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.

DOCTOR’S DUTY?

 I’m a 23 years old attractive young woman and our family doctor has known my family all my life. But every time I go to see this family doctor he asks me about having a pap smear test. I am suspicious about his motives. The doctor is getting on in years and I think he’s enthusiasm for a pap smear has another meaning. At my age I don’t think I have to have a smear test – does he have a legal right to continue to ask me to have one.

 

This problem is very easily remedied. All you have to do is to go to a reputable female doctor or women’s health clinic. For your peace of mind then you can have the test without any embarrassment of a male doctor doing it. Only very rarely are there complaints about doctors abusing their position – but if you feel uncomfortable with him and more serious – when you become suspicious about his motives, the surest way for you to feel relaxed about these things is to go to a female doctor. Ask your friends to recommend you a good female doctor. A doctor may feel it is his duty to remind his patients to have certain tests – but not to the point of coming across as putting pressure on his patients to have any particular test. Doctors may not know that there is a presumption of guilt on the doctors in these matters and the onus of proof shifts onto the doctor to explain his innocence.

NEGLIGENCE?

I went to watch a football match. There were no seats to sit on.  The people stood around the soccer ground to watch the game. One of the players kicked the ball very hard which  hit me on the face very badly. People had to call an ambulance and I was taken to hospital. I lost a week’s work. I know the player who kicked the ball. Can I sue him to recover all the expenses he caused me?

 

To sue the player you would have to establish whether there is a legal relationship between the player and yourself. There are certain tests to apply but one of them is, does the player or the owner of the soccer field owe you a duty of care? The owners of the soccer field and the player would be advised that you attended the soccer game on the basis of ‘voluntary assumption of risk’ – meaning that by attending the soccer game and by standing so close to the playing area, you had notice and it was foreseeable that you could be injured by some remote incident – and you voluntarily took that risk. You’d be unlikely to succeed in any claim against the player or the owners of the soccer field.

‘PROFESSIONAL’ ADVICE?

I had lunch with some people I know one day sometime ago. There was an accountant in the group who suggested to me that a certain company was a good company to invest in. I invested twenty thousand dollars in that company – but within five months it folded. I lost every cent. Can I sue this accountant who advised me to invest in this company which failed?

 

You will find that ‘advice’ given over lunch does not constitute proper professional advice. From what you stated almost certainly you did not pay for the investment advice. It would have been different if you went to the accountant’s office and received a formal advice about investment in the company – especially if you paid for services rendered by the accountant including the investment advice. Of course, one has to examine closely on what basis the advice was given. For example, was there an exclusion clause, exempting from liability for any advice given? Was giving investment advice part of the normal professional work of the accountant? It is not likely you will succeed if the advice was given over lunch as part of a lunch conversation.

INVITATION TO TREAT

  I was window-shopping for a necklace when I saw one I liked in a shop window for $100. But when I went in to buy it, the shop assistant apologized and told me that the price was really $150. I thought that the advertised price is what I should pay. Is that right?

 

Where there has been a genuine mistake as to the price of the item being sold, the shop owner can change the price to sell the item at the higher, true price.  But if you have evidence that you were tricked into buying the item by its being initially offered at a cheaper price, then you may have a case against the shop. There are Federal Laws that prohibit businesses from manipulating the retail price to unfairly attract customers. The onus will be on you to show if the shop owner tried to trick you. 

Workers’ Compensation

WORKERS’ COMPENSATION: My husband has a worker’s compensation case and our neighbor told us there was someone taking video of my husband when he was in the backyard. Is there something I should know about before the case comes to court?

 

Your husband must see his lawyer immediately and report it. It is quite legal for a private investigator (who is usually employed by the employer’s insurance company) to take video of your husband showing him doing certain things – like taking the garbage bin out or mowing the lawn. Or video can be taken of your husband doing some bending which would show some aspects of his physical condition. Although unethical, your husband could also be trapped by someone asking him to pick a wallet, or money, or something else from the ground or helping someone with putting a bicycle into the back of a station wagon. This is all about the insurance company trying to show the real physical condition of the plaintiff husband to try to reduce liability – in addition to the usual medical specialists’ reports and testimony.

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.