Commercial Litigation

Litigation


We have one of the largest and experienced litigation and dispute resolution teams operating in WA. Our litigators provide focused and cost-effective and practical advice in relation to threatened action or disputes already underway. 

As a full service commercial law firm, we have the resources and flexibility to act quickly and find the right level of skilled staff as and when required.

We have the resources to handle simple and complex disputes, and a considerable track record in doing so. Building on our extensive litigation experience, we are well placed to find solutions that best meet the needs and circumstances of our clients whilst achieving commercial solutions. 

Many of our litigators have additional specialist knowledge and experience which has been derived from study or work within industry sectors. Our team includes lawyers who have previously worked as a research scientist, an architect, a builder and business owners.  

Our core capabilities in Litigation include:

  • Competition, corporate law and consumer law

  • Product liability

  • Negligence

  • Contract

  • Intellectual property

  • Franchising

  • Property ownership and access

  • Debt recovery and enforcement of securities

  • Shareholder actions and director’s and officer’s liability

  • Taxation

  • Regulation

  • Inquiries and investigations.

Banking & Finance

  • We regularly act in routine enforcement matters for lender clients. We have developed procedures to efficiently manage these matters and bring them to conclusion as soon as possible.

Energy and Infrastructure Access

  • We acted for a networks business in an application for merits review in the Australian Competition Tribunal. Its finding has given rise to the Australian Energy Market Commission foreshadowing a significant change to the National Gas Rules.

Insurance

  • Our client was the driver of an escort vehicle, engaged by a third party employer to escort an over-sized load. Another party owned a truck which collided with the over-sized load. We adopted the most commercially efficient course, sought to resolve the litigation through negotiation and, ultimately, Court-ordered mediation.

Intellectual Property

  • We advised an agricultural supply company in relation to allegations of patent infringement. Proceedings were issued against our client and following extensive correspondence and research on existing prior art, we convinced the plaintiff to dismiss the proceedings and pay our client’s costs.  

Local Government

  • We acted for a regional group of Local Governments in a contractual dispute with their common provider of their recycling collection and processing services. The matter involved liaising with 5 Local Governments in a complex dispute over the tendering process. The Supreme Court proceedings were resolved in the Local Government’s favour.

Mining & Resources

  • We are currently acting on behalf of the West Australian Government owned electricity generation corporation against the North West Shelf Gas Joint Venture parties to recover damages for breach of a gas supply agreement.

Occupational Safety & Health

  • Our client who provided scaffolding on site was the defendant in a District Court action in which the plaintiff sought damages for personal injury. We defended the proceedings successfully on behalf of our client both in the district court and the Supreme Court.

Planning & Environment

  • We acted for a National Brewing Company in hearings before the Director of Liquor Licensing, Liquor Licensing Court and subsequently the Court of Appeal involving claims by the City of Perth and a range of owners of luxury apartments on the Swan River regarding alleged ongoing noise violations in respect of the relevant acoustic standards. 

Real Estate

  • We provided advice and representation to a high profile award winning corporation involved in the sustainable design and development of land into specialised residential community projects. We liaised with the Federal Authority and our client to effectively respond to the investigation and sensitively manage any adverse consequences.

Taxation

  • We conducted a case in the Federal Court regarding the application of the crude oil excise regime to condensate production from the North West Shelf project area. The claim was one of the largest ever litigated in Western Australia having regard to the amount of revenue involved. 

Trusts / Partnership Disputes

  • We acted for a group of related companies and individuals to defend a range of claims arising over a 23 year corporate history, where the plaintiff claimed an entitlement to assets valued at more than $330 million. Our clients’ defence was successful in respect of all claims in partnership and equity.

Peter Walton

Partner

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Darren Pratt

Partner

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Richard Sandover

Partner

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Neil Gentilli

Partner

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Victoria Butler

Partner

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Anthony Bereyne

Partner

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Basil Georgiou

Partner

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Eva Lin

Partner

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Karene Primrose

Partner

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Matthew Reid

Partner

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Colette Davies

Special Counsel

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Sarah Calautti

Senior Associate

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Marianne Kozman

Associate

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  • 28 August 2016

    Do your contracts contain 'unfair terms'? Prepare now for the new legislation

    New provisions for unfair contract terms will apply to standard form "small business contracts", entered into on or after 12 November 2016, and contracts that are renewed, or varied, after 12 November 2016.

    Authors: Isla McRobbie, Matthew Reid

    LINK 37 Bytes

  • 12 April 2016

    Underneath the radar: balancing public information with personal security

    In various industries, decision-makers significantly affect the rights and interests of others.  Despite the fact that they may have regularly encountered aggressive and disgruntled people in the course of their roles, they frequently downplay the personal security risks that arise, reassuring themselves that they are “only doing their job” and that all affected people “will understand”. Further, people often assume that there is nothing they can do to overcome a requirement for their address to be publicly available information e.g. ASIC keeps a register of director addresses.  

