Commercial and Business Litigation and Disputes
Understand your legal position. Take a strategic approach to your business dispute.
Grope Hamilton Lawyers provides legal advice and representation focused on your commercial interests, from negotiation to court proceedings.
How Grope Hamilton Lawyers Can Assist
A business relationship may be deteriorating, payment may be disputed, or a formal demand may require a response. Whether a dispute is developing or court proceedings have already commenced, understanding your legal position is an important part of deciding what to do next.
Grope Hamilton Lawyers provides advice and representation in commercial disputes, taking into account the legal issues, the commercial interests at stake and the practical consequences of the available options.
Assessing Your Legal Position
We review relevant agreements, correspondence and evidence to identify the issues in dispute and advise on your rights and obligations. This includes assessing potential claims and defences, identifying gaps in the available evidence and considering any time limits or immediate steps that may require attention.
Our advice helps you assess the strengths, risks and practical implications of pursuing a claim or responding to one.
Negotiation and Settlement
We prepare and respond to formal demands and pre-action correspondence, conduct negotiations and represent clients in mediation and settlement discussions.
Where a resolution is proposed, we advise on its legal and commercial consequences and assist with documenting the agreed terms, including payment arrangements, releases and any continuing obligations.
Court Representation
Where proceedings are appropriate or have been issued against you, we can commence or defend a claim, prepare evidence and manage the procedural requirements of the case. Where necessary, we work with barristers and experts whose experience is suited to the issues in dispute.
Throughout the matter, we consider the available options with you, including opportunities for settlement and the likely costs and risks of further proceedings.
What Is a Commercial Dispute?
A commercial dispute is a disagreement about rights or obligations arising from a business relationship or transaction. It may concern what was agreed, whether an obligation has been performed, who is responsible for a loss, or how a business is owned or managed.
These disputes can involve business owners, companies, shareholders, directors, partners, suppliers and customers. They may arise during an ongoing relationship, when an arrangement comes to an end, or after a transaction has been completed.
Contract and Payment Disputes
Disagreements may arise over the meaning of a contract, the standard of goods or services provided, payment obligations or whether an agreement can be terminated.
For example, a supplier may seek payment for work it considers complete, while the customer maintains that the work does not meet the agreed requirements. The relevant issues may include what the contract required, what was delivered and the basis on which payment is being withheld.
Shareholder and Company Disputes
Disputes within a company may concern decision-making, access to information, the treatment of shareholders or the conduct of directors.
A shareholder may believe they have been unfairly excluded from the affairs of the company, while others maintain that decisions were properly made. Assessing the dispute requires consideration of the company’s governing documents, any shareholders’ agreement and the applicable legal duties and rights.
Partnership and Joint Venture Disputes
Business partners or joint venture participants may disagree about their contributions, responsibilities, profit entitlements or control of business assets.
When the relationship breaks down, further questions may arise about outstanding liabilities, continuing obligations and the terms on which a participant can leave. The parties’ legal relationship and the arrangements governing their business are central to assessing these issues.
Business Sale and Purchase Disputes
A dispute may arise after the purchase or sale of a business over a purchase price adjustment, a contractual warranty or an obligation that continues after settlement.
For example, a buyer may allege that the seller has not provided an asset or assistance required under the sale agreement. The agreement and the circumstances of the transaction will help determine the parties’ respective obligations and available options.
Misleading or Deceptive Conduct
A party may enter into a commercial transaction relying on statements about a business’s revenue, customers, assets or performance, and later question whether those statements were misleading.
A disappointing commercial outcome does not, by itself, establish misleading conduct. The assessment may involve what was communicated, the surrounding circumstances, whether it influenced the transaction and any resulting loss.
Negotiation and Pre-action Steps
Correspondence and negotiation can help clarify what is disputed, explain each party’s position and explore whether an agreement can be reached.
Depending on the proceedings and applicable rules, formal pre-action requirements may need to be addressed before a claim is commenced. These may include exchanging details of the claim and response, making settlement offers and participating in a pre-action meeting. Exceptions may apply, including in some urgent matters.
Legal advice can help identify the requirements relevant to the dispute and ensure that any proposed response takes account of your legal position.
Mediation and Settlement
Mediation involves an independent mediator assisting the parties to explore a resolution. The mediator does not decide who is right or impose a settlement; any agreement depends on the parties accepting its terms.
A negotiated resolution may address matters such as payment, future performance, the end of a business relationship or the release of claims. The terms require careful consideration so that each party understands what must be done and which issues are being resolved.
Mediation may take place before or during court proceedings. Commencing a claim does not prevent the parties from continuing settlement discussions.
Court Proceedings
Court proceedings may be appropriate where an agreement cannot be reached, a claim needs to be defended or judicial determination of the parties’ rights is required.
Depending on the legal basis of the case, the relief sought may include payment of an amount owing, damages, declarations or orders requiring or restraining particular conduct. The appropriate court and available remedies depend on the claim and the orders sought.
Before commencing or continuing proceedings, it is important to assess the likely costs, the risk of an adverse costs order and the practical prospects of enforcing any judgment.
How Can a Commercial Dispute Be Resolved?
The appropriate approach depends on the nature of the dispute, the available evidence and what the parties are seeking to achieve. Cost, timing, ongoing business relationships and the practical value of any proposed outcome may also influence the decision.
A dispute may be addressed through negotiation, mediation or court proceedings. These options can overlap, and opportunities to reach an agreement may remain available after proceedings have commenced.
What Should Be Considered Before Taking Action?
Before deciding how to respond to a commercial dispute, it is important to consider both the legal position and the practical value of the available options.
