3 Must-Do Items When In A Commercial Litigation

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If you run a business, the last thing you want to get caught up in is litigation – whether initiated by you or the other side. But sometimes, it’s just inevitable. Whilst there is no such thing as being ‘prepared’ for litigation, you can certainly tick a few boxes that will maximise your chances of success.

As a business owner, you need to be aware of what commercial litigation and disputes can entail. Here are some of the areas where disputes and lawsuits are quite common.

  • Banking, regulatory and finance disputes
  • Commercial Contract
  • Competition
  • Consumer protection and regulation
  • Misleading and deceptive conduct (including false advertising)
  • Fraud
  • Product liability
  • Property disputes
  • Technology liability and cybersecurity
  • Defamation claims and proceeding
  • Debt collections, bankruptcy and corporate insolvency
  • Insurance disputes

So, without further ado, here are the top 3 things you need to do if you’re caught up in (or about to) in litigation.

1. Invest time in finding the right lawyer.

Chemistry and personal trust are not the only important factors when the stakes are high. Competency is, however. And by competency, I’m referring to someone who can over-deliver on your desired outcomes and save the day when it all seems doom and gloom.

For example, over the last couple of years, we, at Lazarus Legal, represented and fought for the Double Bay Bowling Club in a legal dispute where the stakes were high. Here is the background story. In the past, a covenant was in place which brought restrictions preventing the club from using it’s owned property to the best of it’s potential. But just recently (Date of Judgement: 8 December 2020), the court has finally ordered the covenant to be extinguished. This means that the bowling club is now able to deal with its property without the restriction of the covenant and look forward to a more promising future.

On the flip side, minimising risk Every deal or transaction carries with it the risk of a dispute. Successful businesses have savvy leaders who work with lawyers that can pre-empt any issues can lead to unnecessary disputes down the road. Call it a bird-eye-view. Or call it a crystal ball. Competent lawyers can see what you can’t. And that’s what ultimately makes the difference between mediocre businesses and those that make it to the top.

2. Adopt a purposeful approach.

Most people get emotionally caught up in disputes and lawsuits. Although that tends to be more persistent in civil disputes, it’s still a common challenge in the commercial litigation world. One of the most important steps to take is to stay ‘objective’ and ‘purposeful’, that is, focused on the outcomes and options you want whilst remaining open to alternatives and options that can achieve the same outcomes.

Bearing in mind the costs of commercial litigation, a savvy commercial lawyer will approach your litigation with a purposeful approach and help you understand the possibilities, complexities, upside and downside of the various approaches you can pursue.

3. Do NOT Procrastinate for 1 second.

The earlier you act and speak to the right lawyer, the higher the chances of coming out on top. Sometimes, early dialogue with the other parties can mean a more effective negotiation, less cost and or damage. An early dialogue will allow your lawyer to ascertain the most suitable method and timing of every step they need to take on your behalf.

Who is Lazarus Legal?

A trusted Construction Lawyer can be the ultimate difference and differentiating factor for your construction or property development business. At Lazarus Legal, we work with a range of clients from small developments clients to large scale, corporate and government clients working on major commercial and residential developments including retail, aged care, recreational, education to name a few. We’ve had the opportunity to consult and help our clients over the years across a wide range of construction and building disputes.

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We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry Lazarus is an old school, tough as nails lawyer. They don’t forge litigators like this anymore. With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name.

Construction Lawyers: 5 Things To Know Before Hiring One

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The construction industry is the foundation for much of Australia’s economy, generating around 9% of national GDP, or $360 billion in revenue as of April 2020. With more than 360,000 businesses operating in Australia’s construction industry, it’s not surprising that some of them end up in court. When you’re working in an industry that’s as complex as construction, and where the stakes are as high financially, you need to know that professional lawyers who understand the industry are there to help you navigate your way through a project without hitting any legal rocks. But before you take those first steps towards hiring your construction lawyer, here are five key things you should know first.

1. Construction covers a range of specialisms – so does construction law

The word construction makes some people think of a monolithic industry, but insiders understand it is really an umbrella term covering a wide range of different sectors and specialisms coming together to work on one or more project. Each of these different moving parts – from architecture to bricklaying, plumbing to electrics – creates its own legal jeopardies.

That means your work could become subject to a wide range of legal areas, including contract law, real estate law, insurance law, environmental law, and more. To add to the complexity, you need only assess the current status of the construction industry in Australia, which has seen some projects run into trouble due to economic shockwaves even as the Government has supported the industry with large stimulus packages. If you have many legal vulnerabilities and are living in a turbulent economic period, the chances for legal disputes increase and it is impossible for even the most astute business owner or project manager to keep on top of all the different risks. Fortunately, that’s where a reliable construction lawyer steps in, whose sole job it is to stay on top of these complexities and the latest developments.

2. What construction lawyers do – and what they don’t

Construction lawyers can support large companies, property owners, and even individuals – essentially any and all parties who are involved in the construction project or process. In fact, with the growing demand for construction lawyers across the country, it’s not uncommon for some of the larger construction companies to hire their own in-house lawyers.

Although payment disputes are one of the more common pain points where a construction lawyer gets involved, there are numerous other times they are worth their weight in gold. Your lawyer isn’t there to manage or control your project, but they should be your first point of call for any big decisions that may pose legal risks. That often means all big decisions. They have the knowledge and experience to help you work through any legal challenges you might face. Whether it’s a disagreement overpay, a claim concerning incomplete work, a contractual inconsistency, or an insurance dispute – a construction lawyer will be there to fight your corner.

