VIC Received Cease and Desist Letter for Cable Dispute - What to Do?

Discussion in 'Commercial Law Forum' started by Mike Love, 1 April 2017.

  1. Mike Love

    Mike Love Well-Known Member

    Joined:
    25 June 2014
    Messages:
    22
    Likes Received:
    1
    Hi guys,

    Long story short:

    I did a small development. We had to hire a company to connect our "telecommunications cable" so we were able to connect to the NBN. We hired a company to get "compliance". The company did the first part of the work, but Telstra required a second form to be signed by us and returned.

    This guy from the company repeatedly ignored several emails from Telstra for around a year. Telstra then brought in a "Telecommunications contribution fee", but had a grace period for all applications already in the system. This guy ignored these emails, and by the time we figured out what was required, we were slugged $3,800 as a fee. (He eventually printed it out and we signed it as required for compliance.) Not to mention that two families in two brand new townhouses had to live for 6 months in there with no internet or telephone service available.

    I asked Telstra to waive the fee, due to a negligent company we hired - they refused. So we asked the guy from the company to cover our costs incurred due to his failure to reply to Telstra's numerous emails. (Telstra only deal with the "applicant" being the company, and do NOT deal directly with the developer)

    So I also wrote a review about this company, being as accurate and honest as I could. So yesterday I receive a "Cease and Desist" demand from this guy's 'budget' lawyer, which was riddled with spelling mistakes and grammatical errors!!! The gist was that I was to remove the review, and if I do take him to VCAT to recover my money, that he will sue me for all his legal costs, due to my "frivolous claim with no legal basis".

    To make things even more interesting - the guy from the company is a co-owner and director. He also owns his own company that does exactly the same thing. When we originally called to use the services of the company he co-owns, he got us to sign up for his own private company, without the knowledge of his other partners, but then made his office staff for the co=owned company do all the work for the job! (I have evidence of all of this!)

    Anyway, here is the letter I received from this budget lawyer: (note the spelling errors - and he refers to "without prejudice, then with prejudice?" What do you think?!


    RE: Telecommunications services for premises situate at (my address)

    Background

    1. I act for XXXX Pty Ltd and Mr. and have been provided with copy e-mails and internet posts regarding services my client provided which I note the particulars of which are unclear to this office regarding ongoing liability flowing from my client to you.

    Offer to withdraw with no order as to costs

    2. The purpose of this letter is to make a without prejudice offer to you to cease and desist in engaging in your conduct that is prejudicial to my client, is defamatory in nature and alludes to claims for compensation that have no tenable basis in fact or law.

    3. This with prejudice offer is also in that you are attempting to deceive out client, or in the alternative, will attempt to decide a Court and/or Tribunal that you have a legal cause of action against our client where no cause of action exists.

    4. On the basis of the following evidence, our client places you on notice that if it do not ceae and desist or do attempt to make any application to a Court or Tribunal then my client will be making immediate application for costs of any proceedings on a solicitor and own client cost basis as you have no tenable basis for your claim whether in fact or law.

    5. My instructions are that you are seeking the claim quantum in respect of what is best described as an “NBN Contribution Fee”. We request that you provide this office with the contractual documentation you rely upon to pursue this spurious and tenuous claim and clear evidence that a contract existed between you and my client in respect of this service alone.

    Strike out application
    1. We have advised our clients that if you do proceed with any futile application then this office will file an application within that jurisdiction to have your claim summarily dismissed as an unjustified proceeding.

    2. Any application our client is forced to make will rely on this letter as evidence that your application is misconceived as a matter of law, it lacks substance and is otherwise an abuse of process. The question of whether the application is an abuse of process is a question of law and to that end; our client will retain counsel to run any application with the costs consequences flowing as noted above.

      Offer of compromise
    1. Before any further unnecessary costs are incurred you are invited to cease and desist in harassing my client and posting inaccurate and defamatory comments against Mr. on web sites within which my client advertises his services..

    2. The invitation to remove any and all internet posts against Mr. is open for acceptance for 14 days following which we will commence proceedings couched in the law of defamation against you.

    3. We repeat that this offer is with prejudice.

      As I now have conduct of this matter, please direct all further correspondence to this office.
     
