Commercial Litigation

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Our experienced team is here to provide expert guidance and representation to achieve the best possible outcomes. If you are facing such a dispute, we are here to assist you every step of the way.

We invite you to schedule a free 15-minute consultation to speak with our commercial litigation lawyers today and get on the front foot of your dispute.

Executive Summary

Commercial litigation is a broad term that covers a wide range of matters, including but not limited to:

1.   ​Contractual disputes;

1. Australian Consumer Law disputes;

2. Building and Construction disputes;

3. Intellectual Property disputes;

4. Debtor/Creditor disputes;

5. Partnership and Shareholder disputes; and

6. Misleading & Deceptive Conduct, fraud or misrepresentation.

We understand that commercial disputes can have significant impacts on your business operations and reputation and therefore, our expert commercial litigation lawyers are well-equipped to assist clients with all aspects of commercial litigation.

Within this article, our expert commercial litigation lawyers will briefly discuss the various areas of commercial litigation.

Contractual Disputes

What is a Contract?

A contract is an agreement made between 2 or more parties that is legally enforceable, meaning that if one party breaches the contract, then the other is entitled to commence legal action against them. A contract can be constituted in writing, verbally or by reason of the parties’ conduct (or a combination of these).

Elements of a Contract

For a contract to be legally enforceable, the following elements need to be satisfied:

1. Offer – There needs to be an offer to enter into a contract. This can include an offer to provide services in consideration for monetary payment.

2. Acceptance – Once the offer has been made, the other party needs to know that they are responding to the terms of the offer, must accept the terms of the offer and the acceptance must be communicated to the party making the offer, either verbally or in writing.

3. Consideration – The parties to the contract need to provide consideration (something of value) to the other party under the contract (i.e. goods, services or monetary payment), otherwise known as ‘quid pro quo’.

4. Intention to Create Legal Relations – There must be a common intention between the parties to create legal relations, capable of having legal consequences that could flow from the agreement. There are some instances (i.e. domestic relations or relations between family members), where is it generally presumed that the parties did not intend to create legally binding relations.

5. Certainty – There needs to be transparency and certainty of the terms of the agreement to allow the parties to fully comprehend the terms of the agreement, as well as ensuring that they can carry out their respective obligations.

6. Capacity – The parties must have the ability to enter into a legally binding contract.

​ Disputes

Once a contract has formed, various disputes between the parties may arise, which predominantly relate to one parties’ failure to comply with their obligations under the contract (i.e. failing to provide goods or services or pay for the goods or services). As a result of the parties’ failure, the innocent party has suffered loss and damages. Some disputes may be able to be efficiently resolved between the parties, however, there may be some disputes that require escalation, which can include a notice to remedy breach, notice to terminate, negotiations or legal proceedings.

There can be various remedies available to a party as a result of a parties’ breach of the contract or a dispute arising between the parties.

            Remedies

There are several remedies available to an innocent party due to the other parties’ breach of the contract, including:

1. Damages – There are a number of different award of damages, namely:

a. compensatory damages (most common) – to compensate an innocent party for their losses where they are able particularise the losses incurred;

b. nominal damages - to compensate an innocent party for their loss when they are unable to establish any particular loss;

c. expectation damages – to compensate an innocent party for the loss that they would have benefited if the contract was performed;

d. reliance damages – to compensate an innocent party for the loss that was reasonably incurred in reliance on the contract;

e. damages for loss of chance (or opportunity) – to compensate an innocent party for the chance (or opportunity) that they could have obtained if the contract was performed.

2. Liquidated Damages (common for building contracts) – Within the contract, there will be a clause that will provide a specific sum or a calculation to determine the sum, to be paid to the innocent party for a breach of the contract by the breaching party. For example, under building contracts, homeowners are generally entitled to $50.00 per day if the builder fails to bring the works to practical completion by the practical completion date and does not issue any reasonable extensions of time.

3. Specific Performance – The innocent party can apply to the Court for an order that the breaching is required to perform their obligations under the contract.

4. Injunctions – In circumstances where there is a threat of a breach (or anticipatory breach of contract, the innocent party can apply to the Court for an order restraining the other party from breaching the contract.

