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SUCCESSFUL LITIGATION TACTICS WHICH TURN THE CASE AROUND

Blog & Articles, Civil Litigation, Tang Law

It is normal for a civil proceedings to take 18 to 24 months to reach and complete a full trial.

In many cases, it could take even longer, up to 7 years. Legal proceedings is very costly and could cost hundreds of thousands of dollars. It is also highly risk, if you lose, you are very likely to also have to pay for the other party’s costs.

A decision on whether to litigate a matter must be made with extreme care.

Why Does It Take So Long?

The Australia legal system is very mature and the Court procedures are highly complex. There are many steps that must be taken in the normal course of proceedings before a case is ready for trial. This can easily take 12 to 18 months.

In addition to these steps in the normal course of proceedings, there are many other procedures in the process for interim applications to be made. These interim applications, if made, will delay the proceedings even more.

What is Litigation Tactic?

Litigation tactics are deployed to achieve your specific objectives, for example, to improve your position in order to facilitate a better outcome at negotiation, to improve your chance of success, to give you more clarity in a complicated situation, to secure or freeze assets of the other parties, etc.

However, do remember, every step you take or every application you make in the proceedings will cost you money, and it may also have cost implications if you were unsuccessful. Extreme caution must be used in deciding what tactic to use. To do this, you need highly skilled and experienced litigation lawyer to assist you.

Even though it is costly to make interim applications, in some situations, it can help you achieve an immediate “win”. One good example is a recent case we handled.

Case Study

Our client was sued by a business partner for misleading or deceptive conduct and breach of contract. It is my view that the claim was groundless or, at best, a very weak one. The partner was claiming around half a million as compensation. Our client was originally using another law firm and the claim in Court against our client proceeded for several months. Unfortunately for our client, the case was not properly conducted and the judge kept ordering costs against our client. They have also attempted to negotiate a settlement but have also failed.

Our client was stressed and felt helpless, and they came to see me for second opinion. In the first consultation with me, having briefly analysed the case, I told the client they are faced with several problems:

  1. Firstly, litigation is inherently costly and risky. For their case, I estimated over $100,000 in legal fees if the matter proceeds to a full trial. My question for them is even if they can afford it, do they want to incur this kind of expense?
  2. Secondly, they were stuck because they were being sued. They do not have a choice but to defend against the half a million dollar claim.
  3. Thirdly, they were not on the good side of the judge for continuously failed to comply with the court orders and procedures. This is undesirable.

The client was stuck in a very bad situation, having to try and save the business on the one hand, and having to deal with the legal case on the other hand. She had no control of the case and the judge was losing patience with her.

To save her situation, my advice and strategy was very clear:

  1. First, we must turn her position around from being reactive to pro-active. We must take control of the proceedings and take control of the overall situation. We want to dictate the rhythm of the matter. Can we do this? Of course we can, and we did, through the litigation tactics (see below).
  2. Secondly, we want to improve the client’s position, from being sued and having no bargaining power, to counterclaiming against the plaintiff and give her better bargaining position.

To achieve these, we made two interim applications to the Court:

  1. We applied and moved the matter into a Case Management List. As a result, we were able to move the case to another judge. Strategically, this was advantageous to the client.
  2. We then made an application to the Court for security for cost against the Plaintiff, as the business partner was a foreign person with no assets in Australia. Our application was opposed by the plaintiff’s lawyer. We were successful and the Court ordered that the plaintiff pays costs into the Court before the proceedings is allowed to continue. (see diagram – Court Order). Subsequently, the plaintiff failed to comply and as a result, the case has now been moved into an inactive list. (see diagram 2 – Court Order 2) This is an excellent example of how litigation tactics can help a party completely turn a case around. The client now does not need to spend over $100,000 in legal fees, and moreover, the plaintiff has disappeared and claim against our client is gone. This became an immediate “win” for the client.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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MISLEADING CASES IN PROPERTY DEVELOPMENT

Appeal to AAT, Blog & Articles, Immigration Law, Migration Law, Permanent Visa, Tang Law, Visa Appeal

In the recent years, we noticed a significant increase in number of cases involving misleading or deceptive conduct and breach of contract in property development projects.

