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Glossary

“Acquisition” the act of acquiring or gaining possession or ownership.

“Action”  a court proceeding or litigation, a ground or basis of claim.

“Act of Parliament” see Statute.

“Administrative Decisions Tribunal” reviews administrative decisions of NSW government agencies, resolves discrimination and retail lease disputes and exercises disciplinary and regulatory functions over a range of professional and occupational groups.

“Affidavit” in a court case is a written statement of evidence sworn on the bible or affirmed by the person who gives it who is a witness or party to the action. It sets out the evidence prior to appearing in Court and greatly reduces time and expense in Court. The person swearing the Affidavit may be cross-examined in court about their evidence.

“Aggregated order” an order of the court for a total or gross amount, often grouping into one figure a number of monetary judgments and orders.

“Alternative Dispute Resolution” (ADR) – methods by which legal conflicts and disputes are resolved privately and other than through lengthier, costlier litigation hearings in the public courts. ADR is usually through one of two forms, mediation orarbitration.

“Appeal” any superior court proceeding taken to rectify an allegedly erroneous decision of a lower court by bringing that decision before the higher court for review.

“Applicant” person who brings a petition, motion, summons or appeal.

“APRA” Australian Prudential Regulatory Authority. A Commonwealth Authority which regulates the licensing and activities of companies and individuals providing financial advice and investment products.

“Arbitration” the determination of disputes by the decision of one or more persons called arbitrators which may or may not be finally binding on the parties to the arbitration and is more formal than mediation. Arbitration may be agreed upon by the parties or ordered by the court.

“ASIC” Australian Securities and Investments Commission. A Commonwealth Commission which regulates the formation, governance, reporting and activities of Australian companies and foreign companies registered in Australia as Australian Registered Bodies.

“Asset” in civil debt recovery litigation is property available for creditors for the payment of debts. An asset includes property such as goods, money and land.

“Bankruptcy Federal” jurisdiction proceedings for the seizure and distribution by a court appointed officer called a Trustee or Official Receiver of the property of an insolvent debtor person (called a bankrupt) among his/her creditors. Failure to reply to a Bankruptcy Notice or a Creditor’s Petition within 21 days can have disastrous legal and property consequences for an individual debtor including losing their house.

“Breach” the violation of another’s right, or the failure or neglect of one’s duty to another.

“Business deadlock” whereby parties in a business relationship, for example a partnership or company directors cannot reach an agreed upon decision. If the deadlock cannot be resolved by mediation out of court, then usually Supreme Court proceedings are necessary, for example to dissolve the partnership or liquidate the company.

Civil Law” In our Common Law system refers to the non-criminal jurisdiction and decisions of the courts in non-criminal areas, for example, Family Law, Compensation and Commercial Litigation.

“Commercial Law” includes the civil law of business contracts, bankruptcy, building and construction, intellectual property, companies, partnerships, export and import of goods, transport, insurance, banking, mercantile agency, retail leases, landlord and tenant and usages.

“Commercial Litigation” court proceedings in the area of commercial law.

“Commercial viability” determining whether a commercial litigation action or dispute has practical prospects of success in the long run in terms of business diversion, monetary costs and the litigation risk of an adverse decision and monetary costs.

“Common Law” – Judge-made law (as opposed to parliamentary enactments “statutes”) which is inherited English law from time antiquity in the precedent books. Was modified for Australian circumstances. The courts’ interpretation and application of acts is also called common law. The common law is found in various official law reports.

“Consumer, Trader & Tenancy Tribunal”

“Contemporaneous Document/Evidence” documents or evidence prepared or made at the same time as or within the same period as an event happened and therefore carrying greater weight of evidence before a court than material created later from (a less perfect) memory.

“Contributory Negligence”a type of defence in an action at common law for damages for injuries arising from negligence, that the plaintiff’s own negligence directly caused or contributed to his own injuries either in whole or in part. If a Defendant’s allegation is successful, the Plaintiff’s judgment is reduced by the extent to which the Plaintiff was responsible for his own injury.

“Copyright” – the personal ownership of the intellectual input in a published literary or artistic work giving the copyright owner the exclusive right of printing or otherwise multiplying copies of the work and the right of preventing all others from doing so. The copyright owner may assign, sell for a lump sum or licence the right of reproduction or exhibition to another for a fee or royalty.

“Corporate Governance” the legal and regulatory system under which companies and their activities are directed and controlled by common law, ASIC and APRA.

