PARTNERSHIP LIABILITY

 My partner and I have a business and recently because of many reasons we accrued debts of nearly $100,000. We just don’t have the money in the partnership bank to pay that kind of money. Someone told us that  we can just go bankrupt and not pay the money. Is that right?

 

Not quite. First as partners you are jointly and severally absolutely liable – meaning both of you are liable jointly and individually. Your creditors are likely to send you a letter of demand followed by a summons for the money you owe them. Now, if you or your partner have assets –  a car, boat, property, shares or other assets, your creditors will obtain a court order for the debts you owe them plus any expenses as would be shown on the summons. If you do not have any cash at all and have no assets, the creditors do have an option to bankrupt you. At the moment to bankrupt someone there has to be proof of debt of just $1,500 – check with your lawyer for updates on bankruptcy.

PURCHASE OF A BUSINESS

PURCHASE OF A BUSINESS:  I want to take over a travel agency business. I am willing to take over the business as a going concern – are there any legal  traps to avoid in taking over the business?

 

Of course, this would have to go through a lawyer because the lawyer would have to investigate all existing contracts the present vendor has with the owner of the property of the business and others – regarding the assigning of the rights and liabilities under all  existing contracts. All assets and liabilities would have to be checked out. But you will find the best way to deal with the matter is for your solicitor to enter into a new contract between yourself and the owner of the property  –and with anybody else involved in the business. One important condition of purchasing the business is to make sure that the vendor of the business does not open a similar business within at least some 30 kilometers from the shop for the next six years. But the conditional time and distance are negotiable.

Tenancy

I have a problem with my landlord not giving me receipts for a flat I’m renting from him. He says he’s too busy and will be posting the receipt in due course. Sometimes he does, sometimes he doesn’t. Can I make him give me a receipt?

 This does not happen often as most landlords know they have a legal duty to issue a receipt when tenants pay them rent. It is mandatory for the landlord to issue you with a receipt for rent paid. The receipt must show several essential things: the name of the person receiving the rent, the name of the payer, the rented address, the period covered by payment and also the date and the amount of payment. Tell your landlord that the law says very clearly a landlord must issue the tenant a receipt without unnecessary delay. Otherwise, contact  your local tenancy assistance or a just one sharp letter by a solicitor will usually be enough to solve this problem.

AGREEMENT TO EXCLUDE THE COURTS

 My partner and I made an agreement regarding our business that if in the future there will be a dispute, no party will seek remedies from the court but go to an independent arbiter for a speedy resolution. A serious dispute arose after three years and now my partner wants to go to court to fight the dispute. Can he do that?

 

If you made a partnership agreement which excluded the jurisdiction of the courts in any future disputes, theoretically, you cannot go to court to settle the dispute unless both parties agree. Of course, the partnership agreement has to be a valid agreement – and it probably is, especially if it was prepared by a lawyer. As well no other conditions must exist that would by-pass the condition to exclude the courts from settling any dispute. Precedents exist where in similar circumstances there was a valid agreement and one of the fundamental conditions was to exclude the jurisdiction of the courts. This was held by the court to be enforceable – meaning the courts would not allow the partner to renege – to go back on his word about settling disputes outside the court. The court would not hear the case.

Murder

  

 My uncle was charged with murder. We know that there are cases where the jury finds a person not guilty of murder but guilty of manslaughter. How can this be done?

The first thing to know is that the police have to convince the jury – in any police matter – ‘beyond reasonable doubt.’ Unless the accused pleads guilty, the police usually have to have witnesses to support the evidence that the accused had the intention and the awareness to kill. In all circumstances, defences would have to be either there was no intention and/or there was no awareness. If the jury accept the evidence that the accused did not have the intention to murder, they may find him guilty of manslaughter – and sometimes find him not guilty at all. A case in point is when I handled the murder of someone who was provoked. When there is intense provocation it is possible that the accused may lose control of his mind, even temporarily, and commit murder. I used the defence of ‘dissociative reaction to provocation’. My expert witness, a psychiatrist, defended under cross-examination that it is possible that under the extreme provocation the accused would not have the necessary awareness and intention to fully understand and know what he was doing. My client was found not guilty of murder but guilty of manslaughter. My client did three years instead of some twenty five years in jail.

Marriage rights

MARRIAGE RIGHTS: I’ve been married for nearly a year and a half now and my husband wants to be more adventurous in his sex with me – doing all kinds of things that I feel very uncomfortable with. He says now that we’re married he can do what he likes with me. Some things he wants to do are against my religious beliefs.  At least once he forced me to have sex when I didn’t want to.  Do I have any rights about this?

