You run a business, or contracted as one, and the other party is a company with more money and a law firm.
The forum by amount, the clauses to find before you write anything, and the sequence of guides that turns a commercial dispute into a documented record.
A commercial disputes solicitor advising small businesses.
What is different about a commercial matter
- The contract is the first authority. Termination, notice, payment terms, dispute resolution, confidentiality, limitation of liability: most of the answer is in a clause somebody wrote before the argument. Find it before you form a view.
- Correspondence is where most of it happens. Commercial disputes are mostly conducted in letters long before any court. Every guide under Correspondence on this site applies directly, and the confidentiality rule matters because commercial contracts nearly always have one.
- The forum depends on the kind of claim, the subject matter, the location and the amount. Smaller sums often go to small claims or a tribunal designed for self-representation, but not every business debt is within a consumer tribunal's jurisdiction; larger sums go to a court where costs orders are real and the other side's solicitors know it.
- "Without prejudice" arrives early. Settlement proposals, standstill agreements and deeds appear in the first weeks. The labels guide and the release clause section exist for this.
- Unfair contract terms are a thing, within limits. Small businesses have protections against certain unfair terms in standard-form contracts under the Australian Consumer Law, but the regime has turnover and headcount thresholds and does not cover every kind of term. A clause is not automatically enforceable because you signed it, and not automatically void because it is harsh.
- Personal guarantees reach past the company. A sole trader is personally liable anyway. If you traded through a company and signed a guarantee, the other side can pursue you personally as well as the company. Find that document first.
Forum, time limits, first steps
Small claims in the Local or Magistrates Court, the state civil tribunal for consumer and commercial claims up to its cap, then the District or County Court, then the Supreme Court. Some contracts name a forum or require mediation or arbitration first; such a clause is usually enforceable, subject to consumer and other mandatory laws.
Contract claims generally have a six-year limitation period in most states, running from the breach; tribunals can have shorter limits (NCAT consumer claims: three years). Notice periods inside the contract are shorter and stricter: many contracts require written notice and a chance to remedy before termination for breach, and the law may add requirements of its own. Read the clause and check.
Assemble the contract, every variation, every invoice, and the correspondence, in date order. Write the factual spine. Then one open letter stating your position and what you ask for, with a date. Nothing on the phone that is not confirmed in writing the same day.
Letter of demand with the invoice, the terms, and a date; then the small claims forum for the amount. Check the debtor can pay first: a judgment against an empty company is paper.
Small business commissioners and ombudsmen in most states offer free initial help for business-to-business disputes, and low-cost mediation that may carry a fee, and the state tribunal's own pages explain filing. Community legal centres rarely cover business disputes; a fixed-fee hour with a solicitor often does.
Read the contract first
Before drafting anything, find and copy into your notes: the termination clause and its notice requirements; the payment terms and any late-payment provision; the dispute resolution clause, which may require negotiation or mediation before court; the confidentiality clause and its exceptions; any limitation or exclusion of liability; the governing law and jurisdiction clause. Put each in the pinpoint table with its clause number. Half of commercial correspondence is one side quoting a clause the other side had not read.
Which guides apply
- Build a clear legal letterThe opening letter, and every reply.
- Request → refusal → exhibitAsk for the documents and the explanation; keep the refusal.
- Limited consent"Fine" in an email is a contract variation waiting to be argued.
- Labels on legal correspondenceOPEN and WITHOUT PREJUDICE will both arrive in week one.
- Itemise an overwhelming scheduleThe particulars of breach, line by line.
- Escalate one step at a timeThe dispute clause may set the ladder for you.
- Mediation without dependenceGuard the release; commercial deeds are drafted wide.
Official resources
- Your state's civil tribunal for consumer and commercial claims, and the small claims division of the local court, on the resources page
- Australian Financial Complaints Authority where the dispute is with a bank, lender or insurer, including business accounts within its limits
- Law Society of NSW register of solicitors and the equivalent in your state, for a fixed-fee hour