At Aylward Game Solicitors we are able to assist you to protect and/or defend your legal rights and entitlements in all Queensland Courts (including any tribunals where parties are able or have been granted leave, to be legally represented) and all Federal and Circuit Courts (including the High Court of Australia). We have strong ties with similar firms in Sydney and many parts of Australia.
Our focus at Aylward Game Solicitors is always to take a practical approach to dispute resolution and wherever possible we will endeavor to obtain resolution for you by negotiation or mediation before commencing or pursuing formal legal proceedings or commercial litigation. Litigation, like surgery, is a last resort. It’s a bloodsport, one party wins and the other loses.
What is Commercial Litigation?
Litigation is a dispute or judicial confrontation that leads to a trial. We can say that it is synonymous with a lawsuit or practice where the parties involved defend their positions. Billions of dollars are involved in commercial litigation. They can also be for smaller amounts. Regardless of size, most parties involved in commercial litigation will try to reach an agreement without resorting to legal procedures; however, commercial litigation is required to resolve the dispute when negotiations fail.
Commercial litigation arises from many disagreements, and the scope of this area of law is considerably broad. Some of the most normal types of litigation include finance and investment, intellectual property, breach of fiduciary obligations, and insurance disputes. With a general idea about these commercial litigation categories, you will begin to understand what commercial litigation means and what kinds of legal issues you could deal with yourself.
There are three tiers of commercial litigation: Top-tier, Mid-tier, and Entry-tier.
Top-tier
On the top tier are the big banks and the top 100 ASX companies paying the mega law firms thousands of dollars per hour to engage in a veritable boxing match. It is highly important litigation as it often ends up before Courts of Appeal, if not the High Court of Australia. The decisions of these Superior Courts form the very heart of Australia’s doctrine of precedent, ‘judge-made’ law.
Mid-tier
On the next tier are the David and Goliath struggles. Again, the protagonists are often big banks and the top 100 ASX companies. The dramatis personae could also include the Australian Tax Office (ATO) or the Australian Competition & Consumer Commission (ACCC)). Poor old Mr. Widget or Widget Pty Ltd really face the prospect of going to the wall. The mega law firms, for client Goliath, are ranged against much smaller firms, for the smaller client.
Surely the Goliath’s will do a cost/benefit analysis of funding each step of the litigation? Wrong. Disabuse yourself of this notion immediately. The Goliath’s have very deep pockets and implicitly understand that the contrary applies to Mr. Widget or Widget Pty Ltd. Put simply, it is a war of financial attrition. They go for broke – literally. To use a sporting analogy: who would you back in a Rugby international between the Springboks and Japan? (Well there was that 2015 Rugby World Cup upset).
You will lose unless your lawyer can skillfully extricate you through alternative dispute resolution.
Entry-tier
This is Mr. Widget or Widget Pty Ltd verse Mr. Gadget or Gadget Pty Ltd in all levels of Courts but particularly inferior Courts of record such as Magistrates Courts, the District Court and tribunal such as QCAT.
How does commercial litigation work?
In procedural law, disputed points are all those aspects on which there is a controversy between the parties and concerning which the court must resolve.
Thus, when two opposing parties (for example, due to an inheritance, a divorce, a lawsuit, etc.) They go to a dispute seeking a judicial resolution. In this way, it will be the Judge who solves the conflict utilizing a sentence. However, before deciding to initiate a dispute, it is advisable to reflect on a prior agreement’s viability since the dispute’s outcome can have severe consequences for the parties (especially for the losing party).
The litigation process follows several steps. First, the plaintiff files a complaint to take a case to court. The defendant receives a summons. The subpoena notifies the defendant of the plaintiff’s action and sets a deadline for the response. The first part of litigation is the discovery process, where the parties collect records, documentation, and other pertinent information.
The court can set a trial at this time. Parties can file motions in court, which can be used for a variety of reasons. Some activities are procedural, which means that a party requests some aspect of the court process. Some motions are substantive and refer to specific facts or laws of the case. At the trial, the Judge or a jury decides by hearing the case. If the decision is contested by one of the parties for good reason, they can appeal the case to a higher court.
Sometimes parties prefer to resolve disputes outside of the courtroom. One option is arbitration. A referee listens to both sides of the conflict and makes a decision. Arbitration is a private process that never goes to court. Unlike commercial litigation lawyers in Brisbane by litigation, an arbitrator’s decision cannot be appealed.
Can Aylward Game Help?
- Top-tier? No;
- Mid-tier? Yes.
In recent times Aylward Game has been on the record in litigation in Superior Courts in matters as diverse as:
- Assignment of proprietary interests in commercial litigation;
- Contentious discovery and disclosure issues in fiduciary relationships;
- Unfair preferential dividends in corporate insolvencies;
- Unconscionable conduct in trade or commerce;
- Entry-tier and mid-tier is no problem.
COMMERCIAL LITIGATION SERVICES
Debt collections, Corporate and Personal Insolvencies are our bread & butter.
We can assist you with breaking leases, body corporate disputes, breach of trust disputes and estate litigation.
Engage in Alternative Dispute Resolution (ADR) – Do not hide from your creditors: talk with them.
A vital part of commercial litigation is the negotiation /mediation /Alternative Dispute Resolution mosaic.
At the end of the day most litigation boils down to cold hard cash (or lack thereof).
Many a creditors petition for bankruptcy has been withdrawn on the basis of successful negotiations to pay a lesser (but still fair) sum in dispute. For example, many creditors would prefer to accept 50% of debt than proceed to bankruptcy.
On a more formalized level a bankruptcy may be avoided by what is known as a Part 9 or Part 10 agreement. (Similar agreements apply in corporate insolvencies).
Be forewarned – litigation like surgery is a last resort!!
Franchise Agreements
There are not enough entrepreneurs in Australia. Get out and have a go.
Allied commercial /business law issues
Also, attendant to having your own business is diverse issues (and for each of these issues are legal issues that fit like a hand into a glove) for instance:
- Franchising / Licence agreements;
- Premises: negotiating a lease;
- Insurance;
- Cash flow, Rent, wages and utilities go out each and every week. Do funds come in at the same frequency;
- Do you sell your invoices to factoring agents?
- Contractual relationships with suppliers and customers;
- Intellectual property: do you or your staff on this?
- Hiring / Firing staff;
- Staff embezzlement investigations;
- Taxation;
- Protecting your personal assets if your business fails. Would you be better off being a sole trader, such as Mr. Widget, or a company Widget Pty Ltd;
- If your business fails, how do you extricate yourself from the fallout;
- Succession plans for your business. What happens if you become seriously ill or worse? Do you entrust your business to your buffoon son or a trusted business adviser?
BUSINESS MEDIATION
Because of the impact of business disputes, they can be time-sensitive. This makes it crucial to receive precise and immediate advice on all issues in relation to the legal dispute, including possible outcomes.
Disputes are a part of business, and having a lawyer to call when these disputes happen is important to the survival and prosperity of your business.
At Aylward Game, we regularly deal with these issues on both a Transactional Basis and/or Litigation basis.
Aylward Game Solicitors, keeping you ahead of the game.
Article Source: Commercial litigation
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