare and advise on commercial leases and contracts for the sale of land.

He has a keen interest in obtaining the best possible outcome for his clients in the most cost-efficient way. Clients appreciate Daniel’s responsiveness, business acumen and ability to deliver advice that is easy to understand.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

Subpoenas – a powerful tool to gather more evidence

The origin of the word ‘subpoena’ dates back to the early 15th Century, which in Medieval Latin means ‘under penalty’. They are the first words of the writ commanding the presence of someone under penalty of failure. Fast forward to today, the English common law system uses the word to summon witnesses during court proceedings. A subpoena is one effective way to gather more information and obtain access to documents that are not in your possession from a person or company who is not a party to the proceedings. You can issue a subpoena in the Local Court, District Court, Supreme Court and Federal Court. Subpoenas are governed by Part 33 of the Uniform Civil Procedure Rules 2005 and complemented by each Court’s practice notes.

In civil litigation, there are three types of subpoenas:

Subpoenas to attend to give evidence

An order in writing that requires the person or officer of a company to attend the Court for the purpose of giving evidence.

Subpoenas to produce documents or things

An order in writing that requires the person or officer of a company to produce a document or thing to Court.

Subpoenas to produce documents or things and to attend to give evidence

Procedure of issuing a subpoena

Firstly, the issuing party must make a request in the relevant Court. The request must be clear as to what the issuing party is seeking and be specific enough to avoid a ‘fishing expedition’ for evidence. The accepted practice for the Local, District and Supreme Court is for the prescribed UCPR form to be completed by the issuing party and filed at the court registry either in person or electronically. After the registry approves the subpoena, a Court date is appointed.

Next, the subpoena must be served personally on the producing party and on all parties to the proceedings within a reasonable time.

The producing party must comply with the subpoena by:

a) attending on the date, time and place specified in the subpoena and producing the documents or tings specified in the subpoena to the court; or

b) delivering the documents or things to the court before the date specified on the subpoena.

Once the documents are in Court, the issuing party can inspect them provided that there are no objections to the access.

Non-compliance with subpoena

Failure to comply with a subpoena is as serious as contempt of court. It may result in a warrant for arrest being issued against the producing party. However, if the subpoena is too onerous, any interested party can set it aside wholly or in part.

How much does issuing a subpoena cost?

Prescribed fees are payable when the subpoena is filed. The applicable fees are outlined in the Civil Procedure Regulation 2012 (NSW) and on each Court’s website.

The producing party does not have to comply with the subpoena unless it receives an amount to meet its reasonable expenses in complying. This amount is called conduct money. Reasonable expenses include travelling to court, collating and sending the documents to court, cost of legal advice reasonably incurred, and costs of photocopying.

Conclusion

A subpoena is a powerful tool to gather more evidence after court proceedings have commenced. It is a court order that is available in all levels of the court hierarchy and compels producing parties to comply. The rules and procedure around issuing a subpoena is complex, therefore you should obtain legal advice if you ever receive a subpoena or intend to issue a subpoena.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Copyright Infringement: What Does It Mean?

You have probably heard of the word ‘copyright’ before and you will probably recognise the copyright symbol © in books, posters and on television. But what does copyright actually mean under Australian law, what constitutes copyright infringement and what penalties will you attract for infringement? This article will provide answers to these questions and share a recent copyright infringement case in Australia.

What is copyright?

Copyright is a set of rights that allow their owner to control, and be paid for, uses made of the material in which the copyright subsists. It protects the expression of ideas in material form. Examples of copyright material, or works, include books, clothing designs, visual art, music, film, software and broadcasts. Material on the internet or on social media platforms (Facebook, Instagram, Youtube, Twitter) may also be copyright protected. Copyright under current Australian law normally lasts until 70 years after the author’s death, subject to the nature and type of the copyright protected material.

How are copyright materials protected?

The law governing copyright is the Copyright Act 1968 (Cth). As a federal law, the Act can be applied in all states and territories of Australia. The Act attempts to balance the creators’ interests by incentivising creators to produce more copyright material and the society’s interests in accessing such material.

The Act gives copyright protection to two broad categories of materials. The first category includes  original literary, dramatic, musical and artistic works, while the other category covers certain types of materials such as sound recordings, cinematograph films, television broadcasts and sound broadcasts,  published editions of works etc. Provisions as to copyright ownership, duration and protection may vary in each category.