3. When you need a construction lawyer – and for how long

Unlike criminal lawyers, for example, who are traditionally hired when they’re needed, the best time to hire a construction lawyer is before your project officially starts. Generally speaking, the most effective way of utilising your lawyer is ensuring they’re helping you avoid any problems before they come up. Leaving the recruitment process to the day you’re faced with a dispute can make dealing with that dispute much more challenging, more costly, and ultimately will take your attention away from the project you’re working on and your business’ ultimate success.

Construction lawyers can stress test the foundations for a successful project and be a huge source of support throughout the process. Here are just a few of the areas you may need a lawyer’s help with:

  • Ongoing contractual agreements and insurance cover
  • Property law and planning approvals
  • Licensing and permits
  • Employment law and workers’ compensation
  • Negligence, personal injury and litigation
  • Change orders, waivers and claims
  • Payment disputes and disagreements over completed work

A good construction lawyer will help protect your interests throughout a project, from planning to active construction to completion.

4. What to look for in your construction lawyer – and what to avoid

Whether your project is a large property development in the city, or a more personal project such as home renovations, hiring the right construction lawyer is an essential step in the process. Before you jump into any decisions, consider what you need from your lawyer and what kind of background they should have.

Aside from the obvious – education and qualifications – it’s worth bearing in mind that lawyers have varying degrees of experience in the area of construction you might be working in. When you’re starting a new project, you’ll want someone familiar with the same type of construction project so they’re better able to guide you through the journey and won’t be overwhelmed if things go awry. Research what legal battles they may have fought, what their success rate is, what past clients say about them, and avoid those that have any proverbial ‘red flags’ against their name.

Since they can vary hugely in fees, it may be worth your while to weigh up the return on investment you want from your lawyer. While it may be tempting to go for the cheapest option, sometimes paying more for better and more effective cover when things go wrong is the better investment.

5. How to prepare for your new construction lawyer – before you make the hire

Once you’re set on who to hire as your new construction lawyer, there are ways you can prepare to make the onboarding a more manageable process, particularly if you’re already partway through your project. Some of the best ways you can prepare are keeping everything documented and ensuring contracts are in writing with signatures, organising your paperwork and contracts so they’re accessible and available upon request, and working with your team to prepare any contract notices or follow up documents that you may want your lawyer’s advice on. Hit the ground running to minimise potential problems and to get the most value out of your construction lawyer.

Think these five steps through and you will be in the position you want, ready to build something truly substantial and successful, while being sure you aren’t creating a legal house of cards at the same time.

Who is Lazarus Legal?

A trusted Construction Lawyer can be the ultimate difference and differentiating factor for your construction or property development business. At Lazarus Legal, we work with a range of clients from small developments clients to large scale, corporate and government clients working on major commercial and residential developments including retail, aged care, recreational, education to name a few. We’ve had the opportunity to consult and help our clients over the years across a wide range of construction and building disputes.

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We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry Lazarus is an old school, tough as nails lawyer. They don’t forge litigators like this anymore. With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name.

Building and Construction Lawyers

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Building and construction lawyers are your biggest asset. Perhaps it’s a bold statement but will explain why we thing so, at Lazarus Legal.

Are you a developer, builder, subcontractor, consultant, architect, planner, engineer or even a homeowner? A building and construction lawyer can help you navigate through your legal issues and protect you whether it’s at the early planning or post-build stages. But first, let’s have a look at what’s happening in the construction space.

The State of Construction in Australia

Irrespective of any recession or short-term economic cycle we may be in, we are in the midst of a massive construction boom. Close to $5 billion worth of development projects is now taking place in Sydney’s CBD alone. Whilst that is exciting news, it means the construction industry can see a vast number of disputes from different parties including builders, sub-contractors, buyers, developers and residents.

The construction and property development sector are filled with risks and legal landmines by virtue of the complexity of the law, the involvement of various parties, amongst other challenges that can lead to missed budgets or deadlines. To ensure you are protected, you need to be backed by a construction lawyer with multi-disciplinary background and decades of experience.

A lot of the time, understanding what your rights are can be difficult. However, it’s imperative to know what your legal rights are, and have the right people helping you navigate the law and ensuring your rights are protected.

What causes disputes in the construction industry?

As you can imagine, there is a vast range of areas where disputes can arise. Disputes can arise because the construction work was not finished on time as per contractual obligations, underpayment or even non-payment, disputes over the perceived quality of the work, and a lot more. Below are the most common reasons disputes happen.

Contractor related factors

  • Inadequate investigation before bidding
  • Site management
  • Failure to plan & execute the changes of works
  • Construction methods
  • Mistakes during the construction stage
  • Lack of understanding & agreement in a contract document
  • Financial or cashflow difficulties

Consultant related factors

  • Poor contract management & supervision
  • Preparation and approval of drawings
  • Frequent changes in orders & designs
  • The incompleteness of drawing and specification
  • Variations due to design errors
  • Waiting time for approval of tests and inspection

Material, labour & equipment related factors

  • Quality of material
  • Price fluctuation of construction materials
  • Changes in government regulations
  • Labour productivity or shortage in material
  • Equipment availability and failure

Contract & contract relationship related factors

  • Change orders
  • Mistakes and discrepancies in a contract document
  • Inappropriate overall organizational structure linking to the project
  • Lack of communication between the parties
  • Failure to respond on time
  • Unrealistic contract duration and requirements imposed

The impact on your business

Construction projects are often executed within complicated and uncertain circumstances, through which claims, and conflicts become an inevitable by-product.

It’s no wonder that disputes can eat your profits. Construction conflicts affect the interests of many stakeholders; they reduce profits, impact cash flow, and are therefore very expensive.

