Litigation and Dispute Resolution

Payment Disputes Resolved

Adjudication in Construction Disputes

All construction claims in Queensland can subject to Adjudication under the Building Industry Fairness Act 2017 (BIF). We have extensive experience in both bringing and defending claims under the BIF. Our experience runs from modest to multi-million-dollar disputes, acting for clients, head contractors and subcontractors. Adjudication is an ‘all-in’ process. Parties have one submission to make their claim or mount a defence. Simpson Quinn has the skill and dedication to give you the best chance of success.

Adjudication is a speedy process. Most claims will resolve within 4 – 6 weeks or commencement. Rights of appeal are extremely limited.

Adjudication is a powerful and speedy method to resolve a claim, especially compared to Court litigation which can take months or years. 

Often the key to a successful Adjudication result is prior preparation. Parties are limited in their claims and responses to the contents of their progress claim or payment schedule. If claims or defences are not included in these documents, they cannot be incorporated into your adjudication submission. We can assist in preparing these documents to give you the most flexibility in your submission to an adjudicator. 

The Regulator Steps In

QBCC Home Warranty Insurance

All residential building contracts in Queensland are insured by the QBCC to at least $200,000. A homeowner whose work is defective or incomplete can receive this money, provided their contract is ended or terminated lawfully.

Coverage under the scheme is the ultimate back-stop to ensure building work is completed free of defects. If this does not occur, the QBCC will either secure a contractor to finish or fix the work, or provide the homeowner a cash settlement. Once the QBCC has paid out, they will come after the contractor to recover what they paid out in insurance.

For homeowners, this insurance policy provides some financial security. However professional advice is required to ensure that the contract is ended lawfully, and not due to the homeowners’ default. If the contract is terminated due to the homeowner’s default, insurance coverage will be denied. Lawful termination of the contract is therefore a $200,000 question. The team at Simpson Quinn has extensive experience in ensuring that homeowner’s claims to the QBCC are accepted.

For builders, a contract termination scenario is deadly serious. Early intervention by an experienced solicitor is critical to ensure that a builder does not fall on the wrong side of a termination. If a claim is paid out, the QBCC will recover the payout from the builder. Our lawyers have the experience to keep you on the right side a termination dispute.

My House my Castle

Boundary Disputes & Encroachments

Queensland law includes many provisions dealing with disputes between neighbours. The simplest is an action through QCAT to require a fence to be constructed on a common boundary. QCAT can say where the fence will be built, what type of fence and who will pay.

More complex are disputes concerning structures encroaching onto your land, such as pools or retaining walls. The Supreme Court has jurisdiction to make orders that encroachments be removed or that encroached land be purchased at fair value.

The key in such disputes is to know what Court to ask for help, and to always be reasonable when dealing with your neighbour.

QCAT doesn’t strictly have jurisdiction to remove an encroachment, but it can order the removal of a crumbling retaining that is encroaching, if necessary to build a new fence. 

Reasonableness is key, especially in written communications. Anything you, or your lawyers, might write could be read by the judge. Many of the decisions a court must make over boundary disputes are highly discretionary. A judge must consider various factors but the weight they give to each in their final decision is within their discretion. Take the moral high ground – the land might just come with you.

Keep it Commercial

Employment Disputes

The relationship between employer and employee is highly regulated. There are powerful rights and protections in Australia for both employees & employers. An employer can’t unreasonably dismiss an employee or discriminate against them. An employee must be aware that they can be terminated through redundancy, during probation or after one warning pursuant to the small-business fair dismissal code. 

Most employment disputes are litigated through the Fair Work Commission and the Federal Courts. After filing the claim, the parties are funnelled into a mediation where each are encouraged to compromise and reach an agreed settlement.

Critical to this process is understanding that no one will pay your legal costs. If you win, you will still bear your own legal costs. Legal costs beyond mediation will substantially erode, or even consume, a settlement payment from an employer. Even if an employer wins after a final Court decision, the cost of their legal bills might have made it worth settling early.

Simpson Quinn keeps the costs front and centre of our strategy when acting for employers or employees. All the work we do is focused on achieving a commercial result. Get in, get out, and keep the costs down.


Liquidation & Bankruptcy

An individual is bankrupted, a company is liquidated. Either way, an insolvency practitioner is appointed to manage their financial affairs. 

Both procedures are a powerful way to ensure debts are repaid. Either the debtor finds the money to avoid insolvency or a professional will sell their assets to repay their debts. 

What is often underappreciated by creditors is most debtor’s genuine desire to avoid themselves being bankrupted or their company being liquidated. Either outcome will be highly disruptive and unpleasant. Bankruptcy lasts three years.

