A ‘7’ response to a part would cite all relevant rules and case law and show demonstrated knowledge of the rules and case law through provision of detailed and highly persuasive advice.
A ‘6’ response to a part would cite relevant rules and case law and show demonstrated knowledge of the rules and case law through provision of persuasive advice.
A ‘5’ response to a part would cite relevant rules and case law and show demonstrated knowledge of the rules and case law through provision of competent advice.
A ‘4’ response to a part would cite the primary rules and case law and show knowledge of the rules and case law through provision of advice.
A ‘3’ response to a part would cite some of the relevant rules and case law and show poor knowledge of the rules and case law through provision of inadequate advise.
A ‘2’ response to a part would not cite relevant rules or case law and show poor knowledge of rules and case law through provision of incorrect advise.
A ‘1’ response to a part would not cite relevant rules or case law and show no knowledge of rules and case law not providing advice.
• Length: 1,500 words. The following penalties apply regarding over word length submissions. Word count will be determined by automatic word count feature in relevant software. Word count does not include references IF references are ONLY CITATIONS TO PRIMARY LAW (legislation, rules, cases). Any discussion (ie sentences) in references will be counted towards word length.
o 1,500-1,600 words – 20% mark penalty
o 1,600-1,700 words – 40% mark penalty
o 1,700+ words – 100% mark penalty (ie 0/30)
• Extensions. All correspondence regarding extensions to be addressed to the relevant campus convenor. Nathan – Dr Edward Mussawir. Gold Coast – Dr Kieran Tranter.
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INTEROFFICE MEMORANDUM
to:
You
from:
Senior Associate
subject:
Plume Matter
date:
April 20, 2015
cc:
Senior Partner of Section
Please find my file notes for Plume attached. Included in those notes are a series of tasks that I need you to undertake. I will be away until 11 May in the Whitsundays. When I am back in the office, I need to see first thing in the morning in my inbox a 1,500 word memo responding to the tasks that I ask. If we commence proceedings we will brief counsel to prepare originating process so refrain from drafting forms and pleadings. We don’t want a repeat of what happen last time….
I do expect correct citation to relevant law. Such a practice is good for you.
Will be thinking of you as the warm sea laps my sandy toes.
Yours
SA
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File 2015765 PLUME
Full Name: Rita Norwell Plume
DOB: 30/10/1982
Date of Client Commencement: 03/07/2010
Date of Current Matter 04/02/2015
Background
Rita Plume has been a client with the firm for the past 5 years. We have acted for her in a variety of capacities. This section has been involved with advising Rita regarding her business.
In 2010 Rita commenced a part-time owner-operator business providing the service of pet care/dog walking operating under the business name ‘Walkies.’ In June 2012 Rita expanded ‘Walkies’ through formation of a partnership with her brother-in-law Chris Flatfoot (CF). We drafted partnership documents. Under the partnership CF provided capital of $50,000 but did not take an active role in the daily operation of the business. After this investment Rita left her other employment to focus full-time on Walkies.
From the material that Rita has provided – financial books, bank statements and Rita’s data regarding invoices and expenses – Walkies seems to be successful. In 2012-2013 the business returned $44,000 to the partners. In 2013-2014 it was $83,000. Under the partnership agreement profits were to be split equally between partners. As at February 2015 the business employed 2 full-time and 6 part-time staff. It had a recent average weekly income of $8,000. Its expenses (lease on depot, loans and running costs for 2 vehicles, staffing costs and incidentals) were $4,000 per week. Under the partnership agreement the accounts for Walkies were to be managed by ‘John Stobb Accountants.’ This local accountancy firm was insisted on by CF as ‘his accountants who he trusts’.
In April 2011 Rita had married Bruce Flatfoot (BF) the younger brother of CF. In December 2014 Rita and BF separated. The separation has not been amicable. Rita has had to leave the matrimonial residence and has had to take domestic violence orders out against BF. Our colleagues in Family Law are assisting Rita with the family law related matters. When she initially told CF of the split he seemed sad but added ‘I don’t see how this would affect our business relationship.’ She spoke to CF a few other times over December and January 2015 but the conversations were more about her relationship with BF than Walkies. In those conversations CF kept indicating that BF ‘is sorry and you should go back to him.’