Working with the construction lawyer from the very beginning of your development endeavour can pay massive dividends down the road. Getting the right legal advice especially at early stages will help you avoid certain avenues or decision that might impact your business and point you in the right direction. Should you find yourself in the unfortunate situation of being litigated or need to file a dispute, having the right construction lawyer will be an invaluable asset. A competent lawyer will know how to navigate disputes and use the right approach whether it’s dispute resolution and mediation or escalating the legal matters in court.

What can a Construction Lawyer help you with?

There are many areas where a construction lawyer can be your ultimate line of defence. These include:

  • Claims regarding defective and incomplete work
  • Claims concerning building contracts and Payment Claims
  • Review of your tender documentation and contracts
  • Advice on contract management and documentation
  • Drafting and interpretation of contracts, contract amendments and special conditions
  • Formulation of contractual claims or responses to claims
  • Breach of Contract Disputes
  • Advice on Development Applications
  • Consumer and home building claims, including representation in the Consumer, Trader & Tenancy Tribunal (NCAT) and the courts
  • Building licensing and Home Warranty insurance matters
  • Advice on builder insolvency issues
  • All building-related litigation
  • Building and Construction Industry Security of Payment Act claims
  • Alternative Dispute Resolution processes mediation and conciliation
  • Expert determination and arbitration (including representation)
  • Debt recovery
  • Homeowners warranty insurance claims
  • Home Building Act 1989 advice & litigation

Who is Lazarus Legal?

A trusted Construction Lawyer can be the ultimate difference and differentiating factor for your construction or property development business. At Lazarus Legal, we work with a range of clients from small developments clients to large scale, corporate and government clients working on major commercial and residential developments including retail, aged care, recreational, education to name a few. We’ve had the opportunity to consult and help our clients over the years across a wide range of construction and building disputes.

Did you enjoy reading this article, share it with others.
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We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry Lazarus is an old school, tough as nails lawyer. They don’t forge litigators like this anymore. With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name.

Litigation | Your ultimate guide

At Lazarus Legal, we’ve been practising law in Australia for over 30 years, so we’ve seen and worked on numerous litigious matters throughout this time. In our experience, most people have little detailed knowledge about what litigation is – until the unfortunate time comes where they either have to initiate proceedings or respond to a claim that has been brought against them.

For that reason, we have created this guide to be your ultimate resource on everything you need to know about litigation. Here is what we’ll cover:

  • What is litigation?
  • A brief history of litigation
  • Litigation law in Australia
  • Types of litigation
  • The cost of dealing with litigation
  • What does a litigation lawyer do?
  • How do you find and pick the right litigation lawyer?
  • The difference between disputes and litigations
  • The DO’s of dealing with litigation
  • The DON’Ts of dealing with litigation

1. What is litigation?

Litigation is the formal process of resolving disputes through the courts. Essentially, it is a means by which one party can attempt to enforce or defend its legal rights against another party. Litigation is often misunderstood as another term for ‘lawsuit’, but a lawsuit is typically only one part of a litigation case. In fact, many other activities can be included before, during or after a lawsuit to enforce a party’s legal rights.

Litigation can be very long, complex, and expensive but must follow certain steps. Generally speaking, for a matter to proceed through the courts or tribunal process, it needs to start with one party filing either a statement of claim or an originating process. Whether the case is heard in a court or tribunal is determined by the proposed cause of action, relevant statutes and the monetary limits applied to the courts and tribunals in each jurisdiction.

More specifically, civil litigation is a type of legal dispute between parties that typically seek outcomes that are not criminal sanctions. The expected outcomes can be financial or in the form of a court order that dictates certain benefits favouring the party initiating the litigation. Civil litigation mostly arises out of disagreements and disputes between two or more legal entities. These entities may be individuals or organisations, or both.

Lawyers specialising in civil or commercial litigation are commonly referred to as ‘litigators’, and they can represent their clients in federal, state and local courts, as well as tribunals, arbitrations and mediations.

2. A brief history of litigation

Keen historians will know that the first real litigation, as we know it, came about as early as the Roman Empire, although it was quite some time before it began to take a more Australian shape. 

The Australian legal system developed from British law brought here as part of Britain’s creation of a colony in the 1770s. In the second half of the nineteenth century, the British Parliament granted each of the colonies within Australia the right to set up a limited form of ‘responsible government’. This enabled each of these colonies to develop its laws and legal systems.

 

In parallel with these developments came a movement towards greater centralisation. As a result, each of the six colonies met at a series of conventions during the 1890s to work on a constitution. The Australian Constitution was passed as an Act of the British Parliament, and took effect on 1 January 1901, marking the beginning of an independent Australian legal system that is still at the heart of our system of government.

 

The matter of litigation and the correct framework for dealing with litigation was considered at each stage in this long evolution. The dispute resolution process has therefore become much more sophisticated and complex than the loose concept that first appeared centuries ago.

In more recent decades, there has been a general trend in Australia towards increased litigation and court cases, with people attributing this to many factors, including the easing of advertising regulations for law firms and the introduction of “No Win, No Fees” policies. Such a trend has had significant impacts on the way people and businesses operate. No matter whether increased litigiousness is considered a positive or negative thing, it seems unlikely this trend will reverse in the near future.

3. Litigation law in Australia

Australia’s legal system is undoubtedly complex – and this makes expert guidance when you are dealing with litigation even more essential.

Australia has a federal Government, where powers are divided between a central Government and individual States. Each State and Territory has its separate jurisdiction and within that its hierarchy of courts. The High Court of Australia is the body that unites these various court hierarchies and forms the ultimate court of appeal.

State and Territory Supreme Courts typically hear monetary claims above an agreed threshold (typically A$750,000 or more). Most States have two further levels of inferior courts. Also, some States have established specialist courts of limited jurisdiction for some categories of dispute or litigation.

