commercial-litigation

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Financial markets in Australia are becoming not just increasingly more competitive but also more stringently regulated. If you operate a business or work in this arena it is essential that you have experienced legal advisers that you can rely on to guide you through all of your banking and financial transactions.
Our experience

Our lawyers are well known for taking a practical approach to the myriad of issues that can arise in banking and finance transactional work and are experienced in assisting clients in a broad range of banking and finance matters including providing commercial and compliance advice

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as well as specialist assistance in relation to a variety of finance transactions including self-managed superannuation funds.

Areas of expertise

We are able to provide advice and assistance in relation to all aspects of banking and finance transactions as well as additional advice in respect of litigated disputes arising out of banking and finance transactions.

Compliance

Penalties for directors and individuals as well as companies that fail to comply with relevant legislation, including large fines and custodial sentences are increasingly common. It is vital that you obtain advice prior to entering into any financial transaction to ensure that you what you propose to do is legally correct.

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Our specialist lawyers are able to provide timely advice to ensure that you are acting in compliance with all relevant state, federal and international laws;

Finance

The term ‘finance’ is something of a broad catch all phrase. However, regardless of where you fall on the finance continuum one of our specialist lawyers will have the experience and specialist knowledge needed to advise you and help you navigate even the most complex of arrangements or deals.

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Whether you are a bank, financial institution, property developer, real estate agent or an alternative financier we can provide advice on your obligations in respect of all types of lending transactions.
We regularly advise clients in relation to consumer credit transactions and appropriate loan structures including the preparation of loan documentation.
We also have significant experience in assisting with the development of debt facilities and restructuring and can also assist you with any acquisition or leveraged finance enquiries you may have.
Our banking and finance lawyers are also able to provide you timely advice in respect of project finance. This advice can be tailored for all major industry sectors including infrastructure and resources as well as specialist real estate finance advice including foreign investment in Australian real estate projects from inception through to dispute resolution.
We can also assist with structured finance advice for both lenders and borrowers as well as specific advice in respect of leveraged and acquisition finance arrangements.
We regularly advise on a variety of mergers and acquisitions and assist clients of all sizes in respect of their corporate finance needs.
As banking and finance is such a diverse area we always recommend you contact us as early as possible to discuss your specific circumstances and needs. That way we can work out the best solution for your needs and work with you to achieve a result that is both legally correct and cost effective.
Please feel free to contact us by phone or email to discuss your problem. We are here to help and look forward to assisting you.

Breach of contract disputes come in many shapes and sizes but at the heart of every matter the fundamental issue is largely the same. A binding agreement has been reached between two or more parties and for some reason the agreement is not being honoured by one or more of the parties to that agreement.
Types of breach of contract

Broadly speaking breaches of contract generally fall into either material or minor breaches that are either actual or anticipated. These terms are explained below.
• Material breach of contract – One of the central or key elements of the contract is not fulfilled.

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For example, if you were to purchase furniture online such as a table and chair set but only the table was delivered then the seller would have materially breached the contract;

• Minor breach of contract – A small breach may not necessarily invalidate or end an entire contract. In the example above, if a 24 piece dinner set was included as an added bonus in the contract but it wasn’t delivered with the table and chairs it would not mean the contract was automatically cancelled although the seller would of course need to still deliver the promised dinner set to ensure they had complied with the contract in full.
While the example given above is a simple one it is useful in illustrating in broad terms what is meant by the phrase ‘breach of contract’.

Express vs. Implied contractual terms

Some contracts will specifically provide that the failure to do or provide something will be considered a breach of contract. For example, an employment contract may specify that failing to turn up to work on certain days is considered a breach of contract.

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This would be considered to be an ‘express term’ of the employment contract. The same employment contract may not specifically prohibit an employee from divulging sensitive or confidential information to people outside the company. However, this is likely to be considered an ‘implied term’ of the contract.

