Commercial Litigation & DisputeResolution

Handling disputes and litigation – Practical tips and how we can help

Disputes and Litigation

Practical Steps to Take Before You Litigate and How We Can Help

At Fioro Legal we act for individuals, families and business owners across the Hills District and North Shore, including Beecroft, Cheltenham, Epping, Castle Hill and the wider Northern Sydney suburbs, combining over 19 years of top tier law firm experience in disputes with a commercial, practical approach that larger firms often cannot offer. Disputes are an ordinary part of business and of life, and almost every client who brings one to us would rather resolve it than fight it out in court. Litigation can be expensive, slow and draining, and most disputes never need to reach a courtroom. The steps you take in the early stages, long before any decision to sue, often decide whether the matter settles quickly and commercially or turns into something drawn out and costly.

This blog offers general guidance on steps to take before you commit to litigation and how we help clients who do need to bring a claim or defend one.

Get your position and timing in order

Start by establishing exactly what you say went wrong and what you are entitled to as a result. Gather any contract(s), invoices, emails, delivery records and any photographs or reports relevant to the dispute, and arrange them in date order so the sequence of events is clear. A record of events and supporting documents made at the time helps significantly in proving and substantiating your claims. They also save you from relying on vague recollections put together months later, which are often less accurate.

You should also make sure your claim is not barred by time constraints, because every claim has a deadline and once it passes your right to sue can be lost. Under the Limitation Act 1969 (NSW), most contract and debt claims must be brought within six years of the date the cause of action arose, though other claims carry different periods. It is therefore important to get advice promptly, before a deadline puts your claim out of reach.

Attempt to resolve the dispute directly

Many disputes, though not all, come down to a misunderstanding. A direct conversation or a measured email may resolve the matter, or open useful dialogue, for a fraction of the cost of formal proceedings. Keep the tone factual rather than personal, put anything you agree in writing and keep a note of your conversations (ideally the exact wording), as this will be very useful if proceedings begin. Where the other side wants to resolve the matter but cannot pay in full, a documented payment plan or a short settlement deed will usually get you paid faster than a protracted dispute, provided it sets out clear dates, clear amounts and what happens if a payment is missed so that you have remedies available.

Send a properly drafted letter of demand

When an informal approach has not worked, a letter of demand is usually the next step. It sets out what you say is owed or required, the basis for it and (where necessary) the documents that support you and gives the other party a firm deadline with a clear statement of what you will do if they do not meet it. It is often best to seek advice at this stage, if you haven’t already, so your demand is accurate and drafted in a way that helps if proceedings need to be commenced and avoids procedural problems that may interfere with formal litigation.

Consider mediation before court

Court is not the only way to resolve a dispute and it is often not the best first option. Mediation brings in an independent third party to help the parties reach their own resolution, confidentially and on a without prejudice basis, which means anything said cannot be used against you if the matter does not settle, allowing both sides to speak openly. Mediation is also usually far cheaper and quicker than running a matter to a final court hearing. It is also worth knowing that many commercial contracts require some form of alternative dispute resolution before court, and NSW courts can order parties to mediate once proceedings are on foot.

Bringing or defending a claim

If the matter cannot be resolved and you need to pursue it, we advise you honestly and in plain language on where you stand and your prospects before you spend money on it. From there, we identify the causes of action open to you, prepare and send a letter of demand where one has not already been issued, identify the appropriate court or tribunal, and where the matter warrants it, leverage our connections to engage experienced barristers to appear for you, always aiming at a resolution on acceptable terms rather than a fight for its own sake.

If you have been served with a statement of claim, the worst approach is to ignore it, because if you do not respond in time, the other party can have judgment entered against you by default, which will require your payment, even in circumstances where the claim was false. We assess the allegations, advise you on the strength of the case and your options, and prepare your defence within the required timeframe, working out whether the sensible course is to defend, to negotiate, or to make an early offer that caps your exposure to costs.

