Legal Costs Involved in Suing a Contractor for Breach of Contract - Assignment Example

Questions Tamworth Airport Corporation Ltd Tamworth. May 10, 2008. Ref: Legal costs involved in suing contractor for breach of contract. Dear Sir: I outline below for your reference, the costs that you are likely to incur in filing a suit against the contractor for breach of contract in the Supreme Court of New South Wales. Solicitor-client costs: Prior to litigation, you may incur costs that your Company will have to pay to a solicitor, in order to secure legal advice and in incurring filing and document preparation costs. Party and party costs: Costs generally ordered by the Courts,1 these are the costs of litigation agreed to between the parties, so if you emerge the loser in the litigation process, you may be held liable for the legal costs incurred by the other party as well. Indemnity costs: will include all such litigation costs as mentioned above and include fees, charges, expenses, remuneration costs, which are not of an unreasonable amount. Such costs are generally levied by the Courts to penalize a party for bringing about frivolous suits2, or suits based on false allegations3. Indemnity costs may also be levied when lawyers and clients do not cooperate during the progress of a case in litigation4. When the “use of aggressive, discourteous and non-co-operative behavior leads to the incurring of delay, inconvenience and needless costs”, then these costs may also be assessed and levied by the courts as a part of indemnity costs, as a punitive measure.5 Security costs: may be allowed by the courts in some instances, such as in the case of Beaumont and Cross6 where the Court allowed a wife security costs in relation to her husband’s appeal on costs. The assessment of costs will thus be made by the Court taking all associated factors also into account. After litigation has commenced, the contractor may still be liable for payment of costs claimed through litigation, even if he agrees to a compromised level of payment of costs. This may be the case especially if the Court holds that the compromised amounts offered by the contractor are lower than the amounts you may have claimed under litigation.7 If there are any further concerns, please do not hesitate to contact me, and I look forward to being of service, (COUNSEL) Ans 2: Section 4: Extent to which restraint of trade valid: (1) A restraint of trade may be valid only if it is not against public policy, irrespective of whether terms are severable or not (2) Any restraint of trade, other than that mentioned under Section (1) will be invalid (3) When a person or entity has been subjected to a restraint and the Supreme Court feels that such a restraint on the applicant may be against public policy in view of the circumstances of the individual case, then the Court may order that (a) such a restraint is invalid or (b) valid only to the extent it is not against public policy. The Court may also set the dates from which the restraint will hold good, if held to be valid. (4) When a person is a member of an association and is subjected to a restraint of trade, then such restraint of trade will apply to the entire association (5) Any order made under subsection (3) will not preclude rights to damages accrued before date of validity established by the Court. Advice to the Parliamentary Council: The drafting of laws in plain English make it easier to read and also make it easier for the Courts to interpret statutes, since they often interpret them literally. Drafting the laws in English will help to reduce legalese8. As a result of legalese, long sentences are often used, which try to cover several points in one sentence and create confusion. Drafting in plain English can also reduce the use of too many words, the use of double negatives and the use of overly formal language, all of which increase the confusion and make it hard to read and understand statutes properly. Ans 3: This product development and licensing agreement is entered into this eighth day of May 2008 between co owners Professor Albert Pauling and the University of New England (hereinafter referred to as “Licensors”) with Australian Biofuels Ltd (hereinafter referred to as “Licensee”) for licensing of their patent described below and on the terms and conditions as set out below: 1. Licensors have registered a patent under the Patents Act of 1990 for the conversion of trees, grasses and crop residue to cellulosic ethanol. A copy of this patent is provided in the Appendix to this agreement. Licensors hereby agree to grant exclusive license Licensee to market, use and otherwise exploit this patent. 2. Licensors agree to grant this exclusive license to Licensee for an initial period of three years, after which the Licensee will have the option to renew this license agreement at terms to be renegotiated between the parties. 