Macdonald Rudder Lawyers, commercial litigation lawyers, commercial law firms, commercial advice, commercial legal services, Perth, Western Australia, Northbridge, South Perth, North Perth

Perth law firm, Macdonald Rudder have extensive knowledge in a broad range of business and commercial dealings including:

  • Drafting and negotiating contracts and assisting in the resolution of disputes
  • Business structures
  • Commercial litigation and dispute resolution
  • Corporate governance including directors’ duties, shareholders’ rights and legal compliance
  • Purchase and sale of businesses
  • Conveyancing
  • Trade practices issues
  • Leases
  • Credit Code
  • Finance
  • Franchising and the exploitation and transfer of intellectual property rights
  • Joint Ventures
  • Licensing
  • Real Estate
  • Shareholder agreements

On the danger of precedents

In choosing your commercial lawyer the words of Young CJ in Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 (28 May 2008) at [496] should be kept in mind.

People do not go to solicitors just so that the solicitor can earn a fee by pulling out a form from his or her computer and instructing a word processing clerk how he or she should fill out the blanks. A solicitor earns his or her money by directing his or her mind to the transaction and the risks that need to be covered and the advice that needs to be given to the client. Doubtless it is very tempting in a transaction which looks at first sight to be the same as thousands of other transactions that have been processed by the solicitor, and where it appears that there is no fraud, to just adopt the policy of “one size fits all”. If that were all the solicitor was to do, then an unqualified clerk in the mortgagee’s (sic) employee could do the same task far more efficiently and cheaply. So, the solicitor is there to direct his or her mind to the transaction.

At [495] his Honour noted the comments of the editors to the Law Book Company’s Practical Forms and Precedents in 1957, Vol,1 p xxi that:

“The transactions of modern society are so varied, that it would be impossible to devise a set of precedents which would suit all occasions…..Not even a line should be copied from a precedent without proper consideration of its meaning and effect, and its application to the then instant transaction. Precedents are not made for the ignorant. They are only in aid, in method and expression, to those who know their subject, and a reminder of dangers to be avoided, and of provisions which should not be overlooked. The draftsman…should have an exact knowledge or understanding of the meaning and legal significance of every phrase and clause in a precedent, and the reason for the retention or the omission of any phrase or clause in such precedent.”

Justice delayed is justice denied.

The High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 emphasised the concern with which courts view delays in the conduct of commercial litigation. As stated by Heydon J:

… Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest … Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce [137].

On the benefit and otherwise of arbitration

For those contemplating arbitration as opposed to litigation, the observations of Heydon J in Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 at [110] are apposite, namely:

The arbitration proceedings began on 15 October 2004 when Gordian served points of claim. This appeal comes to a close seven years later. The attractions of arbitration are said to lie in speed, cheapness, expertise and secrecy. It is not intended to make any criticisms in these respects of the arbitrators, of Einstein J, or of the Court of Appeal, for on the material in the appeal books none are fairly open. But it must be said that speed and cheapness are not manifest in the process to which the parties agreed. A commercial trial judge would have ensured more speed and less expense. On the construction point it is unlikely that the arbitrators had any greater relevant expertise than a commercial trial judge. Secrecy was lost once the reinsurers exercised their right to seek leave to appeal. The proceedings reveal no other point of superiority over conventional litigation. One point of inferiority they reveal is that there have been four tiers of adjudication, not three. Comment on these melancholy facts would be superfluous.

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