Expertise - Macfarlane Law

The mark of a specialist:

I am an Accredited Specialist in Commercial Litigation. In the legal profession, an Accredited Specialist is a practising solicitor who has demonstrated specialised competence in a particular area of law and has been conferred Specialist Accreditation by the Law Society under its Specialist Accreditation Scheme. To gain status as an Accredited Specialist a solicitor must pass the Law Society’s rigorous assessments in communication, problem-solving, client relations and, of course, their specialist area of law.

Within my Commercial Litigation expertise, I primarily specialise and have experience in the areas of law set out below. Across each area of law, obtaining sound, expert advice is essential. It will enable you to quickly and precisely ascertain where you stand and maximise your prospects of resolving a dispute swiftly, thereby enabling all parties involved to move forward.

It is important to understand that correspondence you send when trying to resolve a dispute yourself, before engaging a lawyer, can prejudice your legal position significantly. This applies even if you mark the correspondence ‘without prejudice’. Before taking a formal position in relation to a dispute, obtaining legal advice is not just prudent, it can potentially save you from becoming involved in costly and lengthy court proceedings. Where court proceedings are unavoidable, having obtained early legal advice can be the difference between you being successful or unsuccessful.

Within my Commercial Litigation expertise, I primarily specialise and have experience in the areas of law set out below. Across each area of law, obtaining sound, expert advice is essential. It will enable you to quickly and precisely ascertain where you stand and maximise your prospects of resolving a dispute swiftly, thereby enabling all parties involved to move forward.

It is important to understand that correspondence you send when trying to resolve a dispute yourself, before engaging a lawyer, can prejudice your legal position significantly. This applies even if you mark the correspondence ‘without prejudice’. Before taking a formal position in relation to a dispute, obtaining legal advice is not just prudent, it can potentially save you from becoming involved in costly and lengthy court proceedings. Where court proceedings are unavoidable, having obtained early legal advice can be the difference between you being successful or unsuccessful.

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Competition & Consumer Law

The provisions of the Australian Consumer Law are the foundation of Australian advertising and marketing law and play an integral role in regulating everyday conduct in the course of trade and commerce. A national law to protect consumers, it has extensive application to general commercial dealings and transactions and is commonly raised in disputes as a means to seek monetary damages and other court relief for wrongdoing.

I have extensive experience and can provide advice to manufacturers, retailers, suppliers, advertising and marketing agencies, and consumers in relation to claims relating to:

consumer protection;
misleading and deceptive conduct;
unfair contracts;
competition law and restrictive trade practices; and
unconscionable conduct.

Stay ahead of the pack and minimise risk by managing regulatory obligations in a practical way and by addressing competition and consumer law matters with clarity and confidence.

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Contract Disputes

Contract disputes are one of the most common areas of dispute in business and private dealings. The reason for dispute ordinarily falls into one of the following categories:

non-performance of an obligation by one or more parties to the contract;
differences in interpretation of the contract;
arguments as to whether the contract is void or voidable;
mistake in entering into the contract, either by one or more parties; or
arguments over whether the contract is unfair or some undue influence was applied at the time it was formed.

Subject to the circumstances of each case, where there has been a breach of contract the innocent party may be entitled to monetary damages to compensate for loss and/or what is known as specific performance. Specific performance is a form of court ordered relief, pursuant to which a party is ordered to do (or not do) a specific act. Specific performance is not an option in all cases, so it is important to obtain legal advice to ascertain whether or not it applies.

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Debt Recovery

Whether you’re owed a debt or being demanded to pay a debt, I can help you.

As a business owner or representative or an individual who is owed money, you have the legal and moral right to recover funds that are owed. In a business context, having an effective and swift debt recovery system in place and experienced debt recovery lawyer by your side to help implement it can be crucial to your business cash flow. This is also an important business reputation consideration, as you don’t want to be perceived as a business that people can get away with not paying. If you do the work, fairness dictates that you should be paid for it.

Having acted in countless debt recovery matters, I know the effective means of recovery and have the expertise to recover money efficiently. I also understand that in many instances you need to do that in a way that preserves ongoing commercial relationships, and I factor this into the strategy I utilise.

