There are a vast number of instances which fall into the category of more complex commercial litigation matters. A few such instances are as follows:

1) CONSUMER PROTECTION MATTERS

Section 52 of the Trade Practices Act (Cth) has been relied upon frequently in such actions where there is alleged conduct by a corporation that is misleading or deceptive. This section provides that if a corporation engages in misleading or deceptive conduct then a person who suffers loss or damage by reason of such conduct may seek damages.

Remedies under consumer protection law are also extended by S51AA and S51AB of the Trade Practices Act (Cth) which reflects on unconscionable conduct on the part of a corporation. This concept of unconscionable conduct cannot be applied only to be fixed categories of relationships between parties. What is said to be unconscionable has been left mainly to the Courts to decide and depends on circumstances where (a) one party may be clearly under a special disability in dealing with another party and there is an absence of any reasonable degree of equality between them and (b) that disability was sufficiently evident to the stronger party to make it prima facie unfair that the stronger party procures or accepts the weaker party’s assent to the particular transaction.

False representation by a corporation in connection with the supply or possible supply of goods or services in connection with the promotion by any means of the supply of goods or services, is prohibited under S53 of the Trade Practice Act (Cth). Of course other provisions of the Trade Practice Legislation or the Fair Trading Act (Qld) or indeed various other legislative provisions may be applicable in the particular circumstances of the case.

2) PROPERTY DISPUTE

Many a dispute has arisen over contractual issues stemming from a sale or purchase of real estate. Some of the disputes can be quite involved and may involve a quite a large amount of documentation especially in connection with transactions involving a developer. Other disputes may arise over competing equitable interests in land where each equitable interest needs to be assessed on the principles of justice and fairness. The courts may give consideration of such broad principles of justice and fairness on the following grounds:

(a) nature and conditions of the respective equitable interests;

(b) circumstances and manner of acquisition of those interests;

(c) the whole conduct of each party.

An equitable interest may be an equitable mortgage or change held by a party over the subject property.

3) LITIGATION INVOLVING COMPANY DIRECTORS

Some commercial litigation matters may involve wrongful actions of company directors. Directors must act within the powers of their company. They must not profit from their positions as directors and must act in good faith in the interest of the company. The following remedies are available where there is breach of duty by a director.

(a) Injunction / declaration

(b) Damages / compensation

(c) Rescission of a contract

(d) Action for account for profits

(e) Dismissal of the director

(f) Restoration of company property where this is possible

The Corporations Act 2001 provides the legislative scheme for such actions involving directors

4) TRADE CONTRACT MATTERS

Often a contract for work to be carried out by say an air conditioning firm on a large building project may involve a lot more then just a simple debt collection. A project manager may put pressure on the firm to cut corners in order to meet deadlines, specifications for the work may be substantially changed during the course of the project. Many complications may arise resulting in escalation of costs. Variations to costing may not have been formalised properly. Quite frequently disputes arise which may cause court proceedings to be instituted. The alternative dispute resolution process may be appropriate to bring about a settlement of the dispute. Occasionally if both parties show non-negotiability then the matter may need to proceed to a court hearing to be resolved. However careful attention must be given to the escalation of costs where such matters proceed to court hearings. This issue should be considered and advices taken from your solicitor as to the prospect of success and likely costs incurred.

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