LETTER OF ADVICE
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LIZA LAW
Attn: Michael De Mundo
3 Wycombe Street
Marrickville NSW 2204
20 October 2023
Dear Mr De Mundo
RE: DELCIOZO COFFEE SUPPLIES PTY LTD v DAISY LIM T/As TOP GRIND
CAFÉ
We refer to the above matter and confirm that we have received your instructions for
our office Liza Law to act on behalf Deliciozo Coffee Supplies Pty Ltd of which you
are the managing, Director. Following the conference held on Friday 13 October
2023 with yourself and our firm’s Senior Partner, we acknowledge that you wish to
proceed with the matter and commence the debt recovery process from Daisy Lim
trading as Top Grind Café on the basis of a breach of contract as the cause of action.
Summary of Instructions
On Friday 13 October 2023, our Principal Partner held a conference with you in
relation the matter. Pursuant to your instructions, we confirm that you seek to recover
the debts owed to you by virtue of the non-performance of the contract executed on
9 February 2023 between you as the managing Director of Deliciozo Coffee Supplies
and Daisy Lim (t/as Top Grind Café). The debs are as follows:
Debt in the sum of $2,500.00 for the supply and installation of three Zambatto
espresso Coffee Machines valued at $8,500.00 (Inclusive of GST) to Top
Grind Café at three locations:
o
Top Grind Café :40 Stone Street, Rhodes NSW 2138;
o
Top Grind Café :363 Darling Street Balmain NSW 2041; and
o
Top Grind Café :64 Hansard St Zetland NSW 2017
Debt in the sum of $129,600.00 for the weekly supply of 240kg of Coffee
beans to Top Grind Café at the price of $60 per kilo for a total period of 10
weeks and interest on payments from 27 September 2023.
Scope of Retainer
As stated in our Costs Disclosure and Costs Agreement, you have instructed us to:
a)
Act for you in relation to recovery of debt from Daisy Lim (Trading as Top
Grind Café) including providing advice on the prospects of success; then if
instructed, to prepare, issue and serve a statement of claim in the District
Court of NSW and obtaining default judgement matter is undefended.
b)
If the matter is defended, consider the defence that has been filed and served;
to prepare for the hearing of this matter; to attend (if necessary) any
negotiated settlement; to brief counsel; to attend the hearing and/or mediation
of this matter.
LIZA LAW
c)
If necessary, advise and represent you in the enforcement of the judgement.
Estimates of professional fees
On our present instructions, we estimate the cost of the work, inclusive of GST, to
be:
If proceedings are not defended:
Professional fees: $5,000.00
Disbursements: $2,000.00
TOTAL: $7,000.00
If the proceedings are defended:
Professional fees: $20,000.00
Disbursements: $8,000.00
TOTAL: $28,000.00
Case analysis
We note that by written contractual agreement signed on 9 February 2023, a
business relationship was created, and contractual obligations were entered into.
Plaintiff
had been approached by an Daisy Lim, (Defendant) and Director of Top
Grind Café
to provide 3 coffee machines for 3 Cafes totalling the sum of $25,500.00
(“The Purchase Price”) and the supply of 240kg of Coffee for the 3 Café locations, 40
Stone Street Rhodes NSW 2138, 363 Darling Street Balmain NSW 2041, 64
Hansard Street Zetland NSW 2017 (“The Café’s”) weekly for the period of 12 months
for the price of sum $14,400 (“The Purchase Price”) , equalling $60.00 per kilogram.
The defendant acknowledging, accepting, signing, and paying a deposit in the sum
of $15,000.00 (“The Deposit”) under the name Daisy Lim (the Director and Business
Name owner of Top Grind Café) which stipulates that she is acting as on behalf of
the company Top Grind Café. Further, On 9 February 2023, the Defendant, Daisy
Lim returned the signed agreement to the Plaintiff by way of email attachments and
confirmed the payment of the deposit in the sum of $15,000. It is evident that the
contract is in fact binding as the three elements have been made out.
-
We note that the contract outlined the obligations and rights of both the
Plaintiff and Defendant. The Plaintiff was to; supply coffee beans in the
quantities of at least 240kg per week at a price of $60 per kilogram.
