Commercial Litigation and Insolvency

FAQs: Common questions about commercial disputes, court proceedings and insolvency matters are answered below.

Frequently Asked Questions About Commercial Litigation and Business Disputes

Is my conversation with you confidential?
Yes, information that you disclose for the purposes of seeking legal advice is generally covered by legal professional privilege, even if you do not retain our firm to act for you. This applies to new enquiries, including initial consultations, emails and phone calls with a lawyer from our firm. The information disclosed must be primarily for obtaining or giving legal advice, or in anticipation of legal proceedings.

Should I try to resolve the dispute myself first?
While informal discussions sometimes work, having legal representation early often leads to faster, better outcomes. There is a risk you may unknowingly compromise your claim during a negotiation. We can handle initial negotiations on your behalf, often resolving disputes before they escalate to expensive court proceedings. Early legal advice can also prevent you from inadvertently damaging your legal position.

Is mediation a good idea? How does mediation work?
Many business disputes can be resolved through mediation without going to court. Mediation helps both parties discuss the issues with the assistance of an independent mediator and work toward an agreement. Courts often require mediation before a matter goes to a final hearing because it can reduce cost, time and disruption.

How do I recover a debt?
The first step is usually sending a letter of demand. If payment is still not made, you may need to start court proceedings or, in some cases, issue a Creditor’s Statutory Demand to a company that owes you money. Early legal advice can help you choose the most effective approach.

How expensive is it to go to Court?
The cost of court proceedings depends on the court involved, the complexity of the dispute and whether the matter settles before a final hearing. Many disputes resolve before trial. Your lawyer can provide an estimate of likely costs and explain options to resolve the matter efficiently.

Can you tell me whether I will be successful if I litigate?
While we cannot guarantee you an outcome, we can advise you on the prospects of success and outline any significant risks you should consider before you commence proceedings. If your matter is complex, we may recommend engaging a barrister who specialises in that particular area of law to provide additional advice on prospects.

How do I start court proceedings for a business dispute?
Many disputes can be resolved before court action is needed. If court proceedings become necessary, a commercial litigation lawyer can guide you through the process, explain your options and help you protect your commercial interests.

What’s the difference between a solicitor and a barrister?
Solicitors are generally the first point of contact when you are facing a legal matter and are usually the day-to-day manager of your file. They can give you advice, take care of your legal paperwork, help you explore your options and guide you through the process. A solicitor can also appear in court; however, if your matter is complicated, we may advise that you retain a barrister.

A barrister is essentially an expert advocate who specialises in courtroom advocacy and complex advice in a particular area of law.

I have a building dispute. What should I provide my solicitor?

We would like to see copies of your building contract, building plans, building permits, occupancy permit, any variation invoices, photographs of defects, expert reports (for example, building inspection, engineering or plumbing reports), and any correspondence relevant to the issues in dispute.

What are builder’s warranties?

In Victoria, most domestic building work is covered by implied warranties under the Domestic Building Contracts Act 1995 (Vic). These rights cannot be signed away by you or the builder and are designed to protect homeowners.

The builder must:

• Carry out the work in a proper and workmanlike way, in line with the plans and specifications in the contract.

• Ensure all materials they supply are good and suitable for their purpose and are new, unless the contract states otherwise.

• Carry out the work in accordance with all laws and legal requirements, including the Building Act 1993.

• Carry out the work with reasonable care and skill and complete it by the date (or within the period) specified in the contract.

• Ensure new homes, extensions, renovations, repairs and kit homes are suitable for occupation when completed.

• Ensure other types of work and materials used are fit for their intended purpose.

These warranties generally apply for up to 10 years from the date the building work was completed, and they usually transfer to a new owner if the property is sold within that period.

My builder is taking too long to complete my build. What should I do?

Most building contracts specify when the build is to be completed and how the completion period is calculated. The timeframe can sometimes be extended by the builder in certain circumstances, such as delays outside their control or approved variations.

If you cannot resolve the issue directly with the builder, or they are unresponsive, you should contact our office so we can review your contract and the history of the matter and provide you with tailored advice.

What steps should a builder or homeowner take before commencing legal action?

If a builder or homeowner cannot resolve the dispute directly, it is usually best to contact our office first so we can write to the other party. Often, a letter from a solicitor will prompt a response or assist with reaching an agreement.

If the other party remains unresponsive, or an agreement still cannot be reached, the next step in most domestic building disputes is to lodge an application with Domestic Building Dispute Resolution Victoria (DBDRV). This is generally required before you can file a formal claim against the builder or homeowner.

DBDRV will attempt to help resolve the dispute and will usually arrange a conciliation conference, where a DBDRV representative facilitates discussions between the parties. If the matter does not resolve at DBDRV, you may receive a certificate which then allows you to file a claim with the Victorian Civil and Administrative Tribunal (VCAT) or a court.

We can assist you throughout the DBDRV process and can represent you at the conciliation conference if required.

A homeowner is not paying my building invoice. What should I do?

You will need to strictly follow the terms of your building contract. Most contracts set out a specific process, which often includes issuing written notice of your intention to suspend building works and allowing a set period of time for payment to be made.

If you cannot resolve the issue with the homeowner directly, or they do not respond to your requests, we recommend you contact our office so we can review your contract, the payment history and your options before you take further steps.

I have received a Magistrates’ Court complaint. What do I do now?
You may need to file a Notice of Defence or take steps to negotiate the claim. Strict time limits apply, so it is important to act quickly. Getting legal advice early can help you understand your options and avoid unnecessary risk.

My company has received a Creditor’s Statutory Demand. What do I do?
A statutory demand has strict deadlines, so you should seek advice immediately. If you dispute the debt, you may be able to apply to the court to set the demand aside. If the company cannot pay the debt, early insolvency advice can help you understand your options and protect directors from personal risk.

I have received a bankruptcy notice. What do I do?
Act quickly because a bankruptcy notice has strict deadlines. In most cases, you have 21 days from the date you were served to either pay the debt, enter into a suitable payment arrangement with your creditor, or apply to the court to set the bankruptcy notice aside if you dispute the amount claimed. If you do nothing within this timeframe, you may be taken to have committed an “act of bankruptcy”, and your creditor may ask the court to make you bankrupt. Bankruptcy has serious consequences, so you should contact our firm immediately for advice.

If you need advice about a business dispute, statutory demand or commercial litigation matter, contact our Commercial Litigation & Insolvency team for practical guidance on next steps.