Commercial Litigation Lawyer Sydney
Litigation constitutes an undesirable risk to most businesses. It can be disruptive and costly in monetary terms and to your time. By engaging a good commercial lawyer early and keeping your contracts etc in order, disputes can frequently be avoided.
Our commercial disputes lawyers / commercial litigation lawyers in Sydney are able to pre-empt and extinguish the threat of litigation before the risk arises through strategic legal advice.
Where litigation is a realistic possibility, we are able to effectively negotiate with the other party where appropriate in order to secure your position in terms of costs if it is necessary for the matter to proceed to trial, and potentially avoid the need for the time and expense of litigation by achieving an early commercial settlement.
If however litigation has become unavoidable, our Sydney business lawyers and disputes lawyers can react effectively and vigorously and have a broad domestic and international knowledge base to deal with the various issues which may arise. We act in all Australian Courts and Tribunals in relation to all types of business litigation as well personal disputes.
Commercial Litigation and Dispute Resolution Lawyers
We specialise in commercial and corporate litigation, and we have a proven track record of successfully representing our clients in various legal matters.
As a business owner, you understand the importance of protecting your interests and resolving disputes quickly and efficiently. That’s where we come in. Our attorneys have the expertise and knowledge to navigate complex legal issues and help you achieve the best possible outcome for your business.
We offer a wide range of commercial and corporate litigation services, including but not limited to:
- Business Dispute Resolution
- Commercial Litigation
- Corporate Litigation
- Contract Disputes
- Partnership Disputes
- Shareholder Disputes
- Intellectual Property Disputes
- Debt Recovery
Litigation lawyers
We understand that every case is unique, and that’s why we take a personalized approach to each matter we handle. Our attorneys work closely with you to understand your needs and goals, and we provide tailored solutions to meet your specific requirements.
At our law firm, we pride ourselves on delivering exceptional results for our clients. We have a team of highly skilled litigation lawyers who have extensive experience in representing businesses of all sizes. Whether you need an attorney for a small dispute or a complex legal matter, we have the expertise to help you.
If you’re looking for a commercial or corporate litigation law firm in Sydney or anywhere in Australia, look no further. Contact us today to schedule a consultation with one of our experienced attorneys. We’re here to help you protect your business and achieve your legal goals.
Interlocutory Injunctions in Australia: When Waiting for Trial Is Not an Option
A business owner discovers that a recently departed sales director has taken the client list and is already calling customers on behalf of a competitor. A minority shareholder learns that the director in control of the company is quietly moving its funds into a related entity. A founder realises that by the time a final hearing is reached, the commercial damage will already be done. These are the situations interlocutory relief exists for. Final judgment in a commercial dispute can be one to two years away. If confidential information will be exploited, assets dissipated or evidence destroyed in the meantime, a win at trial may be worth very little. An interlocutory injunction is a temporary court order made before final judgment, designed to hold the position so that the eventual judgment still means something. It is not, however, relief for the asking. The court’s discretion is real, the evidentiary burden is significant, and the applicant must almost always accept a financial exposure of its own — the undertaking as to damages — as the price of the order. This article explains how the remedy works in Australia, the legal test the courts apply, and the practical questions a business should answer before pressing the button on an urgent application. The main types of urgent orders “Interlocutory relief” covers a family of temporary orders. Each serves a different purpose, but they share one unifying idea: preserving the court’s ability to grant effective final relief. Order Purpose Typical scenario Interlocutory injunction Restrain conduct (or compel a limited step) until trial Misuse of confidential information, breach of a post-employment restraint, threatened publication Freezing order (Mareva order) Prevent assets being dissipated or moved beyond reach A real danger that any judgment would be unenforceable Search order (Anton Piller order) Permit a supervised search of premises to preserve evidence A real possibility that critical documents or data will be destroyed Preservation order Protect specific property or material in dispute Safekeeping of identified property, records or evidence Freezing orders and search orders are governed by harmonised rules and dedicated practice notes in the Federal Court — see the Freezing Orders Practice Note (GPN-FRZG) and the Search Orders Practice Note (GPN-SRCH) — with equivalent provisions in the Uniform Civil Procedure Rules 2005 (NSW). Both are treated as exceptional remedies. A search order in particular is among the most intrusive orders a civil court can make, and the court expects precision, complete candour and a tightly controlled execution plan, including supervision by an independent solicitor. The legal test: what the High Court actually requires The governing principles come from Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, as restated by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. An applicant must establish three things. 