Commercial litigation lawyers, Brisbane and Queensland-wide

Commercial litigation is the resolution of disputes arising in a business or corporate setting, through the courts where necessary and through negotiation, mediation or arbitration where that produces a better outcome.

It covers contract disputes, shareholder and partnership disputes, Australian Consumer Law claims, misrepresentation and fraud, intellectual property and insurance. What it has in common is that both sides are usually businesses, and that the commercial consequences of the dispute often matter more than the legal ones.

Four questions, and only one of them is about who is right: can you prove it on the documents that already exist, can the other side actually pay a judgment, what will it cost as a proportion of the claim, and how long can the business carry it.

A no to any one of those usually ends the analysis, and the second is the one people check last and should check first.

It depends far more on the number of issues in dispute and the volume of documents than on the amount claimed, which is why a complicated $80,000 dispute can cost more to run than a straightforward $400,000 one.

Odyssey Legal offers fixed-fee options where the scope allows it and a free 15-minute initial consultation to assess your matter before any cost is incurred. What can be said generally is that even a successful party rarely recovers all of its costs, so assume a proportion of what you spend is not coming back.

A contested matter that runs to trial commonly takes two years or more from filing. Most matters do not run that far: they resolve at mediation or through offers well before a trial date.

The stage that takes the longest is usually disclosure rather than anything in a courtroom.

28 days from service to file a notice of intention to defend, under rule 137 of the Uniform Civil Procedure Rules. The claim itself has to tell you that, and it has to tell you that default judgment may be entered without further notice if you miss it.

This is the deadline that does the most damage on this page, because it arrives while you are still deciding what to do about the dispute itself. A default judgment is a judgment: nobody has to prove the claim to get one, and setting one aside is a separate application you may not win.

Yes, and most are. Negotiation, mediation, arbitration and conciliation all produce binding outcomes where the parties agree to them, and mediation in particular is where the majority of commercial matters end.

Courts encourage it and frequently order it. An unreasonable refusal to participate is more likely to count against a party than an early willingness to try.

Disclosure is the obligation to give the other side every document directly relevant to an allegation in issue in the pleadings, under rule 211. It applies to documents that help your opponent as much as to documents that help you.

It is expensive because that test is broad and because it is applied to everything the business holds: email, messages, drafts, accounting records. The cost is driven by how many issues are in dispute, which is the one thing that can be narrowed early and almost never can be narrowed later.

Offers to settle are dealt with in Chapter 9 Part 5 of the Uniform Civil Procedure Rules. An offer is taken to be made without prejudice, it must not be filed, and it cannot be communicated to the court until liability and relief have been decided.

Its significance is on costs. A well-timed offer changes who bears the costs from the date it was made, which is why the timing of an offer is a strategic decision rather than an administrative one. The specific consequences depend on the rules and on what the judgment ends up being, and they are worth advice before the offer goes out.

Contemporaneous documents decide most commercial cases. Emails, file notes, invoices, the contract and its drafts, messages between the people who did the deal. They carry more weight than recollection because they were created before anyone was thinking about a dispute.

The practical consequence is that the strength of a case is largely fixed before a lawyer is instructed. Preserving documents once a dispute is on the horizon is one of the few things that genuinely improves a position afterwards.

Usually a successful party recovers a proportion of its costs rather than all of them, and the shortfall is real rather than nominal.

Costs can also be affected by conduct during the proceeding and by offers to settle, which is one of the reasons an offer made early is worth more than the same offer made late.

Depending on the facts: an oppression or unfair prejudice claim, a derivative action brought on behalf of the company, enforcement of a shareholders agreement, or a negotiated buy-out with the valuation as the real issue.

The practical difficulty is that the business normally has to keep trading while the argument runs, so the commercial relationship and the legal claim need to be managed as two separate problems at once.

Most commercial disputes trace back to a document that was never written, a term nobody read, or a problem raised in a phone call and never put in writing. Written contracts that cover what happens when things go wrong, and raising issues in writing at the time, are worth more than anything that can be done once a dispute has started.

A legal risk review of standing contracts and terms of trade is cheaper than one proceeding, and it is the one piece of litigation advice that costs nothing to act on.

Section 18 of the Australian Consumer Law prohibits conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive. Intent is not required: an honest mistake can still be a contravention, and silence can amount to it where the circumstances create an expectation of disclosure.

The ACCC publishes its own guidance on what counts, and it is linked below. What that guidance will not resolve is whether you relied on the conduct and whether that reliance caused your loss, which is where these claims are actually won and lost.

Generally a corporation needs to be represented by a lawyer in court proceedings, unlike an individual, who may appear personally. The specific position depends on the court and on the kind of proceeding.

Even where self-representation is permitted, the parts of a commercial matter that decide it - the pleadings, disclosure and the timing of offers - are the parts where a mistake is hardest to undo.

We act for businesses across Queensland in contract, shareholder, partnership, consumer law, fraud, intellectual property and insurance disputes, from the first letter through to trial where it goes that far.

The free 15-minute initial consultation is the fastest way to find out where you stand. If our view is that the matter should not be litigated, we will tell you that at the start rather than at the end.