Handling commercial disputes is more than just running off to court and suing someone. Sometimes the best strategy can be looking for alternative ways to resolve the issue. In many ways, going to court should be the last resort – it’s expensive and can be a roll of the dice whether you succeed.
Taking a broad view of what’s at stake in a dispute and understanding what a client wants to achieve are key to reaching a successful outcome. Looking at the wider picture and not at the dispute in a vacuum is what will deliver results.
We consider any dispute from all angles and then offer solutions. If we can identify alternative ways to help clients achieve what they want in a dispute, that’s what we’ll recommend.
complaints to industry bodies/ombudsman
court proceedings and tribunals
debt recovery and insolvency
discovery assistance (including e-discovery and analytics)
setting a precedent
In a legal precedent-setting case, Macpherson Kelley was able to win a security for costs order that had previously been refused. Our client, United Commercial Projects Pty Ltd (UCP), a commercial builder, had been in litigation with property owner PHHH Investments (No 2) Pty Ltd (PHHH) in the County Court. UCP brought a security for costs application against PHHH, which was dismissed in the first instance on the basis it was brought after an unjustifiable delay. UCP appealed, arguing there was no evidence PHHH suffered any prejudice even if the security for costs application was delayed, which we argued was not delayed. Victoria’s Supreme Court – Court of Appeal accepted our submissions and held that prejudice had been presumed without supporting evidence. The judgement means that when judges were considering security for costs applications, there needed to be evidence of prejudice to justify refusal of the application on the grounds of delay.
negotiating contract reset
Macpherson Kelley acted in a contentious matter for a builder engaged to construct a rural project for a government body. The dispute involved complex allegations of bad faith and intentional disruption of the works by the government body, which had caused time and cost overruns on the project. We achieved a great outcome for the client at the pre-litigation stage, which saved the client significant time and cost. The contract was reset and the client completed the project. The case exemplified our commercial approach to disputes and our focus on achieving early resolutions where possible. The matter was resolved without any admissions by either side.
thinking outside the box
Macpherson Kelley was involved in a lengthy and complex trial in the Supreme Court of Victoria, involving historic financial matters for a large family company dating back to the 1980s. There were numerous complex issues regarding allegations of breach of directors’ duties, statute of limitations and appropriate dealings conduct regarding the briefing of experts. The team had to navigate a significant discovery process to establish the state of affairs of the company as well as ensure clear lines of communication existed between them, Counsel and clients. It was necessary for the team to think outside the box and provide alternative case theories and settlement strategies to achieve a resolution.
acting against major banks
Macpherson Kelley has acted for numerous clients against major banks in the financial services space. One matter involved a major bank providing a loan to an individual to start up his own business, subject to the applicant’s mother becoming a director and personally guaranteeing the loan. The guarantee was secured by a mortgage over the family home. The mother did not speak or understand English, however she was made a director and signed the loan documents. The bank attempted to enforce the guarantee and seek repayment of the loan from the mother when the company was liquidated. This raised complex arguments on both contract law and equity. Our team was able to navigate complex family politics while dealing with issues of ethics and unconscionable conduct and made an application to the industry body for adjudication. Ultimately, the loan agreement was set aside.