QLD Breach of Contract of Sale by Client and Solicitor?

[7and3]

Hi,

We have a contract of sale with a client and are at the final stage. Client was issued a final invoice and had agreed to pay the money to settle the contract then we supply the goods. Client's wife took ill so he did not pay the final amount, but we still delivered part of the materials.

Client then passed all over to a solicitor to release the final monies. Solicitor is now withholding funds as he states the client is missing items.

In an attempt to get the final settlement, the solicitor suggested a part payment so the client could continue to get his goods and then we deal with the matter of missing items later. It was agreed that we release some materials following the payment.

We released materials but did not get payment until after this took place, meaning the solicitor did not stick to the agreement.

It was then proven that the client was not missing items and a request was made for the final money, so we could then deliver the final balance of items. The solicitor then said he would pay 50% of monies if we supplied and hold remainder until the missing item matter was sorted out. We supplied goods in good faith last week and have still not been paid as was agreed by the solicitor.

We have a client contract that the client is now in breach of but this solicitor said it's not worth its weight in paper.

Any suggestions?

Much thanks.

 

[Rob Legat - SBPL]

Have a look at what the solicitor actually wrote, especially if the word "undertake" was used. If an undertaken is given by a solicitor to do something (and they don't), go to the Queensland Law Society with it as it is a breach of the Australian Solicitors Conduct Rules (see here: ASCR 2012 — Queensland Law Society - rule 6)

 

[7and3]

Hi Rob,

Thank you for your help. I looked in to rule 6 undertakings and it appears that this may be worth pursuing. There is no actual undertaking quoted but point 2 in the email below does give actions the solicitor was going to take. Doors have been delivered and we are not in receipt of any payment. Might I kindly request you read the message and give your thoughts. I have XXXX to maintain respect and privacy for the other party.

Solicitors email:

With reference to the delivery of the doors:


1. Our client will agree to the release of an additional $5,000 on the conditions herein outlined including that all rights are reserved and that payment does not amount to a waiver of any rights, nor an acceptance of the supplier’s position.

2. The $5,000.00 referred to in point 1 will be released from our trust account upon receiving an email or letter from XXXXXX Fabrications that all doors and associated product have left the depo for delivery to our client’s site and specifying the exact date of delivery. XXXXXXX must not suspend or withhold delivery and must ensure the product is as warrantied, of correct size, type and otherwise meets the requirements of our client’s home.

3. We confirm there are other issues to be resolved including the insulation. Those matters will be progressed with you once our client is in possession of all invoices for the product that he has had to purchase in order to make up short or incorrect supply etc.

We reserve all of our client’s rights.

As a footnote:

With the release of the initial funds the solicitor gave written advice he would pay following a request for information. He got all information and did not pay prior to delivery as he had advised. Payment was received later and not as our agreement.

 

[Rob Legat - SBPL]

There's not sufficient grounding there for it to be considered an undertaking. Clause 2 (the most questionable clause) refers back to clause 1, which makes it clear that it's subject to their client's instruction.

Further, it says "our client will agree". This demonstrates they do not currently hold instructions to release the funds once the steps occur, just that their client has told them that once the steps have occurred they will be given instructions to release the money. If the instructions are not subsequently given, for whatever reason, then they cannot release the funds.

I'd suggest you provide a letter of demand for payment with evidence that all goods have been delivered, requiring payment within X days (at least 14, but whatever reasonable time frame you want to put in it).

 

[7and3]

Thanks Rob,

Appreciate your assistance with this. You make a very valid point that clause 2 refers to clause 1, however only as a reference to the $5,000 and not as instruction from the client. Might this alter things or am I being trivial with wording.

 

[Rob Legat - SBPL]

It's implied that the two go hand in hand.