  2. Rob Legat - SBPL

    LawTap Verified

    Joined:
    16 February 2017
    Messages:
    1,308
    Likes Received:
    259
    Apart from anything else, they simply can't make a without prejudice offer and then threaten to present it in court as part of their evidence. It's not a valid without prejudice letter in any case, because it doesn't contain a bona fide settlement offer.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  3. Rod

    Rod Well-Known Member
    LawTap Verified

    Joined:
    27 May 2014
    Messages:
    5,200
    Likes Received:
    734
    Send him a demand letter then go to VCAT when he doesn't pay.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  4. Mike Love

    Mike Love Well-Known Member

    Joined:
    25 June 2014
    Messages:
    22
    Likes Received:
    1
    Hi Rob,

    Are you able to explain more about the bona fide settlement offer?

    Also, do you find it strange that it states first that it's a "without prejudice offer, then twice after that the letter states that it is a 'with prejudice' offer?"
     
  5. Mike Love

    Mike Love Well-Known Member

    Joined:
    25 June 2014
    Messages:
    22
    Likes Received:
    1
    Hi Rod,

    Do you think I would be able to draft a demand letter by myself? Or can I just take him to VCAT without sending him a letter at all?

    Do you think his letter is strange that it contains so many spelling mistakes?
     
  6. Rod

    Rod Well-Known Member
    LawTap Verified

    Joined:
    27 May 2014
    Messages:
    5,200
    Likes Received:
    734
    1. Probably. You appear to write well enough and you know how to use google. There are not many traps in preparing a demand letter.

    2. You can. But VCAT likes to see attempts to resolve the matter first. A small tick goes to your credit side by sending a demand letter.

    3. Yes, very poorly written.
    Do not respond to any material in the letter except to say the post has been removed but the removal is in no way to be considered any kind of admission or acceptance of any liability.
    Do not post any more about this person.
    Recommend you remove your review.
    Stay factual in your demand letter.​
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  7. Rob Legat - SBPL

    LawTap Verified

    Joined:
    16 February 2017
    Messages:
    1,308
    Likes Received:
    259
    1. For a without prejudice letter to be relied upon, it must contain a genuine offer made in an attempt to settle the dispute. What's genuine relies on a matter of construction and the facts. It could, for example be something along the lines of (in a purely hypothetical situation like an uninsured car accident):

    "Our client's vehicle suffered damage which has been assessed at $10,000.00, and we have instructions to commence legal proceedings against you for recovery of this sum. However, if you agree to pay the sum of $7,000.00 within 30 days, our client agrees to release you from all further liability and refrain from commencing recovery action."

    - you've got a clear allegation of fault, a stated intention to take legal action, and a genuine offer to avoid all that for a lesser sum. I'm loathe to give an example matching your situation, as I don't want to give the impression of what and would not be appropriate since all the circumstances are not known.

    2. Yes, but the whole letter is strange.

    You can book a call with me at: Rob Legat, Lawyer, SB Partners Legal - Gold Coast, QLD - LawTap - Find a Lawyer & Book Online Instantly.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  8. Emge0708

    Emge0708 Active Member

    Joined:
    4 April 2017
    Messages:
    9
    Likes Received:
    1
    That is a poorly written letter, I feel embarrassed for the "solicitor" who wrote it. Have you checked to see if the firm/lawyer is registered? I wouldn't be surprised if it isn't, just a thought :) It might be worth checking the abn too
     
  9. Mike Love

    Mike Love Well-Known Member

    Joined:
    25 June 2014
    Messages:
    22
    Likes Received:
    1
    Thanks everyone!

    So the latest - I called the lawyer a couple of days ago to ask him to clarify a few things..

    He mentioned the reviews, and I asked him to let me know who wrote them when he finds out. He replied "he has obtained the IP address and knows that I wrote the reviews". I asked him if he was telling the truth, he replied "yes, because his clients dad is good with computers and managed to obtain the IP address!"

    Since True Local only release the IP details with a court order, which hasn't happened, does that mean he has just implicated his clients father in a criminal act? Or should I report the lawyer to the law institute for lying?

    Lastly, he asked me if I was recording the call.

    In Victoria, you are allowed to record the call - but he claimed that I must tell him when asked. Is this true? (I was recording by the way)
     
  10. Emge0708

    Emge0708 Active Member

    Joined:
    4 April 2017
    Messages:
    9
    Likes Received:
    1
    I am confident he cannot use your IP Address to identify you, there is no way whatsoever this could be done without a warrant. The only way would be to match the IP address from an email you sent with the IP of the review which 99% of websites don't record - the only way they would be able to see it would be if the review was done on the companies website. Also, his dad? What kind of lawyer calls dad for help?

    He is correct that you must advise if you are recording the call, but only if you intend to use it in proceedings later, generally no issue if it is just to remember for notes etc. Plus who's to say you weren't recording something nearby which happened to capture the call too?
     
Loading...

Share This Page

Loading...
gt;