Case Study

In one of our recent cases, our client is a successful business migrant from PRC and does not speak any English. Through a friend who lives in Australia, also from China, our client was introduced to a local property development company. The company introduced land subdivision project to our client stating that:

  1. Our client needs to only invest $920k into the project company.
  2. The return on investment is 20% per year
  3. The project will be completed in 2 years.

The friend was present at all meetings and was translating for our client.  Our client relied heavily on and trusted the friend.  The friend helped the company convince our client that the project is very profitable.  Our client ultimately invested $920m and flew back to China.  After almost 6 years, our client did not receive any money back from the company.

Australia Consumer Law

Under the Australia Consumer Law (“ACL”), previously known as the Trade Practices Act, a person is prohibited from engaging in conduct that is likely to mislead another person. Intention to mislead is not required!   What is “misleading conduct”?

  • Any promise or representation made, even though it may be true at that time, but became incorrect or untrue at a later stage is false and misleading for ACL purposes.
  • Any promises or representation about a future matter made without reasonable basis is also false and misleading for ACL purposes.

Back to our client’s case, all of the representations made by the company were false. Our client never received the 20% return on investment or any money from the investment.

Upon investigation, we found that the company has used the project company’s funds to invest into other projects without our client’s consent.  We also found that that the project company and the director of the project company own properties valued between $3.5 to $4m.

We commenced action in the Supreme Court of Western Australia against the project company, the Company, and the director personally, for “misleading or deceptive conduct” and for breach of contract, claiming in excess of $4m in loss or damages.

At the same time, we made a strategic move in applying to the Court and successfully freeze all the assets of the company and the director.

The case went to trial and the Court found in our client’s favour.  Our client received compensation of approximately $3.5m.

High Court Case

“Misleading conduct” is one of the most commonly used legal ground to commence legal action.

In a High Court Case, Henville and Another v Walker and another (2001) 182 ALR 37, the appellants purchased a block of land to subdivide into smaller blocks. The representations made by the Respondent as to the anticipated selling prices of the subdivided blocks were substantially overestimated. The project was undertaken and the appellants suffered loss.

The High Court decided that the respondent’s misrepresentations contravened the Act and has caused loss sustained by the appellants.

Concluding Remark

If you suspect that you may lose your investment, you should act as soon as possible, before the company you invested in goes into financial trouble.  If the company is already in financial troubles, then we need to immediately search whether its directors and all persons involved in the misleading conduct to determine whether they have any assets.

The ACL has a very wide operation.  It catches every person who is involved in the misleading conduct and such person could become personally liable to compensate you for your loss sustained.

Also, there is a limitation period at law.  You will be barred from commencing legal action if you missed the limitation period.  Please do not wait if you suspect that your investment may be loss.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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HOW TO IMPROVE YOUR SUCCESS RATE IN MIGRATION APPEAL

Appeal to AAT, Blog & Articles, Immigration Law, Migration Law, Permanent Visa, Tang Law, Visa Appeal

Appeal Statistics

In 2016-2017, migration appeal to the Administrative Appeal Tribunal (AAT) has increased substantially by 7,675 cases (up 41%) to a total of 26,604.

This is the highest number of applications since the establishment of the Migration Appeal Division. This suggests a significant increase in visa refusals and cancellations by the Department of Immigration.

Of the 26,604 total number of AAT appeal cases in 2017, it comprised of:

  • Partner visa – 4,001
  • Student Refusal – 4,418
  • Student Cancellation – 1,137
  • Nomination/Sponsor Approval – 2,067
  • Permanent Business – 1,007

Approximately 38% (i.e. less than half) of the cases finalised in 2017 was successful.  Where the case relates to refugee visa, only 11% was successful.

How To Increase Your Success Rate?

From our years of experience in successfully representing applicants in migration appeals, we have a proven method of substantially improving your chance of succeeding.

To stand a chance of succeeding, you must at least do the following.

Firstly, carefully review Immigration’s decision and formulate your grounds of appeal.

Applying to AAT for review is not just about filling in some forms, collating some documents or just writing a letter to the AAT.     You must know what grounds are there and which one of these grounds are applicable to your case and acceptable by AAT.  These grounds could be merits in nature or error of law.  You may need a lawyer who is experienced in migration law to help you with formulating these grounds.  In brief, you must know what the Tribunal is looking for.