The Outcome You Are Seeking
A commercial dispute is not always only about recovering money. You may be seeking payment, performance of an obligation, an end to a commercial arrangement, protection from continuing conduct or certainty about the parties’ rights.
Identifying the practical outcome you are seeking can help determine whether a proposed course of action is proportionate and commercially useful.
The Available Evidence
The strength of a commercial position may depend on more than the written contract. Relevant material may include variations, emails, messages, invoices, meeting records, financial documents and evidence of what occurred after the agreement was made.
The available evidence may affect how a claim or defence should be framed and whether further information is required.
Time Limits and Urgency
Different claims may be subject to different limitation periods and procedural requirements. Delay may also affect the availability of evidence or the practical value of the outcome being sought.
Prompt advice may be particularly important where a formal notice has been received, proceedings have commenced or continuing conduct may require urgent consideration.
Cost, Risk and Enforceability
Before pursuing litigation, it is important to consider the likely legal costs, the possibility of an adverse costs order and whether any judgment can practically be enforced.
A legally available remedy may not always produce the most commercially useful result. These considerations should form part of the strategy from the outset.
What Happens Once Court Proceedings Begin?
Commencing or Responding to a Claim
Court proceedings generally begin when an initiating document is filed and served. The responding party may then be required to file a defence or another appropriate response.
Court documents may contain important response dates. If you have been served with a claim, application or other court document, obtaining advice promptly can help identify what is required and the options available.
Defining the Issues in Dispute
The parties’ pleadings and other court documents identify the claims, defences and issues to be determined.
The Court may make directions about the future conduct of the proceeding, including the preparation of documents, evidence, expert reports and other procedural steps. The process will depend on the Court, the type of proceeding and the issues involved.
Preparing the Evidence
Commercial litigation may involve contracts, correspondence, company records, financial material and witness evidence. Expert evidence may also be required where the dispute involves technical, accounting, valuation or other specialised issues.
Legal representation can assist with identifying the evidence relevant to the issues, preparing witness material and complying with procedural requirements.
Resolution or Hearing
Settlement opportunities may remain available throughout the proceeding. A matter may be referred to mediation or a settlement conference, or the parties may continue negotiating while preparing the case.
If the dispute is not resolved, it may proceed to a hearing or trial, where the Court determines the issues and makes appropriate orders.
The steps and their order will depend on the Court, the type of proceeding and the issues involved.
Frequently Asked Questions
The appropriate service will depend on the central issues involved.
General disagreements arising from contracts, business transactions, company management, partnerships or other commercial relationships may fall within our Commercial and Business Litigation services.
Where the dispute primarily concerns trade marks, copyright, intellectual property ownership, licensing or the use of protected material, see our Intellectual Property Disputes service.
Matters involving statutory demands, winding-up proceedings, liquidators, insolvent companies or insolvency-related claims may require advice through our Insolvency Litigation Services.
If the primary issue is the recovery of an unpaid invoice or other commercial debt, our Debt Collection service may be the appropriate starting point.
Some disputes involve more than one area of law. An initial discussion can help identify the issues involved and the service most relevant to your circumstances.
Useful documents may include:
- contracts and any subsequent variations;
- letters, emails and messages exchanged between the parties;
- invoices, payment records and relevant financial documents;
- company, shareholder or partnership documents;
- formal demands, notices or court documents;
- records of relevant meetings or conversations; and
- a brief chronology of what occurred and the outcome you are seeking.
You do not need to have every document available before seeking advice. An initial discussion can help identify which information is most relevant and whether any immediate response may be required.
Do not assume that the document can be left unanswered. A letter of demand, claim, application or other court document may require a response within a particular period.
The appropriate response will depend on the nature of the document, the allegations made and the legal and factual position. Obtaining legal advice promptly can help identify any applicable response date, preserve available options and avoid taking a step that may unnecessarily affect your position.
The appropriate forum depends on factors including the nature and value of the claim, the legislation relied upon and the orders being sought.
A commercial dispute may be heard in the Magistrates Court, District Court or Supreme Court of South Australia. Some disputes involving Commonwealth legislation may fall within federal jurisdiction.
The correct forum should be considered before proceedings are commenced, as commencing a claim in an inappropriate court may have procedural and cost consequences.
There is no standard timeframe for resolving a commercial dispute.
The duration may depend on the complexity of the issues, the amount of evidence involved, whether expert evidence is required, the willingness of the parties to negotiate and the timetable set by the Court.
Some disputes may be resolved through early correspondence or negotiation. Others may continue through interlocutory applications, evidence preparation, mediation and trial. Advice about timing should be based on the circumstances and progress of the particular matter.
A successful party may obtain an order requiring the other party to contribute to its legal costs. However, a costs order does not necessarily reimburse all costs incurred.
The Court retains discretion in relation to costs. The conduct of the parties, the outcome of the proceeding and formal settlement offers may affect the orders ultimately made.
Potential cost recovery should therefore be considered as part of the litigation strategy, rather than assumed to cover the full cost of pursuing or defending the matter.
For more information about recovering legal costs, see our guide to commercial litigation costs in South Australia.
An unsuccessful party may be ordered to contribute to the other party’s legal costs. This may be in addition to the legal costs they have incurred themselves.
The Court retains discretion in relation to costs. The conduct of the parties, the outcome of the proceeding and formal settlement offers may affect the orders ultimately made.
Potential exposure to an adverse costs order should therefore be considered as part of the litigation strategy, including when deciding whether to commence, defend or continue proceedings.
For more information about potential liability for another party’s costs, see our guide to adverse costs orders in commercial litigation.