On 31 January 2015 Rita arrived early at the depot for Walkies. Her key did not work in the lock. CF arrived and threatened to call the police if she did not leave his property. She waited nearby until he left the premises. By that time the full-time staff had arrived. The staff expressed surprise at seeing her. They had both received a letter the day before advising them
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that Rita had left the business and that their new boss was CF. They both knew that CF had been Rita’s ‘silent partner.’
We drafted and sent a letter of desist and demand to CF on 4 February 2015 after Rita attended our offices. Material sections of the reply letter from CF’s solicitors:
…our client is exercising his lawful rights under clause 29.3 of the contract of partnership to safeguard his investment…
….there is clear evidence that Rita Plume is in breach of her obligations to maintain the profitability of the business.
….there is further evidence in our possession that Rita Plume has falsified the accounts of the business. We have evidence from employees that monies have been diverted by Rita Plume for purposes not relating to the business.
Rita strenuously denies these allegations. She strongly believes that the actions taken by CF are retaliatory and vindictive. She does acknowledge that there had been a discrepancy in Walkies’ accounts over the past months. She was in the process of investigating whether one of the full-time staff, Vera Pooblebonk, had been taking money from the business. The week before she was locked out of the business she had confronted Vera about the missing money. Vera had acknowledged that she was ‘slow and forgetful’ in depositing the cash-takings. Rita had ‘lost her temper’ with Vera and indicated that she had ‘two-weeks’ notice and then to ‘never come back.’ Rita has a suspicion, but no hard evidence, that the allegation that Rita has diverted funds, comes from Vera trying to hide her misappropriation.
Relevant details from Partnership Contract
Clause 29 Property of Partnership
1…
2…
3 On termination of this agreement as provided by cls 16 or deemed by cls 17 all assets and liabilities of the business are to be divided equally between the partners within 14 days of the date of the termination of the partnership.
Clause 16 provides for either partner to terminate the agreement in writing giving 90 days notice. Clause 17 deems the agreement terminated if one partner acts in bad faith towards the other.
It is our opinion that cls 29.3 does not permit CF to take over the business as he has. We do not think that the agreement as a whole discloses any such power vesting in CF.
The partnership contract is signed by CF as Director for Flatfoot Investments Pty Ltd.
Further information
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• John Stobb Accountants is a sole practitioner accountancy based at Nerang, Queensland. The principal is John Stobb. The street address is 4/322 Southport Rd, Nerang 4211. Its postal address is PO Box 2354, Nerang, 4211.
• The assets of ‘Walkies’ are two 2013 Hyundai i20 vehicles (valued at $11,000 each), cash reserves ($3,440). Liabilities include outstanding loan for the vehicles ($20,000), lease of the depot ($300 per week – til July 2016). In the 2013-2014 financial reports the goodwill of the business was valued at $35,000.
• Flatfoot Investments Pty Ltd (ACN 772221901) is a small property company limited by share. Its director is CF. Shareholders include CF, BF and their mother Maureen. Its registered office street address is 4/322 Southport Rd, Nerang 4211. Its postal address is PO Box 2354, Nerang 4211(ie John Stobb Accountants).
• CF lives in 34 Mastoff St, Tweed Heads, NSW, 2485.
• BF resides at a townhouse he owns with Rita at 4B/16 Wray Crt Southport, Qld 4215.
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Your Tasks
1. Identify on the material in this file the causes of action Rita appears to have against the following parties:
a. CF
b. BF
c. Flatfoot Investments Pty Ltd
d. Maureen Flatfoot
e. John Stobb
15 Marks
2. Advise which causes of action against which parties Rita should pursue in court proceedings and explain the reasons.
5 Marks
3. Provide an argument based on the UCPR on whether it would be permissible for the parties and causes of action identified in question 2 to be joined in a single proceeding
10 Marks
4. Advise which jurisdiction and which court the proceedings should be commenced in.
5 Marks
5. Advise how to serve the following potential defendants:
a. CF
b. Flatfoot Investments Pty Ltd
10 Marks
6. Can John Stobb be served by leaving originating process with someone who looks like they are in charge at his place of business?
5 Marks
50 Marks in Total
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