It is also notable that Australia is a common law jurisdiction where case law also plays an integral role in copyright law, as it may guide the interpretation and application of the statutory provisions in specific cases.

Copyright protection is automatic in Australia because there are no formalities required and there is no system of copyright registration.

Infringement of copyright

Copyright may be infringed if one uses copyright material without the permission of its owner, such as unauthorised copying or distributing of copyright material,  unauthorised playing of films or music in public places, commercially trading pirated material etc.

In the case of Seafolly Pty Limited vs Fewstone Pty Ltd [2014], Seafolly Pty Limited (‘Seafolly’) sued Fewstone Pty Ltd, trading as City Beach Australia (‘City Beach’) for infringing Seafolly’s copyright in three artistic works. Seafolly and City Beach are two companies that design, manufacture and sell swimwear. Seafolly alleged that a substantial part of the three artistics works were reproduced without a licence on City Beach beachwear garments. At the final hearing, Seafolly won and the Court ordered that City Beach pay damages and be restrained from reproducing the copyright works.

Exceptions to infringement of copyright

The Copyright Act provides exceptions to copyright infringement to allow certain conduct which may otherwise be considered as copyright infringement. For example, a ‘fair dealing’ with copyright material in research, critiques, news reporting or parodies may be protected by such exceptions. Another example is private and domestic use – it may not be copyright infringement for one to record a TV show at home and watch it later.

Various factors need to be taken into account to determine whether a use of copyright material falls within the exceptions, such as the nature of the material and the manner of use.

Remedies

Copyright is enforced by commencing court proceedings in the Supreme Court or in the Federal Circuit Court. Akin to the Seafolly case, the author could seek compensation, payment of profits made by the infringer and court orders to restrain further infringement.

Conclusion

Copyright applies to a wide range of media in Australia and is recognised under the Copyright Act 1968 (Cth). Its law is by no means simple so you should seek legal advice on any copyright-related matter. Whether you are the author or the alleged infringer, contact our experienced legal team to discuss your options.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

Jianming Jiang is a practicing solicitor in New South Wales with legal qualification and training in Hong Kong and Australia. He is also a registered trade mark attorney in Australia and a certified English & Chinese translator with the National Accreditation Authority for Translators and Interpreters (NAATI).

Jianming has a deep understanding in Chinese and Western cultures as a result of his training and career in Hong Kong and Australia. Apart from his law degree, Jianming has completed specialised courses including the Master in Intellectual Property Law at the University of Melbourne and the Graduate Diploma in Migration Law and Practice at the University of Technology Sydney. Jianming has experience in a number of practice areas including conveyancing, wills and estate, immigration and intellectual property law.

Jianming is committed to providing clients with quality service based on his sound legal knowledge and experience as well as multilingual proficiency in English, Mandarin and Cantonese.

Email: roger.jiang@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel is noted for his experience in settling a complex family law matter concerning the division of matrimonial property. Furthermore, he has appeared in Courts across New South Wales for criminal matters ranging from traffic offences to assault charges to bail applications. Daniel also has extensive knowledge and experience to prepare and advise on commercial leases and contracts for the sale of land.

He has a keen interest in obtaining the best possible outcome for his clients in the most cost-efficient way. Clients appreciate Daniel’s responsiveness, business acumen and ability to deliver advice that is easy to understand.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

What to do when someone owes you money

Does a tenant owe you rent? Does your boss owe you wages? You loaned money to someone and he/she did not pay you back? Pursuing people for money that belongs to you can be irritating and time-consuming. One way to recover your money is to sue the person or company owing you money (also known as a debtor), but this is generally the most expensive way of resolving a dispute. Before going to court, it is worth considering alternatives such as issuing a ‘letter of demand’ to the debtor, and mediation. In this article, we will explain to you the initial steps in your journey to recovering your debt.

Letter of demand

A letter of demand is exactly what it sounds like. This document is addressed to the debtor and contains your demand for money which belongs to you. The most effective letters are succinct and can include the following:

  • The amount owed to you in dollar value;
  • A copy of the invoice which has not been paid or a copy of the contract that has been breached;
  • The deadline for repaying the debt (usually within 7 days of the date of the letter);
  • The method of repayment (e.g. electronic funds transfer, cheque or cash); and
  • Your intention to sue the debtor if the debt is not repaid.