    This alert examines the options available for suppressing personal information from publication, highlights the importance of applying for suppression as soon as a security risk develops, and considers the inherent security risks in using social media. 

    Author: Eva Lin

    LINK 42 Bytes

  • 11 April 2016

    Is your SMSF limited recourse loan compliant with the ATO’s Practical Compliance Guideline?

    On 6 April 2016 the ATO released a Practical Compliance Guideline (PCG 2016/5) which helpfully sets out ‘safe harbour’ features of a limited recourse borrowing arrangement (LRBA) that are acceptable to the Commissioner. Super fund trustees with related party LRBAs need to read the Guideline and review the terms and features of their LRBAs as soon as possible and take any necessary remedial action by 30 June 2016 to ensure they are compliant and do not trigger adverse income tax consequences for the fund under the non-arm’s length income (NALI) provisions.

    Authors: Jim O’Donnell, Jemal Zagami

    LINK 41 Bytes

  • 27 January 2016

    Applying partnership assets to meet the costs of liquidators appointed to the former partners

    It is well-established that a liquidator is entitled to his or her expenses properly incurred in preserving, realising or getting in property of the company to which they are appointed.

    Authors: Victoria Butler, Eva Lin

    LINK 43 Bytes

  • 18 January 2016

    Related Party Benefits & CATSI Act Corporations

    Corporations registered under the Corporations (Aboriginal and Torres Straight Islander) Act 2006 (Cth) (CATSI Act), cannot give a financial benefit to a related party without the approval of that corporation’s members.

    While this may seem like a simple principle, the relevant provisions of the CATSI Act are complex and not widely understood within the sector.

    • Who is a related party, when everyone within the community is family?
    • What is a financial benefit?
    • Are there any exceptions to the rule?

    With individuals involved in breaches personally liable for penalties of up to $220,000 and five years imprisonment, it’s critical that you understand the rules and develop procedures to ensure compliance.

    This 3 part series provides a guide to assist CATSI Act corporations to understand and manage related party benefits transactions. Parts 1 – 3 include:

    PART 1 – Breaking down the rules
    PART 2 – Exceptions and Exemptions
    PART 3 – Tips for complying with the rules

    Author: Adam Levin

    LINK 38 Bytes

  • 18 March 2015

    High Court confirms position regarding “Shelf Orders”

    In a recent decision, the High Court unanimously dismissed an appeal from the Court of Appeal of New South Wales concerning the circumstances in which a “shelf order” may be made.  A “shelf order”  allows a liquidator to seek an extension of time in which to apply to the court for an order that a transaction be declared voidable, in circumstances where the relevant transaction cannot be identified.  In Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10, the High Court confirmed that a court can make such an order under s 588FF(3) of the Corporations Act 2001 (Cth) (Act)  notwithstanding the fact that the potentially voidable transactions cannot be identified.
     
    The High Court’s decision has clarified a number of significant issues relating to extensions of time for the commencement of voidable transaction proceedings under the Act, including the power of the court to make “shelf orders” and the policy considerations which a court will take into account when determining a section 588FF(3) application.

    Author: Victoria Butler

    LINK 41 Bytes

  • 3 December 2014

    Government’s response to the review of the Liquor Control Act 1988

    Background

    In 2012, the Government established an independent committee to undertake a review of the Liquor Control Act 1988 (Act) and Liquor Control Regulations 1989 (Regulations).   The review was presented to the Minister in January 2014 and contained 141 recommendations.

    On 18 November 2014, the Government responded to each of the Committee’s recommendations.  Below is a summary of the major amendments that the Government proposes to make to the Act and Regulations.

    Author: Richard Sandover

    LINK 42 Bytes

  • 20 November 2014

    Seminar Summary: The Impact of the ANZ Banking Fees Cases on Commercial Contract Clauses

    On 28 October 2014, Jackson McDonald was honoured to host a presentation on the recent ANZ banking fees cases by keynote speaker, William Edwards, who is a barrister and one of the counsel on the Paciocco v ANZ case.

    Discussion was focused on the changes to the law against penalties that came from the banking fees cases. A number of key issues were canvassed in the subsequent panel discussion, including the implications of the cases on other types of commercial contracts in the energy, mining and construction industries.

    Authors: Thomas Jacobs, Darren Pratt, Hamish Taylor

    Download PDF 287 Bytes

  • 20 June 2014

    How strong is AAA? Local government councils take on the ratings agencies

    The Federal Court has delivered a landmark and lengthy appellate decision (over 400 pages) in the slowly expanding field of representative proceedings in Australia.
     