 

These ‘forced-sex’ activities in marriage have come before the courts a number of times. It is a crime in many of the States for a husband to force sex onto his wife – if the wife does not consent. This means that in certain circumstances a husband in marriage can be charged with raping his wife. There is a misunderstanding among some men who think that just because they are married they have absolute ‘conjugal’  (marriage) rights to have sex anytime, anywhere and any place and without consent. Sex without consent is a crime inside and outside of marriage. I suggest that you and your husband obtain the services of a professional marriage counselor who can help you to assert your rights in these matters. But be warned; if your husband is not responsive – not prepared to respect your rights and thinks he can abuse his position as a husband against the law, you will have to decide whether to stay in the marriage.  Be careful: if you do not complain it could be construed you are consenting to his demands – a creative defence lawyer for the husband could put up the defence of estoppel –  if you’re not complaining, you’re consenting.

Police radar

BOOKED FOR SPEEDING. I was booked by police radar for speeding – less than 15k over the limit, but I am one hundred per cent sure I was not going faster that the speed limit for the area where I was driving. There were two police officers manning the radar, how on earth can I prove that I was not exceeding the speed limit?

 

I’d say the cheapest way is to pay the fine even if you are right. However, if you are determined to take on the police what you have to do is this: get written confirmation by the experts that your speedometer is recording correctly. Ask your lawyer to pursue the matter, which means he will have to find out the make and model of the radar the police were using at the time. Your lawyer would have to study the technical tests of the radar for accuracy and to see if there is marginal error allowed. He’d also have to find the age of the radar equipment used and see if over time the radar deteriorates in accuracy.  Your lawyer would have to prove only on the balance of probabilities – more likely than not – that there is a basis to doubt the accuracy of the radar. Without any guarantees of winning the case, it will cost at least a couple of thousand dollars to pursue the matter.

NEGLIGENCE

NEGLIGENCE – THIRD PARTY: My sister was seven months pregnant when she had a car accident. She was injured, but not seriously. Later when the baby was born the baby had injuries. The specialists told her that injuries could have been a result of the accident. Can she claim anything from the insurance?  

There is a precedent similar to the circumstances you mentioned – the Turner case. In that case the child was born with serious cerebral problems when it was proved on balance of probabilities that the child’s injuries were caused while still in the womb. This case took many years to complete but the Court awarded the injured child one million dollars damages against the (the mother) – the insurance even though the mother was negligent and caused the accident. The critical thing is for the medical specialists to confirm that the injuries the child sustained were received directly or indirectly from the motor vehicle accident. In an almost similar case more recently the child was unable to get compensation because the evidence was not convincing enough to show that the injuries were caused by the accident but rather through its birth.  

Domestic lease

 I signed a lease for twelve months, but now after six months I have to move away interstate. I’m paying $350 for a two roomed flat in a very nice area. The landlord insists on me staying on until the lease is over. Any suggestions?

You have to understand that when you sign a lease for 12 months at $350 per week for the flat, you are in fact are signing a contract with the landlord for $18,200 payable at $350 per week. If you try to break the contract after six months – theoretically you owe the landlord six months’ rent. In practice, the landlord has a duty to get other tenants to take over the lease. But if a genuine effort was made by the landlord and he was not able to find an alternative tenant, you would have to pay the six months remaining rent. You should actively work with the landlord to find an alternative tenant acceptable to the landlord.

Property purchase

PROPERTY CONTRACT:  I was shocked to learn that I paid one thousand dollars to an agent to secure an apartment  then some days later he informed me that the apartment  was sold to somebody else. I am so upset about that. Can I sue the agent for misleading me?

The sale of the property does not take place when you pay a “holding deposit” on the property to the agent. The agent (or your lawyer) should have advised you about that paying one thousand dollars as part deposit does not guarantee the purchase of the property. The sale only takes place when contracts of the property are exchanged. Usually the purchaser pays ten per cent – or some other agreed amount – of the price. You did not send me enough details as to what other issues were going on. For example, there may have been several agents, or if some other purchaser acted super-efficiently and paid the required ten per cent deposit to her own solicitor and urged the lawyer to do an expedited, quick exchange that could beat your paying the estate agent one thousand dollars. If the agent claims that you did not tell him to do the purchase on urgent basis, the agent is not likely to be liable.