1. A prima facie case The applicant must show a serious question to be tried in the sense the High Court explained in O’Neill: a sufficient likelihood of success at trial to justify preserving the status quo in the meantime. That does not mean proving the case is more likely than not to succeed — the court will not conduct a mini-trial. But it means more than an arguable assertion, and the required strength of the case varies with what is at stake. The more drastic the order sought, the more the court will want to see of the underlying merits. Affidavit evidence should identify the relevant contract, restraint, intellectual property right, debt or fiduciary duty with enough precision for the court to see a genuine controversy requiring protection. 2. Damages would not be an adequate remedy Equity does not intervene where money at trial would fix the problem. The applicant must show it is likely to suffer harm for which damages will not adequately compensate — lost market position that cannot realistically be rebuilt, confidential information that cannot be made secret again, or a judgment that would be worthless because the assets are gone. 3. The balance of convenience favours the order Many applications are won or lost here. The court weighs the injustice to the applicant if relief is refused and it later wins at trial, against the injustice to the respondent if relief is granted and the applicant later loses. If the respondent can comfortably accommodate a short, narrow restraint while the applicant faces irreversible loss without one, the balance will often favour intervention. The breadth of the order sought matters: courts respond better to orders that preserve value than to orders that look like final relief in disguise. The undertaking as to damages: the price of the order Before granting an interlocutory injunction, the court will almost always require the applicant to give the “usual undertaking as to damages” — a promise to compensate anyone affected by the order, including third parties, if the court later decides the order should not have been made. The Federal Court’s Usual Undertaking as to Damages Practice Note (GPN-UNDR) sets out the standard form. This is where many applications meet commercial reality. The undertaking is not a formality: courts scrutinise whether the applicant can actually meet the exposure it creates, and an undertaking that is plainly worthless, with no security offered in its place, can weigh heavily against relief. It is not an absolute bar — the court retains a discretion, may accept security or a payment into court, and may still act where refusing relief would destroy the very subject matter of the dispute — but an applicant that has not thought about its capacity to stand behind the undertaking has not finished its risk analysis. For a small or medium-sized business, the undertaking can represent an exposure larger than the dispute itself, and it should be assessed at board level before the application is filed. Procedure: fast, but unforgiving Urgent applications move quickly. In the Supreme Court of New South Wales, genuinely urgent matters can be brought before the duty judge on the same or the next day; the Federal Court operates
Exclusion, information restriction and exit frustration: A case study in minority shareholder oppression – Jolan Pty Ltd v Essential Investments Pty Ltd (No 2) [2021] FCA 1533
Home The Federal Court’s decision in Jolan Pty Ltd v Essential Investments Pty Ltd (No 2) [2021] FCA 1533 (Jolan) is a significant reminder that shareholder oppression claims are assessed by reference to the overall commercial fairness of the conduct in question, rather than whether individual acts are technically lawful. The case demonstrates how a series of decisions, each potentially defensible in isolation, may collectively amount to oppressive conduct under sections 232 and 233 of the Corporations Act 2001 (Cth). Background The plaintiff, Jolan, sought orders under section 233 of the Corporations Act 2001 (Cth) (the Act) to remedy the oppression, unfair prejudice, and unfair discrimination against it as a minority shareholder of the first defendant, Essential Investments Pty Ltd (Company), pursuant to section 232(e) of the Act.[1] The Company was the holding company of three subsidiaries, Essential Coffee Pty Ltd (Essential Coffee), Essential Coffee (NZ) Limited (Essential Coffee NZ) and Essential Brands Group Pty Ltd (Essential Brands) (together the Group).[2] Its primary business was the supply of coffee machines and consumables, particularly coffee beans.[3] Mr Todd Hiscock, who was employed in the business and a trusted friend of Mr James McWilliam, had approached Mr McWilliam to invest in the business. Mr Hiscock had told Mr McWilliam various things prior to June 2016, including that:[4] Mr McWilliam should invest $1 million towards the $5 million purchase price of the business; the investment would be “short term” with an Exit Event within two (2) years that would double Mr McWilliam’s investment; Mr McWilliam would get a paid executive position within the business paying $150,000 per annum; and Mr McWilliam would be entitled to a board seat, as one of the top five shareholders. On 16 June 2016, Jolan was incorporated and used by Mr McWilliam and his wife, Mrs Nikola McWilliam, as the vehicle to invest $1 million in the Company and Jolan became one of its top five shareholders. In July 2016, Jolan entered into a shareholders’ agreement which required all shareholders to exercise their powers to achieve an “Exit Event” within two years. Further, under the agreement, Jolan had certain contractual rights to appoint a director to the board of the Company.