If you are owed money for goods or services, the first step in attempting to recover it is generally to send a Letter of Demand to the other party. This letter should set out the amount of money outstanding, a cut-off time to respond by, and if no response is received by you that you will take legal action with no further notice to the recipient.
Letter of Demand
The Letter of Demand is sent by you (or your lawyer) if you are owed the money (the creditor) and it warns the person owing the money (the debtor) that if they don’t pay the debt within a certain time period (such as seven days) they will be sued in court to recover the debt.
A Letter of Demand should be the last letter a creditor sends before issuing court proceedings. While Letters of Demand are not court documents they are often an effective means of forcing the debtor to take action.
It is a good idea to contact us first to ascertain whether it is prudent to proceed with court proceedings and this will usually depend on the size of the debt. Naturally, if the sum owed is small it may not be economically viable to pursue the debt by engaging a lawyer(NB: if they’re doing it themselves it usually won’t cost anything to send the letter). You must ensure however that, in enforcing your rights to recover the debt, you act within the law.
Principles of Debt Collection Fairness
When sending a Letter of Demand, you should be careful not to harass the debtor or send a letter which is designed to look like a court document.
You must not pursue a person for a debt unless you have reasonable grounds for believing the person is liable for the debt.
A creditor has a limited period of time to sue for a debt. In most instances, for debts owed, this will be 6 years.
If the debtor has made no payments towards the debt or has not acknowledged in writing that they owe the debt for a period of 6 years from when the debt arose, then the debt may no longer be recoverable.
The debtor has the right to dispute a debt and may do so on the grounds if:
- it is not their debt;
- they have already paid the money;
- they disagree with the amount of the debt; or
- it is an old debt and they haven’t made a payment for at least 6 years, no court judgment has been entered against them and they haven’t admitted in writing that they owe the debt in that time.
If the debt is disputed, then you, as the creditor, may have no alternative but to commence legal proceedings or to seek to negotiate a compromise with the debtor.
When Your Lawyer Becomes Involved
If you, as the creditor, are not willing to negotiate or wait for payment, you may wish to contact us to assist with pursuing the debt.
If you know the debt is due and payable, and you want to commence legal proceedings, it is prudent to have a lawyer assist you and represent you in court to recover the debt. If your lawyer advises that the size of the debt make their engagement not economically viable, then we may still be able to help you to negotiate a payment plan that is manageable to the debtor and acceptable to you.
It is not in the debtor’s interest to ignore your claim and risk the additional costs of the legal fees and interest on top of the original debt. By following the correct process we can help obtain a satisfactory result for you.
New Customer – Credit Application Process
Before you take on a new customer, you should have the correct systems in place to ensure that you are able to assess the customer’s credit position.
Do you have a credit application process for your new customers?
Your Credit Application and Terms of Trade should provide you with security over the goods which you have sold to the customer and, if the customer is a corporate entity, ensure that the directors of the company provide you with their personal guarantees. You must, however, ensure that you register any security over goods on the Personal Property Securities Register and we recommend that you speak with a lawyer to assist you with this process to ensure that the registration is not void.
If you do not have a system in place, contact us and we will help you put a system in place to protect you and provide you with security for money owed to you. It is important that you have the correct systems and documentation in place before you do or provide credit to any new customers.
You should contact us to discuss your legal rights and obligations if you are owed money or if you owe money to someone else who is threatening court action.
If you would like more information or require assistance or advice on how to proceed in debt recovery matters please contact us on (02) 9963 9800 or via our contact form.
When a relationship or marriage ends, people often have a fear that they will need to go to court to deal with the separation of joint assets and liabilities, and arrangements for their children. The fear of going to court, on top of the emotional side of separation, can be extremely stressful for those involved.
Do I need to go to Court?
It is not always the case that people automatically need to go to court when their marriage or de facto relationship ends. If the parties to a separation can agree on how they separate jointly-owned assets and liabilities and also have an agreed co-parenting arrangement for the children there is no need to go to court at all.
