LLW1003 Legal Writing and Drafting

You are a Senior Associate in the law practice of ABC Legal.  You act for Francis Willis who is 60 years of age and a self-employed mechanic. 

Approximately 1 week ago Francis was talking to the fruiter, Ted Baker at the South Melbourne Market. Ted told Francis that Samantha has been delivering produce to them. She told him “I have settled the dispute with Francis, for the damage to his car. I do not need to pay him any more money.” Francis was extremely upset and told him she is breaking their agreement.  

On 1 August 2020 Francis was told that his car (silver Holden Commodore) was an irreparable write off by a car repairer. This was a result of an accident he had with Samantha Sterling on 13 July 2020. He was on his way home from South Melbourne Market when Samantha’s car swerved into his lane (oncoming traffic) and collided with his car. Francis’ car and Samantha’s truck were damaged severely. The police report shows that Samantha was doing a speed of 70km in a 60km zone and was at fault. 

Although Francis sustained injuries, he did not sustain any permanent injury. 

Samantha and Francis did not have any car or truck insurance. After the accident both parties wanted to avoid the expense of engaging lawyers. They spoke on the phone in August 2020 and reached an agreement that Samantha would pay Francis $5,000 each week for a period of 5 weeks and that this would cover the damage to his vehicle. The parties did not formalise this agreement as they did not want to pay legal fees.

Samantha paid the first instalment on 17 August 2020 by direct debit into his account and provided him with a copy of the receipt (Please see below).  Francis instructs he did not receive any further payments and wants to issue proceedings to recover the monies. 

Francis wants to now recover the balance of the $25,000 plus legal fees. You advise the client you will also seek to recover $8,000 in legal fees. 

Francis believes Samantha will not pay him anymore money. It is now 14 September 2020 and he wants to issue proceedings to recover the monies he is owed.

Assume you have prepared a Complaint (Statement of Claim) to be filed in the Magistrates’ Court to recover the outstanding money. Now you need to prepare an Affidavit to support this Application.