Take the time to ensure that you have correctly identified the debtor or debtors including address and email. You also want to make inquiries about the debtor’s assets and ascertain whether or not the debtor can satisfy your debt. If you would like an effective letter of demand to be drawn up, feel free to contact our team.

Mediation

Another affordable way to resolve a monetary dispute is through mediation. It involves the parties, usually with their lawyers, attending a meeting with a mediator trained in settling disputes. At first, the mediator meets the parties and their lawyers altogether, at which each side makes an opening statement of their position, followed by some negotiation. At this stage, you want to find out why the debtor has refused to return your money. Next, the parties and their lawyers are placed in separate rooms, while the mediator moves between each room, presenting offers of settlement, and trying to bring each closer to the other’s position.

Attempting mediation is generally expected by judges before court proceedings begin.

The NSW Community Justice Centres and NSW Small Business Commissioner offer cheap mediation services.

Statement of claim

If the two options above are unsuccessful, then you can consider filing and serving the statement of claim to the debtor. The statement of claim is a written declaration by you, the creditor, containing the facts that are to be relied upon to a support a claim against the debtor, and the relief claimed. It can be an effective way of bringing the debtor to the negotiating table. However, this pathway is costly and can take many months before a trial takes place. If you do go to trial and obtain a judgment in your favour, you can legally force the debtor to repay you.

For debt up to $100,000.00, the statement of claim would be filed in the Local Court.

For debt between $750,000.00 and $100,000.00, the statement of claim would be filed in the District Court.

For debt greater than $750,000.00, the statement of claim would be filed in the Supreme Court.

Conclusion

Therefore, there are various options available to recover your money, and we recommend that you try resolving the dispute outside of court first. Issuing a letter of demand and attending mediation are not only cost-efficient, but they are also short in duration and have a relatively high success rate. If you need any assistance with drafting an effective letter of demand or need legal representation, please contact our team.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Default judgments and how to enforce them in debt recovery matters

What is a default judgment?

A default judgment is a sanction of the court which effectively disposes court proceedings without a trial. You will often hear about this after the plaintiff has served a statement of claim or summons on the defendant, and the defendant failed to respond in time. A default judgment is available in the civil jurisdiction of the Local Court, District Court and Supreme Court.

In the context of debt recovery, obtaining a default judgment would order that the defendant must pay you money or return your goods. However, a default judgment is not the end of the story; it is merely the precondition for a range of court remedies. According to s 17 of the Limitation Act 1969 (NSW), you have 12 years, from the date the default judgment is entered, to enforce it. This article will briefly explore the three most popular remedies, namely bankruptcy, garnishee order and writ for levy of property.

Bankruptcy

This is a term that appears in the media quite often. Particularly in 2020, we have heard a number of companies crumble under crippling debt including Virgin Australia. The purpose of bankruptcy is to liquidate most of the assets of the defendant and obtain some of the earnings of the defendant for up to 3 years after the date of bankruptcy. Bankruptcy proceedings can be started in the Federal Courts soon after default judgment is handed down, provided the total judgment debt amounts to at least $10,000.00. However, the method of bankruptcy can be costly, lengthy and very technical. Another disadvantage is that there may be other secured creditors, who rank ahead of you in priority, and thus full payment of the debt may not be received.

Garnishee order

As for the garnishee order, the third party (known as the “Garnishee”) will be compelled to pay their debt to you instead of the defendant. Examples of Garnishees include banks, employers, real estate agents, debtors and other financial institutions.  The debts have to be existing debts which are due at the time of serving the garnishee order. The debtor’s cheque accounts, term deposits in banks, saving accounts in banks, money held on fixed deposit are subject to a garnishee order. If the defendant’s bank account balance is too low, the bank does not have to comply with the order.

Writ for levy of property

To successfully execute the writ for the levy of property, you must know that the defendant has the relevant property which can be seized by the sheriff to satisfy the debt. The relevant properties may include any goods in which the judgment debtor has a beneficial interest, money belonging to the judgment debtor, cheques, bills of exchange, promissory notes, bonds or other securities.

Order for Examination

If you do not have enough information about the defendant’s income or assets, you could issue an order for examination which compels the defendant to appear in Court and present answers.

