Apple binding agreement?

[MarieAbraham]

So have a look at the attached.

I have litigated this issue and it is currently on the small claims track.

What happened is that apple sent me this agreement back in 2019 - after a phonecall telling me they were settling that original claim.

I then received this - and queried whether they actually were looking to settle not just that claim, but other issues I had brought to their attention?

Was told no, it was just the current issue I was litigating.

I signed this form, and emailed it back.

Found out a few weeks later they had made an application, BEFORE their offer was sent, and they were continuing with the application, so I could not have the claim discontinued!

Anyway, my claim was struck out based on their application.

Fast forward to this year, I started this new claim for breach of settlement agreement. My argument is that they were working in bad faith and we had a legally binding agreement which they are on the hook for.

They currently have stated that they never received the signed agreement I sent them. Well I have proof it was emailed.

So...looking at the agreement, it only requires me to sign it within 14 days. Not to return it...

Would you agree that making this application behind my back, which made it impossible to carry out the terms of the agreement i.e. discontinuing the claim, is actually worse for them? And that I actually did not need to return it?

Advice?

[MarieAbraham]

The attachments -

[atticus]

What were you doing between April 2019 and earlier this year when you started your new claim? I don't understand why you were not pressing for payment 5 years ago.

[MarieAbraham]

Covid, caring for a sick relative, and living/working abroad.

[MarieAbraham]

Plus current claim was started early 2023 and CCBC/local court lost paperwork for nine months.

[atticus]

It looks like a case of error rather than bad faith, the error being that your email sending the agreement was missed. Have you indicated that if they pay the US$ 800 you will drop your latest case?

[MarieAbraham]

Yes, and they are saying they did not receive the email now. They originally did not mention the settlement talks at all, making out that this never even entered into the conversation.

Pretty sure it was bad faith though, as the application to strike out was made at the same time as the settlement was offered, and they did not mention this application at all to me nor send it to me.

[MarieAbraham]

Can anyone advise - if, according to the attached agreement in my first posts above, I signed the agreement, and then asked the court to mark the claim as settled, is that all I needed to do?

[atticus]

Did you:
1. sign the agreement?
2. Discontinue all complaints against Apple? NB to discontinue a claim you need to give notice to the court and all other parties.
3. Provide proof of withdrawal to Apple?

The letter makes it clear that it is on completion of those 3 steps that payment would be made.

[MarieAbraham]

I did sign it, I did email it to them, and I attempted to discontinue the claim, but was told I could not as Apple had a pending application to strike out my claim, filed over a month before they sent me this settlement agreement and made their offer. I told Apple about this, and told them it needed to be withdrawn, but they ignored me and pressed ahead with the application.

[atticus]

Well there you are. As claimant, you need to establish these things in court.

I take it that you are after the US$ 800. If that is correct, have you tried the approach suggested in the second sentence in post #6?

[MarieAbraham]

Yes I have. Apple firstly of all completely avoided mentioning the settlement agreement at all. Now stating I never returned it, which is untrue. And are refusing to pay, trying to get the claim struck out instead. Being very difficult.

So I assume as I was unable to get the claim discontinued, because of their sneaky behavior with the application, I can be said to have complied?

Also, they are stating that I never returned it. As the agreement does not say anything about specifically returning it to them, and only signing it etc, is this relevant? Could I say I accepted the offer by signing it within 14 days?

[atticus]

So I assume as I was unable to get the claim discontinued, because of their sneaky behavior with the application, I can be said to have complied?

Show your attempt to discontinue. For my own part I do not see why the existence of the application prevented you from discontinuing your first claim.

Also, they are stating that I never returned it. As the agreement does not say anything about specifically returning it to them, and only signing it etc, is this relevant? Could I say I accepted the offer by signing it within 14 days?

You could say that. Prove that you did the three required things, as in an earlier post.

[MarieAbraham]

UPDATE:

So the claim was struck out as the court advised me of a hearing the DAY of the hearing, and I could not attend. Judge dismissed the claim as "she had not seen any settlement" and she also agreed with the contested jurisdiction, and further, made an order barring any further claims on this matter. So she gave defendant everything they wanted, as I was not there to represent myself.

As I said already, Apple have every step of the way avoided mentioning this settlement agreement at all, instead trying to get my claim thrown out as a second bite of the cherry, only mentioning previous things litigated. The breached settlement was never a head of claim until this claim, and I have stated this to every Judge, every step of the way.

I immediately made an application asking for permission to appeal.

Sent the signed settlement agreement the day before the appeal application hearing.

Higher Judge at the hearing stated the previous Judge was incorrect on jurisdiction, incorrect to make the civil restraint order, and gave permission for an appeal. Asked the defendants is they knew about this signed settlement. The solicitors there said no. Judge then stated that, as the claim itself identifies a settlement, it was not an issue that I was only sending the one page settlement the day before the application hearing - I had stated its existence all along and produced it today after the previous Judge had questioned it.

So I have produced for the appeal hearing 14 pages of documents. These are all emails between Apple and myself and case notes kept by Apple which I obtained in a DSAR, all revolving around the settlement discussions etc. I have also produced a call proving that A) Apple told me the case was considered settled as they had sent me a cheque for the worth of the claim and the court filing fee (turned out to be incorrect), B) Apple then made the $800 offer in the above settlement agreement over the phone, which I verbally accepted, and then C) Apple then sent the written agreement, which stated "all claims were to considered settled for this $800". In the call recording, the person acknowledged that he initially told me the previous day via phone that I had misread the agreement and it was only in relation to the current court claim, and that this was incorrect - it was in fact in relation to all claims.

I then turned down the offer, berating him for advising me of incorrect terms the previous day, and I again stated that I had already been led to believe this was settled, twice.

I also include in my 14 pages of submissions the email accepting the $800, in relation to ALL claims, the signed settlement agreement, my bank details, and a request that Apple advise when their application for strike out is cancelled so the court will allow me to discontinue the claim. I also include proof of the 12 minute call from Apple's phone number the day this email was then signed and sent. So proof of the offer being made anew via this phonecall, and then accepted. Apple state they never received this email.

I now need help writing my skeleton argument and adding any authorities.

Can anyone advise?

Apple are also making a fuss about my making these submissions that they consider new additions which should not be allowed at appeal. Can anyone help with this as well?

Bear in mind there was never a final hearing. The strike out was as a result of an application for strike out. Therefore never any date set for final submissions etc.

Judge has already stated that I have mentioned this settlement in my POC and it is why he allowed it to be considered at the application hearing.

I would say that as every piece of evidence i have submitted is emails between Apple and myself, and Apple's file notes, they can hardly state it is new evidence - it is for Apple's representatives to know all the facets of the current dispute and if Apple really are keeping their solicitors in the dark that is their problem.

HELP!!!

Skeleton argument is due Thursday 4pm.

[MarieAbraham]

Help!!!