Commercial Litigation
Our Solicitors practice in Commercial Litigation helping to resolve disputes between companies, or individuals and companies. Given that a company is considered a legal entity and, therefore, can sue and be sued at law, companies can become embroiled in litigation for many reasons. They can commit both civil and criminal offences. Companies can play almost all the legal roles that a person might normally play. For example, a company may wish to sue an entity or individual for monies owning to the company, or, a company itself could be sued for monies it owes to another person or company.
Pursuing or Defending a Claim in Court
In most litigation, the person making the claim (the plaintiff) files an “originating process” in the Court. An originating process is a document setting out the details of the complaint/claim and the remedy being sought. This document starts the process in the court system. Once an originating process has been filed there is usually a specific period during which the filed documentation must be given to (“served upon”) the person that the claim is against (known as the “defendant”). Once the defendant has received the documents, the Court then provides a time period during which the defendant can file a defence.
Once the matter is in the Court System the parties must comply with a number of requirements prior to trial. There will be times where the parties will need to appear before the Court on a “mention”. These appearances before the Court give the Registrar, or a Judge, an opportunity to see where the parties are up to in their negotiations or preparation for hearing.
The Court may require the parties to attend a Settlement Conference (Magistrates Court) which is conducted by a Registrar and may result in resolution of the matter. Some Courts may require the parties to attend Mediation or a Case Appraisal Conference in an attempt to reach early resolution.
If the matter has not resolved and is proceeding to trial then the parties will attend a “Directions Hearing”. At the Directions Hearing the Judge or Registrar provides times and dates for trial material to be filed and served, including affidavits and all evidence to be relied upon.
Due to the fact that company resources are expended when pursuing or defending a claim in Court, the benefits of reaching a swift resolution often outweigh pursuing the full amount of a claim. Consent Orders may be agreed to by the parties and filed in an appropriate Court to finalise proceedings. These Consent Orders, once filed in Court, become Orders of the Court and should there be a breach of the Consent Orders, parties may be brought back before the Court, penalties may apply or an order requiring specific performance of the Orders may be made.
Court Monetary Limitations
If you run a company that is seeking to recover monies from another entity and want to pursue the matter in Court, it is important to remember the monetary limitations to which the individual courts are subject. Currently the monetary limits are as follows:
Queensland Civil and Administrative Tribunal (QCAT) with monetary disputes of up to $25,000.00;
Magistrates Court deals with monetary disputes of up to $150,000.00;
District Court deals with matters from $150,000 up to $750,000.00; and
Supreme Court deals with all matters in excess of $750,000.00.
Alternative Dispute Resolution in Commercial Law
In an attempt to keep commercial matters out of the Court system, to avoid tying up company resources for a number of years, Delaney & Delaney can guide you through the alternative dispute resolution avenues, such as mediation and arbitration, to allow speedy and cost effective solutions. Some contracts between companies include clauses whereby parties agree to attend binding arbitration or mediation, should disputes arise.
Parties can engage, by consent, in these processes or they may be required to attend alternative dispute resolution by the Court process.
Delaney & Delaney can assist parties through mediation and arbitration.
Some common types of commercial claims
Debt Recovery
In debt recovery proceedings, the plaintiff files a claim to compel the payment of money owing to it by the defendant. A successful plaintiff can also commonly recover interest on the unpaid amount up to the date of payment, together with a portion of their legal costs.
Damages
In a damages claim, a plaintiff seeks compensation from the defendant for losses caused to the plaintiff as a result of the defendant’s wrongful conduct. An example of a damages claim is where a buyer defaults under a contract to purchase land. The seller may elect to sue the buyer for its losses caused by the buyer’s default, including agent’s commission, legal fees, and any reduction in the purchase price if they resell the property to another buyer.
Specific performance
In a claim for specific performance, the plaintiff seeks to compel the defendant to perform a contract as per its terms. There are a number of criteria which must be met in order to succeed in a claim for specific performance, and a court will only order specific performance if it is satisfied that damages are not a sufficient remedy for the plaintiff. An example of a specific performance would be where a buyer under a contract to purchase land defaults and refuses to settle. The seller may sue the buyer to perform the contract as per its original terms.
Injunction
A plaintiff may apply to the Court for an injunction to prevent a Defendant from doing an act which is causing, or is likely to cause, detriment to the Plaintiff: for example, if a defendant is about to publish defamatory claims about the plaintiff, the plaintiff can apply to the court for an injunction preventing the defamatory publication.
The above is a basic overview of some types of commercial litigation. If you are contemplating making a claim, Delaney & Delaney can help you to: understand whether your claim is worth pursuing; enter negotiations with the other party with a view to resolving the matter out of court, and advise you on whether an alternative dispute resolution service would serve you better. We can also prepare your originating process or defence and represent you at Court throughout the matter.
If you require legal advice about your specific circumstances, please contact a member of our commercial law team who will be happy to assist you.