Secondly, substantiate your ground with evidence.  You need to carefully consider what type of evidence would be convincing. You have to carefully reviewed every piece of evidence and tactfully put them together.  Your materials must not be inconsistent.   In short, you must provide the Tribunal with what they are looking for.

Thirdly, strengthen your appeal with past case law.  AAT is a quasi-judicial body.  The Tribunal member is bound by past decisions of the AAT or a higher court (e.g. the Federal Court).  The key here is to find past cases relevant specifically to your situation and use it to support your grounds.  In all, you must know the process and the framework in which the Tribunal must follow

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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8 TIPS FOR NON-RESIDENT INVESTORS IN AUSTRALIA

Blog & Articles, Immigration Law, Investment Visa, Migrants, Migration Law, Permanent Visa, Perth Immigration Lawyer, Tang Law, Visa 132

1.      Australia Business Culture

Australians believe in a fair chance for all and are open to tell you what they want.   Australians tend to open conversation straight away about the business on the table.   In contract, most business people from Asia likes to first build the relationship (e.g. have a dinner or casual chat) and fell comfortable before entering into business talks.

Australia encourages work-life balance.  You will find that Australians may not be prepared to meet for work matters outside of their working hours.

TIP:  Be prepared to talk business in the first meeting, be specific with what you want, it is expected – be frank and transparent.

 

2.     Contractual Spirit

Do expect slow decision making as Australians like to consult advisors and stakeholders before deciding.

When a decision is reached and contract is entered into, it is taken very seriously.  In contrast to some parts of the world, especially the developing countries, contracts are often disregarded.  In Australia, contracts are comprehensive, transparent and enforceable by the parties.  Contracts are analysed carefully before agreements are reached and signed.

If a contract is breached, the non-defaulting party can bring an action in Court.

TIP: Be patient with the process.  THINK CAREFULLY and get advice before you sign any contract, especially in Australia.  Once signed, you cannot deviate from it.

3.     Foreign Investment Review Board

General rule of thumb for a “foreign person” buying Australia real estate is that you must apply for approval from Foreign Investment Review Board (FIRB).  A “foreign person” is generally:

  • an individual that is not ordinarily resident in Australia;
  • a corporation, trustee of a trust or general partner of a limited partnership where a non-resident individual or foreign company holds a substantial interest of at least 20%; or
  • a corporation, trustee of a trust or general partner of a limited partnership in which two or more foreign persons hold an aggregate substantial interest of at least 40%.

Failure to obtain FIRB approval is a breach of the Commonwealth law.  Consequences include:

  • The maximum civil penalty for individual is up to $52,500
  • If criminal penalty is imposed, the maximum is $157,500 or 3 years imprisonment.

Commercial land, agricultural land, and Australian corporation (general businesses) have different thresholds where FIRB approval is required.

TIP: Please be mindful to check whether you need to obtain FIRB approval before signing any contract.

 

4.      Taxation

Tax system in Australia is complicated.   At the Federal level, there is:

  • Withholding tax for non-resident (which can range from 10% to 47%);
  • Capital gains tax (Company is not entitled to certain CGT concessions);
  • Company tax (currently at 28.5%);
  • Goods and services tax (which is 10%).

At the State level, there is transfer duty, land tax, and other State’s taxes depending on which business you are investing in.   Transfer duty for purchase of land is around 5% of the purchase price, but it can be tricky. For example, if you decide to change the purchaser’s name on a contract, you may have to pay double transfer duty.  Another example, purchase of shares in “land rich” company may trigger transfer duty.

At the Local Government level, there are council rates and taxes.

TIP: Seek advice from qualified accountant before committing to any investment.

 

5.     Using Correct Structure

Using the correct legal structure to conduct your investment can help you with assets protection, limit your liability, effectively minimise tax, or privacy protection for the “true owner”.

Legal structures in Australia include sole proprietorship, partnership, company, and trust.

TIP:  Know which structure best suits your purpose and set it up before entering into any contract to invest.

 

6.     Common Law and the “Nemo Dat” Doctrine

Australia is a common law country.  Our legal system comprises of common law and legislations.    There is an old common law rule called the “nemo dat” doctrine which basically means that a person who is not an owner of goods or who does not sell those goods under the authority or consent of the owner cannot pass a better title than she/he had.