-
Supply and install the 3 coffee machines & grinders at the 3 Café locations &
the Defendant to:
-
Pay the purchase price as follows:
LIZA LAW
A)
three Zambatto Espresso coffee machines at a total sum of $25,000.00 to
be paid in two instalments by a deposit of $15,000.00 on the day of the
execution of the agreement.
B)
the remainder, the sum of $10,500.00 on delivery and installation of the
equipment.
-
Place an order with the Plaintiff AND Pay for the order 7 days before
requirement of the order for 240kg of Coffee beans for the price of $60.00 per
kg.
We note that the Defendant has executed the agreement and paid the deposit of
$15,000.00 on 9 February 2023 and the Plaintiff supplied and installed the Coffee
Machines on 30 March 2023, further the Defendant attended to transferring to the
Plaintiff the sum on $8,000.00 on 30 March 2023. These actions outline the
performance of the contract that was executed on 9 February 2023.
The breach occurred where, the Defendant as the business owner and director failed
to pay the outstanding amount in the sum of $2,500.00 re the supply and installation
of the coffee machines and also failed to pay the supply of 10 weeks’ worth of coffee
beans totalling the sum of $146,500.00 (+ interest from 18 July 2023 to date) to the
Plaintiff.
To initiate the proceedings, a letter of demand must be sent to Daisy Lim as the
Director of Top Grind Cafe, we note that you have previously corresponded via
email. It may be effective for the Director of Top Grind Café to receive a letter from a
lawyer and potentially attend to payment of the outstanding debts or reach out with a
settlement offer. Otherwise, it will formalise your position of your intention to
commence litigation. The letter of demand will also assist in preventing unnecessary
litigation and rather gauge whether an attempt in good faith to resolve the matter via
Mediation and facilitation to mediate through organisations that offer these services
such as the Law Society Mediation Program.
We seek instructions to issue this letter with a time frame of seven (7) days to
receive payment in the sum of $146,500.00 plus interest from the week of 29 August
2023.
In the event, that no payment is made after (7) days, then the next step would be to
file a Statement of Claim accompanied by proposed Consent Orders in the District
Court, a sealed copy of which is to be personally served on Daisy Lim as the Director
of Top Grind Café. Daisy Lim would have 28 Days to file a defence, add steps or
request Particulars and in the event that she fails to do so we would be seeking
instructions to apply for a default judgement in which the sum of $146,500.00 (+
interest for the week 29 August 2023).
Where a Defence is filed by Daisy Lim, a request of particulars is expected by the
Court to have taken place and a response to the consent orders prior to moving to a
pre-trial conference. At the Conference, the Court will examine the proposed Orders
by both parties and determine the next step in its Directions Listing. At this stage, we
would also be of the opinion that issuing Subpoenas for bank records of Top Grind
Café is essential to allow time for production and inspection.
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LIZA LAW
Areas of weakness
Clause (6) of the Agreement stipulates that it is the Buyers obligation to pay for each
order within 7 days of the receipt of the relevant order and it is evident that Daisy Lim
has defaulted a total of 10 times to pay for the orders, and clause (3) of the
Agreement indicates that it is the Sellers obligation to decline orders by way of
written notice (3) days after receiving the order. This will impact your case as it is a
breach of your obligations that have been identified in the agreement.
Prospects of Success
You are within the time limit threshold to commence proceedings as you have 6
years to file for a claim of breach of contract and the elements of the contract are
very evidently made out. If we received instructions to commence the proceedings
then we would by relying upon you statement, ASIC Business Extract, all email
correspondence between you and Daisy Lim, The Agreement dated 9 February
2023, Bank Records of yourself and Top Grind Café, the final Invoice dated 25
September 2023.
Next steps
-
We recommend to commencing by sending a letter of demand to Daisy Lim
on your behalf on our capacity as you Solicitors.
-
Drafting of proposed consent orders
-
Facilitation of Mediation options between you and Daisy Lim.
Please do not hesitate to contact our office should you have any questions.
Kind Regards
Liza Law