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General commercial litigation
Background law
“Commercial litigation” is a catch-all phrase for any litigation or dispute arising from commercial activities.
Commercial disputes arise from the competitive drivers of commerce, from transactions, or from governance issues, and can involve obligations from a number of sources of law, including by way of examples:
- Contracts for performance;
- Rules imposed by statute absolutely (such as those of the Companies Act 1993, the Financial Reporting Act 1993, the Securities Act 1978, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, the Fair Trading Act 1986 and the Income Tax Act 2007);
- Terms implied by statute into contracts and non-contractual commercial relationships (such as those of the Sale of Goods Act 1908 and the Consumer Guarantees Act 1993);
- Background general law (for example, the common laws of tort and restitution);
- Trusts and trust-like obligations
- The rights and obligations between shareholders and companies;
- The rights and obligations between issuers of securities and investors;
- The rights and obligations between directors and companies;
- Company constitutional arrangements.
Frequently encountered issues
- Disagreements over whether there is a contract; the interpretation of contracts and whether contractual obligations have been fulfilled; and how far obligations under contracts extend;
- Which obligations prevail when there are conflicting obligations or sources of obligations;
- Whether a contract has been validly repudiated by failure to perform and/or properly cancelled;
- Whether and to what extent statutory or other obligations exist and/or may be implied into the particular problem;
- Whether deficiencies of formality or procedure can invalidate particular transactions and the consequences of that;
- Shareholders' disputes and Section 174 applications by shareholders claiming abuse of power or corporate oppression by management;
- The extent of directors' obligations and the thresholds at which personal liability may possibly be incurred for certain conduct;
- Creditors seeking remedies or advice against debtors, and vice-versa;
- Whether the statutory demand process of Section 289 of the Companies Act 1993 has been correctly followed;
- The measure of remedy the Courts may provide in a particular scenario; and
- Governance and constitutional procedures, interpretations and disputes.
What you should provide when instructing us
- A narrative of what has happened, your situation and your point of view;
- Copies of all relevant correspondence and documents you have, which have a bearing on the issue;
- Copies of any Court documents you have filed or been served to date.
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