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Commercial Litigation


At Aylward Game Solicitors we are able to assist you to protect and/or defend your legal rights and entitlements in all Queensland Courts (including any tribunals where parties are able, or have been granted leave, to be legally represented) and all Federal and Circuit Courts (including the High Court of Australia). We have strong ties with similar firms in Sydney and many parts of Australia.

Our focus at Aylward Game Solicitors is always to take a practical approach to dispute resolution and wherever possible we will endeavour to obtain resolution for you by negotiation or mediation before commencing or pursuing formal legal proceedings or commercial litigation. Litigation, like surgery, is a last resort. It’s a bloodsport, one party wins and the other loses.

What is commercial litigation?
There are three tiers of commercial litigation: top-tier, mid-tier and entry-tier.
On the top tier are the big banks and the top 100 ASX companies paying the mega law firms thousands of dollars per hour to engage in a veritable boxing match. It is highly important litigation as it often ends up before Courts of Appeal, if not the High Court of Australia. The decisions of these Superior Courts form the very heart of Australia’s doctrine of precedent, ‘judge-made’ law.
On the next tier are the David and Goliath struggles. Again, the protagonists are often big banks and the top 100 ASX companies. The dramatis personae could also include the Australian Tax Office (ATO) or the Australian Competition & Consumer Commission (ACCC)). Poor old Mr Widget or Widget Pty Ltd really face the prospect of going to the wall. The mega law firms, for client Goliath, are ranged against much smaller firms, for the smaller client.

Surely the Goliath’s will do a cost/benefit analysis of funding each step of the litigation? Wrong. Disabuse yourself of this notion immediately. The Goliath’s have very deep pockets and implicitly understand that the contrary applies to Mr Widget or Widget Pty Ltd. Put simply, it is a war of financial attrition. They go for broke – literally. To use a sporting analogy: who would you back in a Rugby international between the Springboks and Japan? (Well there was that 2015 Rugby World Cup upset).

You will lose unless your lawyer can skilfully extricate you through alternative dispute resolution.

This is Mr Widget or Widget Pty Ltd verse Mr Gadget or Gadget Pty Ltd in all levels of Courts but particularly inferior Courts of record such as Magistrates Courts, the District Court and tribunal such as QCAT.
Can Aylward Game Help?
  • top-tier? No;
  • mid-tier? Yes.

In recent times Aylward Game has been on the record in litigation in Superior Courts in matters as diverse as:

  1. Assignment of proprietary interests in commercial litigation;
  2. Contentious discovery and disclosure issues in fiduciary relationships;
  3. Unfair preferential dividends in corporate insolvencies;
  4. Unconscionable conduct in trade or commerce.
  • Entry-tier? As Christoph Walz would say: ‘that’s a bingo’. 

Debt collections, Corporate and Personal Insolvencies are our bread & butter.

We can assist you with breaking leases, body corporate disputes, breach of trust disputes and estate litigation.

Engage in Alternative Dispute Resolution (ADR) – Do not hide from your creditors: talk with them.

A vital part of commercial litigation is the negotiation / mediation / Alternative Dispute Resolution mosaic.

At the end of the day most litigation boils down to cold hard cash (or lack thereof).

Many a creditors petition for bankruptcy has been withdrawn on the basis of successful negotiations to pay a lesser (but still fair) sum in dispute. For example, many creditors would prefer to accept 50% of a debt than proceed to bankruptcy.

On a more formalized level a bankruptcy may be avoided by what are known as a Part 9 or Part 10 agreements. (Similar agreements apply in corporate insolvencies).
Be forewarned – litigation like surgery is a last resort!!

Q: What is a Special Counsel?
A: A law firm’s in-house advocate.
There are three types of law:

Transactional Law: such as conveyancing, drafting leases, wills etc;
Advisory / Opinion based work: this is attempting to predict what a Court would do in a particular set of circumstances & facts. No easy task given that Judges are human and usually given a wide discretion to decide cases; and
Advocacy: arguing a case in Court.
Opinion based work is highly stressful for both lawyer and client alike. Think about it. How would you feel if you paid thousands of dollars for an opinion that said the Court is going to do X and Y happens?

However, before an opinion can be drafted, facts need to be reduced to admissible evidence.

For example, “John told me that Mary said ‘I will pay you $100,000” is inadmissible. It is hearsay. Only the parties to the conversation can give this evidence.

Another example is ‘I am a bus driver and I have laryngeal cancer’. Only a Medical Practitioner can give this expert evidence about the diagnosis of cancer not the poor bus driver.

Our Special Counsel can and does:

  • Advise on evidence;
  • For smaller matters advise and give an opinion on the prospects of success of litigation;
  • For smaller matters argue a case in Court (Recently, our Special Counsel prevailed against two Barristers in a hotly contested matter).

For larger matters Courts expect to be addressed by Barristers. (In Court Barristers are referred to as Counsel). Barristers specialize in advocacy. Like any other profession, there are good Barristers and not so good Barristers. All Barristers are expensive. Having been a Barrister for a decade, our Special Counsel is uniquely placed to assess the suitability of the Barrister for your matter, and the value for money of the Barrister.

At Aylward Game we instruct quality Barristers.

Commercial and Business Law?
There are not enough entrepreneurs in Australia. Get out and have a go.
Allied commercial / business law issues

Also, attendant to having your own business are diverse issues (and for each of these issues are legal issues that fits like a hand into a glove) for instance:

  • Franchising / Licence agreements;
  • Premises: negotiating a lease;
  • Insurance;
  • Cash flow. Rent, wages and utilities go out each and every week. Do funds come in at the same frequency;
  • Do you sell your invoices to factoring agents?
  • Contractual relationships with suppliers and customers;
  • Intellectual property: do you or your staff own this?
  • Hiring / Firing staff;
  • Staff embezzlement investigations;
  • Taxation;
  • Protecting your personal assets if your business fails. Would you be better off being a sole trader, such as Mr Widget, or a company Widget Pty Ltd;
  • If your business fails, how do you extricate yourself from the fallout;
  • Succession plans for your business. What happens if you become seriously ill or worse? Do you entrust your business to your buffoon son, or a trusted business adviser?

Because of the impact of business disputes, they can be time sensitive. This makes it crucial to receive precise and immediate advice on all issues in relation to the legal dispute, including possible outcomes.
Disputes are a part of business, and having a lawyer to call when these disputes happen is important to the survival and prosperity of your business.
At Aylward Game we regularly deal with these issues on both a Transactional Basis and/or Litigation basis.

Aylward Game Solicitors, keeping you ahead of the game.

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