Types of disputes and remedies

Disputes involving breaches of contract can occur in almost all aspects of business and even personal dealings. The remedies available vary according to the type of contract and the nature of any breach but can include:
Remedies for breach of contract can include:

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• Damages – Compensation to the party who has suffered a loss as a result of the breach; and

• Court orders and injunctions – The party in breach of contract may be prevented from committing a breach or stopped from continuing with a breach. The offending party may also be ordered to fulfil their contractual obligations (an order for specific performance).

A Court may also determine that a breach is so significant that a contract is ended and may order the party in breach to return the innocent party to a position that they were in prior to the contract being entered into.

Australian Consumer Law contracts

Australian Consumer Law applies to consumer contracts nationally and forthcoming changes to that law will have a major effect on how business to business contracts are considered by the Courts where one or more parties to the contract falls within the definition of a ‘small business’.

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If you think you may be affected by these changes we are able to advise and assist you with any concerns you may have.
If you need advice in relation to a contractual dispute please feel free to contact us by phone or email to discuss your concerns and one of our specialist commercial lawyers will be able to assist.
Building disputes are one area of law where costs can quickly escalate and where the need to obtain sound, timely legal advice can be critical in ensuring a cost effective resolution for all parties. Our lawyers excel in providing considered and commercially minded advice to individuals and companies involved in building and construction disputes.
Our services
Litigation & Alternatives to Litigation

If you are involved in a building and construction dispute it is likely that you have considered commencing litigation. While litigation is one option there are a number of alternate options available to which may better serve your needs. These include arbitration, expert determination by an agreed join expert and alternative dispute resolution including mediation.

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Often, the appropriate dispute mechanism available to parties may be specified in the actual building contract. We are able to review all types of building and construction contracts and advise you on your options.
In the absence of a specified contractual dispute mechanism we can also review your particular circumstances and relevant aspects of your building dispute and prepare a detailed plan of action including advice on whether litigation or an alternative dispute resolution method is recommended.
In addition to litigation additional avenues for dispute resolution include:

Binding Arbitration or Expert Determination – The parties to a dispute may agree that an independent third party (Arbitrator/Expert) will hear and determine the dispute. Often the Arbitrator in building and construction dispute will have expertise in the particular area of dispute. In some instances where litigation has been commenced the Court may order the parties to participate in binding arbitration/expert determination with a specified or agreed expert;

Mediation – The parties agree on a mediator to conduct a formal mediation conference. Usually the mediator will specify what information and documents need to be tabled before the mediation. The parties are usually asked to prepare written submissions outlining their positions. In addition to legal representatives the disputing parties (or their nominated representatives) attend the mediation. Mediation is generally less costly than litigation and can also be effective in repairing business relationships if the parties are likely to need to continue to work on future projects together.

Negotiation & Informal settlement conferences – While not as formal as mediation, we are often able to achieve excellent outcomes by negotiating on a client’s behalf either with the other party or their legal representatives. Negotiations can be carried out by phone or in writing (letter or email). In some instances an informal settlement conference facilitated by legal representatives but without a mediator can also prove effective in achieving a cost effective and quick resolution.
We are also able to provide advice and assist in the resolution of:
• Claims made to NSW Fair Trading;
• Security of Payment Act claims and disputes;
• Delay disputes and claims for liquidated damages; and
• External commercial issues which may affect a dispute such as community concerns and complaints, environmental and property law issues.
In addition, we are able to provide advice and assistance in relation to all aspects of building and construction disputes and welcome the opportunity to discuss your matter with you. We appreciate that the prospect of a building or construction dispute may seem very daunting.
Please feel free to contact us by phone or email to discuss your concerns. Our experienced lawyers are here to help you navigate the best possible outcome and we look forward to assisting you.