Do I need a Lawyer?
You will most likely need a legal document to be drafted to ensure that the agreement between the separated persons is clear, defined and legally binding. This is when a family law solicitor can assist you. Your family law solicitor will be able to explain to you the different types of documents that are available to set out the separation of assets and liabilities. You can also obtain such documentation to set out the children’s arrangements. The Family Law Act 1975 (Cth) sets out how these different agreements function.
There are different types of documents available to you, and your solicitor can also tell you what will work best for your situation. Once you have decided on the type of document you need, your solicitor will be able to draft the document to reflect what you and your ex-spouse have agreed, to ensure that it is clear and binding.
Why Should I get Legal Representation?
Each party will need their own legal representation before signing any documentation to ensure that they obtain independent advice.
Clients often find that once they have entered into binding documents drafted by their lawyer, there are fewer arguments between them and they can move on with their lives with certainty following their separation or divorce.
The team at Etheringtons Solicitors are skilled at handling all matters relating to Family Law, and are able to assist with complex cases. If you need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800, via email to firstname.lastname@example.org or enter your details in the form here and we will contact you.
Can an employer intervene in an employees use of social media outside work?
A recent decision by the Fair Work Commission has shed some light on this question showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment on social media channels online.
The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.
Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.
Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.
Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.
The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.
The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.
If you would like to speak with one of our solicitors regarding social media and the workplace, please contact us on 9963 9800 or via our contact form.
What Is the Difference Between a Barrister and a Solicitor?
Barristers and solicitors are both people who can assist with your legal matters. The difference between a barrister and a solicitor is the type of legal work they do. In general, a barrister specialises in making court appearances and speaking on your behalf. However, a solicitor often does the preparation work before your court appearance and liaises with the barrister. Barristers are formally trained in court advocacy and cross-examining witnesses.
In most cases, a solicitor will look after your case initially. They will then engage a barrister for court advice and appearances. Barristers do not liaise directly with clients.
When to Involve a Barrister in Your Matter
Clients often ask at what stage we will involve barristers in their matter. A good way to think about it is that solicitors are like general practitioners and barristers are like specialists. Barristers work in particular areas of law and often speak at court.
Sometimes solicitors will discuss your case with a barrister and ask them to provide a written opinion on the prospects of your case. They might also ask their opinion on a specific issue. If a matter is complex or unusual, barristers might also be involved in the drafting of court documents.
Barristers are required to provide you with an estimate of their costs. Their costs agreement and disclosure documents are issued to your solicitor.
Barristers usually charge an hourly rate. They can also charge a daily rate, especially for court attendances or mediation sessions. Some barristers will charge a cancellation fee if a hearing settles or is adjourned.
Choosing a Barrister
You solicitor will choose a barrister based on factors including:
- Your financial circumstances;
- The type of matter; and
- Which barrister they believe is most suitable.
A barrister can be perfectly suited to one type of case but not another.
If you need any legal advice or assistance we are here to help. If you would like to discuss the involvement of a barrister in your legal matter contact us today.
Restraint of trade clauses are often found in employment agreements and shareholder agreements. Their purpose is to protect business interests such as client information, intellectual property, employees and trade secrets. However, the extent to which a business can restrict an employee’s or a former director’s activities through such a clause is often contentious and can result in disputes.
What is a Restraint of Trade?
A restraint of trade clause in an employment contract applies when an employee leaves the organisation. Such restraint clauses can be enforced, but only to the extent that is ‘reasonably necessary’ to protect the legitimate interests of the business. Whether a provision is enforceable will therefore depend on the wording of the clause and the context of each case.
Restraint of trade clauses can be characterised as one of the following:
- Non-competition: to prevent a former employee from competing against the company.
- Non-solicitation: to prevent them from approaching the employer’s clients.
- Non recruitment: to prevent the former employee from recruiting other employees from the company.
- Confidentiality: to protect confidential information and trade secrets.
What is Reasonable Between the Parties?