“Corporation” A separate legal entity, created under legislation such as the Corporations Act, which permits one or a group of people, as shareholders (for-profit companies) or members (non-profit companies), to create a legal organisation, which can then focus on pursuing set objectives, and is empowered with legal rights.

“Costs-Plus Contracts” A type of building contract which has two forms: (a) commission contract whereby the builder is entitled to be paid the cost of the work plus a commission in the sense of a percentage of the cost; and (b) fixed fee contract whereby the builder is paid the cost plus a fixed fee.

“Counter-offer” an offer in reply to an initial offer which cancels acceptance of the earlier offer.

“Creditor” a person to whom a debtor owes money.

“Criminal Law” the law relating to any wrongdoing against a person or the community which is punishable by fine and/or imprisonment. Criminal proceedings are usually brought by the State (Crown) either by the office of the Director of Public Prosecutions for serious matters in the higher courts or by the Police in the lower courts. Some criminal prosecutions are brought by public officials, for example, Local Councils, ATO and RTA.

“Cross-Claim” a civil court pleading prepared by a defendant in response to a Plaintiff’s action and in which the Defendant makes a counter claim against the Plaintiff. A Plaintiff may sue for goods sold and delivered. The Defendant may Cross-Claim for economic loss due to the goods being faulty.
“Damages” a measure and form of compensation in a monetary amount or indemnity from liability to pay it for loss suffered. Liability to pay damages may arise from breach of a civil duty such as a tort or breach of some statutory duty committed by some other person.

“Debt Recovery” the process of a creditor recovering a debt owed by another person or entity, who is called the debtor.

“Defamation” – a tort (civil wrong) consisting of the publication of a false and/or derogatory statement about another person without lawful justification. Defamation may be in permanent or written form, called libel or oral words, called slander.

“Default” – to fail in some duty usually to repay a debt or comply with a court order or timetable.

“Default Judgment” – A judgment against a party which is entered up in the Court registry without a hearing. It is an order of the court which is obtained in favour of the plaintiff for the amount of their claim where a defendant to an action fails to file a defence to a Statement of Claim. Usually the Defendant has 28 days from the date of service of a Statement of Claim to file a Defence. After this time a Plaintiff may file for default judgment. Default Judgment may be set aside at the Court’s discretion if the Defendant can show good reason why a Defence was not filed and that there is an arguable Defence and that the Plaintiff’s judgment should not stand if it was sought irregularly, illegally or against good faith.

“Defence” – a court pleading served by a Defendant in reply to a Plaintiff’s statement of claim which answers the Plaintiff’s allegations made by admitting or denying them.

“Defence to Cross-Claim” – a pleading filed in a court (by the plaintiff) in reply to a cross-claim (filed by the defendant) which answers the counter allegations made by admitting or denying them.

“Defendant” – a person against whom an action suit, information or other civil proceeding is brought.

“Discovery of Documents” – a process whereby the parties to an action disclosure to each other all documents in their possession, custody or power relating to matters in question in the action.

“Discretionary Trust” – a trust in which the settlor has given the trustee full discretion to decide which (and when) members of a group of beneficiaries is to receive either the income or the capital of the trust.

“Dismissed/Dismissal” – a case may be dismissed for lack of prosecution, for being frivolous or vexatious or by rules of court if not actioned in the list. If this happens, the matter is ended. A dismissal is usually final.

“District Court” – hears actions in the jurisdiction of $60,000.00 to $750,000.00 and appeals from the Local Courts. It is the middle court in the New South Wales jurisdiction.

“Dividend” – the interest payable on the public funds or payment made out of profits to the shareholders in a company.

“Economic Loss” – Is a measure of damages (a remedy) whereby an individual who suffers loss of production, distribution, or use of income or profit may recover those losses.

“Equity Division” – a division of the Supreme Court. Equitable principles and remedies are part of the law, but are separate to common law or statute law. Equity is used to assist in obtaining just results. Common law equitable remedy is an injunction to stop or restrain a breach of the law.

“Evidence” – all the legal means, exclusive of mere argument or submissions, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial or jury investigation. Evidence may be oral testimony from a witness in the witness box about what the witness saw or did. Evidence may also be physical such as a document, product or certificate.

“Examination Order” – A court sanctioned order used by a creditor after judgement has been obtained for a debt. The order requires the debtor to given written answers to questions about their assets and liabilities, income and expenditure and means of repaying the Judgment Debt. Failure to answer the order may lead to the creditor applying to the Court for an examination summons against the debtor.

