Litigation & Disputes

Financial Advice, Banking & Credit Disputes

Financial products or the banks that promote them, sometimes don’t live up to the promises made. If the fruits of years of your hard work or those of a financial guarantor have been put in peril by misleading advice or bank practices, we can advise you through the disputation process to bring about a positive outcome.

Seek our advice also on late payment penalties, “exorbitant” interest, “unconscionable” loans,  predatory practices or unfair terms and how your circumstances may be satisfactorily resolved.

Register your interest for compensation or resolution of your financial advice, banking or credit facility issue:

Real Estate & Off-the-Plan Contract Disputes

The management of real estate contract termination issues requires experience and knowledge. Understanding contract sensitivity demands technical excellence. Buyers or sellers wishing to enforce transactions must be prepared to face sustained and novel contentions. Those that seek an escape route must be armed with all available arguments.
Other disputes can arise from settlement delays, compliance issues, outgoings adjustments, interest calculations and due diligence determination.

Get help for a real estate or off-the-plan contract dispute issue:

 

THE SEQ HOME UNIT MARKET IS FACING A TESTING PERIOD

A wave of construction has added more than 5300 units as at the end of June 2017 – most signed up for off-the-plan by investors – in the Brisbane inner city, with more than 11,000 underway and due for settlement within the next 12 months.

Hundreds of off-the-plan buyers are trying to off-load the units they signed up for as long as three years ago.
Agents are notifying new owners they probably would lose money unless they can hold for at least five years.
With tougher rules on investment loans in play since late 2016, buyers are facing up their options.

Many are walking away from deposits up to $80k in the hope the developer is content to call it quits on that basis.
They are hoping the developer can still re-sell and that the forfeited deposit covers any loss on resale, re-selling costs, interest and legals.

Others are hoping for a “settlement error” on the part of the developer that will open a potential window to terminate and demand the deposit’s return.

History – as recent as just a few years ago when GFC related contract termination were common – tells us that unless the buyer can negotiate a deal with the developer perhaps for the payment of a fixed sum in addition to the deposit – the buyer will be better off going ahead with the buy, than fighting the developer in a court.

In many GFC cases, the damages buyers were eventually ordered to pay after a developer default sale – including legal costs and interest – came to 80% of the original unit price, with absolutely nothing to show for the payment.

There are some legal avenues that can be explored to support a valid contract termination.  These include issues relating to misleading and deceptive conduct or “unfair terms” that might arise from nondisclosure or the relationship between a marketer or financial planner and the developer.

CoreLogic reported last month that around 25% of Brisbane apartment sales in Brisbane in first quarter 2017 were at a loss.  These figures do not include walkaways and forfeitures.

In the GFC, prices typically fell by 30%. Agents in the field are reporting current resales on some inner-city projects at that deficiency.

Those buyers that do proceed will however face a much different rental market than they might have expected.  Agents are reporting a high vacancy rate and tumbling rents as a result.

Defamation

Defamation is an injury to reputation or character by spoken or written words that carry an imputation that would reasonably cause others to “shun, ridicule or avoid” person referred to.

An ancient distinction between libel (written defamation) and slant (spoken words) has been abolished.
Queensland’s Defamation Act codifies much of the law of defamation but as to what constitutes a defamatory statement, relies on common law interpretation.

Publication by text message, social media, chat, blog or email is covered by the same rules that apply to a news article published in a newspaper.

For example accusations bordering on those of paedophilia are considered to be of the utmost defamatory nature. Queensland cases establish that even being accused of having been investigated sex crimes can bring an award of $50,000.

Damages include those for reparation of the harm done to reputation; for consolation for the personal distress and hurt caused by the publication (“solatium”); and those for proven losses e.g. income loss.

There must be an appropriate and rational relationship between the harm sustained and the damages awarded but they should be awarded in an amount the defamed person can point out the baselessness of the accusation, to a bystander.
The actual harm done to reputation and the extent of injured feelings must be established by evidence. The maximum non-economic damages that can be awarded is $366,000.

If you believe your reputation has been damaged, it is important to get early legal advice on your rights. Time limits apply.

The procedure to follow is to have a legal notice prepared by law you and then served upon the defamer (a Concerns Notice). This gives the defamer an opportunity to propose a means to “make amends” and to offer compensation.
A lawsuit, if required, must be commenced within 12 months of the defamatory statement but this period can be extended by up to 3 years if for example – because the defamation did not come to persons attention in the 12 month period – it was not reasonable to expect the claimed to have been commenced in court within such time.

If no defence to the claim is filed, the damage to reputation is presumed.

Either party may select a jury if the matter proceeds to trial.

