Not every contracts dispute is capable of resolution. Sometimes it is clear that you will need to approach the court to exercise your rights and to have the other party honour its commitments. Once it is clear that litigation cannot be avoided, an alternative resolution options have been fully explored you will probably need advice about your rights. Read on to learn more about the 5 topics your lawyer should cover in his or her advice to you regarding a lawsuit involving a breach of contract.
The facts of the matter
The facts of the case often determine how the matter will be determined. Where a contract is involved the facts assume importance in at least 2 stages. Firstly, the fact that lead up to the formation of the contract can be important as they establish the commercial purpose and objectives of the agreement. Secondly, the fact that occur after the agreement has been entered to into will speak to questions about breach and damages. Post-contractual conduct, however, does not determine what the parties agreed and is often considered extraneous to the contract.
The terms of the contract The terms of the contract governor range of important matters that includes: the parties to the agreement, the rights and obligations undertaken, the date of the agreement, relevant definitions and perhaps a dispute resolution clause. It can in some instances be quite difficult to determine what precisely the contract covers especially where there is an ambiguity. Where the contract is capable of being constructed in a number of different ways there will almost certainly be a contracts dispute argued on the basis of the interests of the parties. In some cases it is necessary to consider the legislation that sits on top of the contract is that could have a dramatic effect on the obligations undertaken.
In the usual course of events the contract will set out when performance by the respective parties falls due. This is distinct to the question of when, where there is a breach of contract, a party should take steps to exercise their rights. In New South Wales there are a number of guidelines, such as the law cover schedule of limitations, that can assist you in working out when your cause of action expires. If you sit on your hands, and failed to exercise your rights then it may be that you will prejudice your case unless there are grounds for permitting you to obtain an extension of time. It is best to get legal advice about the critical dates and time limits in your contractual dispute to avoid time running out on you.
Alternatives to Litigation
before you take the dramatic step of commencing proceedings you should get advice about the options available for dealing with your contract dispute outside of a courtroom. In many cases the most sensible way forward is to have without prejudice discussions with the other side to try and see if the case is capable of resolution without the expense and costs involved in litigation. Quite often clients can come to an agreement which there lawyers can later document for them by way of a deed of settlement binding the parties to its terms. In fact most cases settle by way of agreement and this is to be encouraged so that the parties can live with the deal they make.
A roadmap for litigation
If after you have explored the alternatives and your breach of contract case simply doesn’t settle you may need to go to court. Your lawyer needs to advise you about where your case should be brought, the evidence you will need to pursue it and the likely costs involved. Too often, when practical advice is given, a party realises that the time, expense and other costs associated with litigation are too great so that it is in fact best to abandon the case. However, when the stakes are high and the amounts involved are too great to ignore you will need legal advice about how best to pursue your contractual dispute going forwards at each stage especially as there are many complex rules involved.