“Examination Summons” – a court debt enforcement process post judgment requiring a judgment debtor to attend court and be examined as to their financial affairs. Failure to attend is contempt of court and a warrant may be issued for the debtor’s arrest.

“Federal Court” – is the middle court having jurisdiction for Commonwealth matters and is between the (lower) Federal Magistrate’s Court and (upper) High Court.

“Guarantee” – a collateral promise to answer for the debt, default or miscarriage of another which is not a direct contract for the promisor’s own act. In simple terms a guarantee is undertaking by an innocent person to be responsible for another persons indebtedness or breach, ‘Going guarantor’ for another individual or company is a very serious matter. A creditor or aggrieved party may recover against a guarantor’s personal property either monetary, goods or land. Guarantees may be unlimited as to amount and may be contingent or immediate. If a guarantee is not contingent it means that a creditor or aggrieved party may pursue the guarantor and their assets first without having to attempt to recover from the person who may have incurred the debt, liability or been responsible for the breach. Persons giving guarantees and indemnities should seek immediate independent legal advice from a Solicitor.

“Incorporated Association” – an association registered in Australia which has the benefit of a separate corporate personality. This usually means that the individual members of the association are not personally liable if the incorporated association is sued. It is usual and advisable for non-profit associations incorporate. An example would be a football club incorporating so that executive members were not personally liable if a player was injured and sued.

“Incorporated Entity” – a company registered in Australia.

“Injunction” – an order by which a party to an action is required to do or refrain from doing a particular thing. An injunction is an equitable remedy and may be used to freeze money in a bank account or to stop goods being taken out of a jurisdiction.

“Insolvency” – the inability to pay debts in full as and when they fall due. It is unlawful for a company to trade whilst insolvent and directors who do so knowingly may be (and are) prosecuted.

“Intellectual Property” – is property rights a creator or licensee has over artistic and creative works and inventions.

“Interim Injunction” – also known as interlocutory injunction is a temporary court order made pending a final determination. See injunction.

“Irreconcilable breakdown” – where persons to a marriage cannot be reunited after separation. A separation for at least 12 continuous months is the ground for divorce under the Family Law Act 1975.

“Joint Venture” – a business enterprise for which two or more parties (individual or companies) join forces. A joint venture agreement is the common legal document used to define the duties, responsibilities, contributions and profit sharing arrangements arising from a joint venture.

“Land and Environment Court” – is a New South Wales Court equivalent to the Supreme Court which typically hears council disputes and environment issues.

“Legal costs” – the costs of a party’s legal representation. These include court issue filing and service fees, Solicitor’s costs, Barrister’s fees and expert witness fees and disbursements.

“ Local Court” – is the “people’s court”. It is the lowest court in New South Wales and has criminal and civil jurisdiction. Civil appeal lies only to the Supreme Court on limited grounds. It hears actions in the jurisdiction of $0.00 to $60,000.00.

“Lump Sum Contracts” – is a contract whereby a builder is to complete the works for a lump (one) sum.

“Liquidation” – status of a company under external administration by a Court appointed Liquidator. The Liquidator supervises the process of realising assets and discharging liabilities in winding up the affairs of a company. A company’s affairs may be wound up and its assets liquidated on grounds such as insolvency (inability to pay its debts as and when they fall due or where there is a deadlock among the directors and they cannot agree on the commercial direction of the company).

“Litigation” – process whereby parties are brought before a civil court and conduct of their own cases under the court’s rules and obtain the court’s decision judgment in their cases. A court judgement is out of the party’s control. It is imposed by a Magistrate or Judge and is final, subject to a limited right of appeal.

“Mediation” – a form of alternative dispute resolution which involves the court appointment of a mediator on the parties’ choice of one, who acts as a facilitator and assist the parties in essentially negotiating a settlement. In the court litigation process, referral to mediation may be compulsory but reaching a negotiated settlement is not.

“Merger” – a combination of two or more companies or business enterprises into a single enterprise.

“Negligence” – a tort, non-contractual civil wrong. Liability in negligence arises independent of a contractual obligation. Negligence is founded on the need to establish a duty of care between the tortfeasor (wrongdoer) and the victim. The Plaintiff must show a breach of the duty of care, that there was damage directly resulting from the breach and that the type of injury was reasonably foreseeable. Actions in negligence include personal injury from motor vehicle collisions and financial loss due to careless financial advice.