We will expand on these remedies within a separate article, to discuss the relevant elements and thresholds to obtain the remedies.

Our expert commercial litigation lawyers can assist with all contractual disputes that may arise.

Australian Consumer Law Disputes

The Australian Consumer Law (ACL) is contained within schedule 2 of the Competition and Consumer Act 2010 (Cth). The ACL provides consumer and small business protection uniformly across all states and territories within Australia, dealing with areas such as (without limitation):

1. Unfair Contract Terms – Ensuring that the terms under a consumer or small business contract are fair and the consequences if a contract contains unfair contract terms.

2. Consumer Guarantees – It provides statutory guarantees relating to the provision of goods and services, ensuring that certain standards are met and the consequences if the standards are not met.

3. Misleading and Deceptive Conduct or Misrepresentation – Providing guidance on when conduct will be considered misleading, deceptive or amount to a misrepresentation and the consequences of such conduct.

We will expand on the Australian Consumer Law in a separate article, dealing with the relevant provisions and the penalties or avenues of enforcement that may apply.

At Odyssey Legal, our expert commercial litigation lawyers provide timely and cost-effective solutions for a range of consumer law disputes, including issues related to unfair contract terms, consumer guarantees, product safety, unsolicited sales, misrepresentation or misleading and deceptive conduct.

Building and Construction disputes

A building and construction can occur under a domestic or commercial contract and can involve a variety of issues, including but not limited to:

1.    Contractual Disagreements;

2.    Defective or Incomplete Works;

3.    Delay Claims;

4.    Breaches of the Contract or Termination of the Contract;

5.    Insurance claims;

6.    Subcontractor charges;

7.    Payment Disputes; and

8.    Licensing and QBCC matters.

A domestic or commercial construction dispute may arise between a variety of parties, including:

1. a homeowner and a builder under a domestic building contract;

2. a homeowner and third parties, including architects, engineers, quantity surveyors, building certifiers, pest inspectors and suppliers or manufacturers of building materials;

3. a body corporate and a builder or contractor under a domestic or commercial building contract;

4. a developer and a contractor under a commercial building contract;

5. a principal and a contractor under a commercial building contract;

6. a contractor and a subcontractor under a subcontract agreement.

For more information, please refer to the article ‘Building and Construction Disputes’ where our commercial litigation lawyers have expanded on building and construction disputes, as well as avenues to resolve them. 

Intellectual Property disputes

Intellectual property disputes arise when there is a disagreement over the ownership, use, or infringement of intellectual property rights. These rights include patents, trademarks, copyrights, and trade secrets, which are essential for protecting the creations and innovations of individuals and businesses. Common examples of intellectual property disputes include:

1. Patent Infringement - This occurs when one party uses, sells, or manufactures a patented invention without the patent holder’s permission. For instance, if a company produces a product that incorporates a patented technology without authorisation, it may lead to a patent infringement dispute.
   

2. Trademark Disputes - These arise when there is unauthorised use of a trademark that causes confusion among consumers (often, also amounts to misleading and deceptive conduct). For example, if a business uses a logo or brand name that is like an existing trademark, it can result in a trademark infringement claim.
   

3. Copyright Infringement - This involves the unauthorised use of copyrighted material, such as music, literature, or software. An example would be a company using copyrighted images on their website without obtaining the necessary licenses.
   

4. Trade Secret Misappropriation - This occurs when confidential business information, such as formulas, practices, or designs, are disclosed or used without permission. For instance, if an employee shares a company’s trade secrets with a competitor, it can lead to a trade secret dispute.

   
   

To address an intellectual property dispute, there are several avenues available, including:

1. Informal negotiations or communications between the parties;

2. Cease-and- Desist Letters or Letters of Demand (templates available for purchase in the Shop);

3. Legal proceedings;

4. Alternative dispute resolution, including mediation and arbitration.

If you are facing an intellectual property dispute, our experienced team is here to provide guidance.

