Assignment Task (Assignment Number: UA510)
LLW1003 Legal Writing & Drafting – Assignment 2 Settlement Agreement
|Due date||By 11.59pm on saturday of Week 3|
|Word limit||1400 words (including your adaption of precedents) excluding footnotes and the bibliography (Guide only – you will not be penalised if you do not reach the maximum, so long as you address the criteria in the rubric)|
|Total marks||40 marks = 40% of total marks for the unit|
|Submission requirements||Submit electronic copy Assignment 2 Dropbox link on unit’s VU Collaborate space. Please save filename as Surname_FirstName_LLW1003_dox prior to uploading. (Also read this Unit of Study Guide and the statement attached to the Dropbox for warnings regarding collusion and plagiarism and information about avoiding those behaviours.)|
|Late penalty||5% per day including any weekend days and public holidays. Where there is any question about time of submission, the timing of the online submission will be used provided the file uploaded is in a format readable by the examiner and the online marking system (MSWord format for the assignment;). Please see this Unit of Study guide for information on extensions and special consideration)|
|Referencing requirements||AGLC 4 compliant footnotes and bibliography are required.|
|Presentation||You must present this assignment as an Agreement. You should be using 1.5 spacing. We recommend an easily readable font such as Times New Roman size 12 font.|
Relationship to other tasks and assessments
You will be able to use the feedback from Assignment 1 to complete this assessment. Also a number of in class activities will assist you completing this assignment.
Purpose of this assignment and ULOs assessed
The purpose of this assignment is to:
- Develop your writing skills using the principles of plain English.
- Enhance your ability to adapt and use legal precents to prepare legal documents.
- Prepare you for legal practice.
The unit learning outcomes assessed are:
- Scrutinise complex legal problems; conduct research and draft legal documents in plain English language (LO 1).
- Interpret and apply different types of legal writing and drafting techniques and conventions (LO 2).
- Locate, analyse, adapt and use relevant legal precedents for effective legal drafting (LO 3).
- Employ analytical, cognitive, and written communication skills in producing context-specific legal documents, in contemporary Australian legal contexts (LO 4).
- Utilise a variety of approaches to interpreting legal documents (“statutory interpretation”) and understand how such approaches may inform the process of drafting legal documents in appropriate contexts (LO 5).
You are a Senior Associate in the law practice of Victoria Lawyers. You are handling a debt matter (civil claim) between Casey Saddie and your client Eddie Cabinstone
Casey is Eddie’s best friend and has engaged the firm of ABC Legal. She is claiming that Eddie owes her $45,000. She lent him this money on 1 January 2021 to find accommodation when he separated from his wife. She has now discovered he gambled away some of the money. The informal arrangement was that Eddie would pay her back by March 2021. He has failed to do so.
After negotiations with Casey’s lawyer, the parties have agreed Eddie will repay the money in instalments to avoid going to Court. Below is a copy of the letter from ABC Legal. You have taken instructions from Eddie and he has confirmed that he is satisfied with the terms set out in Casey’s lawyer’s letter.
- Draft a final settlement agreement that incorporates the terms agreed by the parties (which are set out in the letter). Ensure you include the clauses listed below.
- Please also include on a separate sheet a brief description of how you found and adapted the precedents for the settlement agreement
Your settlement agreement must:
- Address the requirements of the scenario and draft a simple agreement which includes all requirements set out in the letter and
- Your agreement must include:
- the key “action clauses” (settlement payments),
- a confidentiality clause,
- a mutual release clause,
- a non-disparagement clause,
- a no admissions clause,
- a jurisdiction clause,
- a default clause,
- a binding effect clause (eg executors, administrators etc)
- entire agreement clause, and
- a severability clause.
- Research: Carry out research on appropriate sources/use of precedents and supported by a bibliography and footnotes of the sources you drew on research appropriate precedent clauses to use in the agreement and draft the clauses in descending order of importance. You need to briefly describe in your own words where you found the original clause and how you have adapted or redrafted it into plain English. You can do this at the end of your assignment.
- Writing & AGLC
- Keep in mind the key principles – Simplicity, Clarity, Legal Certainty
- A key focus of this assessment is legal drafting using principles of Plain English. If you use a precedent clause that is drafted in legalese, you must adapt it into Plain English. You must reference in a footnote any precedent clause that you use.
- Apply AGLC correctly. You need to use AGLC compliant footnotes and bibliography.
- Do not copy/paste slabs of text from other sources or from these instructions as this would constitute plagiarism. You must use your own words.
- You must draft a complete agreement. If necessary make up minor details that are consistent with the core terms of the settlement.
- The agreement must be legally certain. If necessary, include additional terms to make the agreement effective.