[5] Subsequently, Mr McWilliam was appointed as a director of the Company pursuant to a nomination by Jolan and commenced his role as a paid executive director of Essential Coffee in July 2016.[6] However, there had only been one active campaign to sell the Company during June 2019 to September 2019. When it became obvious that an Exit Event would not be achieved in the short term, Jolan took steps to attempt to sell its shares in the Company.[7] In parallel with this process, Mrs McWilliam, who was a practising solicitor, replaced Mr McWilliam as Jolan’s nominated director on the board of the Company in March 2020. Mrs McWilliam had raised some concerns about corporate governance issues with the board’s processes, which ultimately led to her resignation in November 2020, following a notice being issued to shareholders with a resolution proposing that she be removed as a director of the Company.[8] Jolan appointed Mr McWilliam in her place.[9] However, Mr McWilliam was removed as a director of the Company in February 2021 after the Company’s solicitors wrote to him making various allegations concerning events which had occurred years earlier, many of which were incorrect.[10] Mr McWilliam was also removed as a director of Essential Coffee.[11] These events led to a breakdown in the McWilliams’ relationship with the Company and its directors and shareholders, and resulted in the McWilliams being excluded from participating in the management of the Company and their proposed sale of Jolan’s shares to a third party being impeded. Jolan had not had its nominated director on the board of the Company since June 2021.[12] Legal principles The grounds for court order are found in section 232 of the Act, which provides that the Court may make an order under section 233 of the Act if the conduct of the company’s affairs, or an actual or proposed act or omission by or on behalf of the company, or a resolution or proposed resolution of the members of a class of members of the company, is “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity”.[13] For the purpose of sections 232 and 233 of the Act, the “affairs” of a body corporate are described broadly under section 53 of the Act, which includes the formation, membership, business, transactions and dealings, property, profits and liabilities of the company; the internal management of the body; the ownership of shares in the body; the powers of persons to exercise voting rights; and the circumstances of the acquisition or disposal of shares in the body.[14] The expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against” under section 232(e) of the Act is concerned with conduct that involves “commercial unfairness” or “a departure from the standards of fair dealing, or where a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair”.[15] It is a compound expression that “does not involve separate tests for the elements within it”.[16] The test of unfairness requires an objective assessment.[17] The question is “whether objectively in the eyes of the commercial bystander there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the conduct or decision fair”.[18] As such, “whether or not the conduct is oppressive will not depend upon the motives for what was done. It is the effect of the act that is material”.[19] Furthermore, the Court stated that the “conduct can contravene section 232 of the Act even if it is lawful, in good faith or compliant with the company’s constitution”.[20] The “failure to comply with reasonable requests for information to which a party is entitled is capable of
Have you accidentally transferred money to the wrong account?
Home What to do if you have mistakenly transferred money 1. Contact your bank immediately ePayments Code[1] administered by ASIC The ePayments Code is a voluntary code of practice that banks and other electronic payments providers subscribe to. Typically, in the terms and conditions between you and your bank, there will be a clause in which the bank is obliged to comply with the ePayments Code and therefore a contractual right that you can enforce against the bank[2]. Relevantly, amongst other things, the ePayments Code prescribes the rules which determine who pays for unauthorised transactions and the how mistaken internet payments can be recovered. The ePayments Code applies to a wide range of electronic payments provided by banks[3]: (a) electronic card transactions, including ATM, EFTPOS, credit card and debit card transactions that are not intended to be authenticated by comparing a manual signature with a specimen signature, (b) telephone banking and bill payment transactions, (c) pay anyone banking facility transactions, (d) online transactions performed using a card number and expiry date, (e) online bill payments (including BPAY), (f) transactions using facilities with contactless features and prepaid cards, not intended to be authenticated by comparing a manual signature with a specimen signature, (g) direct debits, (h) transactions using electronic toll devices, (i) transactions using mobile devices, (j) transactions using electronic public transport ticketing facilities, (k) mail order transactions not intended to be authenticated by comparing a manual signature with a specimen signature, and (l) any other transaction specified by ASIC under clause 44 as a transaction