The Federal Court of Australia covers almost all civil matters arising under Australian Federal law. All civil cases are heard by a single judge, while appeals will appear in front of three Federal Court judges.

For anyone dealing with large commercial disputes, there are two relevant systems – a combination of court-based litigation and alternative dispute resolution (or ‘ADR’) processes.

Unlike in many other countries, advocacy in tribunals and courts is not limited to barristers in Australia. Any lawyer who is admitted to practice in the applicable jurisdiction is authorised to appear on behalf of their client(s).

4. Types of litigation

There are essentially three categories of litigation: business/commercial, civil, and public interest. Under these large umbrellas, terms are an extensive range of litigation matters that vary significantly in scope and speciality. While litigation matters vary, more firms continue to diversify their practice areas to keep up with the changing landscape of clients’ needs.

Here are some of the most common types of litigation.

  • Antitrust and competition
  • Banking and finance disputes
  • Bankruptcy, financial restructuring, and insolvency
  • Class actions
  • Construction and engineering
  • Data protection, privacy, and cybersecurity
  • Employment and labour
  • Energy
  • Environmental law
  • Fraud and asset recovery
  • Insurance
  • Intellectual property
  • International arbitration
  • Mining
  • Product liability, including automotive, pharmaceuticals and medical devices
  • Professional negligence
  • Public and administrative law
  • Regulation and investigations, including compliance, regulatory and enforcement
  • Securities litigation, regulation, and enforcement
  • Shareholder disputes and activism
  • Tax
  • Defamation
  • Transport, including aviation, rail, admiralty, and shipping
  • White-collar crime
  • Property & real estate
  • Torts & breach of contracts

5. The cost of dealing with litigation

Just as litigation now comes in infinite varieties, the cost of dealing with litigation can vary significantly too. With increasing numbers of cases failing to reach an outcome within the desired timeframe, a growing number of individuals and organisations are facing higher legal fees and even making national news with their cases.

Typically, there are two main types of cost involved in litigation, and no hard rule about which will be more expensive. Firstly, there are those which are governed by a contract, such as legal fees between solicitors and their clients. The second is those which are ordered by the court, such as financial compensation awarded against a party or on an indemnity basis.

Of course, ‘No Win, No Fee’ agreements are also offered to those unable to cover legal fees. In these situations, the client is only required to pay when there is a successful outcome and the firm simply receives an ‘uplift fee’ in addition to the usual professional costs. This has increased the number of litigation many businesses face, as there is a lower bar to entry.

6. What does a litigation lawyer do?

A litigation lawyer, or ‘litigator’, is a legal expert who represents and protects their client’s interests when there is a dispute. Their main roles are to advise their client on the most appropriate strategy to resolve or avoid disputes and conduct litigation on behalf of their client effectively. A litigation lawyer must advocate for their client’s best interest, including all activities within the litigation process, from the examination and pleadings to trial, settlement, and appeal proceedings.

A litigation lawyer can be the legal representative for either the applicant (the ‘plaintiff’) or the respondent (the ‘defendant’) in the matter. Regardless of who they represent, they are responsible for initiating or responding to claims, appearing in interlocutory applications, advocating before courts or tribunals, negotiating to avoid the need for court proceedings, and enforcing judgements.

7. How do you find and pick the right litigation lawyer?

Deciding on the right litigation lawyer is much like choosing any other service or product – research is the key to making an informed decision. Ascertain what practice area your litigation case sits within and utilise online resources to find firms who focus on that area. Begin compiling a list and consider asking for personal referrals from friends, family, and business associates – ideally, this list will reflect those recommendations.

Many firms offer free consultations that provide an opportunity to meet with a lawyer and; assess their experience, determine potential costs, ask questions relating to their legal team, and establish whether the relationship is ‘a good fit’. Given the substantial changes to communication and support offered by lawyers through the COVID-19 pandemic, it’s essential for clients to feel comfortable with the systems their chosen representative has in place.

8. The difference between disputes and litigations

Litigation is the method of resolving a dispute through a court or tribunal where a judge decides the outcome of the case, whereas disputes are traditionally more informal and don’t carry the weight of a judge’s decision (or the enormous cost!). Mediation, Arbitration and Expert Determination are all forms of ‘Alternative Dispute Resolution’ (or ‘ADR’). ADRs can be entered into voluntarily or as a result of a court order.

Mediation is a process that focuses on negotiation between the two parties, assisted by an impartial third party or ‘mediator’ who facilitates the communication. The mediator is either chosen and agreed privately by the two parties or appointed by a court if a decision cannot be reached. While the mediator can share views to support the negotiation process, they are unable to make binding decisions on the case. Most court rules will typically include a requirement for compulsory mediation at one stage during the proceedings.

Arbitration is a referral of the dispute to one or more impartial third parties who determine the case’s outcome. Unlike mediators, arbitrators have the power to make interim and final awards. Arbitration is typically either a pre-existing contractual condition stated in an existing agreement or a process that requires both parties’ agreement. Arbitration proceedings are similar to that of litigation – the key difference is the formal hearing of the case and determination of the outcome is strictly managed in a private setting.

Expert determination is a referral of a dispute to a subject matter expert who has the knowledge and experience to support the dispute negotiation process. The process of expert determination is not dissimilar to arbitration but is often the chosen method in disputes involving technical and particularly complex issues.

9. The DOs of dealing with litigation

Whether you are the initiator or the responder, there are ‘DOs’ and ‘DON’Ts’ for both parties when handling a litigation process.