    Significantly, investors who suffer losses by investing in financial products in reliance upon negligent or misleading advice may now look to rating agencies for recourse as well as others involved in the sale of the products.

    Author: Peter Walton

    LINK 38 Bytes

  • 16 May 2014

    ATO In-House Facilitation in Tax Disputes

    The Australian Taxation Office recently launched a new in-house facilitation dispute resolution process following a pilot trial of the process in 2013.

    The facilitation process can be used in a range of disputes including less complex disputes arising from indirect tax, small business and individual audits and objections.

    The process provides an opportunity for taxpayers to present their view of the tax issues and facts in dispute at an early stage with a view to avoiding litigation and resolving disputes at an early stage.

    Authors: Peter Walton, Jemal Zagami

    LINK 59 Bytes

  • 9 May 2014

    ATO - New IGT Work Program

    The Inspector-General of Taxation (IGT) is an independent statutory office established to review systemic tax administration issues.
     
    Following extensive public consultation, the IGT recently announced a new work program for improving tax administration.

    Authors: Peter Walton, Jemal Zagami

    LINK 61 Bytes

  • 5 March 2014

    Banks beware - a new take on late payment fees

    On 5 February 2014, the Federal Court of Australia handed down its much anticipated decision in Paciocco v Australia and New Zealand Banking Group Limited (ANZ) [2014] FCA 35 ( Paciocco ). The decision in Paciocco - finding that certain late payment fees charged by ANZ to its customers were penalties and therefore unenforceable – is another important development in the law concerning penalties in the finance and banking industry.

    The Federal Court in Paciocco reinforced the take home ‘penalty’ principles identified by the High Court in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 ( Andrews ), and the decision will have major repercussions for banks and other financial institutions who charge their customers with standard late payment fees of $20 or more.

    Author: Victoria Butler

    Download PDF 779 Bytes

  • 26 February 2014

    Uncertain Times Ahead - GST & the Sale of Leased Premises

    Late last year, the Full Federal Court handed down its decision in MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCAFC 112 (MBI Case). The decision was somewhat controversial and has caused confusion for vendors and purchasers alike who are involved in property development and leasing enterprises.

    Pending the Commissioner’s application for special leave and the outcome of any High Court decision, the MBI Case marks a change in what has previously been understood as the GST treatment of commercial and residential properties sold subject to an existing lease arrangement.

    Authors: Peter Walton, Jemal Zagami

    Download PDF 450 Bytes

  • 19 February 2014

    Money, Money, Money – s.255 of the Income Tax Assessment Act 1936

    The Australian Taxation Office recently released a Decision Impact Statement regarding a decision of the Full Court of the Federal Court of Australia in Federal Commissioner of Taxation v Resource Capital Fund IV LP & Ors (2013) 215 FCR 1.

    The case considered the interpretation of s.255 of the Income Tax Assessment Act 1936 (Cth) and, in particular, how the term ‘money’ in that section should be interpreted.

    Authors: Peter Walton, Jemal Zagami

    Download PDF 589 Bytes

  • 12 February 2014

    Capital raising and franking credits: Where are we now?

    The Australian Taxation Office recently released a Decision Impact Statement regarding the decision of the High Court in Mills v Commissioner of Taxation [2012] HCA 51.

    The case concerned stapled securities which consisted of an unsecured subordinated note issued by the New Zealand branch of the Commonwealth Bank of Australia (CBA) and a preference share issued by CBA. The stapled securities were qualified as Tier 1 capital for regulatory purposes.

    Authors: Sarah Calautti, Peter Walton, Jemal Zagami

    Download PDF 526 Bytes

  • 16 December 2013

    No Sanctuary at the Lakes

    The Australian Taxation Office recently released a Decision Impact Statement regarding the decision of the Full Court of the Federal Court in Sanctuary Lakes Pty Ltd v Commissioner of Taxation [2013] FCAFC 50.

    Authors: Peter Walton, Jemal Zagami

    Download PDF 440 Bytes

  • 5 December 2013

    Constitutional Validity - Importance of Policing

    In Albrecht v Commissioner of Taxation [2013] FCA 1248, Jackson McDonald acted for several commissioned police officers who were challenging the constitutional validity of Commonwealth legislation which provided for the imposition of a superannuation surcharge on contributions they had made to constitutionally protected funds established under State legislation.

    Authors: Matthew Reid, Peter Walton

    Download PDF 443 Bytes

  • 21 November 2013

    ATO - Code of settlement practice

    The Australian Taxation Office recently revised its Code of settlement practice.

