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Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

The challenge with coaching or mentoring, whether that’s life coaching or business coaching, is that your students often expect you to do it for them instead of them doing it themselves.

This is completely contradictory to the sports setting where people understand that the coach is the person who does not end up on the field, who is not part of the game, and who supports the players get the best out of themselves.

As a coach you are likely to have a variety of offerings for your clients, which might include any one or more of:

  • downloadable, self-paced individual programs
  • moderation of online forums
  • facilitation of mastermind groups, online or offline
  • individual coaching sessions, in person or via technology
  • a combination of individual and group coaching sessions, in person or via technology 
  • face-to-face events 
  • consultancy 

Some of the coaches we work with have limited number high end programs which provide a combination of the different offerings above.

Due to the variety of different offerings the coaches we work with provide, rather than one case study, we will share three snap shots of the problems some of our coaches have encountered, and the solutions we provided.

We would also like to thank Si Harris, Business Strategist, for requesting these case studies.

PROBLEM 1 – managing expectations

Your advertising, and your Coaching Services Agreement should manage the expectations of your client. You should be clear before coaching commences that it is the client’s responsibility to get what they can out of the coaching program, and if the client does not participate fully, they will not get the results they expect.

It is also important that you carefully assess the capabilities of your potential client before agreeing to provide services to them. If it were obvious before coaching commenced that your potential client could not afford your services, you run the risk of ending up in dispute over payment. Similarly, if you recognise that your potential client has a particular personality trait or disorder that you do not want to manage, or do not have the qualifications or experience to manage, it is best not to start the relationship at all.  

CASE STUDY 1 – Complaint about Services

We have a coach who focuses on assisting their clients to develop a business plan. Business planning is not an easy process. It requires time and effort. This coach provides a 13-week program with the promise that at the end of the program their client would have a completed business plan.

The problem they faced was clients seeking refunds at the end of the program if they were not happy with their business plan.

We restructured the coach’s Coaching Services Agreement to clearly set out and include what the coach provided, what they did not provide and what actions the client was responsible for undertaking throughout the coaching program. The client had to sign up to their responsibilities and was responsible for completing different sections of a template business plan from the start of the coaching relationship. We also prepared a disclaimer for our coaching client’s website which clearly set out the limits of their services, and the obligations of the participant. The disclaimer was easily accessible through the footer of the website, reflected the terms of the Coaching Services Agreement and was in unambiguous plain English terms.

This agreement was tested by almost the first client who signed it.

That client turned up every week for thirteen weeks and consumed more than the allocated 90 min window of time allowed by the coach but failed to do any homework in between sessions and made no effort to prepare their own business plan.

The coach, just like the coach on a playing field, was there each week, supporting from the sidelines, encouraging the client to play, but the client consumed the attention only, and failed to play the game.

At the end of the program the client demanded a refund because they did not have a completed business plan that they were happy with, or at all.

The client had signed the Coaching Services Agreement, in that instance in wet ink, and was bound by its terms. They had also claimed they relied on representations on the website, enabling our client to also point to the disclaimer.

The coach was able to simply direct the client back to the plain English, unambiguous responsibilities the client had agreed to at the start of the relationship through the Coaching Services Agreement and disclaimer, and the complaint about services and demand for refund was not pursued. 

Note that it is important you fulfil on the promises you make about the delivery of your programs.

A 2011 Queensland QCAT series of cases involving Venzin Danielli Pty Ltd as defendant, required the coaching services provider to refund to four participants 77.5% of their program fees after the participants withdrew part way through the program for the provider’s “failure to provide the various benefits that were represented as flowing from participation in the Inspire Series program”. 

In that case, the coaching service provider over promised and under-delivered. Make sure your advertising is accurate and does not over promise what you can deliver. 

PROBLEM 2 – REFUNDS

Australian Consumer Law Guarantees

Before looking at case studies, it is important you know that a ‘no refunds’ policy is not supportable under Australian Consumer Law.  You CAN advise clients that a refund will not be provided if they change their mind about completing the program, there is a difference. 

If a provider of services with a value of less than AU$40,000 does not meet the following consumer guarantees:

  • provision of services with due care and skill
  • provision of services in a timely manner
  • provision of services that are fit for purpose

then the purchaser has a right to request a refund or replacement of the services.