Below are five key DOs;

  • DO your research and hire the right lawyer for your case
  • DO identify your goals and develop a strategy
  • DO be proactive and perform due diligence to mitigate legal risks
  • DO begin the process with an open mind and consider a collaborative approach
  • DO gather evidence immediately and preserve it appropriately

10. The DON’Ts of dealing with litigation

Below are five key DON’Ts;

  • DON’T hire just any lawyer and risk an unfavourable outcome
  • DON’T discuss the case with others without first checking with your lawyer
  • DON’T over-communicate with the other party or reach out to them directly
  • DON’T be deceptive by overstating or understating the facts
  • DON’T waste time or ignore risks raised by your lawyer
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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Commercial Litigation – Why tech firms need a strong commercial litigation lawyer

In this day and age, every business needs a commercial litigation lawyer. And it’s more critical than ever, especially for industries like tech and SAAS.

Millions of Australians may have felt a moment of alarm on Monday September 28th 2020 when they found themselves unable to sign into some of the most widely used apps in the world, including Microsoft Office, Teams and the Outlook email service. Arguably, this isn’t the first time and won’t be the last. Some will have briefly feared they were a victim of hacking or a cybercrime incident of the kind that hurt many Australian businesses in early 2020, though the truth turned out to be that Microsoft was experiencing a massive service outage affecting the West Coast of America and Australia, especially Melbourne, Brisbane and Sydney.

Reports soon emerged that the problem was in fact the result of a mistake by Microsoft, the second embarrassing slip up of the year, but in the meantime enormous disruption was experienced by individual workers and businesses alike. This was an even more glaring problem than usual at a time when so many people are working from home and reliant on these apps to connect to colleagues. Most users concluded there was little they could do about it other than take to social media to register their disappointment and disgust. After all, legal action can seem futile when facing the second biggest business in the world, with its armies of corporate lawyers.

However, service outages have led to serious legal consequences in the recent past. In April of this year the major US bank Truist Financial Corp filed a lawsuit against Hitachi Vantara, its software provider. While Hitachi sought to block the action, arguing that the bank had run into problems because it failed to follow instructions exactly, the courts have allowed the action to proceed. And, legally speaking, where the US goes, Australia will often follow.

A commercial litigation lawyer is crucial not only for large enterprises, but also the SMEs.

If you are a small or medium sized software or IT services provider, without the legal firepower the likes of Microsoft and Hitachi can command, you may be even more vulnerable to the threat of a commercial litigation when and if your services fail for whatever reason. The more people or businesses rely on your services, the more likely this can become a bigger problem. That’s why you need a highly competent commercial litigation lawyer on your team or advising you – not just to help you with a potential future dispute, but to help you prevent it.

Robust Master Service Agreements, expertly crafted by lawyers, are essential for all providers of services, with additional Service Level Agreements also highly advisable for software providers. These agreements establish the relationship between you and your clients, what products and services you have agreed to provide, and what deliverables are expected. They can make requirements for both parties clear, which was obiviousy a problem in the above Hitachi dispute.

Well crafted, they also – as one Silicon Valley solicitor writes – ensure both parties “understand what particular expectations are reasonable for the particular service being procured”. These expectations are crucial in an industry where there are sometimes several additional parties involved in the provision of services, whether mobile data operators or third-party software contractors.

Are your customer agreements and contracts giving you full protection?

You should of course be having detailed discussions with your clients about these expectations long before contracts are drafted or signed. It is in both parties’ interests that you have honest conversations about the problems that can occur in any type of service, but particularly ones that are reliant on technology. Software and hardware can experience glitches, even if you are tirelessly diligent and have the best engineers and developers working for you.    

Communicating with your clients and customers will create more understanding and eliminate any unnecessary damage or breakdown to your relationships with them especially if major technical problems occur. But this ‘understanding’ also needs to be codified into legally binding agreements – without them, the consequences can be more serious than even a lost client. Instead you could end up in court, with all the potential costs that entails, including to your reputation and your bottom line.

Prevention is the best cure when it comes commercial litigations.

Of course, if that does happen, you will again need a strong commercial litigation lawyer on your side – but this is another one of those situations in life where prevention is much better than cure. Many of the most damaging commercial court cases come about as a result of poorly drafted contracts and service agreements. Getting the right legal advice can help ensure that you are not the losing party if those court cases happen but, even better, can prevent the situation ever occurring. That means that if the day comes when you do run into a service delivery problem, you can focus on fixing it, rather than wasting energy worrying about the legal repercussions that could be coming your way.

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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Commercial Lawyer | How to Find and Hire the Right Commercial Lawyer

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How much do bad decisions cost?

Millions and billions. Don’t believe me? Check the hundreds of millions Uber have been paying over the last few years in disputes and legal battles. And they still haven’t made profit till today.

In this post, I share with you my knowledge and insights on commercial law, why you need a competent commercial lawyer and how to find the right one.

But first, let’s talk briefly about commercial law.

Commercial law is an exciting area of law. It can often be referred to as business law or corporate law. It’s essentially focused on the laws and regulations that oversee all activities within commerce and trade. It is focused on all businesses, regardless of their size, nature and industry, as well as the individuals who are involved in the business activities or represent the businesses they are associated with.

Many people might not know this, but commercial law is actually a division of civil law. It encompasses a wide and extensive range of areas like tax law, corporation law, securities and derivatives law, consumer law, finance and banking, amongst other areas.

What are the areas of commercial law?

So, what are some of the commercial law practices? Here are the main ones.

  1. Contract law
  2. Intellectual property law
  3. Data protection law
  4. Employment law
  5. Corporate law

The Australian commercial law draws its authority from multiple sources and one of them is the Corporations Act2001. The Act sets out the laws and principles that govern how organisations are formed, how they can and must operate within themselves and with other businesses and organisations. This Act is administered by the Australian Securities and Investments Commission (ASIC).

