Michael_Hong_220306742_MLJ721_Advanced Legal Professional Practice Assignment 1(a)
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Deakin University *
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MLJ721
Subject
Law
Date
Jan 9, 2024
Type
docx
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5
Uploaded by ConstableWren9638
Student ID: 220306742; Michael Hong
Word Count: 1100 (excluding header and footnotes)
Memorandum of Advice
To: Principal Solicitor
From: Michael Hong
Date: 07/04/2022
Re: JSavan Architect & Design Pty Ltd – Pre-interview Report
I. Statement of the Case
Mx. Jay Savan (‘Jay’) seeks legal advice for the following matters:
1.
An unpaid invoice regarding architectural services provided to E-Tech Pty Ltd
; and
2.
whether payment is enforceable given Jay’s services were performed under contract.
II. Summary of Facts
a.
Known
Jay is an architect operating an architectural design service business (
Jsavan Architect &
Design Pty Ltd
). On September 2020, Jay entered into a contract with Mx. Mark Altermann
and their company (
E-Tech Pty Ltd
) to design 6 new houses on an existing plot located in
Toorak
.
Mark provided to Jay a ‘premium bonus’ of $50,000 upon signing the contract and
indicated the designs were to be completed ‘as soon as possible’. Jay completed these
designs in June 2021. Jay invoiced Mark for the designs ($27,895). Payment was due on 1
st
August 2021. Jay asked for payment via telephone ‘sometime in August’. Over telephone,
Mark informed Jay of issues relating to council approval and the designs themselves - council
approval was delayed as permits were not applied for until June 2021 and were ‘impractical
in terms of costing to build’. Further, locals voiced resistance as they considered the designs
‘too radical’ leading to potential devaluation of neighbouring properties. Mark also informed
Jay that the initial $50,000 included payment for the designs. Jay terminated the contract by
informing Mark ‘they weren’t interested in doing any more work’ but payment for the
Student ID: 220306742; Michael Hong
Word Count: 1100 (excluding header and footnotes)
outstanding invoice was required. Invoice was resent on 17
th
September 2021 – payment is
still outstanding.
b.
Needed
Unclear what terms both parties agreed to and whether a written contract exists. A copy of
the original contract is required. Regarding the contract, we require the following
information:
1.
Who drafted the contract;
2.
whether correspondence exists between the two parties from the time of signing
(September 2020) and Jay delivering the designs (June 2021);
3.
whether any representations concerning the $50,000 were made prior to signing the
contract; and
4.
any terms of the contract that relate to:
a.
Deadlines and whether they were strictly enforced.
b.
Design specifications and if they complied with any express terms and
regulatory requirements.
III. Legal Issues
a.
Known
Parties entering into a contract intend for a legally binding agreement whereby two minds
are ad idem
.
1
Where one party evinces intention to not perform part/all of a contract, a
contract can be terminated on grounds of repudiation.
2
Total failure of consideration allows
recovery of payment whereby a seller, who is not in default, is discharged from further
performance and entitled to recover monies owed
3
and any payments due are recoverable
under an agreement notwithstanding a party’s election to terminate.
4
1
Smith v Hughes
(1871) LR 6 QB 597.
2
Bowes v Chaeleyer
(1923) CLR 159.
3
Hyundai Heavy Industries Co ltd v Papadopoulos
[1980] 2 All ER 29.
4
McDonald v Dennys Lascelles Ltd
(1993) 48 CLR 457.
Student ID: 220306742; Michael Hong
Word Count: 1100 (excluding header and footnotes)
Jay has terminated by repudiation as they ‘were not interested in doing any more
work'. Total failure of consideration evident - Jay was not given payment for the designs
provided. Jay is entitled to relief by enforcing their right to payment prior to their election to
terminate the contract.
b.
Needed
Unclear what the $50,000 amounts to – is it consideration for Jay to enter the contract, a
deposit or for Jay to perform the contract to completion? More information is required. The phone call ‘sometime in August’ suggests both parties may be mutually
mistaken as to the $50,000; therefore, the contract may be void.
5
However, if it appears to a
reasonable bystander that both parties reached an agreement, both would be ad idem
and
such consensus is deemed regardless of subjective beliefs.
6
Mark may also counterclaim and seek damages given Jay’s delay to complete and
send the designs and/or if Jay has failed to design the homes per the contractual terms.
Correspondence between September 2020 and June 2021 is crucial – any conduct that
affirms the breach(es) and electing to continue
7
may serve to deny Mark’s counterclaim.
IV. Key Conflict Statement Whether Jay is entitled to recover payment regarding the overdue invoice and the $50,000
“premium bonus”.
V. Necessary Actions Required from Interview
1.
Gather needed facts.
2.
Acquire copy of the contract.
3.
Clarify/substantiate any terms to the agreement/contract.
5
Raffles v Wichelhaus
(1854) 2 H & C 906; 159 ER 325.
6
Taylor v Johnson
(1983) 151 CLR 422.
7
Immer (No 145) Pty Ltd v The Uniting Church in Australia property Trust
(NSW)
(1992) 182 CLR 26.
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