Your Dispute Isn’t Resolved – What’s Next

Co-Authored by Vishaal Kudupudi

KEY TAKEAWAYS:

• Litigation is the legal process for resolving disputes between parties through the court system, and which court you end up in depends largely on the type of matter and sum of the claim that is at stake.

• Acting quickly and getting advice early often shapes the outcome of a dispute more than the dispute itself.

• Courts actively encourage parties to attempt to resolve disputes before the final hearing and ignoring this can affect your legal costs even if you win.

• Limitation periods set hard deadlines for when you can bring a claim and missing one can mean losing your right to sue altogether.

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Understanding Litigation in NSW

When you have exhausted all avenues of trying to resolve a civil dispute informally or through dispute resolution such as arbitration or mediation, sometimes you are left with no choice but to pursue your dispute through a Tribunal or Court.

Litigation is the legal process used to resolve civil disputes between individuals, businesses or organisations through the Tribunals or Courts. Which Court or Tribunal hears your civil matter depends on both the type of dispute, but also the amount of the dispute.

For example, in NSW:

• The NSW Civil and Administrative Tribunal (NCAT) hears matters relating to tenancy disputes, consumer and commercial disputes, strata and community scheme disputes, guardianship and financial management, administrative reviews, equal opportunity and anti-discrimination matters and professional and occupational matters. NCAT has different jurisdictional limits depending on the type of matter.

• The Local Court can deal with civil claims up to $100,000.

• The District Court can deal with civil claims from $100,001 up to $1,250,000.

• The NSW Supreme Court has unlimited civil jurisdiction and generally deals with the largest or most complex matters.

• The Federal Court of Australia has jurisdiction to hear matters that Parliament has given it the power to determine under federal legislation such as corporations’ matters, competition and consumer law, administrative law bankruptcy and corporate insolvency, intellectual property, native title, admiralty and maritime law, taxation, migration and employment and industrial relations.

 

Some Common Types of Civil Disputes

Civil disputes can arise in all kinds of situations, but in practice, most fall into a handful of familiar categories that business owners and individuals tend to encounter:

• Debt recovery: where a business or individual is owed money and the other party has failed or refused to pay, whether that’s an overdue invoice, an unpaid loan, or money owed under another arrangement
• Breach of contract: where one party doesn’t hold up their end of an agreement, such as a supplier failing to deliver, a customer not paying as agreed, or a contractor not completing work to the standard promised
• Property disputes: including disagreements over boundaries, issues arising from a commercial or retail lease, equitable interests claims or disputes connected to the sale or purchase of land
• Disputes between business partners or shareholders, which often surface when there’s disagreement over how the business should be managed, how profits should be shared or how someone should exit the business

 

A Key Deadline You Should Know About

Every civil claim has a limitation period, a hard deadline by which you must commence proceedings or risk losing your right to sue altogether. This comes from the Limitation Act 1969 (NSW), which applies across all NSW courts.

Limitation periods can vary depending on the type of claim.  Missing the relevant deadline can mean the matter is barred entirely, no matter how strong it is. If you think you may have a claim, or one has been threatened against you, it’s worth getting advice early rather than assuming there’s plenty of time left. Finding out if your claim or the claim against you is in time is a vital step to ensuring that litigation is the right next step for you.

 

Why Getting This Right Matters

Litigation in civil disputes isn’t just about who is right. It’s also about process, timing & strategy, and getting any of these wrong can cost you regardless of the strength of your underlying case.

The Civil Procedure Act 2005 (NSW) sets out an “overriding purpose” for the courts: to facilitate the just, quick and cheap resolution of disputes. In practice, this means courts actively expect parties to try to resolve matters before trial, and they have real power to penalise parties who don’t. In some civil disputes and depending on the jurisdiction of the Tribunal or Court, a party who unreasonably refuses to settle or unnecessarily prolongs a case can be ordered to pay the costs of the other party, even if they ultimately succeed, if the other party can show they tried to resolve the matter before it getting to the final hearing

Tribunals and Courts have also become more active in pushing matters toward alternative dispute resolution before they reach a hearing. A dispute that could have settled early but instead drags on for months can end up costing far more in legal fees than the amount originally in dispute.

Put simply, the way you approach a dispute from the outset can matter just as much as the dispute itself.

 

The Risks of Self-Representing or Acting Without Advice

Representing yourself or acting on general advice rather than advice specific to your situation can feel like the cheaper option early on. In practice, it’s often the more expensive one.

Court procedure is technical and small mistakes, like filing the wrong document, missing a deadline, or pleading a claim incorrectly, can weaken or even derail an otherwise strong case. In particular, Courts don’t apply a lower standard to self-represented parties just because they’re unfamiliar with the process.

Getting advice early means your case is structured properly from the outset, rather than being patched up after a procedural misstep has already done damage.

 

What You Should Do ig Facinhg a Civil Dispute

If you’re facing a dispute, you don’t need to understand court procedure inside out. A few good habits make a difference early on.

• Get legal advice before you respond in writing, since emails and letters sent early in a dispute can later be used as crucial evidence.

• Keep proper records, including contracts, invoices, emails and other correspondence, as courts rely heavily on written evidence and contemporaneous materials.

• Act early rather than waiting to see if the issue resolves itself, since limitation periods, court deadlines and rising costs all mean delays can limit your options.

• Stay open to resolution throughout, since most disputes settle before the final hearing and a willingness to negotiate at the right time can save significant time and cost.

 

How Can Coutts Help

Litigation can move quickly once a dispute escalates and become complex with often the most important decisions made early on which shape how the matter plays out.

If you’re dealing with a civil dispute, whether that’s assessing your options, responding to a claim, or understanding which court your matter belongs in, getting the right advice early can make all the difference.

Speak with our Litigation and Disputes team today to understand your options. Every dispute is different and your legal advice should be tailored to consider the facts and circumstances of your specific matter

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