How we work

We understand how to both bring and defend claims, and how best to approach them. We give clients honest advice from the outset, including when we think the legal costs will grow out of proportion to what is in dispute, so you can reassess rather than pour more money into a matter that does not justify it. Every potential litigation matter goes through a triage process to work out whether and how it should be taken forward. Where a dispute can be resolved early, we work to resolve it early, and where court proceedings become necessary, you will have strong and well-prepared representation behind you.

Frequently Asked Questions

What types of disputes do you handle?

We act for individuals, families and businesses across a broad range of civil and commercial disputes. This includes:
• Estate disputes, including family provision claims and challenges to wills;
• Building and construction disputes;
• Debt recovery and unpaid invoice claims;
• Contract disputes, including breaches of commercial agreements;
• Property and real estate disputes;
• Business and shareholder disputes; and
• Other civil and commercial litigation.

If you’re unsure whether your matter falls within these categories, contact us. We can quickly assess your situation and advise whether we can assist.
Do I have to go to court to resolve a dispute?
How long do I have to bring a claim?
Is a letter of demand always necessary?

Not always but obtaining legal advice early can often save considerable time and expense. A properly drafted letter of demand clearly sets out your legal position, the outcome you are seeking and the consequences if the dispute is not resolved. It can also avoid procedural issues later if court proceedings become necessary. We can advise whether a letter of demand is appropriate and prepare one that places you in the strongest possible position.
Can you help if I want to avoid court?

Yes. In fact, most clients come to us hoping to resolve their dispute without litigation. We focus on practical commercial outcomes and will explore negotiation, mediation and other forms of dispute resolution before recommending court proceedings wherever appropriate.
I have been served with a statement of claim. What should I do?
How much will litigation cost?
Can I recover my legal costs if I win?

In many cases, the unsuccessful party is ordered to pay a portion of the successful party’s legal costs. However, costs orders are always at the court’s discretion and rarely cover every dollar you have spent. The likely recovery of costs depends on the type of dispute, the court or tribunal involved and the conduct of the parties throughout the proceedings. We will explain the likely costs position before you decide how to proceed.
How long does a litigation matter usually take?

There is no fixed timeframe. Some disputes resolve within a few weeks through negotiation or mediation, while others may take many months or longer if court proceedings are required. Factors such as the complexity of the dispute, the court’s timetable and the willingness of the parties to negotiate all influence how long the matter will take. Wherever possible, we look for opportunities to resolve disputes efficiently and without unnecessary delay.
Should I accept a settlement offer?

Every settlement offer should be carefully considered in light of the strength of your case, the costs of continuing the dispute, the time involved and the commercial outcome you hope to achieve. We provide practical advice on the advantages and risks of accepting or rejecting an offer so you can make an informed decision. In many cases, an early commercial resolution provides a better outcome than a lengthy court battle.
Can you act if I'm defending a claim rather than bringing one?

Absolutely. We regularly act for clients who have received a letter of demand or have been served with court proceedings. We assess the claim, explain your options clearly and work to achieve the best possible outcome, whether that is defending the claim, negotiating a settlement or resolving the matter at an early stage.
What should I bring to our first meeting?

Bring any documents relevant to the dispute, such as contracts, emails, invoices, letters, photographs, reports and court documents. If possible, prepare a brief timeline of events. The more information we have early, the better we can assess your legal position and provide practical advice.
How do I know if my case is worth pursuing?

We give honest, commercial advice from the outset. That includes discussing the strengths and weaknesses of your case, the likely costs, the prospects of success and whether pursuing the matter is commercially worthwhile. Sometimes the best advice is not to litigate, and we will tell you if we think that is the case.
Why choose Fioro Legal for a dispute?

We combine the experience of a top-tier litigation practice with the personalised service of a boutique firm. We provide clear, practical advice, keep you informed throughout the process and focus on achieving commercially sensible outcomes rather than pursuing litigation for its own sake.

This article is general in nature and does not constitute legal advice. How the law applies to any dispute varies based on its own facts.

If you are facing a dispute, whether bringing a claim or defending one, Fioro Legal is well positioned to assist. Contact us at info@fiorolegal.com.au and on 0481 848 450.

Mobile: 0481 848 450

Email: info@fiorolegal.com.au

Web: www.fiorolegal.com.au