Our experienced corporate and commercial lawyers appreciate that no two companies or commercial law matters are the same and while litigation may not be an avenue that your company would necessarily choose to be involved in, if circumstances dictate that you do become involved in a commercial dispute, then we have the experience and expertise to assist you.
Australian companies operate in a highly regulated corporate environment and claims including class actions are becoming increasingly common.
In addition, investigations by government bodies such as ASIC and the ACCC also regularly impose demands on companies both in terms of compliance and public exposure. We have experience in all areas of company law and commercial litigation and can advise and assist you from inception to resolution of any commercial dispute.
We excel at minimising risk

Sometimes, despite everyone’s best efforts, your company may become involved in a commercial dispute. If this occurs it is essential that you have legal advisers with appropriate experience and sound judgment who can guide you through the dispute resolution process, protect your company’s reputation

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in the marketplace and advise any additional matters such as regulatory compliance that may arise.
Our lawyers are skilled at assisting commercial clients in minimising risk and maximising outcome. We can provide you with a full assessment of your options, the risks involved in different courses of action and we can partner with you to devise and develop strategies to help you achieve outcomes that are both cost-effective and most important, targeted to your particular circumstances.

If litigation cannot be avoided

As the saying goes – Life wasn’t meant to be perfect …. And while we always try to avoid litigation if at all possible and to achieve a negotiated outcome on best terms, sometimes despite our best efforts and those of our clients litigation is the only way of reaching a resolution.

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Rest assured we will never recommend litigation if we do consider there is any other viable option available. However, if it does become necessary to commence litigation on your behalf, or you find yourself being joined to litigation by another party, we will utilise our considerable expertise to ensure that your matter is conducted efficiently, cost effectively and thoroughly.
We have experience in all company law jurisdictions including the conduct of proceedings in the Supreme Court of NSW and the Federal Court of Australia.
If you need advice in relation to a commercial litigation matter please feel free to contact us by phone or email to discuss your concerns and one of our specialist commercial lawyers will be able to assist.

Working for yourself can be a great way to earn a living. However, sometimes despite your best efforts debtors just don’t pay.
Debtors can put a serious strain on you cash flow not to mention be the source of a great deal of personal stress. Debtors may even impact on your own ability to pay your creditors. Our experienced lawyers can assist with problem debtors through negotiation and, if necessary, court proceedings.
Reviewing business credit control methods

If you are owed money or are having difficulty managing your own creditors, we can work with you to implement strategies to get your finances in order. We regularly work with businesses to help them collect monies owed to them with the aim of getting them back to a positive cash flow situation.

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Debt disputes often arise because of failures in the initial client engagement process. Proactive advice can help to minimise future problems. In addition to assisting with recovering current debts we are also experienced in advising on terms of trade and working with accounts teams to implement strategies for future debt recovery that are both legally correct and cost effective.

Will I have to commence legal proceedings?

Recovering a debt does not always mean you have to start legal proceedings.
While our lawyers are very experienced commercial litigators and are able to commence proceedings for recovery on your behalf,

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we are often able to advise clients on a range of alternative strategies that are faster and less expensive than formal litigation.
Some alternatives we can discuss with you are:
• Making contact with the individual or organisation that owes you money and opening the lines of communication with a view to getting the debt paid without resorting to formal litigation;
• Conducting negotiations with the debtor on your behalf;
• Mediation or arbitration; and
• Making a claim in the Consumer, Trader and Tenancy Tribunal (CTTT).

Multiple legal options for recovering a debt

Unfortunately, sometimes despite everyone’s best efforts the softly, softly approach just doesn’t work and it may be necessary to commence formal legal proceedings.

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In the case of hard to collect debts we are able to advise and assist you with all aspects of debt recovery including:
• Advising on debtor location and skip tracing assistance;
• Pre-litigation negotiations in dispute resolution;
• Commencing proceedings in the most appropriate Court for the matter which may be the Local Court, District Court or Supreme Court depending on the size of the debt;
• Drafting effective Deeds of Release and enforcement documentation;
• Obtaining and enforcing judgments by selection of the most effective solutions including writs, instalment orders, garnishment, bankruptcy or other corporate insolvency solution; and
• Considering the possible use of injunctions or other urgent court orders.
From an initial telephone call through to preparing a letter of demand and, if needed, conducting litigation and enforcing a judgment obtained on your behalf, our experienced commercial lawyers will carefully advise and guide you through each stage of the procedure.
After discussing your particular circumstances, we will work with you and advise you on a carefully considered course of action developed to deliver a cost effective result.
Please feel free to contact us by phone or email to discuss your problem. We are here to help and look forward to assisting you.

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