    Authors: Peter Walton, Jemal Zagami

    Download PDF 402 Bytes

  • 11 September 2013

    The Federal Court Clarifies Unconscionable Conduct

    Commencing litigation against those who have engaged in unconscionable conduct is again on the radar of the Australian Competition and Consumer Commission (“ACCC”). Specifically, where the ACCC considers it to be appropriate, it will pursue litigation in circumstances where it suspects that companies have engaged in unconscionable conduct. 

    A recent decision of the Federal Court of Australia, Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCA 47 (Lux) has provided some timely clarification on the meaning of unconscionable conduct, and how Courts will, going forward, determine whether someone has engaged in unconscionable conduct.

    Author: Darren Pratt

    Download PDF 474 Bytes

  • 11 August 2013

    When will Courts enforce dispute resolution clauses?

    As the benefits of alternative dispute resolution become better understood, parties are increasingly seeking to insert dispute resolution clauses in contracts.

    A recent decision of the Victorian Court of Appeal, WTE Co-Generation & Anor v RCR Energy Pty Ltd & Anor [2013] VSC 314 (21 June 2013), clarifies the circumstances in which such clauses will or will not be upheld.

    Author: Darren Pratt

    Download PDF 301 Bytes

  • 11 August 2013

    A new regime for arbitration in Western Australia

    As of 7 August 2013, Western Australia has a new system for arbitration in place with the commencement of the sections of the Commercial Arbitration Act 2012 (WA) (“the 2012 CAA”): sections 1C to 44 and section 45 Tables (items, s 2, 3, 5 – 17).

    The 2012 CAA (which received assent on 29 August 2012) is now substantively in force and the changes are significant.

    Author: Isla McRobbie

    Download PDF 471 Bytes

  • 11 July 2013

    S6 of the Law Reform (Miscellaneous Provisions) Act 1946

    The long awaited decision of whether there is a charge over Director's & Officer's defence costs was handed down yesterday in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212.

    Australian claimants cannot use s6 to claim a charge over D&O insurance policy moneys that might be used as defence costs prior to the entry of judgment or settlement. Accordingly insurers may pay defence costs without risk.  

    Author: Stefan Sudweeks

    Download PDF 554 Bytes

  • 17 May 2013

    Are injuries resulting from “hijinks” compensable?

    The Federal Court held on 19 April 2012 that injuries suffered by an employee whilst engaging in sexual activity in a motel room paid for by her employer on a business trip occurred “in the course of employment”.

    After an unsuccessful appeal to the Full Court of the Federal Court in December 2012 the employer’s insurer, Comcare, has now been granted special leave to appeal to the High Court against this decision. Comcare seeks a ruling on whether the circumstances surrounding an injury may be relevant to an assessment of whether an injury occurs “in the course of employment”. 

    Author: Zaneta Witherington

    Download PDF 410 Bytes

  • 7 February 2013

    Google successful in appeal against watchdog: Google Inc v ACCC

    On 6 February 2013, the High Court of Australia handed down their decision in the matter of Google Inc v Australian Competition and Consumer Commission [2013] HCA 1. The Court unanimously allowed Google Inc’s appeal from the decision of the Full Court of the Federal Court of Australia, in which the Federal Court held that Google Inc had engaged in misleading and deceptive conduct contrary to section 52 of the Trade Practices Act 1974 (Cth) (now schedule 2 section 18 of the Competition and Consumer Act 2010 (Cth)).

    Authors:

    Download PDF 283 Bytes

  • 25 May 2012

    Jackson McDonald 5th time Perth Law Firm of the Year

    Jackson McDonald consolidated its position as the leading West Australian law firm when named Perth Law Firm of the Year at the 2012 ALB Australasian Law Awards in Sydney on 24 May 2012.

    It is the fifth year out of six that Jackson McDonald has won this prestigious award.

    Authors:

    Download PDF 304 Bytes

  • 1 May 2012

    A boom for multimedia copyright owners - NRL v Optus

    The Full Court of the Federal Court recently held on appeal in the case of National Rugby League Investments Limited v Singtel Optus Ltd [2012] FCAFC 59 that Optus had infringed copyright in television broadcasts by providing a television recording service.

    Authors:

    Download PDF 282 Bytes

  • 11 April 2012

    Duty of care to exercise statutory powers - two recent decisions

    Two recent decisions of the Courts of Appeal of Western Australia and New South Wales have provided important confirmation of the law relating to the duty of care to exercise statutory powers – and a stark illustration of the breadth of issues that local governments may face.

    Authors:

    Download PDF 285 Bytes

  • 10 January 2011

    Doing Business in Asia Pacific

    Jackson McDonald is a proud member of Globalaw and has assisted in the development of this guide.

    Authors:

    Download PDF 4 Bytes