to which the ePayments Code applies. There are exceptions and modifications which apply to low value facilities, small businesses, and BPAY payments. Three categories of payments Banks can deposit money into the wrong account for various different reasons and it is important to distinguish between the different categories of mistaken bank transfers. In all cases it is important that you contact your bank immediately. Mistaken internet payments This page is primarily concerned with mistaken internet payments i.e. funds transmitted using a pay anyone banking facility that are sent to an unintended recipient. There are various important obligations upon banks which relate to disclosure of terms and conditions (clause 26), on screen warnings (clause 27), reporting (clause 28), and investigation (clause 29). The applicable process depends on whether or not there are sufficient funds in the recipient’s bank account to repay you, and how quickly you make your report to the bank: Process where sufficient funds are available and report is made within 10 business days[4] In short, if a report is made within 10 business days of making the mistaken internet payment, and there are sufficient funds available in the recipient’s account to repay the mistaken payment, then the recipient’s bank must return the funds to your bank within 5 – 10 business days of receiving a request from your bank. If your bank is not satisfied that a mistaken internet payment has occurred, then it can still seek the consent of the unintended recipient to return the funds. Process where sufficient funds are available and report is made between 10 business days and 7 months[5] The process is less easy if more time has passed. In short, if a report is made between 10 business days and 7 months after making the mistaken internet payment, and there are sufficient funds available in the recipient’s account to repay the mistaken payment, the receiving bank must: – complete its investigation into the reported mistaken payment within 10 business days of receiving a request. – Prevent the unintended recipient from withdrawing the funds for 10 further business days – Notify the unintended recipient that it will withdraw the funds from their account, if the unintended recipient does not establish that they are entitled to the funds within 10 business days commencing on the day the unintended recipient was prevented from withdrawing the funds If the unintended recipient does not establish that they are entitled to the funds within 10 business days then the recipient’s bank must return the funds to your bank within 2 business days thereafter. Process where sufficient funds are available and report is made after 7 months[6] The process if a report is made after 7 months basically relies upon the consent of the unintended recipient. Process where sufficient funds are not available[7] If both your bank and the recipient’s bank are satisfied that there has been a mistaken internet payment, the recipient’s bank must exercise discretion[8], based on an appropriate weighing of interests of both the sending consumer and unintended recipient and information reasonably available to it about the circumstances of the mistake and the unintended recipient, in deciding whether it should: (a) pursue the return of funds to the total value of the mistaken internet payment, (b) pursue the return of funds representing only a partial amount of the total value of the mistaken internet payment, or (c) not pursue any return of funds (whether partial or total). The recipient’s bank has a discretion to for example seek the repayment of funds by instalments under clause 34.4 and clause 34.6 guides on the exercise of that discretion. Internal complaints There are requirements on banks at clauses 35 and 36 to inform bank account holders of the outcome of their reported mistaken internet payment and their right to complain to the bank internally. If the bank account holder is not satisfied about the outcome of a complaint, they can complaint to AFCA about the bank (covered below). between the different categories of mistaken bank transfers. In all cases it is important that you contact your bank immediately. Unauthorised transactions Unauthorised transactions are treated differently. An unauthorised transaction means a transaction that is not authorised by a user. It does not include any transaction that is performed by a user themselves or by anyone who performs a transaction with the knowledge and consent of a user.[9] Clause 10 of the ePayments Code stipulates various circumstances when a
Additional damages for copyright infringement
Home Under Australian law, victims of copyright infringement may be entitled to an account of profits or compensatory damages under s.115 (2) of the Copyright Act 1951 (Cth) (Copyright Act). Additional damages may also be available under section 115(4) of the Copyright Act. That section provides: (4)Where, in an action under this section: (a)an infringement of copyright is established; and (b)the court is satisfied that it is proper to do so, having regard to: (i)the flagrancy of the infringement; and (ia)the need to deter similar infringements of copyright; and (ib)the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and (ii)whether the infringement involved the conversion of a work or other subject‐matter from hardcopy or analog form into a digital or other electronic machine‐readable form; and (iii)any benefit shown to have accrued to the defendant by reason of the infringement; and (iv)all other relevant matters; the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances. The purpose of