101 Venice Street Melbourne 3000 Tel: 9962 7700 Fax: 9962 7788
Our ref: SL/PS/72-2021
Your ref: TT1212-21
20 May 2021
Att:[Your First name Last name]
295 Queen Street
Melbourne VIC 3000
Dear [Your First name]
OUR CLIENT: Casey Saddie
YOUR CLIENT: Eddie Cabinstone
I refer to our previous correspondence and recent telephone discussions. I have taken instructions and my client is prepared to settle on the following terms –
- Your client to pay $45,000;
- Payment in 5 instalments at monthly intervals;
3. First payment $9,000 on 1 July 2021 and the balance in 4 equal payments;
- Payment through solicitors;
- Your client to contribute $2,000 towards my client’s costs, payable with and on top of the first instalment.
As agreed, these terms are to remain confidential unless the parties are legally required to disclose the contents of the Agreement. If such disclosure is required that party must provide the other party with reasonable notice prior to the disclosure.
Please send me the final agreement for our client’s signature in due course. Please include the usual release, default clause and other standard provisions. If you need to discuss the matter or any of the terms further, please do not hesitate to contact me.
|Highly Proficient (HD)||Proficient (D)||Competent (C)||Competent (Just) (P)||Underdeveloped (N)||Very Underdeveloped (N)|
|Addresses the requirements of the task in a coherent way (22 marks)||Effectively uses key information from the Instructions; Addressing all the requirements of the task effectively.||Uses key information from instructions. Addresses the key requirements of the task effectively||Uses most information from the instructions; Addresses most requirements of the task effectively.||Uses some information from the instructions; Task is incomplete/with omissions in several areas.||Fails to present relevant information from the instructions. Task is addressed superficially.||Fails to present relevant information from the instructions.|
|Presentation and Format of Settlement Agreement (2 marks)||Presents Settlement Agreement in correct format and in a professional way.||Settlement Agreement is presented in a correct format||Settlement Agreement format is mostly appropriate.||Settlement Agreement format is satisfactory with some areas requiring attention.||Settlement Agreement is poor with many areas requiring attention or not presented in the format of a Settlement Agreement||The task is not presented in the format of a Settlement Agreement|
|Research Sources/Use of Precedents (5 marks)||Demonstrates skilful use of high quality, relevant sources to develop ideas. Adapts legal precedents effectively to the Settlement Agreement and in a mature and considered way.||Demonstrates consistent use of relevant sources to support ideas. Applies legal precedents in an effective way to the Settlement Agreement||Demonstrates an attempt to use relevant sources to support ideas. Cites precedents as relevant to the Settlement Agreement, with a few minor gaps||Demonstrates an attempt to use sources to support ideas. Uses legal precedents in a basic way with several minor gaps||Demonstrates limited attempts to use sources to support ideas. A tendency to not use precedents.||Does not draw on sources to support ideas. Demonstrates very poor legal research skills and does not use legal precedents in the Settlement Agreement|
|Writing (10 marks)||Settlement Agreement is articulate and structured. Uses plain English, writes with clarity and fluency and is error-free. Uses succinct, accurate subheadings to add clarity and direction for both the reader and the writer||Settlement Agreement is clear. Uses plain English, writes with clarity and is virtually error-free. Uses subheadings to add clarity and direction for both the reader and the writer.||Settlement Agreement is mostly clear. Writes clearly and generally conveys meaning. Uses a few subheadings to add clarity and direction for both the reader and the writer.||Settlement Agreement is in some parts unclear. Writing generally conveys ideas and may include some errors. Uses a few subheadings which contribute minimally to clarity and direction for both the reader and the writer.||Settlement Agreement is imprecise. Writing sometimes impedes meaning because of errors in usage. Limited or no use of subheadings||Settlement Agreement is imprecise. Writing impedes meaning because of severe errors in usage. Limited or no use of subheadings|
|Applies AGLC correctly in bibliography and footnotes ( 1 mark)||Applies AGLC correctly in bibliography and footnotes||Applies AGLC largely correctly in bibliography and footnotes, with occasional minor errors||Applies AGLC mostly correct in bibliography and footnotes, with several minor errors||Applies AGLC just at an acceptable standard.||Shows several deficiencies in AGLC application||Shows severe deficiencies in AGLC application and/or Fails to submit a bibliography and footnotes|
Assignment Solution/Sample Answer
DEBT SETTLEMENT AGREEMENT
This Debt Settlement Agreement is entered into as of [ 20 May 2021 ] by and between:-
The Creditor and Debtor are hereby individually referred to as “Party” and collectively “Parties”
The Creditor and the Debtor hereby agree to negotiate and settle the debt owed under the following terms and conditions:
1. The Creditor and Debtor agree that the current outstanding debt is [$45,000] [forty five thousand]. All Parties agree that the Creditor will accept a payment of [$47,000] [ forty seven thousand] towards the settlement of the debt in full. The Debtor shall pay the debt in the following manner:
[Cash] [Number of instalments 4]
The Creditor agrees to compromise the debt provided they receive this payment
from the Debtor by [1/July/2021].