As a commercially minded and trusted adviser, I won’t advise you to throw good money after bad if my analysis of the circumstances (including asset and liability assessments) indicates you’re unlikely to recover a debt, even if you obtain a Judgment in your favour. If it doesn’t make good business sense, I’ll tell you. That’s the level of honesty you can expect from me.

Conversely, if you find yourself in a situation where you are being demanded to make payment of a debt that you are unable to pay immediately, experience tells me that ignoring the situation won’t end well for you. In my view, the best approach is to communicate with the person or business you owe money to and endeavour to negotiate an arrangement to pay. Knowing the right approach to take in these negotiations is pivotal and can often result in court proceedings being avoided.

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Defamation

Australia has become the defamation capital of the world and with the increasing use of social media and the willingness of people to publish public comments, the rate of cases being filed continues to increase.

Defamation occurs when a person, or in limited circumstances a company, suffers a loss of reputation by information being published or distributed which is harmful to them, in either a personal or professional capacity. A defamatory publication can take a variety of forms, including in writing and via spoken words. It is important to be aware that defamation may occur not just as a result of the actual words written or spoken, but also as a result of any harmful inferences that can be drawn from those words, whether those inferences were intended or not. This is where people often get themselves into trouble; they don’t realise that any implied meanings that can be drawn from their comments can amount to defamation under the Defamation Act 2005.

If someone has publicly damaged your reputation, or if you are being accused of having done this to someone else, I can help you. I have assisted numerous:

business owners in having false Google reviews and Facebook reviews removed, which if left unaddressed can have a significant impact on business reputation;
individuals to address defamatory conduct against them; and
individuals to successfully defend allegations of defamation made against them, including to defeat the allegation prior to court proceedings being commenced.

There is a relatively short time limit within which any defamation claim must be commenced, but oftentimes court proceedings can be avoided by sending effective correspondence to the other party involved. This early correspondence can result in a public apology being made, or an undertaking to cease making further comments, together with an offer of financial compensation.

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Franchising Disputes

I frequently see common issues arise that cause tension and disagreements between a franchisor and franchisee, leading to disputes. The issues include contentious representations made by one party to another prior to entering into the franchise agreement, the franchisor not providing adequate support to their franchisee, a breakdown in communication, or potential breaches of the Franchising Code of Conduct. The Code is a mandatory industry code across Australia that regulates the conduct of franchising participants towards each other. It is imperative that both franchisors and franchisees are familiar with the Code and aware of their respective rights and obligations, so as to avoid potentially falling foul of it.

Irrespective of the issue disputes cause interruption to the business of both the franchisor and franchisee.

It is in the best interest of both parties to act swiftly in an attempt to resolve disputes, either so that the franchise relationship can continue, to both parties benefit, or so that the franchise relationship can be brought to an end on agreed terms and both parties can move on.

Under the Code, dispute resolution procedures must be followed for termination (or attempted termination) of a franchise agreement, and a misstep can compromise your legal position as a franchisor or franchisee.

I can assist you by:

seeking to recover any losses arising from another party’s failure to comply with obligations under your franchise agreement or their misleading and deceptive conduct;
advising on whether the right to terminate the agreement exists;
negotiating to resolve any dispute; and
representing you in dispute resolution or court proceedings.

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Insolvency (Corporate & Personal)

I work with creditors, debtors, and insolvency practitioners in all aspects of corporate insolvency and bankruptcy to provide advice on:

pre-insolvency considerations;
insolvent trading;
bankruptcy proceedings (from the Bankruptcy Notice stage through to final court orders);
liquidation proceedings (from the Creditors Statutory Demand stage through to final court orders); and
preference payment investigations, applications for the statutory sale of property, and other related proceedings.

I also advise directors on their duties and obligations under the Corporations Act 2001, so as to assist them to prevent liability and minimise risk.

As an individual or company that is insolvent or facing insolvency, finding the most equipped lawyer to assist with your unique circumstances is crucial to overcoming the distressing issue and moving past it.

Conversely, as a creditor who is owed money, I understand that you do not wish to be throwing good money after bad on insolvency proceedings against the debtor and therefore am cognisant of implementing efficient processes to conduct those proceedings for you with as little expense as is reasonably possible so that the commercial benefit to you outweighs the litigation costs involved.