Take action now before it is too late. Contact Legal Point Lawyers today for a consultation. With over 15 years in the legal field, we can help you significantly boost your chances of recovering your debt quickly and smoothly.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition and Enforcement of Foreign Judgements at Common Law Precedents in Victoria

The year of 2019 has seen two significant cases concerning Australian Courts recognising and enforcing Chinese civil judgements. In Suzhou Hainshun Investment Management Co Ltd v Yue’e Zhao & Ors [2019] VSC 110 and Xu v Wang [2019] VSC 269, Cameron J of the Victoria Supreme Court handed down two decisions which treated two Chinese civil judgements differently. In Suzhou Haishun, her Honour granted summary judgement for the plaintiff though the defendant argued that the Chinese judgement was of a penal nature and denied the defendant’s access to natural justice. On the contrary, in Xu v Wang, her Honour refused to recognise and thus to enforce a Chinese civil judgement on the ground of abuse of process on the part of the applicant.

The General Rule and Exceptions

As we talked about in the previous article, four conditions must be satisfied before a foreign judgement is recognised by common law. Nonetheless, there are several exceptions that might hamper a foreign judgement’s recognition and enforcement in Australia. These exceptions are briefly summarised by Cameron J in Suzhou Haishun [2019] VSC 110 at [93]. Namely:

(a) granting enforcement of the foreign judgment would be contrary to Australian public policy;

(b) the foreign judgment is obtained by fraud (including equitable fraud) by the parties or by the foreign court;

(c) the foreign judgment is penal or a judgment for a revenue debt; and

(d) the enforcement of the decision would amount to a denial of natural justice.

What you should know as a respondent in a case of a foreign judgement’s recognition and enforcement?

First, it is difficult for you to argue that enforcing the foreign judgement would be contrary to Australia’s public policy. In fact, the public policy argument is the least favourable approach.

Second, the argument that the foreign judgement is obtained by fraud is not as easy as it seems to be. In Doe v Howard [2015] VSC 75, J Forrest J citing the New South Wales decision Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 said that although there might be exceptional cases, ordinarily perjury is not enough to set aside the judgment (at [107]).

Third, in case of monetary judgement concerning debt recovery, it is hard to argue that the foreign judgement is penal in nature even though the damages or interest granted may be punitive. Cameron J in Suzhou Haishun confirmed that for a foreign judgement to be penal in nature, there must be some public element (at [97]). Whether there are sufficient public elements to generate a penal nature depends on the facts of each case, regards are to be had to the attitudes of the foreign courts, the category of the cause of cation of that foreign judgement and the purposes of relevant foreign laws (United States of America v Inkley [1989] 1 QB 255, 265).

Following Bleby J’s statement in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, 565-6 Cameron J held that if an Australian court finds that part of a foreign judgment is penal in nature, or relates to a law that is penal in nature, this does not necessarily render the judgment unenforceable in its entirety (at [101]). In fact, her Honour said that if part or all of the interest ordered to be paid by the Chinese court is held to be penal in nature, it will be entirely possible to sever those remedies from the Chinese judgments, and to enforce the remainder. As to the particular facts of Suzhou Hainshun the defendant argued that the interest rate granted by the Chinese court (quadruple the benchmark interest rate released by the People’s Bank of China for loans of the same type at the same period) was penal in nature, and Cameron J held that even though such interest rate was penal in nature, the judgement of repayment of debt was not affected and is enforceable by an Australian court.

Fourth, denial of nature justice may be the best approach to challenge the recognition and enforcement of a foreign judgement, but it will not be the case if you deliberately evade the foreign court’s lawful jurisdiction and service. In Xu v Wang, the essential reason why the Court refused to recognise the foreign judgement was that with the knowledge of the respondent’s Australian residence and contact information, the applicant instituted a proceeding in China against the respondent by substituted service, i.e., public announcement which was allowed by Chinese law. Therefore, the respondent’s right to fair trial was sacrificed.

Nevertheless, the public announcement was considered to be fair and reasonable in Suzhou Hainshun because the applicant did not know the respondent’s whereabout when the Chinese proceeding started. The respondent evaded the Chinese court’s jurisdiction, and the applicant had reasonably attempted to service the notice.

What you should know if you are the applicant?

