When a dispute arises, some of the most important decisions being made are the ones at the start. KPA Lawyers’ commercial litigation team has guided Melbourne businesses through theirs for nearly 40 years. We are a tight team of experienced litigators who work closely together, each with a different dispute focus. When you engage KPA as your lawyers, a senior lawyer is involved at every stage of your matter.
This page outlines our comprehensive commercial litigation services, tailored specifically for those businesses that operate in and around the Melbourne CBD.
Melbourne’s CBD is where Victoria does business. Deals move fast, partnerships form quickly, and things can go wrong without warning. The unfortunate reality of running a business is that a commercial dispute can start from almost anything, with some of the more common examples being a business partner stops acting in the company’s best interests or invoices that were never in question suddenly stop getting paid.
What makes these disputes costly is not just the legal exposure, it’s the energy and focus they take from you, at the expense of running or growing your business.
As commercially minded lawyers, we understand you don’t need someone to just explain the legal problem, you need a lawyer with commercial instinct that can tell you plainly where you stand, your available options and what it is likely to cost and give you a solution.
Our Expertise in Commercial Litigation
Commercial disputes always have their unique challenges. Our experienced commercial litigation team has a proven track record of successfully advocating for its clients in the Melbourne CBD across a wide range of disputes and industries. Our team are strong advocates who regularly represent business clients in the Magistrates’ Court, County Court, Supreme Court of Victoria, and the Federal Court.
Contract Disputes and Breach of Contract Claims
Contract disputes, including breach of contract claims, are some of the most common types of commercial disputes. These can occur where one party either breaks their promise or commitment in a legally binding contract. Depending on the type of contract and the kind of breach, the breach could be considered material (a major breach) or immaterial (a minor breach). An example of a material breach could be one party failing to uphold a core part of the agreement, i.e. delivering a defective service, non-payment after receiving a service, a party breaching confidentiality requirements and exposing trade secrets in a joint venture, the examples are endless, whereas a minor breach might include a party delivering goods a few days later than stipulated in the contract but does not cause significant financial harm to the other party.
No matter the type of dispute, our team will provide you with a clear assessment of where you stand and advocate for you to protect your business interests.
Shareholder and Partnership Disputes
Handled late or poorly, shareholder and partnership disputes are among some of the most destructive things that can happen to your business. Not only are they expensive to run and legally complex, but they also involve people you chose to go into business with, which can make these disputes emotionally charged. If you find yourself in a dispute with a business partner or investor, the first step is to gather your documents i.e. any shareholders or partnership agreements you may have. These documents are worth their weight in gold as they set out what happens when the relationship breaks down and how the shares are going to be valued (good and bad leaver clauses). If your business does not have these documents in place, you fall back on the Corporations Act, the Partnership Act, the constitution and general law, none of which were written with your business in mind.
Our team acts in a broad range of these types of disputes such as minority oppression claims, breaches of directors’ and fiduciary duties, valuation disputes, deadlocks, buy-outs and exits.
Note: If you’re looking to prevent a dispute rather than resolve one, a shareholders or partnership agreement is one of the best steps you can take. Speak to one of commercial lawyers for how we can assist.
Debt Recovery and Insolvency
An unpaid invoice is money your business can’t use, and when it is left long enough, it starts to affect your own supplier payments, your payroll, and whatever you’re building towards. We recover debts efficiently and escalate only as far as a matter requires.
Some terminology worth understanding, and when each is used:
- Letter of Demand:
- Is a notice setting out what is owed and the deadline to pay before legal action follows. We note that these types of notices are most effective coming from a lawyer as many debtors don’t take one seriously when it comes from your own letterhead.
- Statutory Demand:
- A formal demand under section 459E of the Corporations Act 2001, and a powerful tool for companies to recover undisputed debts over $4,000. On receipt of a statutory demand, a company has 21 days to pay in full or challenge it. If the company does nothing and the timeframe expires, the company is presumed insolvent and you can begin the process of winding it up. If you are looking to serve a statutory demand, as part of our initial advice, we review your supply contracts and tell you whether you rank as a secured creditor, giving you a realistic view of whether you have a chance to recover the full undisputed debt. If you’re concerned that your supply agreements don’t permit you to hold a security and you’d like to future-proof your agreements, speak to our commercial team.
- Court Proceedings:
- These are reserved for disputed debts, or where the debtor isn’t a company. The court you file in will depend on the amount owed/disputed. For example, the Magistrates’ Court is suited for smaller claims, whereas the County and Supreme Court is suited for larger ones.