2. If the Creditor does not receive the agreed upon payment by the above date, or if the Debtor does not make a payment for more than 30 (thirty) days after it is due, then the Debtor shall be granted the ability to demand the entire balance due and may take any legal actions that are necessary to collect the above mentioned loan.
3. This Agreement for a settlement of debt owed shall be binding upon all Parties,
including the Debtor and Creditor, as well as their successors, heirs, and assigns.
4. The Parties agree that upon the Creditor’s receipt of the payment described above, the debt is full and forever settled. The Parties agree that there are no further claims between them of any nature whatsoever from any and all liability or damages of any kind, known or unknown, in contract or in tort, related to this debt.
5. All Parties agree that the other Parties are free from any liability or wrongdoing.
Any liability or wrongdoing is expressly denied. Furthermore, the Parties each agree that neither Party shall disparage the other to any third party at any time.
6. The Parties agree that the terms of this Agreement are the result of negotiations between the Parties and constitute a final accord and satisfaction concerning all disputes between them related to the outstanding debt described by this Agreement.
7. All settlement terms described herein are dependent upon the Creditor receiving
from the debtor the final payment of [$47,000][ forty seven thousand].
8. The Parties agree not to bring any claim of any kind against the other Party to this Agreement concerning any matter released by this Agreement, except for any suits necessary to enforce the terms of this Agreement. Each Party further agrees that this Agreement constitutes a bar to any such future claims.
9. The Parties agree that the terms and conditions of this Agreement shall remain confidential and that no Party shall release any part of this Agreement unless the Agreement is subpoenaed or to their own accountants or legal counsel.
10. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties to this Agreement. Any other agreements, discussions, promises, and representations have been and are integrated into and superseded by this Agreement.
11. No modifications to any provisions contained in this Agreement shall be binding upon any Party unless made in writing and signed by all concerned Parties.
12. If any provision of this Agreement is held to be unenforceable for any reason,
the remaining parts of the Agreement shall remain in full force and effect.
13. Each Party affirms and swears that they have not assigned any portion of the claims released under this Agreement to any third party.
14. Each Party represents that they have the express authority to enter into this Agreement on behalf of themselves or their respective organizations.
15. This Agreement shall be construed in accordance with the applicable laws in India. Any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts at [295 Queen Street Melbourne VIC 3000].
IN WITNESS WHEREOF, the Parties have executed this Debt Settlement Agreement.
[Signature of the Creditor]
[Name, Address and Signature of the Witness]
[Signature of the Debtor]
[Name, Address and Signature of the Witness]
Settlement of Debt: In full and complete satisfaction of the Debt, LTC will issue to Arch Hill Capital and Arch Hill Capital will acquire the Shares from LTC.
Settlement of Debt: In full and complete satisfaction of the Debt, they will issue to Casey Saddie and Eddie Cabinstone.
- Closing: The closing (the “Closing”) of the transactions under this Agreement (the “Closing Date”) will take place on a mutually agreed-upon date and time. The parties acknowledge that the Board of Directors of LTC has adopted resolutions authorizing the issuance of Shares for the settlement of Debt up to $45,000 and that the Closing of the issuance of Shares for Debt in excess of $2000 is subject to the extra charges .The parties also acknowledge that he does not currently have enough authorized but unissued shares The parties further acknowledge that they will settle for installment of 4 months and each month he has to pay $9,000 and additional $2000 for the lawyer fees.
- Securities Act Exemption: The parties are signing and delivering this Agreement in reliance on the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations adopted by the United States Securities and Exchange Commission (the “SEC”).
- REPRESENTATIONS AND WARRANTIES OF LTC. LTC represents and warrants to each Debtholder that:
- a. Authorization; Enforcement. Subject to the Board Approval Condition and the Share Authorization, (i) LTC has all requisite corporate power and authority to enter into and perform this Agreement, and to consummate the transactions contemplated hereby and thereby and to issue the Shares, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by LTC’s Board of Directors and no further consent or authorization of LTC, its Board of Directors, or its shareholders is required, (iii) this Agreement has been duly executed and delivered by LTC by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind LTC accordingly, and (iv) this Agreement constitutes a legal, valid and binding obligation of LTC enforceable against LTC in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by general principles of equity.
- 5. MISCELLANEOUS.
- Lock-Up. Arch Hill Capital agrees that for a two year period commencing on the Closing Date it will not, directly or indirectly, without the prior written consent of LTC issue, offer, agree or offer to sell, sell, grant an option for the purchase or sale of, transfer, pledge, assign, hypothecate, distribute or otherwise encumber or dispose of the Shares.
- Governing Law. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH DISPUTE.
Counterparts; Signatures by Facsimile. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which shall constitute one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party.
This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.
- Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.
- Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.