For a major fault (an irreparable fault or collection of faults that would have influenced the purchaser not to buy in the first place if they had known about those faults), the purchaser is entitled to a refund.

High-end Coaching Programs

High end coaching programs are often year long programs with limited places and application processes before acceptance. It is not uncommon for coaches offering high end programs to allow participants to pay by instalment over time, rather than require the full amount up front.

So, what happens when someone gets part way through a coaching program and discovers they just do not want to finish it?

The first risk mitigation strategy we recommend for high end coaching programs is a clear application process, including a written, signed application accepting the terms and conditions of the program, and a face-to-face interview process. Applications and interviews can be conducted electronically. Applications can be signed electronically.

During the application process, as a coach, you can validly ask that your potential client tell you that they have considered the cost of the program and that participating in the program is not going to affect them badly financially.

Some providers we work with may it clear that to get the most out of the program, the participant will need to have further money to invest – say in set up costs for a new business or development costs in a property purchase – and the coach will also ask for confirmation that the possible further investment is affordable for the potential client.

CASE STUDY 2 – Refund request, or stop payment request, part way through program

So, what do you do when you get a request for release from a program that has not been paid in full, or a refund part way through a program? This happens for our coaching clients once or twice a year. 

When it comes to the Coaching Services Agreement, we make it clear that participation is limited, and the place purchased means someone else misses out. On that basis and taking into consideration the costs attributable to their participation, the whole of the program must be paid, whether paid by instalment or in full up front.

We ensure the wording is very clear regarding instalments and cannot be mistaken for a monthly fee. We also suggest a provision that makes the full balance of course fees payable if an instalment is not made on time. This allows for immediate debt recovery instead of having to wait until the end of the period for payment of the instalments.

If your Coaching Services Agreement has clear terms about the payment for a program, you will not be obliged to refund any amount received, or to forgive any payments still outstanding.

A 2015 Victorian VCAT case of Quick Coach Pty Ltd v Papalia made it clear that return of signed terms and conditions and a deposit, together with receipt of materials, attendance at some workshops and access to a website built for the client (although not the whole of the program), were sufficient to support an order that the client pay for the program in full.  

However, if your client is in genuine personal difficulty (such as having lost income due to a downturn resulting from COVID, or been diagnosed with cancer) then, regardless of the terms of your Coaching Services Agreement, you might consider releasing the person from the program without further payment, or partial refund of the program, or deferral of participation until a later date. Any agreement not to require full payment, or to defer participation, must be documented in a deed signed by you and the client.  

We have assisted our coaching clients to recover unpaid fees, and have also assisted clients to prepare a deed of release of a person from their program.

We have also had a client have to refund a portion of fees for a program where a tribunal expressed a view that the cost of the program was disproportionate to the benefits received, and where there were allegations of undue influence or high pressure sales tactics used in the sign up process. 

PROBLEM 3 – Protecting intellectual property

It is important to document your ideas and create tangible material as part of your programs. This can include printable materials like workbooks, or downloadable materials like PowerPoint presentations, or materials for online consumption like video or audio materials.  

Once you have any sort of material that can be reproduced, you can protect it under copyright law. Enforcing protection of your work may require you to start legal proceedings, but if you have already included specific terms in your Coaching Services Agreement about the use of your copyright material, you can specifically include all of the materials you use in your coaching delivery. 

Yes, someone can still take your ideas and run with them, but they won’t be able to closely copy what you have created, or you will be able to pursue them for infringement of your rights. If you can apply catch-phrases to what you have created, like Porter’s Five Forces Framework, then it can be easier to protect your ideas.

CASE STUDY 3 – What can you do with Coaching clients, or consultants who steal your stuff?

We had a new client who had developed and delivered a leadership program to an organisation without receiving payment of any part of the $15,000 fee up front, and without a clear agreement with the organisation. The head of the organisation refused to pay for the training delivered, rebranded the slides used in delivery of the program and started offering the program as something developed by the organisation.

Our client did have the option to start legal proceedings to recover payment for delivering the training, and for copyright infringement but was concerned about taking action to the expense and fear that the head of organisation’s partner was also a lawyer, and the organisation would probably not incur legal fees in defending that claim.

Unfortunately, our client decided not to take action and treated the event as an expensive lesson in business.