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Intellectual Property & Brand Protection

As Mark Geddy put it, “Intellectual property is the oil of the 21st century… All today’s richest [people] have made their money out of intellectual property.” That said, taking steps to guard against the misuse of your intellectual property is imperative and, as with many things, prevention is better (quicker and cheaper) than seeking a cure for an infringement.

Enforcing an existing trade mark can be a powerful tool to protect the goodwill in your brand. Registering your trade marks tells the world that you have the right to use that trade mark to distinguish your brand in relation to your goods and services. This allows you to enforce your trade mark rights against others and makes it more difficult for competitors to use similar trade marks, both benefits giving you peace of mind.

A trade mark is not the only way to protect your intellectual property, though. Whilst it is preferable to register your trade mark, if you have not done so there may be an avenue to address any misuse by a third party by relying on a claim of misleading and deceptive conduct under the Australian Consumer Law or a claim for passing off.

Other intellectual property rights exist under the Copyright Act 1968. If you are the owner of an original literary, dramatic, musical or artistic work, you automatically have rights under the Act to protect your work, including the exclusive right to reproduce it, publish it, perform it in public or make an adaptation of it.

I can assist with all elements of protecting your brand, from:

trade mark advice and registration;
opposing trade mark applications made by others if the mark is the same or substantially similar to a mark you already use or because the applicant is not the owner of the trade mark;
issuing trade mark infringement claims;
copyright advice; and
bringing and defending intellectual property infringement claims.

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Litigation & Dispute Resolution

Litigation is a broad term that includes the areas of law separately set out on this webpage. As a Commercial Litigation specialist, my litigation experience and ability to help you is not limited to those specifically listed areas, however.

Clients trust me with their most challenging problems across a broad range of matters because they know I can help them through the full scope of litigation and dispute resolution mechanisms, ranging from:

negotiation;
informal settlement conferences;
mediation and other dispute resolution techniques; to
vigorous court strategy.

I help clients prevent and resolve disputes by providing pragmatic, clear, and commercially minded legal advice that focuses on their objectives, enabling them to achieve the outcomes they want and need.

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Property & Leasing Disputes

Property is one of the most valuable assets that anyone can own, whether as an individual or a business. Regrettably, it is also fertile ground for different kinds of disputes. Consequently, the effective management of your property assets can be crucial to your commercial success.

No matter whether your dispute relates to:

the sale or purchase of property (off the plan or established, commercial or residential);
a commercial, retail or residential lease agreement;
a disagreement with a co-owner over whether or not to sell;
a disagreement or issue with a neighbouring owner or tenant;
a building contract; or
a title dispute (encroachments, caveats, rights of way and easements),

I can assist you to navigate the complex rules and procedures to facilitate a resolution. I have extensive experience advising property developers, investors, owners, and tenants on their rights, liabilities, and strategic options, as well as having successfully represented them in court proceedings to address disputed matters.

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Shareholder, Director & Partnership Disputes

No one goes into a business arrangement expecting it to go wrong, but the reality is from time-to-time it happens despite the best intentions. Whether your business has been structured as a partnership, a company, or a trust, I have the experience and skills to provide advice on your rights, options and take steps to resolve your business dispute so you can move past it.

The options that may be available and that I will discuss with you are dependant upon the issue you are experiencing and the structure of the business. Factors to consider, however, are:

can we endeavour to resolve the issue amicably, through correspondence with the other party/parties or a settlement meeting, for example;
if not, what is your desired outcome – do you wish to exit the business or would you prefer to retain the business;
is putting the business up for sale a viable option, so that all parties can exit;
is it necessary to consider the appointment of an external administrator, on a provisional or final basis; and
has there been any oppressive conduct or other breach of the Corporations Act, which has caused you financial loss, in relation to which a claim should be made?

To avoid the dispute detracting significantly from the financial performance of the business and, ultimately you, I’d be pleased to help you resolve it and continue to achieve your goals.

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Will & Estate Disputes

Have you been left out of a Will or are you thinking about contesting a Will? Are you an executor seeking to defend an unmeritorious claim against the estate? I have extensive experience in successfully assisting claimants and executors involved in estate disputes.

A Will may be challenged on a number of grounds, such as:

lack of testamentary capacity. This might apply if at the time of making the Will the deceased person suffered from an illness or was taking medication which would have affected his/her judgment;
undue influence, duress, or fraud. Unfortunately, this happens from time-to-time. Examples include where a deceased person was tricked into making the Will, or was placed under pressure to make the Will on terms that they otherwise would not have agreed to;
lack of compliance with the formal legal requirements surrounding the making of the Will.

