Examination Timing: 69H43M18S
You act on behalf of the owner of an online retailer of bags and suitcases in a claim for damages arising from an alleged breach of contract by your client's supplier. The bags supplied sold very quickly; however, within days, your client received many complaints that the zips were of very poor quality and were breaking within a few minutes of use. Your client had to accept the return of many of the bags and refund each customer. Your client's reputation has been affected as a result. Your client is concerned at the escalating costs of the claim and advises you of a settlement he and the defendant have discussed and agreed to in principle, which includes a series of payments that the defendant will make over the next six months and the supply of discounted bags for a period of two years.
Which of the following best describes how you should advise your client to proceed?
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Your selected option: D
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The settlement terms need to be set out in a Tomlin Order and filed for approval by the court. A Tomlin Order is a form of consent order, where the agreed terms are set out in a schedule attached to the order or in a separate document referred to in the order. This flexible nature is useful for complex agreements or terms that extend beyond the court's typical jurisdiction, as well as for confidential or sensitive terms. Given the agreed settlement includes specific performance terms, such as discounted future supplies, which are not typically enforceable through a standard court order, a Tomlin Order is the best approach. It allows the parties to stay proceedings while providing a mechanism to enforce the agreed terms without commencing new proceedings if necessary.
Key Point: A Tomlin Order is suitable for settlements involving complex, specific performance terms that extend beyond typical court jurisdiction, providing a flexible and enforceable resolution.
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