Monday, May 1, 2017

Some basic legal advice?

As some of you will know I played lawyers for 6 years before returning to farming.  For most of that period I specialised in civil litigation, in other words I was a lawyer who tried to resolve disputes for clients over money which obviously includes property.

I am someone that if I am ripped off, scammed or cheated by someone or some entity, generally, I will do my utmost to hold that person or entity to account.  I do it, as I believe I have an obligation to the next person they deal with, to make them think hard and long before trying to scam, cheat or rip off their next customer.  I say generally because even I don’t fight everything, otherwise I would never get any farming done!

The following are hopefully some basic helpful tips that might help you avoid disputes or assist you once you are in one:

Never assume anything.   I recently changed power companies again on the farm, I was getting a very competitive rate on my irrigation supply, but months down the track I realised I was getting ripped on the power supply to the houses.
Be very explicit and clear as to what you expect some product/service to do or achieve.   Indeed you could record it in writing.    That way when the service or product doesn’t do what it is represented as being able to do, you have a strong argument to show grounds for having the product replaced, refunded or indeed compensation being paid, as it amounts to misrepresentation and/or it is not fit for the purpose for which it is provided.   There will be arguments as to who is to blame, but it is a good starting point if you have a record in writing as to what you expected it to do.

If something goes wrong with the product or service:  each time record this in writing with a date and your initial next to it as and when it happens.    This is what is known as a contemporaneous file note which can be used as evidence that it did in fact happen in any subsequent dispute.

There is nothing in writing:  Some transactions are required by law to be in writing, but most don’t.  The problem is if it comes down to your word versus another, then it’s a harder to prove who is telling the truth if nothing is in writing.  Again a contemporaneous file note of your discussion could be useful evidence later on.  If you have an independent witness who can corroborate what you say then that is strong evidence to support your case.

An account you dispute.  If you receive an account that you are not going to pay for whatever reason and simply ignore it, then such an account cannot be pursued through the disputes tribunal as you have not disputed the account, a prerequisite for a disputes tribunal.  If you don’t dispute it, it could be forwarded to a debt collector or pursued via the District Court. 
The flip side is if you dispute an account and communicate that to them, then such an account cannot be referred to a debt collector.   The dispute tribunal is the cheap way to have such matters resolved.  If you are seeking a refund or compensation, then if you can get the person or entity to dispute your claim partly or in its entirety, then you can pursue the matter through the disputes tribunal (depending on the quantum of your claim as there is a maximum limit) as opposed to issuing proceedings in the District court, which in many cases will be uneconomic to do so

Finally I know lawyers cost a bloody fortune, but from my days of practising as a civil litigator, the most common mistake clients’ made was to come to see their lawyer too late.  In many cases the parties have become so entrenched in their position, that it doesn’t matter how good the lawyer is the only route left is to issue court proceedings.  However if you go to a good lawyer early, before the parties hate each other’s guts, often the matter can be resolved fairly and quickly.