additional damages is to deter copyright infringement. The amount of additional damages awarded will depend on the facts of the case, such as the nature and extent of the infringement, the level of harm suffered by the copyright owner, and any aggravating or mitigating factors. It is worth noting that the award of additional damages is discretionary and not automatic, and that the copyright owner must prove their entitlement to such damages. Additionally, courts may consider other factors such as the infringer’s conduct, their level of knowledge of the infringement, and any steps taken to remedy the infringement when determining whether to award additional damages. Top Plus Pty Ltd v Mix Entertainment Pty Ltd [2022] FEDCFAMC2G 981 This case concerned Top Plus Pty Ltd who were applying for summary judgment against the first respondent, Mix Entertainment Pty Ltd, and the second respondent, Mr Yiren Wang, for infringement under ss 115 and 116 of the Copyright Act1968 (Cth) of copyright in certain cinematograph films owned by the second applicant, Universal Music Limited, and exclusively licensed to the first applicant, Top Plus Pty Ltd. The cinematograph films were karaoke music videos (KMVs). They comprised approximately 6,214 Chinese (both Mandarin and Cantonese) and English KMVs, and new releases of KMVs added from time to time, owned and controlled by Universal Music, released in Hong Kong and Australia, and/or supplied commercially in Australia in VCD/DVD format or electronic form (collectively, the KMV Films). Mix Entertainment had previously been accused of alleged unlicensed use of copyright in the KMV Films in infringement of applicants’ rights. That earlier dispute was resolved in 2012 prior to the commencement of suit by entry into a written non‐exclusive licence agreement between Top Plus and Mix Entertainment, signed by Mr Wang in his capacity as sole director of Mix Entertainment on 30 April 2012 (2012 Agreement). Pursuant to the 2012 Agreement, Top Plus permitted Mix Entertainment to offer the licensed content — the KMV Films — for viewing and singing by customers in up to 13 rooms at Mix Entertainment’s karaoke outlet ‘Mix Karaoke’ for the period of the licence. The 2012 Agreement expired on 31 December 2012. Compensatory damages which applied the licence fee test were awarded in the sum of $179,616.70. Principles governing an award of additional damages under s.115(4) of the Copyright Act 1951 (Cth) Reference was made to a summary of the principles relating to an award of additional damages at [717] – [721] of Microsoft Corporation v CPL Notting Hill Pty Ltd (No 7) [2022] FedFamC2G 590. In short, the principles are: First, it is not necessary that any amount of additional damages be proportionate to any award of compensatory damages. Secondly, an award of additional damages involves an element of penalty. Thirdly, part of the [function] of an award of additional damages is to mark the Court’s disapproval or opprobrium of the infringing conduct. Fourthly, the matters set out in sub‐s 115(4)(b) of the Copyright Act are not preconditions to an award of such damages. Fifthly, conduct that may properly be seen as flagrant (per s 115(4)(b), Copyright Act) includes conduct which involves a deliberate and calculated infringement, a calculated disregard of an applicant’s rights, or a cynical pursuit of benefit In addition: If additional damages are appropriate, the amount of damages to be awarded must operate as a sufficient deterrent to ensure that the conduct will not occur again. It should also be noted that, whilst additional damages encompass, they are not the same as aggravated or exemplary damages at common law. Specific deterrence has a role to play, including general deterrence. It is not always the case, however, that additional damages must be given, nor that they be such as to be given in an award and an amount as claimed by an applicant. Additional damages may be seen as encompassing broad concepts not always readily amenable to precise measurement or quantification. This includes having regard to capturing aspects of loss that have not been able to be ascertained because of the imperfect nature of litigation and evidence gathering in reflecting all aspects of wrongdoing and the total damaging effect of infringing or contravening conduct. It also entails giving a dollar figure to otherwise intangible considerations of punishment, giving effect to judicial disapproval and sanction and future‐looking considerations of specific and general deterrence. A key consideration when deciding to exercise the discretion afforded to the Court under s 115(4) of the Copyright Act is whether the infringement was flagrant. As noted by Beach J in Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217; 120 IPR 137 at [244] (citations omitted): [244]…in this context flagrancy means more than copying. It also means more than mere mistakes or carelessness. It connotes reprehensible conduct or scandalous conduct which may be demonstrated by deliberate and calculated acts of infringement. But it is not necessary to demonstrate a consciousness of copyright infringement. A consciousness of wrongdoing may be sufficient. In Truong Giang Corporation v Quach [2015] FCA 1097; (2015) 114 IPR 498 , discussing the relevant principles in the trade mark context, applicable also to the copyright context, per s 115(4)(b)(ib), Copyright Act) Wigney J said at [138]–[139]: [138]Sixth, post‐infringement conduct within s 126(2)(c) of the [Trade Mark Act 1995 (Cth) (TM Act)] is unlikely to include the respondent’s conduct
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