3. Licensee hereby agrees to pay Licensors 10% (ten percent) royalty on all gross sales including GST, of ethanol which is produced by ABL using the process patented by Licensors. 4. Licensee hereby agrees to pay a minimum annual royalty payment of $250,000, even when gross sales amounts are lower than this amount. Licensee also agrees to pay Licensor 10% of all gross amounts earned over and above this sum of $250,000. 5. Any dispute arising out of this agreement will be arbitrated under the provisions available within the territory of New South Wales. In agreement whereof, the Licensor and Licensee have affixed their signatures below: LICENSOR LICENSEE Dated: May 8, 2008. Ans 4: (a) I, Garfield Dixon, having retired on July 1, 2007, do make my last will and testament as follows: I appoint the Union trust Committee Ltd to be the trustees of my estate and to administer it on my behalf after my death. I wish my wife and son named below, to be the major beneficiaries of my estate. The Union trust Committee is to apportion the proceeds from the income accruing out of the estate as follows: (a) 70% (seventy percent) of all income is to be given to my wife, Alice Mary Dixon. Upon her death, I authorize the trustees to pay her share of the income to my son, Frank Wilfred Dixon. (b) Of the balance 30% (thirty percent) of income, 20% (twenty percent) is to be paid to my son Frank Wilfred Dixon, who is no longer a minor but an adult. If my son predeceases my wife, I wish his share of income to be paid to my wife, Alice Mary Dixon. (c) The balance of 10% (ten percent) of income accruing from the estate is to be saved by the trustee appointed hereto before, and invested at its discretion. All such incomes are to be used for the ultimate benefit of the University of New England Law University Library. (d) If, for any reason, the incomes cannot be held for the benefit of the University of New England Law University Library, I hereby authorize the trustees to invest 10% of the incomes accruing from my estate for the benefit of another University Law School Library. (e) In the event of death of both my wife and my son, I authorize the trustees to hold all the income from my estate in trust and invest it for the ultimate benefit of the University of New England Law University Library, ort failing that, to any other University Law School library. I certify that I am of sound mind and in full possession of my faculties and in witness of the above disposition of my estate, I have affixed my signature below: (GARFIELD DIXON) Witnessed and affirmed: (WITNESS 1) (WITNESS 2) Dated: May 12, 2008. (b) A power of Attorney is a document which Professor Garfield Dixon can sign, giving one or more persons the power to act on his behalf, to ensure that his instructions on his will are carried out. He can nominate the Union Trustee Company Limited as the executor of his estate and to act on his behalf, since it is a company duly authorized under the Trustee companies Act of 1964. On the one hand, he can provide the Company with a Durable Power of Attorney, which will enable the Union Trust Company to act on his behalf until he dies and will stay in effect until it is revoked by the Professor. On the other hand, he can also opt to grant a special power of Attorney, whereby the Union trust Company will only have the authority to deal with dispositions concerning his will for a specific period of time9. The best option for Professor Dixon may however be to grant the Union Trustee company an enduring power of Attorney, since the provisions of his will contain instructions that pertain not only to what is to happen after his death but after the death of his successors. Providing an enduring Power of Attorney will ensure that there can be no Government intervention in the disposition of Professor Dixon’s estate in the event he falls ill or becomes mentally handicapped and unable to make decisions in regard to his assets.10 This will ensure that the trust is able to still carry out his instructions in accordance with his wishes and desires before the crisis. Bibliography * Beaumont and Cross (Security for Costs) (2007) FamCA 1129 * Barnyard Trading Pty Ltd v Paul Cong Dinh (2007) NTMC 088 * Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 1 at 34 * Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd    (1988) 81 ALR 397. * Lee v Mavaddat [2005] WASC 68 at 13 * Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190 * “Enduring Power of Attorney”, http://www.aetlimited.com.au/Estatesolutions/PowerofAttorney/: Accessed May 8, 2008 * “Handing your life over to someone else”, http://www.apostille.us/news/handing_your_life_over_to_someone_else.shtml; accessed May 8, 2008 Read More