Civil Disputes & Litigation
Civil litigation is an avenue to resolve ‘non-criminal’ disputes between two or more parties that seek money, damages or specific performance rather than criminal sanctions.
Civil litigation covers disputes involving many areas of law including breach of contracts, neighbourhood disputes, debts and estate disputes.
At the first instance, we are able to help you achieve a favourable settlement, without the expense and stress of going to court, through a process of mediation. Where Solicitor assisted negotiations fail, we are able to initiate formal proceedings with the filing of a claim on your behalf at federal, state, district or local courts court and offer expert representation in Court.
We are able to assist by:
- Providing advice and helping you formulate an action plan
- Calculating damages
- Initiating and responding to actions
- Obtaining/managing evidence
- Court case management
- Briefing of counsel
- Negotiating settlements
- Drafting affidavits and orders
- Enforcing judgments and orders
Contact us to find out more or to arrange an appointment with one of our Wollongong litigation Solicitors.
FAQ
You may attempt mediation through a Community Justice Centre (CJC), request Local Council or NSW Police to issue a noise abatement direction or you may apply directly to your Local Court for a noise abatement order. If the Court is satisfied that there is enough evidence that your neighbour is causing an offensive noise or that the noise is likely to happen again, it may order your neighbour to stop the noise or be penalised.
If mediation with your neighbour over your fence dispute has not been successful, you may send a Fencing Notice, formally asking for fencing work to be done. If the problem persists, you can apply for a Fencing Order with NSW Civil and Administrative Tribunal (NCAT) or the Local Court.
If discussions and mediation have failed, you may wish to apply to the Land and Environment Court to obtain an order for tree pruning/removal and/or compensation for damage to your property. before bringing an application you should conduct some online property search with the NSW Land Registry Services to determine who is the legal owner of the property and the zoning of the property. An application should be supported by expert evidence from an arborist, builder or engineer.
While it might seem like the quickest and easiest way to resolve the issue, if your neighbour’s tree has overhanging branches, you should speak to your neighbour and check with your local council before cutting back to the boundary, as some trees are protected species and subject to a Tree Preservation Order. If you enter a neighbour property to remove or prune a tree without consent, this is trespass.
The Australian Consumer Law, which is set out in Schedule 2 of the Competition and Consumer Act 2010, gives a consumer automatic protections guaranteeing that the product bought or service engaged will work and do what you asked. If a business sells a product or service that doesn’t meet consumer guarantees, the business must offer you a solution such as a repair, replacement, or refund. Whether you are entitled to a refund will depend on whether the problem is major or minor. You are not entitled to a refund immediately if the problem is minor and can be fixed easily in a reasonable time. Instead, you must give the business an opportunity to solve the problem. If the problem is major or cannot be easily fixed within a reasonable time, you can choose to terminate the contract for services and request a full refund.
In the first instances, you may contact NSW Fair Trading who may be able to help resolve any dispute between the business and consumer. If you are unhappy with the outcome of the complaint process through NSW Fair Trading you may then apply to NSW Civil and Administrative Tribunal (“NCAT”) for help resolving your dispute. NCAT can hear and decide an issue or dispute about a consumer claim up to the value of $100,000 and can make orders in consumer claims such as payment of money, the replacement of faulty goods and refund.
Civil claims are private disputes about property and money. If you have attempted to resolve your civil dispute via mediation, with or without lawyer assistance, and the assistance of government and non-government agencies, you may find that you need to approach a Court for determination of your claim. The Court you commence in will depend on the type and value of the dispute.
You commence proceedings in the Local Court by filing a Statement of Claim. If a Defence is filed, the case is listed before the court. If no Defence is filed, you can apply for Default Judgment. Keeping in mind that Default Judgment can be set aside on the application of the Defendant in some circumstances. The progress of the rest of the matter will depend on which Division of the Court you have commenced proceedings in.
The NSW Local Court deals with civil disputes for claims up to $100,000. The local court has two divisions to determine civil cases, the Small Claims Division which hears claims up to $20,000 and the General Division hears claims over $20,000 and up to $100,000. In the Small Claims Division, after a defence is filed, the case is listed for a pre-trial review to help the parties reach an agreement without the need for a hearing. Unlike the General Division, if the matter proceeds to hearing witnesses are not called to give evidence, instead their evidence is provided in statements to the Court. The other major difference between the two Divisions, is that the legal costs you can claim back from the opposing side at the end of the claim in the Small Claims Division are capped based on regulated fees, while the Court has a wide discretion to make order for some/most of your legal costs to be paid back to you by the other side if you are successful in your claim.