The primary defence to any defamation claim is one of “justification”, ie that the allegation was “substantially true”.
Some statements enjoy absolute privilege, i.e. those that are made in Parliament or as part of court proceedings. The reporting of the material contained in such proceedings or in a “public document” is also exempt provided the publication containing the defamatory words is published “honestly for the information of the public or the advancement of education”.

Statements expressed to be of an opinion rather than of an established fact, provided they are reasonably based and in respect to a matter of public interest, are also exempt.

A statement published on the internet is deemed to be published everywhere and accordingly may be subject to different rules relating to defamation in the place where the third reputational damage is alleged to have occurred.
Statement that might otherwise be defamatory, will not be subject to sanction the defamation if of a “trivial” nature or if the circumstances of publication make it unlikely the person referred to will sustain any harm.

Contract Disputes

Unfortunately, contract disputes occur more frequently than you might think.

From property deals, construction contracts and professional services, we are expert in unravelling contract disputes and giving practical advice for their resolution.

It pays to get clear advice from the start. We resolve disputes the smart way – without court action – wherever possible. But if litigation is the only way to resolve a conflict we get right down to business to protect your position.

Unfair Terms & Misleading Conduct

MISLEADING AND DECEPTIVE CONDUCT

The Australian Consumer Law (ACL) offers robust protection against corporate misconduct especially in relation to the supply of services and sale of goods. A wide range of relief is available including compensation and injunctions. In many cases the statutory prohibition against misleading/deceptive conduct; unfair terms and unconscionable conduct cannot be contracted out of or varied.

This means that regardless of the contractual position, a party may still be able to obtain relief against an offending corporation or supplier.

 

STATUTORY GUARANTEES

The ACL also contains statutory “guarantees” in relation to the supply of services and sale of goods. Services must be supplied “with due care and skill”.

The misleading/deceptive and unconscionable conduct provisions apply to all corporate conduct, not just in the supply of goods and services.

 

UNFAIR TERMS

Consumers and small business (less than 20 employees) are also protected against unfair terms in “standard form” contracts for the supply of goods or services. A term may be “unfair” for many reasons including, if:

  • it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
  • it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
  • it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

Contact us for a review of your contract terms if your are a supplier or – if you are a buyer of goods or services – for advice about whether you can challenge your supply terms.

 

OFFICE & BUSINESS SUPPLY CONTRACTS

If you are a business with any concerns regarding any of the following in the last 5 years:

  • office & business equipment supply/rental contracts
  • installment sales of real property
  • “cost plus” purchase of trading stock
  • rebates in contracts for supply of goods
  • “hire purchase” agreements
  • “print plan” contracts for office copiers/printers
  • exit obstacles & excessive terms (or termination notice periods) in service contracts; waste collection; security monitoring.

Office & Business Supply and Rental Contracts

Register your interest for compensation regarding exit obstacles & excessive contract periods in rental and service contracts for office photocopier/printer installations, waste collection, security monitoring or business & industrial equipment, or for compensation for or cancellation of unconscionable and misleading conduct in installment (rent to buy) land and property contracts with exorbitant gross payments or excessive terms.

Anti-Competitive Conduct

Federal law prevents companies entering into arrangements or understandings that are designed to keep out competitors or have any other anti-competitive purpose or effect.

Exclusive dealing, market sharing, price-fixing, third line forcing, predatory pricing and “misuse of market power” are all examples of proscribed conduct for which legal remedies are available.

From 2016 small business have a scored major gain from playing field levelling brought about by the long-overdue implementation of an “effects test” to decide if a market major misuses its commercial power to stifle competition.
If you believe a major competitor is engaged in anti-competitive conduct to your detriment, call us for advice about what options are open to you.

Construction Disputes

Disputes in the construction industry are common, as is the need for cash flow. If you are being denied payment as a sub-contractor, you can take advantage of either the Building and Construction Industry Payments Act or the Subcontractors Charges Act to make sure you don’t miss out on progress payments. Both these laws are designed to provide speedy solutions to payment problems.

Call us with details so we can advise the best course of action for you.

Debt Recovery

Need to recover a debt?

While it might be sensible to write off a small debt, large amounts should not be forgotten about.
Our cost-effective debt recovery service can help. Letters of demand, telephone pursuit and when necessary, court proceedings can all be accomplished quickly and efficiently.

To get started, copy your invoices and correspondence and send an e-mail inquiry to us. We will reply with an honest assessment of the costs and prospects in tracking down the debtor and putting the money owed to you back into your hands.

Bankruptcy & Insolvency

Enforcement action such as seizing and selling goods or real estate, or bankrupting the debtor sometime becomes a necessity.

For debtors we can help resist enforcement action, negotiate insolvency agreements or prevent your company from going into liquidation.

We can assist creditors wind up a debtor company, appoint a liquidator, or to pursue directors for breaches of their duties to the company including where directors allow a company to trade or incur debts whilst insolvent.

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