“Non-economic loss” – whereby an individual suffers loss not in relation to income.

“Notice of Motion” – a court document prepared by a party to an action seeking or moving a court for a specific order such as setting aside a default judgment, vacating a hearing date or seeking a costs order.

“Out of Pocket expenses” – expenses paid by a client directly for which they maybe reimbursed upon a judgment in their favour out of pocket expenses include medical treatment and medicines.

“Partnership” – the relationship which subsists between persons or companies carrying on business in common with a view to profit. The relationship between partners is governed by the Partnership Act (NSW) 1892.

“Patent” – a grant pursuant to Commonwealth statute to an individual or company (usually an inventor or industrial developer) of an exclusive use and benefit of profits and non-infringement of design of a new invention capable of industrial application. Patents usually last for 21 years. A patent holder is entitled to sue anyone who replicates or copies the patented design and obtain damages and an account of profits against them of a new invention capable of industrial application.

“Plaintiff” – one who brings a civil action at law. The other party is usually called the Defendant.

“Pleadings” – in Court written pleadings are the documents delivered alternately by the parties to one another, until the questions of fact and law to be decided in an action have been ascertained with sufficient particularity for the Curt and the parties to identify the scope of the issues in dispute. The pleadings set the agenda for the court and are critical. If an issue is not raised in a pleading it cannot be argued. The Plaintiff files an initiating process called the “Statement of Claim” and the Defendant replied with a “Defence” and the Plaintiff again with a “reply”.

“Pro Bono” – “for good’ work performed by a Solicitor for no charge usually for a charity or as an act of generosity.

“Proprietary Company” – “Pty Ltd’ a company that is registered as, or converts to a proprietary company under section 45A of the Corporations Act 2001. A proprietary company’s liability is limited by shares or may be an unlimited company with share capital, has no more than 50 non-employee shareholders and does not do anything that would require disclosure to investors under Chapter 6D of the Corporations Act.

“Public Company” – “Ltd” – a company other than a proprietary company. Public companies seek share subscripts from members of the public. A public company may list on the stock exchange in order to raise share capital.

“Public Liability” – liability as a householder or business for injuries to members of the public on one’s premises even if they are not invited onto the premises and may include slip and fall accidents and injuries suffered from unprotected construction and electrical works.

“Quantum” – an amount. In civil recovery proceedings there are usually two issues in dispute, liability and quantum. Parties may agree on one and dispute the other. It is not uncommon for the cost of repairs (quantum) to be agreed in motor vehicle claims to be agreed, but for the parties to argue vigorously as to who is liable (legally responsible) for the collision.

“Respondent” – a person against whom a petition or motion moved is presented, a summons issued or an appeal brought.

“Restraint of Trade” – contractual interference with an individual’s liberty of action in trading or earning a living. It is common in employment contracts for an employer to require an employee not to poach or take away customers or to set up their own competing business for a period of time and in a defined geographic area in relation to the employee’s business after the employee has left. The practice is regulated in NSW by the Restraint of Trade Act 1976 which allows for unduly restrictive provisions to be struck down.

“Schedule of Rates Contracts” – is a contract where the cost of the work is calculated by applying an agreed schedule of rates to the work actually done.

“Scott Schedule” – a pleading like a grid or comparative table prepared first by a Plaintiff and then by a Defendant in building and construction matters which sets out item by item disputed defective and incomplete works and their value. It is named after the Scott Case.

“Settlement” – satisfying of a claim or demand between the parties (general legal meaning) or transaction of selling / purchasing an estate or business (conveyancing meaning).

“Sole Trader” – a person who runs their own business for which they and their personal assets are personally liable for the debts of the business and is liable to pay tax at a potentially higher individual rate. This is opposed to forming a company which has limited liability and pays tax at a fixed rate.

“Small Claims Division” – a division of the Local Court for civil claims not exceeding $10,000.00. Legal costs recovery is limited to several hundred dollars at the most if you are a plaintiff and if you are a defendant, your maximum exposure to costs orders against you from the other side is limited to several hundred dollars according to a set scale. Proceedings in the small claims division are far less informal than the general division and the court’s decision is final except if procedural natural justice is denied.