Like many other areas in law, commercial law is ever-changing, evolving and becoming more complex. That’s why finding and hiring a competent commercial lawyer is one of the best investments a business can make.

A commercial lawyer doesn’t only handle the acts and statutes that govern the commercial law, he or she also has to deal with industry codes of practice – that is, regulatory frameworks created to be applicable to, and used within specific industries.

A good example of that is the Australian Banking Association’s Code of Banking Practice and the Insurance Council of Australia Limited’s General Insurance Code of Practice.

Another example is the food sector. Australian states and territories have food legislation to control the advertising, composition, packaging, and labelling of food products as well as the equipment and procedures used in the manufacturing process.

Commercial lawyers handle a vast range of commercial legal matters, from commercial property leases and litigation to employment law and ongoing business support.

Do you need a commercial lawyer?

The answer is ‘do you have or run a business?’ If yes, then you need a commercial lawyer. If you are operating a business of any kind in Sydney or within Australia, Commercial Law is going to apply to, and be enforced on you.

You might be a large enterprise, a start-up, or even a home-based online store. In all cases, a commercial lawyer is going to not only protect you in the event of a litigation or a dispute, but he or she will also give you advice and consultation on how to go about your business to make sure you make the right decisions.

A great commercial lawyer is one who handles all of the complex legal matters so that you can focus on evolving your business and taking it to the next level.

Should your commercial lawyer cost an arm and a leg?

They say ‘you get what you pay for’ right? It couldn’t be truer when it comes to law and lawyers. However, a great commercial lawyer is one that will look after you in all areas including their fees and compensation. Some lawyers do indeed charge an arm and a leg. And some charge very little, whilst the rest charge moderately. What you want is a lawyer who respects what they bring to the table but is not outrageous in their asking fees. You also want someone who is invested in your business for the long-term, someone who sees potential in you and your endeavours.

What things to look for in a commercial lawyer?

So now that you’ve decided it’s absolutely worth hiring a commercial lawyer, here is what you need to consider when hiring one.

  1. What’s their experience in the commercial world?
  2. Have they mainly worked as an external legal practitioner, or have they also worked as internal legal counsel for large enterprises?
  3. What legal battles have they gone through for their clients and how did things turn out?
  4. What industries have they been heavily involved in and are these industries similar to, or overlap with, yours?
  5. Do they have international exposure and experience? If your business has or is likely to have any international relevance (which most businesses today do), having international experience makes a huge difference.
  6. What have their current and past customers said about them? Google reviews are your first place but there are many other reviews sites you can check.
  7. Are they flexible in their fees structure and willing to discuss a structure that suits your business model?
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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Legal Guide to the Challenges and opportunities in the Australian construction industry

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The construction law and legal topics have never been more important.

“Building back better” has become a global slogan for efforts to recover from the economic shockwaves of the COVID-19 pandemic, but in the case of the construction industry, the phrase has particular resonance. Construction is always one of the industries most affected by economic turmoil, usually one of the first sectors to be wounded but also one of the first to recover. Those construction firms which understand the complexity of the moment, and have good financial and legal advice, are best placed to absorb the blows and flourish in the recovery.

Lets look at what happened after 2008’s banking crash, when many privately funded developments ran into financial troubles. The legal ramifications are still being felt today, with legendary Perth developer Luke Saraceni continuing to litigate over the financial troubles of his Raine Square project. On the other hand, the Government also accelerated billions of dollars worth of infrastructure projects to help kickstart the post-2008 economy, with many construction firms directly benefiting, even through to this very day.

The state of construction in the current economic challenges

Although there are many differences between then and now, there are also marked similarities. Even as early as April of this year, many construction firms were in distress and the New South Wales president of the Master Builders Association, Brian Seidler, said the crisis was affecting both large and small projects. “People are wary about starting a kitchen because they worry that the industry will have to pull up stumps and they are stuck at home,” he said. With unpredictability likely to remain a fact of life for the industry, and further disruptions very possible, construction firms need to get good advice from a property lawyer on what their rights are if an investor does want to pull or postpone a contract.

Even for those construction firms whose contracts all look healthy, the pandemic has caused new pressures. Disruptions to supply chains led to increases in material costs, particularly in the early days of the pandemic, while the need to place restrictions on workers to obey social distancing guidelines has led to greater costs and slower progress. Reasonable clients will understand the difficult position construction businesses are in and will negotiate with you over costs and deadlines, but if things get difficult this is another time when the understanding of construction law and the services of a law firm will help you manage a dispute can be a necessary investment.

Despite the setbacks, there are opportunities to take advantage of in the construction sector

Fortunately, there is also much good news to celebrate. Despite setbacks, the number of cases of COVID-19 in Australia has stabilised over the last six weeks, and economic confidence is returning. The Government has also recognized the disproportionate importance of construction to the Australian economy and has pumped an additional $15 billion into infrastructure projects as a way to kickstart it. At the same time, a Home Builder scheme to give $25,000 grants to people buying homes or renovating their existing property will boost many smaller construction businesses.

Irrespective of the size of your construction business,  there are many opportunities to take advantage of, but you do need to understand the construction law and the potential legal red tape which these opportunities come wrapped in. Winning infrastructure contracts from the Government is an arduous process, which requires a high level of regulatory compliance and expertly assembled bids. You need a property lawyer who also understands Government bureaucracy in order to win the kind of contract which can transform your businesses’ fortunes.

Protect yourself legally as a construction business has been more important

Even for those smaller contracts which will emerge from the Home Builder scheme, there are regulations and laws to be aware of. To be eligible, the future homeowner needs to start the contract before the end of the year, has to intend to use the property as a principal place of residence, and earn within a certain income window. While it isn’t the job of a construction firm to understand these details, strictly speaking, it is still wise to have some understanding of the relevant rules and laws, so that you don’t enter into an agreement which will turn into a dispute later if funding becomes a problem.

