General advice from commercial lawyers

Rose Lawyers on 18 April 2016

Commercial disputes can be a difficult area to navigate, especially when you want to preserve a professional relationship with the other party. You will need to engage the services of a commercial lawyer to resolve most commercial disputes.

Here is some general advice for a wide range of situations that can help you find out where you stand and what your next steps should be. This information is general only, and is not meant for use in specific circumstances. We recommend you contact a commercial lawyer who can tailor advice to your specific needs.

The first thing is always to talk to your tenant. As you have done this, and it has not resolved the problem, you must issue a Notice of Breach, setting out what the tenant has done wrong and giving them 14 days to remedy the breach by paying the rent. If they still do not pay after 14 days, then you may terminate the Lease. Terminating the Lease does not affect any rights you may have to sue the tenant.

office kitchen thumbGenerally, this is not something that a tenant is required to fix unless the issue is a result of something that the tenant has done. You must notify the Landlord of the problem as soon as you become aware of it. The Retail Leases Act 2003 (Vic) provides that a tenant can arrange for urgent repairs to be completed at the cost of the Landlord. You must serve the Landlord with a notice of the repairs and cost within fourteen days after the repairs have been carried out.

The first thing you must do is contact the supplier and request delivery. If this has been done and there has been no response, then you will need to send the supplier a Letter of Demand. A Letter of Demand must set out the circumstances of what is owed by the supplier, including the cost of same. It must also state that failure to deliver the goods or provide a refund within a certain period will result in proceedings being issued. The amount of the debt will determine which Court is appropriate to hear the matter.

invoices unpaid thumbThe first thing you must do is send the customer a payment reminder. If you do not receive a response, then you will need to send a Letter of Demand. A Letter of Demand must set out the circumstances of the debt and the amount owing. It must also state that failure to pay within a certain period will result in proceedings being issued. If the customer does not pay the debt, then Court Action will need to be initiated.

When you are served with a Complaint, you must remember that you have 21 days to file a Defence from the day on which the Complaint is served on you. If you do not file a Defence, then the Court may make an order against you for repayment of the debt called Default Judgement. In a case like this where you do not believe you owe an amount claimed in a Complaint, you must file an appropriate Defence. The matter will then proceed to be dealt with by the Court.

If you have a written Partnership Agreement, then the Agreement will say what needs to happen in the event that the partnership breaks down. If there is no written partnership agreement, then your position would presumably be that your ex-partner owes for half of the debt. You may consider bringing an action for damages against your ex-partner, assuming you can quantify the amount you have lost by your partner taking the lucrative contracts. You should seek advice from your Lawyer to find out what your options are.

cafe thumbIt is true that the Purchaser should have performed their own due diligence to ensure that the business was making the money that you said it was. It is likely that the Purchaser will file a Complaint against you. If you were correct in what the business has been making but for some reason the business has lost clients, then that is the position you should take in your Defence. If the Purchaser can show that you misrepresented the figures then they may be successful in an application against you. However, the failure of the Purchaser to perform proper due diligence will be a factor for consideration of the Court.

Your Lease will generally dictate what happens when there is a disagreement on rent review. If you and the Landlord cannot agree then a valuer must be appointed to determine market rent. If you cannot agree to a valuer then generally speaking the matter must be referred to the Small Business Commissioner and they will appoint a valuer. The valuer must consider written submissions and determine the market rent as an expert. The valuer’s determination is binding on both parties, and until the determination is made you will continue to pay the same rent as before the market review.

office thumbIt should be a standard term of your Commercial Lease that the property must be returned to its original state upon vacation of the Lease. This means that everything must be returned to its original state and cannot be left a different colour, no matter how good the paint job is. Walls must be replaced and air conditioning units must be removed. It may be that you decide you want to keep the air conditioning units. However, you are well within your rights to demand that they be removed. If your tenant refuses to bring the property back to its original condition, fair wear and tear excepted, then your Lease will likely dictate that you make an Application with the Small Business Commissioner before taking the matter to VCAT.

Generally speaking, an employee is an agent of their employer, which means that in this case your action would be against your IT company, possibly in the realm of negligence. You should contact your IT company and see if anything can be done to resolve the problem. If they refuse to co-operate, or you feel that you require more compensation than they are willing to give you, then you will need to issue a Complaint. The Court you issue the Complaint in will depend on the amount of damage you can quantify.

Get expert advice from Rose Business Lawyers

Rose lawyers have been practicing business law in Melbourne for over 35 years. Our commercial lawyers have extensive experience dealing with common commercial disputes such as those mentioned in this article and many more.

No matter how complex your case is, Rose Lawyers can handle your commercial dispute and ensure that your interests are protected.

Get advice on your commercial dispute, Call Rose Business Lawyers on 03 9878 5222 for a free consultation.