If a restraint of trade clause is contentious, a court must determine what is reasonable in the context of the facts of your particular case. If the restraint clause goes beyond protecting the business’ legitimate interests to the former employee’s detriment, then a court will not enforce the clause. However, if the clause is reasonable to both parties, it is likely to be enforced.
What will a Court Consider when resolving a dispute?
In NSW, the Restraints of Trade Act 1976 governs the law surrounding restraints of trade. A court will consider a variety of factors in its determination of whether the restraint of trade clause is reasonable. Some of these factors include the:
- Negotiation and whether parties were able to negotiate any terms.
- Respective bargaining position of parties and whether parties were able to obtain legal advice.
- Nature of the business and the characteristics of the role of the employee.
- Remuneration and compensation for the restraint of trade.
- Duration and geographical area of the restraint.
If you are an employer, what can you do to protect your business?
To ensure that your business interests are protected in the event that one of your employees leave, it is vital that the restraint of trade clauses are effective and enforceable. Employment contracts should be reviewed regularly to ensure the changing nature of the employee’s current role and the changing nature of the business. The time period of the restraint, as well as the geographical area, must be reasonable to commensurate with the employee’s position. The clauses must be drafted properly and carefully so that, in the event that certain parts of the clause are found to be unenforceable, then the clause could be severed and the employer can rely on the balance of the clause when enforcing the restraint of trade. If you believe that your employment agreement does not adequately cover your legitimate business interests, you should seek legal advice from a competent employment lawyer.
An employer can only enforce a restraint of trade clause to the extent that it is reasonably necessary to protect their business interests. However, whether a clause is reasonably necessary will depend on the particular facts of the case, and in any dispute, it is best to seek professional legal advice. If you would like to discuss your employment law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
If you are involved in a dispute that is brought before a court, you will require a litigation lawyer to protect your legal rights and present your side of the argument to maximise your chances of achieving a favourable outcome. Some clients find being involved in litigation both financially and emotionally stressful, so it’s important to find the right person to guide you through the process.
According to litigation lawyer Howard Scher, experience and specialisation don’t always make for a successful litigation lawyer. With four decades of front line courtroom experience, Scher believes that the most effective trial lawyers share these five key traits:
Credibility is the foundation of trust and the cornerstone of effective representation. It is a trait that is earned over time. When a credible lawyer speaks, people listen. The appointments and promises they make are kept. Effective litigation lawyers know that every move they make can potentially build or destroy their credibility, so they protect it at all costs.
Effective litigators understand that civility is a powerful tool in the art of persuasion. Litigation doesn’t have to be confrontational. Using hostile tactics that include volume, anger and intimidation undermine a lawyer’s long-term ability to persuade. It can draw attention away from key witnesses and facts, and in the case of settlements, it can harm a lawyer’s ability to negotiate in a reasonable manner with the opposition.
- Confidence in litigation
Litigation lawyers need to be able to think quickly on their feet without the benefit of an absolute certainty of the facts. This requires enormous levels of personal and professional confidence. The most effective litigators learn to translate mountains of structured and unstructured information into clear and decisive action, often in the heat of a trial. Confident lawyers radiate a sense of command that puts clients at ease and a positive energy that can help speed the course of trials and settlements.
Possessing an insatiable curiosity beyond law for a variety of topics leads to innovative approaches and solutions, while also keeping the job of litigating fresh and exciting. Life experiences in science, art, physics, psychology and even pop culture can provide unlikely solutions to courtroom problems. It can also provide the ability to communicate with judges in a more grounded manner.
- Competitive Spirit
Effective litigators take on every matter, large or small, with a warrior’s spirit. They thrive on the thrill of the challenge, not just the outcome. They consider beating their opponents as secondary to the pursuit of finding an elegant trial solution. Litigators with this trait are at their best when a case seems unwinnable. But like a warrior, they are respectfully persuasive, without being overbearing.
Etheringtons is committed to providing effective trial advice, so if you or someone you know would like more information, or requires litigation advice contact us today.