Get a better grip on the construction law. This is one of those times where expertise becomes even more important than usual. That’s as true of business as it is of public health.  The opportunities you and the choices you make over the coming months are likely to shape your business for years to come. Get the right advice from the right people – and then seize the moment. You can put the “build” in “build back better”.

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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Why commercial real estate’s rollercoaster year has made good legal advice a necessity

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The commercial real estate sector, like every other industry in the world, has had a rollercoaster of a 2020: ups and downs, some big thrills, and the occasional moments of nausea. We’ve seen investment in the Asia Pacific region fall by 31%, due to lower commitment from large Real Estate Funds, but this has been offset by increasing activity from private equity investors and their teams of lawyers and financiers, many of whom scent opportunity amongst the turbulence.

If 2020 has taught us anything, it’s that it’s risky to rely too much on projections, but for the foreseeable future, it does seem wise to rule out two things for the commercial property market: predictability and stability. If a COVID-19 vaccine is found quickly, the result may be a sudden boom in commercial property, but if the after-effects of the pandemic last longer we will likely see even more sales, restructurings and reconfiguring of properties. Either COVID-19 scenario will keep the market in a state of busy agitation and will require businesses in the sector to stay well informed and agile to adapt and take advantage.  That means you will need the best legal advice.

Now is the time to have the sharpest lawyers on your side

If you don’t already feel you have the sharpest property lawyers advising you, now is the time to remedy that. Commercial retail is one of the most legally complex industries in Australia and no matter what your plans for the future are, getting the right advice from the start is the only way to safeguard yourself from future litigation. To use an obvious metaphor, you wouldn’t start building a property without laying foundations, and you shouldn’t be building or growing your business without equally sturdy legal support.

You need experts who can help you on two pandemic-related legal fronts: the immediate impact of emergency legislation, and the laws you will need to keep in mind as you plot your post-COVID future.

Where the immediate impact is concerned, the Australian Government has tried to reduce the economic impact of the virus by introducing a number of new laws, regulations, schemes and codes to protect businesses. Many of these affect commercial property owners, particularly April’s code to regulate leasing arrangements, which protected the rights of renters but restricted owners’ room to maneuver. First-class lawyers will be monitoring future developments closely.

Some of the legal challenges the sector anticipates

When it comes to the future, one of the biggest legal challenges to anticipate is that the sector is also likely to see a bump in takeovers, which generally are always more likely during economic turbulence. Maria Sicola, a founding partner of CityStreams Solutions, a consultancy firm in commercial real estate put it like this: “Opportunistic investors are likely already keeping an eye on the market to swoop in on distressed properties. The risk-averse will remain on the sidelines. There will likely be more acquisitions and takeovers.”

In other words, those who have weathered the crisis well could be looking to absorb those who have not and either expand their Australian portfolios or create one for the first time. This is when top-class legal advice is a matter of business life or death. Whether you want to expand by taking over another business, protect your business from the ambitions of others, or simply get the best deal possible if you have decided to get out of the game, you will need a good commercial and property lawyer at all times.

Your next steps

It should be a given that any legal adviser you choose should understand Australian law intimately. Legislation regulating commercial real estate is complex in this country, with each state maintaining its own laws. Then there is the Native Title Act 1993, which rightly safeguards land that belongs to or is significant to indigenous people. International advisers have made mistakes in the past by not understanding how important this aspect of local land law is when planning new deals, and it’s not an error you can afford, since the public relations damage can be worse than the litigation.

Whatever your plans are, buckle up for the ride ahead. There’s been much discussion of a new normal, but in commercial real estate, you should get ready for a new abnormal, a time of nonstop change, challenge and opportunity. Times like this create winners and losers: getting the right legal advice can make all the difference to which group you end up in.

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We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry Lazarus is an old school, tough as nails lawyer. They don’t forge litigators like this anymore. With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name.

Labelling and packaging – a potential new minefield for future litigation

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You’d be forgiven if you didn’t know that right now is Australian Organic Awareness Month – after all, 2020 has been a rather eventful and distracting year. But if you work in the food and drink sector, it’s a month you should be paying attention to, given just how rapidly the once niche market for organic products is growing. We all know that whenever an industry is rising fast, it usually brings out lawyers, regulators and the danger of increased litigation.

For a while now, there’s been an increasing movement of Australian consumers choosing products, particularly food and drink, with an eye on health and ecological impact. According to Ipsos, the environment is now our number one national concern, cited by 41% of Australians in January of this year. However, most experts think that in the long-term COVID-19 will intensify this trend, not supplant it. That would mean an ever-growing demand both inside and outside Australia for products which portray themselves as organic and healthy, or as contributing to a more sustainable, environmentally friendly future.

Can you demonstrate that you have earned what you promise on your label?

Focus on the keyword there being “portray”. Why? Well, many organic food businesses are concerned by the number of producers or distributors that claim they are organic or environmentally friendly but aren’t able to demonstrate exactly what they have done to earn this status. Some claims truly are window dressing. That’s why the major theme of this year’s Australian Organic Awareness Month is false claims and mislabeling.

There have already been some cases of mislabeling which got serious enough to involve commercial litigation lawyers. In 2018, the Australian Competition and Consumer Commission fined a company called GAIA Skin Naturals for false claims, after its products – labelled “Pure/ Natural/ Organic” – were found two contain at least two synthetic chemicals. However, the actual fine was dismissed by some as almost meaningless (less than $40,000) and the case was a rarity, proved on the grounds of deception rather than a strong standard for use of the term “organic”. Yet, this problem remains prevalent as other companies continue to call their products organic or natural without any real justification or basis.

