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Today’s professional environment in Australia is increasingly complex, litigious and regulated. It is important that any business seeking to operate in this climate needs to be alert to the risks of litigation and become familiar with the avenues that may be available for remedying a legal wrong. A remedy occurs as a response which arises automatically upon a successful cause of action, and is an entitlement or means of relief for violation of a legal right. A violated legal right is called a “cause of action”.
In Australia, legal remedies are diverse and vary depending on the cause of action and facts of each case. They include:
Damages are the most common form of remedy sought after. They are an award of money by the court designed to compensate the plaintiff for injuries caused by the defendant’s wrong. Damages are meant to place the plaintiff, so far as money can, in the position he or she would have been in had the wrong not been committed. They can be claimed under common law, equity and in some instance under statutory provisions.
Commonly referred to as ‘exemplary damages’ in Australia, punitive damages are damages awarded in addition to compensatory damages. Their purpose is to punish defendants for severe conduct and deter them from engaging in such conduct in the future.
In some instances damages may not be a sufficient solution. The aggrieved party may not want to pursue compensation and may alternatively seek a court order requiring performance from the defendant exactly as specified in the contract. This is referred to as ‘specific performance’ and is only available in context of contract law in response to breaches or threatened breaches of contract.
A party may want to seek an injunction, which can be ordered by the courts for a particular action to be performed or an unlawful action to be stopped. Injunctions can be permanent or temporary and can be issued at any stage of the proceedings.
Accounts of Profits
An account of profits is an order requiring the defendant to account or surrender to the plaintiff the profits made as a result of a wrong. The court does not give reference to the damage or loss suffered by the claimant, but solely looks to whether a profit was attained from a wrong. They are generally available through breaches of a fiduciary duty, most commonly found in partnership agreements.
For individuals and organisations, there are also statutory remedies found under various State and Commonwealth legislation, including the Corporations Act 2001(Cth), Competition and Consumer Act 2010 (cth) (formerly known as the Trade Practices Act 1974), consumer law and the Fair Trading Act 1987(NSW)
You should be aware however that there are strict time frames in which certain remedial claims must be brought. Should you fail to meet such time frames, you could be at serious risk of losing your rights to make claim for any remedy. Therefore, it is important that you do not delay in investigating what rights you do have.
What Can We Do?
At Quinns, we are dedicated in giving you professional advice, fighting for your rights and exploring all the remedies that are available to ensure we maximise your entitlements. Contact us to organise a consultation. Our dedicated legal team will deal with your problem in a sympathetic, time efficient and cost effective manner. Send an online enquiry or call us on +61 2 9223 9166.
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The Quinn Group operates Quinn Consultants, Quinn Lawyers, Quinn Financial Planning and Quinn Financial Solutions. The Quinn Group provides related information in regard to legal, accounting and financial planning issues. Liability limited by a scheme approved under Professional Standards Legislation* *other than for the acts or omissions of financial services licensees.