Litigation and risk management

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• Dispute resolution and litigation
• Risk management
• Our performance—recent actions
• Practice areas

Dispute resolution and litigation

Sometimes you need to take positive action to protect and grow the business you have spent time and money to establish. Other times, you can be the subject of an attack by another entity or even a government regulator, which has taken issue with you for something they allege you have done. Alternatively, you might face the prospect of having to take action to protect the rights of others, such as the investors in a scheme or trust for which you are the responsible entity or trustee.

In situations where there is a dispute or the potential for one to develop, it is vitally important that you analyse your risks and options at the outset, when you are likely to have broader options available to you for resolving the dispute. To do this well, you need a legal team that understands the commercial reality of your industry, and has a thorough understanding of your business.

McMahon Clarke Legal has assembled a team of specialist lawyers who provide strategic advice to manage the risks involved in commercial disputes and represent you in court if necessary. Our litigation lawyers specialise in managed investments and capital raising issues, and work closely with our commercial lawyers. Specialisation gives our clients the best chance of success when they are involved in pre-dispute negotiations or litigation.

You might find yourself in a position where you need to take aggressive action to secure an advantage for your business, such as the takeover of a competitor. We have experience in strategizing and undertaking mergers and acquisitions, including hostile takeovers. In such cases, our commercial lawyers work with our litigation lawyers to plan in advance the areas likely to be contentious and devise a strategy to deal with the issues that might arise.

Risk management

The lawyers working within our dispute resolution and risk management division are often consulted by clients and other lawyers in the firm for strategic input very early in a matter. This results in practical, timely solutions to the issues that have arisen in your business. Many times, it is the steps taken early in a matter that save the time and money of expensive litigation down the track.

For example:

• Risk management advice can be obtained prior to issuing an offer document to the public to ensure areas of potential liability are properly understood and everything is done to close off possible avenues of attack for people who might ultimately want to take action against you.
• If your business puts you in contact with a government regulator, then risk management advice can be very helpful in ensuring you are aware of all of the laws and regulations you need to follow in running your business. Following that, if you are the subject of enquiries from a regulator, then our working knowledge of the processes that might follow will again help you address potential areas of concern for the regulator.

Our performance

Here is a summary of recent actions, as examples of the types of actions managed investment and capital raising clients may face, and the strength of our litigation practice:

• Advised on the hostile takeover of one fund manager by another, including successfully bringing proceedings in the Victorian Supreme Court for declarations regarding a meeting of investors to replace the existing responsible entity.
  
  
• Acted for the trustee of a number of schemes in a dispute with the manager of those schemes regarding unpaid fees and breach of duty on the part of the manager.
  
  
• Brought proceedings in the NSW Supreme Court for breach of trust against an exiting responsible entity on behalf of the new responsible entity of a commercial property syndicate, which resulted in the breach of trust being remedied.
  
  
• Successfully represented funds management clients in hearings before the Australian Securities and Investments Commission.
  
  
• Represented a scheme manager in bringing proceedings in the Federal Court against the Australian Taxation Office to extract a product ruling for an agribusiness project.
  
  
• Represented companies and their directors in class actions brought by disgruntled investors and succeeded in having the action dismissed.
  
  
• Protected the position of responsible entities in the winding up of schemes where action was threatened by investors and contractors.
  
  
• Obtained urgent injunctions in the South Australian Supreme Court protecting scheme property where a dispute arose between the responsible entity and the operator of a strata title scheme.
  
  
• Acted for the responsible entity of a shopping centre syndicate in relation to a town planning appeal against objections lodged by rival shopping centre owners.

Practice areas

Here is a summary of the services provided by our dispute resolution and risk management team:

Disputes involving schemes and trusts.

McMahon Clarke Legal has had extensive experience in conducting litigation involving managed investment and prescribed interest schemes, including a case involving claims of misleading and deceptive conduct in the prospectus made on behalf of disgruntled investors in a scheme, allegations of mismanagement against the managers of both property and agribusiness schemes, and allegations of breach of trust against the trustee/responsible entity. In addition, we regularly provide risk management advice to our clients in relation to their obligations as directors and trustees when they are involved in capital raising and the management of schemes.

Property related litigation.

McMahon Clarke Legal regularly conducts commercial litigation in relation to property disputes including contractual disputes arising out of the sale of land, actions for specific performance, mortgagee sales, easement disputes, statutory rights of user across adjoining properties, and leasing matters including disputes involving the payment of outgoings and rent, recovery of possession of commercial premises and the eviction of tenants.

Shareholder and partnership disputes.

Sarah Davies has acted for a number of people involved in corporate and partnership disputes, including solicitors and accountants, and has provided advice about corporate governance issues, including making applications to the Supreme Court for orders pursuant to sections 232 and 236 of the Corporations Act. Sarah has also represented clients involved in capital raising and other industries in litigation involving shareholder disputes following the injection of venture capital.

Judicial review applications

We have experience in applying for review of administrative decisions, including applications to the court for review of decisions made by the Australian Taxation Office, ASIC, and other regulators.

Debt recovery and insolvency

McMahon Clarke Legal acts for clients in the recovery of monies owing pursuant to a wide range of commercial agreements, issuing and defending statutory demands, applying to set aside statutory demands, winding-up applications, bankruptcy applications and actions to enforce directors' guarantees. We can provide a regular debt recovery service for clients requiring large scale or one-off debt recoveries.

Floats

Our dispute resolution and risk management team can conduct due diligence in relation to litigation, trade practices, insurance and employment issues.

Other commercial disputes.

McMahon Clarke Legal has extensive experience in relation to trade practices litigation involving Part IV and V of the Trade Practices Act, and has conducted a number of actions relating to misleading and deceptive conduct and misrepresentation, particularly regarding transfer of business interests and other commercial arrangements. We regularly give advice and conduct litigation in relation to unconscionable conduct, breach of contract, negligent advice and negligent misrepresentation claims.

Insurance litigation

Sarah Davies has conducted extensive litigation involving questions of indemnity under policies of commercial and professional indemnity insurance for clients involved in a wide range of industries including aviation and manufacturing. She has regularly given advice to professional indemnity insurers for professional bodies such as lawyers and accountants, and has prosecuted and defended substantial pieces of litigation concerning professional negligence claims.

Employment law

McMahon Clarke Legal has experience in conducting employment related litigation, including the protection and recovery of intellectual property and the misuse of confidential information. We draft executive employment contracts and give advice regarding restraint clauses in contracts.

Planning and Environment court matters.

McMahon Clarke Legal has expertise in conducting town planning appeals and regularly gives advice to property syndicators in relation to the Integrated Planning Act Qld.

Land Court appeals

McMahon Clarke Legal has experience in acting for property owners in relation to compensation claims for land resumption. In a previous position, Sarah Davies was involved in the successful negotiation of compensation for Exxon Mobil in relation to the closure of sites on the Brisbane/Gold Coast highway.

Quasi-criminal matters.

McMahon Clarke Legal acts on behalf of clients to defend quasi-criminal prosecutions such as those brought under the environmental protection legislation or the fair trading legislation.

Defamation

We have expertise in conducting defamation trials, and in providing advice to clients about whether or not comments have the potential to be defamatory.

Agribusiness | Capital markets & corporate advisory  | Estate planning | Litigation & risk management  | Property | Property funds

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