A Will may also be challenged in circumstances where the deceased failed to make adequate provision for persons whom the law considers they owed a moral duty to provide for, such as a;

spouse or defacto partner;
former spouse or defacto partner;
person with whom the deceased was living in a domestic relationship when he/she died;
child of the deceased;
child of a person living in a domestic relationship with the deceased;
grandchild if she/he ever lived in the household of the deceased; or
person who ever lived in the household of the deceased and was dependent on them including a parent, sibling, step-child and former de-facto spouse, friend, or cousin.

If a Will is found to be invalid, then it may be possible to reinstate an earlier Will or it may be found that the deceased died without any Will. In the latter situation, the deceased’s estate may need to be distributed on the basis of intestacy, which means a formula set out in the Succession Act determines who will inherit the estate.

Interested in more info on these topics?

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THE HIGHEST STANDARDS. THE HAPPIEST CLIENTS:

“Thanks, Emma, for your advice and help. You are kind, easy to speak with and professional. Your knowledge and experience has resulted in a favourable outcome. Thank you for acting promptly with the short notice given. I’m sure you had other matters to deal with, but you were considerate to squeeze me in. Really appreciate your help.“

Nim T.

“We found Emma from Macfarlane Law exemplary in handling our legal matter and would highly recommend her services.“

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“Great service. Completed the task well within the required timeframe.”

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“Emma Macfarlane at Macfarlane Law is fantastic. I was in a difficult situation, but Emma brought about a positive outcome for me. Emma is remarkable at what she does. She is kind, considerate and easy to talk to. I have no hesitation in recommending her.”

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“We have just made wills and other documents with Emma. Emma was the most professional and easy lawyer we have dealt with. Highly recommend.”

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“We saw Emma to do our wills. She was extremely attentive and helpful. She walked us through the process and looked after everything and explained things when needed. Would definitely recommend.”

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“Our family recently called on Emma’s services at very short notice. We were very happy to secure an appointment within days of first calling and really appreciated Emma’s professional, polished, efficient and warm service. Thank you, Emma, we will certainly be in touch should we need any such services in the future.”

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“Emma is amazing! From the moment I first met with Emma, I knew I was in good hands. She really went above and beyond any expectations I had. Emma is a true professional, very prompt, informative and has such a beautiful kind and caring side.

Thank you Emma for always making yourself available, and handling my matter. You really took the stress out of what was already a difficult time, and at times felt like it was never going to end, you helped me get the best possible outcome.”

Kylie Martin

“After my son-in-law calling solicitors all day to no avail, he contacted Emma to ask if she could help with an urgent matter. With short notice she fitted us in first thing the next morning and was extremely helpful. I cannot thank Emma enough and would not hesitate to recommend Emma to anyone needing a solicitor.”

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“I have total high regard for the effort and commitment that Emma dedicated to my matters. Emma is a total professional and certainly achieved the result I was expecting and then some. A pleasure to deal with.”

Fred Frangi, Director

“Emma has been an absolute pleasure to deal with. I was referred to Emma by my sister. Emma responded to my email within the hour on a Saturday and my matter was sorted within the week with the desired outcome. Strongly recommend Macfarlane Law!!!”

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“Emma is a true professional. She has helped us achieve our goals in a timely manner at short notice too. The outcome was great and even our counterpart praised her work! Her fixed pricing also let us have peace of mind that we could work with her to achieve the outcomes that we wanted to without the stress of being on the clock. If you’re looking for representation and legal help, look no further!”

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“Emma, the Principal at Macfarlane Law, really helped me out. Her advice and responsiveness were truly remarkable. I will have no problems in recommending Emma every chance I get.”

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“A calming voice of reason.”

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Malcolm Fearns

“Emma was professional, personable and very informative when talking me through my legal needs and options. As someone who is far from an expert in this area, Emma immediately made me feel comfortable and confident that I was in the right hands. Highly recommended.”

Sean O'Shea, Business Owner

“Emma is very professional, prompt and knowledgeable. She really took the time to understand our complex situation and was able to help us resolve it. Can’t recommend Emma enough, she’s a credit to her profession.”

Melanie Sorensen