How could our coaching client have done it better? Our coaching client’s position would have been stronger:

  1. with a clear Coaching Services Agreement including specific provisions regarding copyright,
  2. if a wet ink or electronic signature was required on the Coaching Services Agreement before the booking was confirmed, or the agreement included other provisions to make it binding upon receipt of payment of deposit,
  3. if the Coaching Services agreement included a specific provision limiting the number of people to receive that coaching for the specified fee,
  4. if the Coaching Services Agreement required payment up-front of expenses (travel was involved) and a deposit before delivery, and
  5. if the Coaching Services Agreement included fixed dates for payment of the balance of fees, and provision for the application of interest and recovery of costs if debt recovery had to be pursued.

TAKE AWAY POINTS FOR COACHES AND CONSULTANTS –

  • Share a clear Coaching Services Agreement with your clients before the point of purchase
  • Ensure your agreement and advertising are consistent and accurate
  • Protect your intellectual property
  • Seek at least part payment up front
  • Ensure that payment terms are clear around the full amount to be paid, due dates for payment and any interest or acceleration of payments that apply if payments are not made when due.
  • Include a disclaimer to explain what you do not do for your clients
  • Seek applications from potential high end clients to check their ability to participate fully, and your ability to work with them.

Need Support as a Coach?

Would you like to improve your Coaching Services Agreement, your Online Program Terms & Conditions, your Disclaimer or  your Privacy procedures?  Make an appointment to see how we can help. 

Witnessing a Signature: What You Need to Know

Witnessing a Signature: What You Need to Know

Witnessing a Signature: What You Need to Know

WITNESSING A SIGNATURE: WHAT YOU NEED TO KNOW

Getting a document signed is all about proof. It is a lot easier to show that someone has agreed to a contract if you can show that they applied their signature to that document, and a witness helps to identify the person signing.

Most legal documents do not have to be witnessed. A commercial agreement between businesses does not need to be witnessed to be binding.

For documents that do need a witness, different rules apply as to what type of witness is required, and how they are to do the witnessing. By watching you place your signature on the document and signing their own name next to yours, witnesses help verify the authenticity of your signature and help prove that it was signed willingly.

Signing a document is also called ‘executing’ a document and often you will see that the signing page is called the ‘execution page’. In this usage, ‘execution’ is used in a manner similar to ‘performance’ or ‘giving effect to’ an agreement.

Before we start, it is important for you to first understand the difference between a company and an individual when it comes to signing documents.

 

COMPANIES VS INDIVIDUALS

In most cases, when a company executes a document, no witnesses are required.

Under s.127 of the Corporations Act 2001, a company without common seal can execute a document by having it signed by 2 directors, or a director and company secretary, or the sole director and secretary of a proprietary company. Their signatures do not need to be witnessed.

For a company with common seal, the fixing of the seal must be witnessed by 2 directors, or a director and company secretary, or the sole director and company secretary of a proprietary company. An independent witness is not required.

Most companies no longer use a common seal.

Be aware also, that even if the document is not signed in accordance with s.127, the signature may still be binding; the parties simply can’t rely upon the provisions of s.127. It does not invalidate the signature.

This is not the case for individuals.

Depending on the type of document, the law sets out different requirements for an individual’s signature to be witnessed. Not all documents require witnessing. Examples of documents that do need witnessing include affidavits, statutory declarations, deeds, Wills and powers of attorney.

Who can be a witness also depends on the type of document. Sometimes it can be any independent party, and sometimes it must be an ‘eligible witness’ who hold specific qualifications.

We will discuss these different requirements below, using Queensland legislation as an example.

Regardless of whether signed by a company or an individual, when a document is signed, whether read or not, or understood or not, the signing party is bound. This principal was reiterated by the Australian High Court in the case of Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52, after reviewing prior case dating back to the 1800s. The Court held that:

Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.”

agreements

You are not legally required to have your signature witnessed on an agreement. However, the agreement itself may contain a clause to require the parties to have their signatures witnessed. This may be beneficial for evidentiary purposes and to avoid dispute later. For example, if one party alleges that they were not the ones who signed the agreement, the witness of their signatures can confirm that they were.

The witness can be any independent party and does not need to hold specific qualifications. A spouse, family member or close friend is unlikely to be considered independent.