“Statement of Claim” – written document from the plaintiff in an action in court proceedings is the allegations of facts on which the Plaintiff relies to support the Plaintiff’s claim against the defendant and the relief or remedy claimed. The Statement of Claim will for example plead a contract and the terms allegedly breached by the Defendant and the damages sought for alleged loss of bargain.

“Statute” – an Act of Parliament. Law is either enacted by Parliament and is in the statute books or is common law and is in the precedent book, that is, declared by Judges.

“Struck out” – a court order that a pleading, for example, statement of claim, defence, cross-claim or defence to cross-claim be “struck out” or not accepted by the court. This may be fatal or final or may be subject to a later Motion to re-instate the pleading depending on the facts, circumstances and rules of court under which a matter or pleading was struck out. An order for costs usually follows such an order.

“Submissions” – these are the representations of your Solicitor or Barrister made at the bar table in court seeking to highlight the evidence in your favour and to minimise the impact of evidence against you. It can also include legal submissions arguing the applicability and relevance of case law (precedents) and statutes to the facts of your case.

“Subpoena” – “under pain” i.e. “under pain of arrest you shall attend court….’ a court document issued in an action requiring a person or entity to whom it is directed to be present at a specified place and time for a specified purpose or requiring production of specific documents to the court by a specified date, place and time. Failure to attend and answer a subpoena is a contempt of court.

“Subsidiary” – a company whose controlling interest is owned by another company.

“Summons” – [see Summons for oral examination] – a court document calling upon the person to whom it is directed to attend before a judge or officer of the court. Failure to attend court and answer a summons is a contempt of court and depending on the jurisdiction may lead to a matter being dealt with in a party’s absence against them (most usual) or their arrest.

“Supreme Court” – is the highest court in NSW and hears actions in the jurisdiction above $750,000.00 and appeals from the lower courts. As original criminal jurisdiction includes very serious criminal matters such as murder, subject only to appeal to the High Court, the Supreme Court has the widest prerogative powers including granting injunctions, declarations and seizing land and vessels.

“Terms of Trade” – terms and conditions of a trade relationship/contract.

“Tort” – Law French avoir tort “to be wrong”, twist or distort – a civil wrong which is not leased in breach of contract, but duty to neighbour, for example, not to trespass or cause injury or loss.

“Trademark” – a distinctive mark or device affixed to or accompanying an article intended for sale for the purpose of indicating that it is manufactured, selected or sold by a particular person or firm. No other entity may use a trademark except under licence and may be sued for breach of trademark rights. Examples of trademarks include car badges and commercial devices such as the dynamic band Coca-Cola ribbon or bottle shape.

“Trespass” – a person who enters on the land of another without authority or legal excuse or commits an abuse of an authority. A person is legally entitled to enter property and knock on a door even though uninvited. If required to leave however, if the person refuses then they become a trespasser. Trespass is a classic tort (civil wrong) and is covered by common law and statute e.g. Inclosed Lands Protection Act, 1901.

“Trustee” – a person who or company which holds property on trust for the use or benefit for another. A trustee includes the executors under a will who hold property for the benefit of the beneficiaries.

“Unconscionable” – unreasonably excessive or not just and reasonable and invoking not just business practice but moral disgrace.

“Undertaking” – a promise by one person to another which may be enforced in court. A party’s undertaking to the court is the most solemn form of undertaking. Solicitors may also give undertakings outside court for example, in conveyancing transactions. Breach of an undertaking by a Solicitor as well as being enforceable in court may also lead to a Solicitor being disciplined or struck off the roll of Practitioners.

“Unincorporated Entity” – a company not registered in Australia.

“Unit Trust” – is one in which the beneficial ownership of the trust property is divided into a number of units that are held by the beneficiaries. Each unit entitles its holder to receive a set proportion of the income and/or capital distributions of the trust.

“Warrant” – is an order of or on behalf of the sovereign. It may commission an officer in the armed forces. In legal context, it is the most serious court order e.g. authorising the arrest of a person, seizure of a vessel or land or committing someone to gaol (imprisoning them).

“Writ of Execution / against goods and chattels / seize property” – is a particular order of the civil courts to enforce a judgment debt or order. It authorises a court officer (Sheriff, Bailiff or Marshall) to seize and sell property e.g. money in a cash register, shares, household and business goods and vehicles, even land to satisfy a judgment debt. The execution of a writ may be stayed by a successful (granted) motion for stay of proceedings and/or to set aside the judgment or order upon which it is based, or a successful application (motion) to pay by instalments.

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