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A Canadian company (Kanucklit) has a dispute with an Australian one (Expat Books) after agreeing to a trade deal: for the sale by Kanucklit to Expat...
A Canadian company (Kanucklit) has a dispute with an Australian one (Expat Books) after agreeing to a trade deal:
1. for the sale by Kanucklit to Expat of $100,000.00 worth of books. The terms of the deal were written and read as follows:
"(a) Within six (6) months of this date Kanucklit shall deliver to Expat Books on a DDP basis at Expat's premises in Sydney, Australia, 20,000 books written by leading Canadian authors for a total price and consideration of $100,000.00;
(b) The delivery of the books shall commence as soon as reasonably possible and approximately 3,000 books shall be delivered each calendar month commencing this month;
(c) Payment shall be made by Expat Books to Kanucklit, on a shipment-by-shipment basis, the terms of payment being net 15 days after delivery;
(d) This agreement shall be governed by the laws of the Province of Quebec. However, any dispute shall be decided by the Courts of Australia, having jurisdiction.
(e) This agreement represents the full and entire agreement between the parties and supersedes any prior offer, negotiation, discussion, agreement, undertaking etc.
Dated, Sydney, Australia, August 3, 2017"
Each of Expat Books and Kanucklit signed the agreement;
2. Kanucklit made one shipment of 1,500 books in August, 2017 and was promptly paid $7,500.00 (that is $5.00 per book) by Expat Books;
3. In September, 2017 Kanucklit made a shipment of 2,000 books and was promptly paid $10,000.00 by Expat Books;
4. In the four following months Kanucklit sent the following shipments of books to Expat Books:
October, 2017 4,500
November, 2017 5,000
December, 2017 3,500
January, 2018 3,500
However, Expat did not pay for any of these shipments;
5. When Kanucklit finally got around to asking Expat why it did not make the payments for the October, November, December, 2017 and January, 2018 shipments, Expat replied that it did not pay for the books because:
(a) the books were not from leading Canadian authors;
(b) the deliveries of the books should have been 3,000 books per month and in fact the amount of books delivered monthly varied greatly; and
(c) Expat Books was having difficulty reselling the Canadian books;
6. The costs to Kanucklit of purchasing the books from the various publishers, shipping them to Australia, paying customs and duties and brokerage fees amounts to $90,000.00, which Kanucklit has already paid. Unfortunately, as a result of Expat's failure to pay for the October, November, December, 2017 and January, 2018 shipments ($82,000.00) Kanucklit's line of credit is fully used and therefore Kanucklit cannot finance any other transactions and is facing bankruptcy;
7. When you questioned Kanucklit's President as to the books which he shipped over, he admitted that depending on one's perspective most of the authors may or may not be considered to be "leading" Canadian writers;
8. The President also advised you that his research indicates that Expat Books has no assets in Australia that can be seized (all of Expat Books' inventory has already been pledged to its bankers and therefore seizing it will not help Kanucklit in anyway). However, Kanucklit had the good sense to keep photocopies of the cheques for the payment of the August and September, 2017 shipments. Those cheques reveal that Expat has a bank account in Notaxland (a very small factious state in Europe);
9. Your research has revealed the following:
(a) The monies Expat's bank account in Notaxland