Litigation and Disputes: What Do I Need to Know?
Written by Harry Kay, Special Counsel – Terracon Legal
Commercial disputes are an unfortunate reality of doing business. Whether they arise from a contract breakdown, a shareholder disagreement, or unpaid invoices, understanding how litigation works, and what to do when a dispute emerges, can make a material difference to costs, risks, and outcomes.
Below are the questions we are most often asked by clients, and what you need to know before a dispute escalates.
What counts as ‘commercial litigation’?
Commercial litigation is a broad term used to describe disputes arising in a business or commercial context. Common examples include:
- breach of contract;
- shareholder or director disputes;
- leasing and property disputes;
- building and construction claims;
- debt recovery;
- misleading or deceptive conduct;
- consumer law matters; and
- intellectual property disputes.
If a dispute cannot be resolved informally or by commercial negotiation, it may be determined by a court or tribunal, or via an alternative dispute resolution process such as mediation or arbitration. The forum will depend on factors such as the value of the claim (the ‘quantum’), the subject matter, and whether a specialist tribunal has jurisdiction.
In NSW and the ACT, commercial disputes may be heard in local courts, higher courts, or tribunals such as the NSW Civil and Administrative Tribunal (NCAT) or the ACT Civil and Administrative Tribunal (ACAT).
Do all commercial disputes end up in court?
No and, in practice, most do not.
A key part of managing commercial litigation effectively is early triage. This involves assessing the dispute quickly and exploring ways to resolve it without formal proceedings. Options commonly include:
- direct negotiation;
- mediation; and
- arbitration or other forms of Alternative Dispute Resolution (ADR).
ADR is often faster, more cost effective, and less disruptive than court proceedings. It also gives parties greater control over outcomes and can help preserve commercial relationships.
Court or tribunal proceedings are typically pursued only where these options fail, or where urgent or strategic considerations make formal action necessary. If a matter does proceed, it will usually involve pleadings, evidence, interlocutory applications, and potentially a final hearing.
I’ve been served with a claim - how quickly do I need to respond?
If you are served with court or tribunal proceedings, time is critical.
In most cases, a defendant or respondent has 28 days from the date of service to file a Defence or formal Response. Failing to respond within the required timeframe can expose you to serious consequences, including judgment being entered against you without the claim being tested on its merits.
In the ACT, the 28day response period generally applies whether the claim is brought in court or before the ACAT.
Because deadlines and procedural requirements vary depending on the forum and the type of claim, immediate legal advice is essential. Early engagement allows for proper assessment of risk, preservation of rights, and exploration of resolution options before positions harden.
What should we expect once a dispute arises?
Commercial litigation is as much about strategy as it is about law. Clients should expect:
- an early assessment of prospects, costs, and timing;
- clear advice on risk and commercial outcomes—not just legal theory;
- a focus on resolving the dispute efficiently where possible; and
- proactive management of court or tribunal processes if litigation proceeds.
At Terracon Legal, our approach is pragmatic and commercially grounded. The objective is always to align the legal strategy with the client’s broader business goals, whether that means achieving a rapid resolution, limiting exposure, or running a matter through to trial.
Commercial disputes rarely improve with time. Early advice, timely action, and a clear strategy can significantly reduce costs, disruptions, and often improve outcomes.
If you are facing a dispute or want advice before one escalates, Terracon Legal’s Litigation and Disputes team advises clients across NSW and the ACT on the full spectrum of commercial litigation matters.
Harry Kay is Special Counsel at Terracon Legal, with extensive experience in managing complex commercial disputes and guiding clients through court, tribunal, and ADR processes.