Contract Disputes

Contract Terms

Sometimes, particular terms or clauses in a contract are unenforceable. This can result in the legitimate avoidance of what appears to be a valid contractual term.

A contract term may be unenforceable if it is inconsistent with the law, and what is specified in applicable legislation and may also be unenforceable if it is deemed to be “unfair.”

If statute provides for something, you cannot contract out of the law. Legislative requirements will generally prevail over inconsistent contract terms and those terms will be considered void.

Certain terms may be considered unfair in circumstances where that party is likely to be significantly disadvantaged or suffer loss or damage as a result of the other party enforcing unfair contract terms. Unfair contract terms do not apply to all types of contracts, however, where they do and a party is protected, the unfair contract terms are void and unenforceable by the other party.

In some circumstances, the parties may have conflicting interpretations of particular terms or clauses in a contract and cannot agree on the effect of the term or clause. This requires careful and strict interpretation to ensure that the intended effect of the term and the contract as a whole is understood.

Misleading and Deceptive Conduct

Some areas of law sit above the terms of a contract and have the effect of overriding the contract, for example in the case of misleading and deceptive conduct under the Australian Consumer Law. Misleading and deceptive conduct is conduct in trade or commerce, which misleads or deceives the consumer or other businesses or is likely to mislead or deceive.

Conduct can still be considered misleading and deceptive, even if the party alleged of the conduct did not intend to mislead or deceive. It is the party’s actions and statements that qualify rather than their intentions.

If a misleading impression is created about the price, value or quality of consumer products or services, it is likely to be considered misleading and deceptive conduct and breaking the law.

Conduct includes actions and statements, such as advertisements, representations, promotions, disclaimers and small print and the content contained within each of these.

This area of law is thus very complex in this space.

We regularly act for Plaintiffs where misleading and deceptive conduct is alleged – and the results in terms can be astonishing, even against large companies.

Some of the remedies you may have available to you if someone has breached a contract or agreement include:

• Termination of the Contract – sometimes there are legitimate grounds to unilaterally terminate a contract. A contract may specifically provide for termination by one party or it may specify what circumstances allow each party to terminate the contract. We regularly see instances where a party unlawfully terminates a contract. Often this happens in circumstances where the contract is silent or unclear on what events entitle a party to terminate the contract. Arguments often arise about whether a party has the right to terminate and, especially in the building law space, a great deal can turn on which party is right.
• Damages – there may be damages awarded for a quantified loss or paid as a part of a negotiated settlement. This usually occurs when a party is able to substantiate what exactly it has lost or suffered as a result of the other party’s breach of the contract. Damages are awarded to replace the value of what has been lost or damaged.
• Specific Performance – this is when a court makes an order requiring the other party to perform their particular contractual obligations. The purpose of this is to compel the offending party to remedy the breach of contract in circumstances where damages are inadequate to replace the loss or damage suffered by the other party. Specific performance aims to fulfil the contract and put the parties in the position they would have been in if the contract was complied with as originally intended.
• Injunction – this is usually sought in urgent circumstances, where the other party needs to be restrained from doing something. An injunction seeks to prevent a party from breaching the contract and like specific performance, is used in circumstances where damages are inadequate to replace the loss or damage suffered by the other party.

Many disputes can be resolved without the need for a court to decide the outcome. Getting legal advice may be an exploratory step or could be required if an urgent action is needed, such as an injunction, to prevent someone from doing something adverse to your commercial interests.

We have helped many clients whether they are making a claim or if the allegations are made against them. The usual approach for an aggrieved party is to issue a detailed letter, setting out the nature of the allegations and the remedies sought (which usually involves money) however there are many things, such as undertakings that may be required.

Undertakings should be carefully considered as they are a binding and enforceable agreement that you are agreeing to perform.

Our litigation and dispute resolution lawyers can provide you with clear advice on your rights and obligations, including your options and prospects of success.

Alternative dispute resolution or “mediation” is used in all legal proceedings and is sometimes a pre-requisite – such as in franchising or retail leasing disputes. Mediation is beneficial to you as the process requires the parties’ lawyers to critically examine the evidence to hand. With the inclusion of the mediator, lawyers and a formal setting, many disputes resolve favourably.

Our litigation lawyers have extensive experience in representing clients at mediation. Most cases tend to resolve there.

After a demand or claim is made, it should be taken very seriously at first instance. If the allegations are baseless, then a strong sharp letter on lawyer letterhead is the way to go. A well-written letter that carefully addressed the issues will often put the matter to rest.

If the other party is persistent, or if the allegations otherwise need to be defended, careful consideration needs to be given as to how the exposure can be minimised.

We regularly defend erroneous or overstated claims and know how to isolate the issues and fight back when such allegations are made.

Careful consideration and experience is required when handling disputes and litigation. Not all lawyers have experience in litigation even though they understand the other legal aspects or even prepare contracts. Read more here on what a litigation lawyer does and why getting a skilled litigation lawyer is essential.

We regularly litigate on our clients’ behalf in the Magistrates Court, County Court, Supreme Court, Federal Circuit Court, Federal Court, Family Court and VCAT. We also have strong appellate experience.

We have the requisite experience in dealing with small, medium and very substantial claims. Different types of claims call for different approaches. The quantum of the claim can also affect the approach.

We have the depth in our litigation team to deal with virtually any type of contract dispute. You can be assured of a concise, professional approach comprised of excellent technical knowledge of the law and commercial understanding.

Call us today to speak to on 1300 907 335. Otherwise please complete an enquiry form and we will contact you promptly.