QLD Cease and Desist Letter

[son6767]

Wondering if someone can help me, please. My husband was working for a company as a subcontractor and had a falling out with the manager and was dismissed because he refused to do a job that was going to hinder his safety. This company now owe him money for five invoices going back as far as August. He received one payment last week and nothing more. We have requested payment but get no response.

Last week he receives a Cease and Desist letter saying that he has contacted past contractors and current contractors and a business client and that he has made defamation and allegations about this company he was involved with. He did contact past contractors who were his co-workers and friends and only asked them if they had been paid yet, they said no, but one of the contractors was paid. He then contacted the Company he worked for and said why hasn't he been paid yet. They said you have broken your code of conduct by contacting a contractor( which is not in the code of conduct that he signed )and won't pay you for that job.

The Cease and Desist Letter is not from a lawyer but from them and they have said if we don't respond in 7 days they will take legal action its all worded in a way if we deny they will still take legal action and if we accept I suspect they won't pay us what they owe us. In their code of conduct contract, it states will be paid within 30 days but they are saying when we get paid you will get paid.

Should he respond to this letter? or seek a lawyer the 7 days is up this Tuesday to respond. Are they trying to bluff him and scare him? Can they take legal action on a verbal conversation with those contractors about if they were paid also? One of the contractors is still employed by them and I must say is scared to lose his job with them and could say anything. Under no circumstances did my husband put the business down with their practices but just wanted to know if people were paid so is that classed as defamation?

 

[Rod]

1. Should he respond to this letter?
2. or seek a lawyer the 7 days is up this Tuesday to respond.
3. Are they trying to bluff him and scare him?
4. Can they take legal action on a verbal conversation with those contractors about if they were paid also?
5.One of the contractors is still employed by them and I must say is scared to lose his job with them and could say anything.
6. Under no circumstances did my husband put the business down with their practices but just wanted to know if people were paid so is that classed as defamation?

1. Yes, through a lawyer.
2. See 1. Pay for an hour or two then decide what to do.
3. Most likely yes
4. Unlikely, but not enough detail to really know.
5. It happens.
6. Based on what you said - no.

 

[Scruff]

I'm not a lawyer and therefore no expert, but this doesn't sound like defamation to me. It sounds like a company that's p**sed off and being vindictive. But it's something else that's actually caught my attention here...

In their code of conduct contract, it states will be paid within 30 days but they are saying when we get paid you will get paid.

If the company can't pay it's debts when they fall due, then they are insolvent and it's illegal for them to continue trading. Furthermore, directors can be held personally liable for new debts incurred if the comany continues to trade while insolvent. I suggest you read these pages in full:
ASIC - Insolvency: A guide for directors
ASIC - Directors: Consequences of insolvent trading

If they want to play hardball, then fine - two can play at that game. Give them something to think about, such as threatening to report them to ASIC for trading while insolvent.

 

[Rod]

Hence the need to see a lawyer.

You deny their allegations, and you issue a demand for monies owing.

 

[son6767]

Thanks for all your advice I've decided to reply to them as time is a factor now --- This is what I'm going to write Without Prejudice We deny all claims in regards to any breach of conduct. If we are not paid in full for outstanding invoices we will have no option but to lodge a claim through QCAT. Do you think this is suitable?

 

[Scruff]

I think you should definately go further than that.

Firstly, I would treat their claim and your claim as separate issues. By that, I mean don't mention or refer to their claims at all when writing about your own claim of breach of contract or your demand for payment. In fact, I would recommend writing two separate letters:

Letter #1: Response to their claims of breach of contract and/or defamation:
1. Clearly state what claim(s) you are responding to and quote them. Important - Do not rewrite what they have stated. Use their own words, including any spelling errors etc (copy/paste if possible). Never use your own words when referencing their claim(s) - always use their own words.
2. Clearly deny the claim(s) and don't provide any additional detail or defences. Address the claims literally and only address what is stated. Never make any assumpions and don't give them the opportunity to make any either. For each claim, you can simply state "We deny this claim."
3. State that you will vigorously defend any action taken in relation to the claim(s).

Letter #2: Your claim of breach of contract and demand for immediate payment:
1. Clearly state your own claim of breach of contract and quote the relevant term from the contract (this relates to not paying within 30 days).
2. Clearly state that you are demanding immediate payment of all oustanding amounts and show the specifics of each amount claimed. For example, include the issue date, due date, invoice number and amount due for each outstanding invoice. (The easiest way to do this is to attach a copy of each invoice and then reference the invoice number(s) in your letter.)
*3. Include the total amount claimed.
*4. Include a due date.
*5. Don't directly refer to tribunals or courts - just use the term "legal action" instead.
6. Optional - indicate that you will pursue all related costs if legal action becomes necessary.

* Example: "If the amount of $xxxx is not received by close of business on dd/mm/yyyy, legal action will be initiated without further notice to you."

But I agree with Rod too. They have made claims against you; beached the contract themselves by not paying on time and are now claiming that you won't be paid until they are. Furthermore, there are possible issues relating to trading while insolvent and it is also possible that you could have your own claim of defamation against them - let's not forget that they have spoken to other people about you as well. So seeing a lawyer would probably be a good idea. To save time and money, draft your own letters, then take those letters, the contract, all invoices and all correspondence to a lawyer.

 

[son6767]

Thank you so much for all your information, I'm going to do what you suggested, not sure if I can afford a lawyer at present but will ask about that tomorrow. Thanks again for the great tips it makes sense to do two separate letters.