Debtor and Creditor disputes

A debtor and creditor dispute arises when there is a disagreement over the repayment of a debt (often, simply referred to as debt recovery). These disputes can occur in various contexts, including:

1. Unpaid Invoices: A common example is when a business provides goods or services to a client, but the client fails to pay the invoice within the agreed-upon timeframe. This can lead to a dispute over the amount owed and the terms of payment.
   

2. Loan Defaults: Another example is when an individual or business takes out a loan and fails to make the required repayments. This can result in a dispute between the lender (creditor) and the borrower (debtor) over the outstanding balance and any penalties or interest accrued.
   

3. Credit Card Debt: Disputes can also arise when a credit card holder is unable to repay their debt, leading to disagreements with the credit card company over the amount owed and the repayment terms.

For more information, please refer to the article ‘Debt Recovery’ where our commercial litigation lawyers have expanded on debt recovery, as well as avenues to recoup the debt. 

Partnership and Shareholder disputes

A partnership dispute arises when there is a disagreement between partners in a business, while a shareholder dispute occurs among the shareholders of a company.

These disputes can stem from various issues, including:

1. Breach of Partnership Agreement: This occurs when one partner fails to adhere to the terms outlined in the partnership agreement. For instance, if a partner makes unilateral decisions without consulting the other partners, it can lead to a dispute.
   

2. Mismanagement of Company Funds: Shareholder disputes can arise when there are allegations of financial mismanagement or misuse of company funds by the directors or majority shareholders. This can lead to conflicts over the financial health and direction of the company.
   

3. Disagreements Over Business Strategy: Partners or shareholders may have differing views on the direction and strategy of the business. For example, one partner may want to expand the business, while another prefers to maintain the current operations, leading to a conflict.
   

4. Minority Shareholder Oppression: This occurs when the majority shareholders take actions that unfairly prejudice the rights of minority shareholders. Examples include denying access to company information or excluding minority shareholders from decision-making processes.

There are several avenues available to deal with a shareholder or partnership dispute, including:

1.    Informal negotiations and communications;

2.    Buyout agreement or share sales;

3.    Letters of Demand (templates available for purchase in the Shop);

4.    Legal proceedings;

5.    Alternative dispute resolution, including mediation and arbitration.

If you are facing a partnership or shareholder dispute, our experts are here to assist you every step of the way.

Misleading & Deceptive Conduct, fraud or misrepresentation

Misleading and deceptive conduct, fraud, and misrepresentation can have serious consequences for individuals and businesses. These issues often involve false or misleading statements or actions that cause harm or financial loss to others.

Misleading and Deceptive Conduct - Misleading and deceptive conduct occurs when a person or business engages in behaviour that is likely to mislead or deceive others. This can include false advertising, providing incorrect information about a product or service, or making false claims about the benefits of a product. For example, if a company advertises a product as being “100% organic” when it contains synthetic ingredients, this could be considered misleading and deceptive conduct.

Fraud - Fraud involves intentional deception for personal or financial gain. This can include activities such as identity theft, embezzlement, or falsifying financial statements. For instance, if an employee creates fake invoices to divert company funds into their own account, this would be considered fraud.

Misrepresentation - Misrepresentation occurs when false statements are made that induce another party to enter into a contract or agreement. There are three types of misrepresentation: innocent, negligent, and fraudulent. An example of misrepresentation is when a seller provides false information about the condition of a property to persuade a buyer to purchase it.

Claims of this fraud or misrepresentation are a serious one, such that evidentiary requirements must be met and must be clearly proven, albeit on the balance of probabilities.

There are several avenues available to address disputes arising from such conduct, including:

1. Informal negotiations and communications;

2. Letters of Demand (templates available for purchase in the Shop);

3. Legal proceedings;

4. Alternative dispute resolution, including mediation and arbitration; and

5. Regulatory Complaints to the Australian Competition and Consumer Commission, ASIC or other regulatory bodies.

Conclusion

Our experienced team is here to provide expert guidance and representation to achieve the best possible outcomes. If you are facing such a dispute, we are here to assist you every step of the way.

We invite you to schedule a free 15-minute consultation to speak with our commercial litigation lawyers today and get on the front foot of your dispute.