During that time, a bankrupt loses their passport and may have to make payments from their salary to reimburse their creditors. A company will usually cease to exist. The owner will have to establish a new company, find new premises, set up a new online accounting system, tax numbers, websites, etc. 

We frequently commence bankruptcy and winding up procedures on behalf of our creditor clients. We know when these processes are most powerful, and also when alternative measures (garnishing wages, seizing assets) are better suited.

In Copyright we trust

Intellectual Property Disputes

In Australia, there are three types of intellectual property. Patents, trademarks and copyright. For most small to medium businesses, most intellectual property disputes will focus on copyright.

Copyright is a right that flow into an author (or their employer) when they create a new original work. That work could be a design, music, technical specification or a multitude of others. No other action is required to create this right aside from the act of creating the work.

Copyright raises questions for owners when work is created, and when work is infringed or copied. When an employee creates a new work, the copyright generally vests in the employer. But for a business that uses contractors, the business needs to ensure that their contract causes the transfer of copyright to the business.

A builder who outsources their design work to a contractor does not own the copyright in those designs unless their contract says so.

When infringement is discovered, there are usually disputes about the extent of the copying or if copying occurred at all. An infringer might even say that the claimant doesn’t own the copyright – that the work was created by a third party and the claimant themselves is infringing.

Litigating a copyright dispute is a complex task that requires a close consideration of when the work was created, by whom and a detailed comparison to the allegedly infringing work. Simpson Quinn has the experience and expertise to guide you. 

Start Strong, Get Paid

Debt Recovery

There are a dizzying array of options in Australia to enforce the payment of a debt. Asset seizures, garnishing wages, freezing bank accounts, etc. 

However, none of these options are fast. All generally require first obtaining a court decision stating that the debtor owes you a specific sum. Obtaining that decision will usually take at least six months, if not more.

A faster option is to ensure that your business has a robust set of terms & conditions of trade, that a customer must agree to before obtaining your goods or services. These T&Cs can give your business significant power in recovering debts owed to them. They might include ‘charging clause’ which allows you to lodge a caveat over a debtors’ land.

With a caveat in place, the debtor cannot sell, transfer or remortgage their home. Best of all, a caveat can be registered within days and without court action. 

Another powerful provision to include is a meaningful interest rate. Something akin to 10% per annum. This discourages a debtor just waiting for years before they pay up. A further provision is that the debtor pays your legal fees of recovering the debtor from them.

Implementing a set of terms & conditions including these provisions significantly empowers your debt recovery options. Your debt can be secured against property instantly. They have to pay your legal fees and then pay more interest the longer they wait.

Untangling the Web

Company & Shareholder Disputes

The company structure neatly divides stakeholders into different classes – shareholders (minority & majority, beneficial and non-beneficial owners) directors (sole, managing, etc). 

In reality, individuals often wear multiple hats. Directors are frequently shareholders and shareholders can own multiple types of shares in different capacities. 

This frequently leads to the blending responsibilities into one individual. A sole shareholder and director essential controls a company and can take it in any direction. More complex however is a company with multiple shareholders and directors. At that point, a company really takes on a life of its own and all parties must be careful not to overstep their authority.

Disputes often arise when one director prefers their interests over that of another director.

Directors all owe duties to act in the best interests of the company. They cannot appropriate company property or enter into sweetheart deals with third parties involving company resources. 

Notwithstanding this, a minority shareholder or an excluded director is often on the outside when self-dealing occurs. They have no power to demand a change in company behaviour and can find it difficult to obtain the evidence necessary to press their claim. 

Simpson Quinn is experienced in acting on all sides or corporate and shareholder disputes. This includes claims for breaches of directors duties, minority shareholders suing on behalf of a company or a prejudiced shareholding claim. We can untangle the web. 

Get it in Writing

Construction Contract Drafting & Review

The construction law team at Simpson Quinn Lawyers has decades of experience in drafting, reviewing and advising on the terms of construction contracts. Whether you are a Head Contractor requiring a bespoke subcontract, or a trade contractor seeking advice on whether to accept the terms of a pro-forma contract, we can provide you with timely, cost-effective assistance. 

Effective construction contract assistance starts with payment provisions. How a party gets paid, when and subject to what conditions, is the core of any contract. Understanding when payments can be withheld or reduced, and when they can’t, can be a life-or-death question. Cash-flow is the lifeblood of the industry.

More broadly, a favourable construction contract must deal with a wide variety of other issues. The basis for set-off or reductions in payments due to issues unrelated to the present claim must all be considered. If the contract requires additional insurances, or amendments to existing policies, those matters must be reviewed and agreed prior to contract signing.

A well drafted contract, in your favour, gives your business a significant advantage. Simpson Quinn Lawyers will ensure you understand what you are signing and that the terms are as favourable to you as possible.