TIP:  Check the proof of ownership AND check the seller.  If unsure, you can always include a “due diligence” clause in the contract allowing you time to conduct checks and searches before you make the investment.

 

7.     Australia Consumer Law

The Australia Consumer Law (“ACL”) is a national law for fair trading and consumer protection.  If you believe that you have been treated unfairly in a transaction or mislead into investing, you may be entitled to the protection and remedies under the ACL.

TIP:  Don’t wait till it is too late.  There is limitation period to your rights under the ACL.

 

8.     Business Migrants – “Eligible Business”

Business migrants are required to make investment into “eligible business”.  Our Common Law and migration legislation are very specific about what constitutes a “business” and an “eligible business”.  Investment into a wrong business can cost you the visa.

TIP: First, fully understand the conditions on your visa and its legal implications, and second, make sure your contract contains terms that will help you with complying with the visa conditions.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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HOW TO SETTLE FAMILY LAW DISPUTES?

Binding Financial Agreement, Blog & Articles, Consent Order, Family Court, Family Disputes, Tang Law, Violence Restraining Order

Part I: Consent Orders.

In 2015, the Family Court of Western Australia received over 15,000 applications.  The median time for a matter to reach trial is 89 weeks!
It makes logical sense to attempt to settle family law dispute amicably and properly formalise the settlement terms.

 

Importance of Formal Agreement

In the case of Eufrosin & Eufrosin [2014] FamCAFC 191, the wife was ordered to pay her estranged husband a sum of $500,000 following a gambling win despite the fact that the parties had been separated for more than five years and had made informal agreements and distributed the assets accordingly at the time of separation.

This case highlights the importance of finalising any agreement made to avoid claims in the future.

If there is transfer of ownership interest in real estate from one party to the other, this transfer in real property will be exempted from transfer duty if the agreement is formalised properly.  This can be a significant savings.

Two Ways to Formalise Settlement

There are two ways you can finalise the property settlement upon separation by agreement:

  1. Apply to the Family Court for Consent Orders; or
  2. Entering into a Binding Financial Agreement.

This Part I of the article deal with Consent Orders.

What is a Consent Order?

In essence a consent order is a written agreement between both parties that is sealed and affirmed by a court.  Once it is sealed by the Court, the Consent Orders become orders of the Court and are binding on the parties.

In Western Australia, consent orders are made by the Family Court of Western Australia and covers aspects such as property orders, parenting orders and spousal maintenance.

What are the benefits of Consent Orders?

The purpose of Consent Orders is to ensure that agreements between parties are in writing and affirmed by the court in order to avoid further disputes in future.

What Consent Orders can be made by the Court?

For orders related to property settlement and spousal maintenance, the Court must give consideration to whether the orders sort by the parties are just and equitable and will take into account all factors of the relationship such as the contributions of both parties to the relationship and the future needs of each party.

For orders related to parenting arrangements the Court will consider whether the orders made are proper and appropriate arrangements for the child and whether the orders are in the best interests of the child.

What is the Time Limit in applying for Consent Orders?

Consent orders may be filled any time after separation or within one (1) year after a divorce order has taken effect or two (2) years for breakdowns in a de facto relationship. If the parties have exceeded these time frames leave of the court may be obtained.

How long does it take for the Court to grant the Consent Orders?

Generally speaking, it takes around 6 weeks for the Family Court to review and seal the consent orders provided there are no complications.

There may be situations where the Court requires further information from the parties.  This can cause delays in the application. Moreover, the Court may require the parties to attend hearing for further clarification.

Proper preparation of the Consent Orders can significantly reduce such delays and complications.

Before entering into Consent Orders

It is important that prior to entering into the Consent Orders you fully understand your rights and your entitlements, as well as the legal ramifications of entering into the consent orders.  Do not agree to settle until you know, legally, what you are entitled to receive or keep.

You are entitled to make an informed decision as to whether or not to enter into the consent orders.

For more information regarding consent orders, please contact our lawyers at TANG LAW.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing family law advice to clients, making divorce applications and applying for Consent Order. Kelvin is able to offer his clients clear and practical advice in relation to children’s disputes, property settlements between married and de-facto couples, spousal maintenance and child support.

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