 

deeds

Unlike an agreement, you are legally required to have your signature witnessed if you are signing a deed. You will be able to tell if a document is a deed, because the signing page is likely to be titled ‘Executed as a Deed’.

In Queensland, the Property Law Act 1974 (Qld) sets out the witnessing requirements for a deed. Other Australian states and territories have similar legislation so that execution of deeds in Australia is covered by uniform requirements.

At least one independent party must witness your signature. It is not a requirement that the witness holds specific qualifications. It is a requirement that they are independent.

If your deed is not properly witnessed, it may not be enforceable.

There are flexible signing provisions in place during COVID restrictions, but they all have time limits.

 

wills and powers of attorney (poa)

The Succession Act 1981 (Qld) governs the signing of Wills.

When the maker of the Will (male – testator/ female – testatrix) signs the Will, two witnesses must be present at the same time to witness their signature. The witnesses can be any independent parties, that is they can not be a beneficiary under the Will. Usually, everyone will use the same pen to sign the Will.

When a Will does not meet the witnessing requirements, it will be invalidly made. You may still apply to the Court to have it declared a valid Will, but it is easier to have the Will properly witnessed the first time, rather than having to go to court to prove it.  

The Power of Attorney Act 1998 (Qld) requires an enduring power of attorney to be signed in the presence of an eligible witness.

An ‘eligible witness’ means a person who is:

  • a justice of the peace
  • a commissioner for declarations
  • an Australian lawyer
  • a notary public.

 

land registry documents

If you need your signature to be witnessed on a document that is to be registered with the Queensland Land Registry, the witness must be either:

  • a justice of the peace
  • a commissioner for declarations
  • an Australian lawyer
  • a notary public
  • a licensed conveyancer from another state
  • another person approved by the Registrar of Titles.

The Land Title Act 1994 (Qld) and Land Act 1994 (Qld) requires that a witness comply with the following requirements:

  1. take reasonable steps to verify the identity of the signatory;
  2. take reasonable steps to ensure the individual is entitled to sign the document; and
  3. retain records for 7 years (which includes a written record of the steps taken to verify identity and entitlement, and documents or other evidence obtained during the process of verification).

What this means for you as the signatory is that:

  1. you will have to produce evidence that verifies your identity; and
  2. passport, driver’s license
  3. you will have to produce evidence that you are the person entitled to sign the document.
  4. if you are selling a property, a current rate or valuation notice addressed to you and identifying the property, or a current title search
  5. if you are signing under a POA, you must produce the registered POA

covid-19 legislation

There is temporary COVID-19 legislation around the country which has changed some of the witnessing requirements mentioned above by offering greater flexibility.

For example, in Queensland, deeds can now be signed electronically without a witness. Wills and powers of attorney can be witnessed through audio or visual link.

The Queensland COVID-19 legislation will expire on 30 April 2021.

Want more information?

If you need help with agreements, deeds, Wills and powers of attorney documents and worry about what witnessing requirements apply, please contact us. 

How to set up effective ‘terms of service’

How to set up effective ‘terms of service’

How to set up effective ‘terms of service’

 betteDo you have terms of service that help you manage client work?

One of the topics that came up at an Angel Investor and Entrepreneur breakfast was terms of service.

One of the people I was speaking to is in the website and marketing design and development space, and the challenge that they’ve got is clients who don’t give them material they’ve asked for, like images or written content.

The problem is they have no service contract that says “if you don’t give us material in 7 days, then we can continue as if there’s no changes or we can go on and get the work done“.

The challenge for the designer is that they have a workflow they’re trying to work with and a work stream and they have staff allocated to certain projects and if you can’t move forward in a project, it messes up the whole business. You end up with staff who have nothing to do and other staff who are overwhelmed because clients simply don’t respond with the required information.

One of the things you can use terms of service for is to manage the relationship with your clients and to get them to give you information that you need from them in order for you to complete the work you need to get the job done.

You might like to do business with a handshake, but written contracts aren’t a bad thing. The reason you put them in writing is to better manage expectations and manage relationships. 

How can Onyx Legal help you?

If you would like to have a service agreement or terms of service prepared to fit your business, in a way that supports how you would like to run your buisness, let us help you. We usually start by requesting a copy of your typical work proposal and any details of any issues you’ve had in the past that you’d like to avoid in the future.