Three Areas of Litigation Defined
Commercial litigation is when two or more parties engage the court process to assist in enforcing what a party believes to be his or her rights. It is usually the result of failed negotiations that brings one or more of the parties to the point where they feel that a court based approach is what is warranted. This article will deal with three different types of commercial litigation: Compulsory acquisition of land, nforcement of rights under a Lease and breach of trade mark.
Compulsory Acquisition of Land
Compulsory Acquisition of Land is when a government department issues a Notice of Intention to Acquire someone’s land for the purposes of the state. This will typically include road widening or railway line construction. Given that the government department has a statutory right to acquire land, the usual remedy is compensation. This compensation may me agreed to by the parties amicably. However, if the government department’s offer is too low, the matter will be referred to VCAT for its determination. Land owners, business (with leasehold interests) and any other party adversely affected by the acquisition may have a right to compensation.
Enforcement of Rights under a Lease
Both landlords and tenants have rights under a lease. Subtenants and licensees can also have rights against any of the other parties in certain circumstances. Lease disputes are common in that while a well drafted lease will cater for most scenarios, the interpretation those clauses can be confusing and require careful legal advice. When parties to a lease cannot reconcile their difference of opinion, such disputes can end up in the relevant court or tribunal. These cases mostly turn on as yet untested points of law and this is how precedents are created.
Breach of Trade Mark
A trade mark is the intellectual property of its owner. The breach of a mark can be remedied quickly by cessation of use in most cases. However, sometimes parties will disagree on what rights the other party has to dictate play and court proceedings will be issued. These proceedings are generally pleaded alongside assertions of Trade Practices Act breaches and the tort of passing off. The remedies of a party are usually damages, an account of profits and/or retractive advertising.
Commercial litigation from the lawyer’s point of view can be both interesting and challenging. Litigation has its place but should be seen as the remedy of last resort. It is always better to discuss matter as sensible human beings. The court process is both time consuming and expensive and rarely yields a truly satisfying result for either party.
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