Do not waste Australian courts’ time and judicial resources. International legal shopping is loathed by Australian courts. In Xu v Wang, after the case was listed by the Victoria Supreme Court, the applicant went to China and instituted proceedings despite the fact the respondent resided in Australia and the disputed issues took place in Australia as well. The Chinese judgement was made quickly in favour of the applicant. Cameron J noted that the applicant could have informed the Court of the Chinese judgement. This fact contributed to the finding of abuse of process.

You must reasonably fulfil your procedural obligations under the foreign law to guarantee the respondent’s right of natural justice. Reasonableness depends upon the facts of each case, and regardless of the lawfulness of the foreign legal procedures. The applicant must genuinely and reasonably ensure that the respondent’s right of natural justice is not violated.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition of Foreign Judgments in Australia

Persons or organisations seeking to recognise and enforce a Judgment made by a Court within the People’s Republic of China into an Australian state jurisdiction may be able to do so in certain circumstances. Our team, acting on behalf of Judgment Creditor, was recently successful in attaining Court Orders granting recognition of two Judgments made by a Chinese District Court, including the Judgment of the proceedings at First Instance and ‘the Enforcement Verdict’ into the State of Victoria jurisdiction. This recognition has now enabled our clients to enforce the outstanding Judgment Debt in Victoria through subsequent enforcement procedures, such as obtaining a Warrant of the Seizure and Sale of Land, which otherwise would not have been permissible.

In addition to attaining status of the foreign judgment, our clients were also able to recover reasonable legal costs incurred in commencing such Court proceedings as well as interest accrued up to the date of registration. Notably, the Court calculated the accrued interest in accordance with the higher interest rate stipulated by the foreign judgment at First Instance, rather than the interest rates stipulated by Victorian legislation.

Relevant Law

Recognition and enforcement of foreign judgments in Australia are usually possible pursuant to the Foreign Judgments Act 1991 (Cth). However, this statutory regime does not apply to judgments of all foreign jurisdictions. For example, as China is currently not within the scope of the Foreign Judgments Act 1991 (Cth), a person or organisation seeking to recongise and enforce a Chinese judgment in Australia may rely upon common law principles.

Four Conditions

For an Australian court to make orders for the recognition and enforcement of a foreign judgment under common law principles, the party seeking to rely upon the foreign judgment must establish the following four conditions:

1. The foreign court must have exercised jurisdiction that Australian courts recognise.
The foreign court must have had jurisdiction over the defendant at the time when the jurisdiction of the foreign court was invoked. The defendant (a natural person), therefore, must have been domiciled or ordinarily a resident in the foreign jurisdiction, have voluntarily submitted to the jurisdiction of the foreign court or needed to have been physically present in the foreign jurisdiction when served with the originating process for the foreign proceedings. Similarly, a defendant corporation, at the time of service, must have carried on business within the jurisdiction of the foreign court.

2. The foreign judgment must be ‘final and conclusive’.
The matters within the foreign proceedings must be concluded prior to commencing court proceedings in Australia. The key test of finality is whether the foreign court treats its judgment as res judicate, meaning there has already been a final judgment of the issues in dispute as between the parties. This condition is not negated by the fact that the Judgment Debtor may appeal the decision of the foreign court or that appellate proceedings are pending. However, the status of foreign judgment proceedings are likely to be stayed until the outcome of such an Appeal is made by the foreign court.

3. The identity of the parties to the foreign judgment must be the same as the parties to the Australian enforcement proceedings.

4. The foreign judgment must be for a debt or definite sum of money. The debt must, however, not be for a Revenue Debt.

Defence

In circumstances where a party is able to establish the four conditions, the other party may challenge the recognition of the foreign judgment only on limited grounds. A defence may be raised on such grounds, including, but not limited to:

  • The foreign judgment is contrary to Australian public policy
  • The foreign court acted contrary to natural justice
  • The foreign judgment was obtained by fraud
  • The foreign judgment is penal

The formal requirements and procedure applicable to commence court proceeding in status of foreign judgment matters pursuant to common law principles does vary between state jurisdictions within Australia. Generally, the originating process must be accompanied by a supporting Affidavit which must annex the following documents:

  • A copy of the foreign judgment certified by the proper officer of the foreign court and authenticated by its seal; and
  • If the foreign judgment is not in English, a translation of the judgment certified by a Notary Public.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.