LAW-3501-and-6001-Primary-Exam-Student-feedback 2

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3501

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Jun 21, 2024

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LAW 3501 Cover Page Template Primary Examination, Semester 1, 2023 FEEDBACK LAW 3501 LAW 6001 Dispute Resolution and Ethics Dispute Resolution and Ethics (Hons) Course Coordinator: Anne Hewitt Total Duration: 120 mins Part Questions Time Redeemability A Answer both questions 40 mins (recommended) Part A of the exam can redeem Assignment 1 if a better mark is awarded. B Answer both questions 40 mins (recommended) Part B of the exam can redeem Assignment 2 if a better mark is awarded. C Answer both questions 40 mins (recommended) Total Marks: 300 marks – each part is worth 100 marks A number of issues you could have raised are summarised in this document. In each instance you should have discussed the relevant law, applied it to the facts, and provided advice to your client about how to proceed. If you identified additional options as well as those canvassed here, you were given credit for them.. 1

PART A Part A of the exam can redeem Assignment 1 if a better mark is awarded. Part A is marked out of 100. In June 2023 Denis Resch hires a new accountant, Honest Accountancy Firm (HAF) to assist him to maintain the RES Irrigation (RES) business accounts, and to prepare and file his annual tax return. HAF requests access to all his business accounts and previous taxation records, which he provides. However, Denis is shocked when they get back to him just a few weeks later with some serious concerns about the accuracy of the records he has provided going back several years. HAF explain that they have been able to trace the $120,000 deposit that Lillian Zhang paid towards the irrigation system that RES was to install at her olive grove in March 2019. However, there is no record of her paying the remainder of the $1.2 million fee, which RES had invoiced for in April 2020. Denis consults with his lawyers, who advise that he should seek to amend his Defence in the Zhang v RES case before the court to include a set-off in the amount of $1,080,000.00. Discovery and inspection of documents was completed on 15 April 2023, and it is now July 2023. QUESTION 1 (you act for RES) Advise RES what it would be required to do to include a set-off in the case at this stage. What are the risks and benefits of this course of action? Consider if there is a different approach which would be more advantageous and why? 50 MARKS A set off can be added to a Defence and is an argument that any damages the Respondent might be found to owe to the Applicants should be reduced (set off) by an existing debt owed by the Applicant to the Respondent. It can be commenced at a cross claim by contribution claim : UCR 65.2(2) but be filed within the time fixed for filing a defence by the party in question. That time has clearly passed. RES would need to amend its pleadings to add the set-off, and will need consent or leave of the court to make such an amendment: UCR 69.2(1). Unlikely Lillian will consent, means need to consider costs of application and whether will be permitted – consider case management principles. Balance RES’s right to make this argument vs the delay and costs implications. As this fact has only just been realised, and the trial has not yet been scheduled, then it seems on balance leave should be granted. Process: Interlocutory application under UCR 102.1 with supporting affidavits and outline of argument if required. Note costs implications of amendment: UCR 33.3 and UCR 194.4. RES applies for leave to amend its filed Amended Defence to include a set-off as follows: 13. The Respondent states that the Applicant owes an outstanding debt to the Respondent of $1,080,000.00 for the installation of the irrigation service. 14. If the Respondent is liable to the Applicant, which the Respondent denies, the Respondent states that any liability is reduced by set-off of the debt described in paragraph 14. 2

After receiving the Further Amended Defence including the set-off Lillian immediately contacts her lawyers. She informs them that she paid the $1,080,000.00 within the 2 weeks required in the April 2020 invoice. She produces RES invoice #5572, which states that the payment should be made to RES’s bank account [A/C 1234567] and bank account statements showing she paid the money directly to RES’s accountants at the time, Shonky & Dodge [A/C 6677889]. When asked why she transferred the money to that account, Lillian explains that the deposit had been payable to the Shonky & Dodge bank account, and she had accidentally followed the same process without checking for this final payment. She explains that the electronic transfer included the description “Final Payment to RES Irrigation from LZ Inv #5572”. The bank records confirm this. QUESTION 2 (you act for Lillian) Would you advise Lillian to join Shonky & Dodge to the proceedings? What would their role be, why is it a good or bad idea to join them, and what would the joinder process be? Alternatively, is Lillian able to get RES to join Shonky & Dodge? 50 MARKS Note that LZ would need a solid basis to allege criminal / inappropriate behaviour against S+D: PCR 21.4. Note also certification in UCR 67.3 – requires a proper basis for each allegation of fact. Applicants join Respondents. Lillian can potentially join S+D as a 2 nd Respondent under UCR 22.1 by seeking leave of the court through application under UCR 102.1 with supporting affidavits and outline of argument if required, seeking leave to amend the Statement of Claim and add a party. Note, as S+D would be a new party, LZ would need to comply with the pre action steps before commencing proceedings against them: UCR 61. As with all applications need to consider the risks/costs v utility of action. PART B Part B of the exam can redeem Assignment 2 if a better mark is awarded. Part B is marked out of 100. Lillian and her lawyers discuss joining Shonky & Dodge to the proceedings, on the basis that if RES’s set-off is proven then Shonky & Dodge have misappropriated the payment she made to them of $1,080,000.00 and they should be ordered by the court to reimburse her that money pursuant to the doctrine of unjust enrichment. QUESTION 3 (you act for Lillian) You suspect that there would be bank records relevant to whether Shonky & Dodge misappropriated the $1,080,000.00 (showing the payment into their accounts and transfer to RES if that occurred). Why would it be advisable to try and access those records before commencing a claim against Shonky & Dodge? What application/s would you advise Lillian to make to access the records? Identify relevant rules, arguments that would be made and evaluate the likely outcome/s, and whether each course of action is advisable. 50 MARKS 3

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