- Enforcement:
- Unfortunately, receiving a judgment doesn’t guarantee you get paid. Enforcement is the process of how a court’s decision becomes money in your account. Some typical examples are garnishee orders, winding-up proceedings or seizure and sale of property.
- Insolvency:
- Simply means when a business is unable to pay its debts as and when they fall due. In our experience, if your business is under financial pressure, the most valuable advice is often the earliest. Acting early keeps your options open to avenues such as voluntary administration, a deed of company arrangement, or where relevant, a small business restructure. We work regularly with liquidators and other professionals, and where a matter calls for it we bring them in early, so you get a clear picture of the process and what your next steps are. In the instance a formal appointment has already been made, KPA Lawyers regularly advises directors on their obligations; responding to liquidator claims and guiding you through any issues related to voidable transactions and insolvent trading allegations. Watch out for director penalty notices served by the Australian Taxation Office for unpaid company PAYG withholding, net GST or superannuation guarantee charge (SGC) which can mean a director is personally liable for these company debts if not dealt with promptly.
Get in touch. A conversation costs nothing, whereas waiting too long can cost you your business.
Building and Construction Litigation
Our Building and Construction team advises builders, developers, contractors, and subcontractors on common industry disputes, including delays, defects, variations, and payment issues. We also understand the industry-specific mechanisms under the Security of Payment Act with our experienced SOPA lawyers, which imposes strict deadlines and compliance requirements. Missing those requirements can affect your ability to recover payment.
Our VCAT Lawyers can also assist in all VCAT disputes and claims.
Australian Consumer Law Claims
Australian Consumer Law, which sits as Schedule 2 to the Competition and Consumer Act 2010 (Cth), imposes strict obligations on businesses. It is not confined to dealing with retail customers, it extends and applies to conduct in trade of commerce generally including business-to-business transactions. Australian Consumer Law is enforced by the ACCC alongside Consumer Affairs Victoria, with ASIC administering the equivalent provisions for financial products and services.
Misleading or deceptive conduct under section 18 attract liability regardless of the businesses intent and whether or not there was an intention to mislead and deceive. This means that a business acting in good faith can still be in breach. Statutory consumer obligations and guarantees need to be understood. In our experience, disputes will commonly arise from allegations of misleading or deceptive conduct, unconscionable conduct, or breaches of statutory guarantees often relating to statements made in marketing material amongst other things.
We have experience in defending businesses against ACL claims and ACCC investigations, and we act for clients who have suffered loss through another party’s breach. We also advise before a dispute arises, including reviewing proposed marketing material and standard-form contracts.
The KPA Lawyers Approach: Strategic, Client-Focused Resolution
We understand that facing a dispute is stressful and can cause uncertainty.
As experienced advocates, we partner with you to understand your business and not just provide you with generic legal advice. We offer strategic counsel to empower you to make confident decisions. What makes us different:
- Experience That Matters:
- Our experienced team can assist you by developing an effective legal strategy to tackle the core issues your business is experiencing, anticipating the potential challenges that may come your way.
- A Focus on Commercial Reality:
- Legal advice is worthless if it isn’t grounded in commercial reality. A number of our lawyers have business experience themselves, so the advice is shaped by what you’re actually facing. Disputes are a distraction from running your business, so we look for a resolution before we look to take things to court.
- Upfront Fee Transparency:
- From the outset, we provide you with a comprehensive document that clearly sets out how our fees are calculated. We understand that any uncertainty around your legal costs can add fuel to the fire of an already stressful and difficult situation. At KPA Lawyers, we pride ourselves on our transparent approach to fees and where appropriate, use a variety of strategies to minimise your legal costs so that you remain in control of your budget.
Why a Melbourne CBD Litigation Firm is Your Strategic Advantage
Have the benefit of a firm with deep knowledge across the matters businesses actually face, and the convenience of an office in the heart of Melbourne’s commercial precinct.
Proximity to the Courts
Our Collins Street presence puts us in the heart of Melbourne’s commercial precinct, minutes from the courts.
Accessibility for Your Business
To build strong relationships with your clients, accessibility is paramount. Conveniently located on Collins Street, we are available for face-to-face meetings for those business owners operating in Melbourne’s CBD. Meet us between your other meetings, without leaving the CBD.
Conclusion
Take control of your legal disputes by partnering with a law firm that understands your business and places your outcome first. At KPA Lawyers, we run you through your options, make sure you understand them, and build a clear strategy to protect your interests. Contact us today to arrange an initial consultation.