Clearer definitions of things like “organic” or “environmentally friendly” is crucial

It doesn’t help that clear definitions of “organic” or “environmentally friendly” are still vague to non-existent in a regulatory sense. The organic produce trade organization, Australian Organic Limited (AOL) has been working with the Government for years now to press for clear definitions and mandatory regulation aligned with export requirements.

AOL argues that greater clarity will significantly benefit Australia as it seeks to export food products in a world which is increasingly keen for genuinely environmentally friendly products, but also wary of imports that may not live up their claims. Paul da Silva of Arcadian Organic & Natural Meat, Australia’s most successful global supplier of organic meat, says that weak regulation makes it difficult to convince overseas markets of the veracity of organic products and that this is an example of “a big export opportunity for Australia being hampered by red tape.”

Not only for legal purposes but also for your consumers and brand image.

While there is a long way to go before tighter regulations are agreed, it seems certain that they will be introduced in the coming years. If not because of the commercial imperatives suggested by DaSilva, then through people power. Consumers now pay closer attention and have learnt to become more sceptical about claims they see on the packaging or advertising and will press for greater transparency. That means that food and drink businesses which are already labelling their products as organic or are planning to in the near future may need a commercial litigation lawyer on their team, an expert capable of keeping up with regulatory and legal developments.

Of course, this shouldn’t be about meeting legal minimum thresholds but about genuine honesty with consumers and real positive impact on the world, backed up by proof and independent monitoring. That’s the only sure way of staying on the right side of future litigation. Neither good intentions nor a clever marketing team will be enough to keep a business out of trouble if they are taking the shortcuts or are talking the talk but not bothering with the walk.

The good news is that truly ethical and rigorous businesses will win out ultimately. If your company has a truly organic and environmentally focused ethos you will be able to demonstrate the many ways in which you live up to your labelling and will be rewarded by increasingly savvy consumers within Australia and beyond.

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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Combating climate change can be the key to future competitive advantage

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While some countries still debate whether climate change is real, most Australians now accept it as a settled fact, especially after the devastating bush fires at the end of 2019. Even newspapers that have previously resisted the theory, have publicly stated they recognise the problem. So now that we acknowledge the problem, how do we go about solving it? With political and scientific arguments still raging over questions such as whether renewable energy sources can be enough on their own, a solution is in the making. . Recently making the news was that retail giant ALDI has committed to powering its Australian operations with 100% renewable electricity by 2021 even more striking, a laying down of the gauntlet.

Even if, as the small print reveals, ALDI’s delivery vehicles aren’t included in this commitment, it’s still a huge undertaking. ALDI is the 64th biggest user of electricity in Australia, with its 555 stores and eight distribution centres. It has already managed to reduce its emissions by 40% since 2012, but this new pledge – to be delivered through a combination of solar and wind power – will send it straight to the top of the league when it comes to environmentally friendly retailing. Which is, of course, a large part of the point. While ALDI is doubtless truly committed to the fight against climate change, it also knows that proving its eco-credentials to customers will deliver a competitive advantage in the years ahead.

Consumers are increasingly motivated by environmental concerns

Consumers are increasingly motivated by environmental concerns backed up by a plethora of research conducted, so much that you could stack it one metre high, though – given the topic – we don’t recommend you print it to find out. According to Ipsos, by January of this year concern for the environment had risen from a fringe concern to the number one worry of Australians, cited by 41% of the population overall. What’s more, Millennials – key tastemakers, and the demographic who will be the largest consumer group in the future– are even more environmentally conscious, with 48% calling it their top priority.

Whilst COVID-19 has overtaken climate change in media coverage this year, there is an abundance of evidence that the pandemic is actually deepening many young people’s commitment to “build back better” and ensure that the world’s recovery from COVID-19 sets the planet on a better and more sustainable path. These consumers are likely to increasingly embrace brands which can demonstrate they are trying to combat climate change, and reject those that do not.

This has huge implications for all retailers and producers, not just giants like ALDI. If you run a smaller business and still think of environmental awareness as a luxury or passing trend, wake up now or risk being left behind. You should be looking at every aspect of your business, from the vehicles you use to deliver your product to the packaging that ends up in consumer’s hands, and working out how you can make changes towards sustainability.

What this means for you as a business.

If you aren’t a retailer or producer yourself but part of the supply or service chain that supports them, then you need to honestly assess whether you are likely to be seen as part of the problem. Many retailers will come under increasing pressure to cut ties to partners which are seen as environmentally harmful, such as delivery chains which use inefficient vehicles. Last year, there was controversy over climate activists engaging in “secondary boycotting”, and this is likely to intensify as concerns over ecological damage grow. Wise businesses will anticipate and adapt now.

If, on the other hand, you are a business who can be seen as part of the solution, then the coming years will be full of opportunity. If you are a small food or drink producer, for example, who can solve a packaging problem like New Zealand-founded coffee brand Allpress Espresso did with their compostable coffee bags, doors will open much more quickly for big new partnerships. If you are a supplier who can help a large retailer or producer meet their climate change targets through an innovative business model or new technology, you may be able to elbow your way past much larger rivals for new contracts.

The coming months and years are likely to be turbulent all over the world, and you need to be ready to seize opportunities while dodging disasters. As always, that’s going to mean assembling a first-class team to have on your side. In the past, that has usually meant appointing first class financial advisers, legal experts and marketers, but in the future, it will also mean environmental consultants able to keep you informed on the latest climate change developments and guide you towards solutions. Just as in the dot com boom, late adopters will probably never be able to catch up.

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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.