What Is Commercial Litigation?
Commercial litigation is the process of resolving business disputes through the court system. It covers a wide range of disputes: unpaid debts, breach of contract, misleading conduct, shareholder disagreements, partnership disputes, insolvency matters, and more. If your business is owed money, or someone is suing you for a commercial claim, you are in the world of commercial litigation.
Understanding how the process works — from the first letter of demand to final judgment and enforcement — helps you make strategic decisions at each step. Litigation in Queensland proceeds under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in the District Court and Supreme Court. This guide explains the process in plain language so you know what to expect.
Step 1: Pre-Litigation Demand
Most commercial disputes begin with a letter of demand. This is a formal written notice from one party to another setting out:
- The nature of the claim and factual basis
- The amount sought (or the remedy required)
- A deadline to respond or pay (typically 7–14 days)
- The consequences of non-compliance (court proceedings)
A well-drafted letter of demand serves multiple purposes. It may resolve the dispute without litigation. It creates a paper trail. And courts regard it as evidence of good faith — a party who issues proceedings without first demanding compliance may face adverse costs orders.
In debt recovery matters, a statutory demand under section 459E of the Corporations Act is a more powerful tool. A statutory demand requires the debtor company to pay within 21 days or face a presumption of insolvency and a winding-up application. For guidance on statutory demands, see our debt recovery services page.
Step 2: Can the Dispute Be Resolved Before Filing?
Before commencing proceedings, consider:
- Negotiation — direct settlement discussions (without prejudice where appropriate)
- Mediation — a neutral mediator facilitates negotiation; typically faster and cheaper than litigation
- Arbitration — if the contract contains an arbitration clause, you may be required to arbitrate rather than litigate; arbitral awards are enforceable as court judgments
- Expert determination — a technical expert decides a specific question (for example, the value of shares in a shareholder dispute)
Queensland courts strongly encourage pre-litigation dispute resolution. Under the Practice Direction for Commercial Matters, parties in the Supreme Court’s Commercial List are expected to engage genuinely in mediation. Failing to do so without good reason is likely to affect costs.
Step 3: Filing — Commencing Proceedings in Queensland
If pre-litigation steps fail, proceedings are commenced by filing an Originating Process (typically a Claim and Statement of Claim) in the appropriate court:
- Magistrates Court: Claims up to $150,000 (with limited complexity)
- District Court: Claims between $150,000 and $750,000 (and some matters to unlimited amounts)
- Supreme Court: Claims over $750,000 or complex commercial disputes of any amount
The Statement of Claim sets out the material facts on which the plaintiff relies and the relief sought. It must be specific enough to give the defendant proper notice of the case against them, but should not be so long that it buries the key issues. Poorly drafted pleadings are a common source of expense — they invite interlocutory applications to strike out or seek further particulars.
Filing fees apply and vary by court and the amount claimed. As of 2026, Supreme Court filing fees for a claim over $1 million exceed $5,000.
Step 4: Service of Process
Once filed, the Claim must be served on the defendant. Under the UCPR, a Claim must be served within one year of filing (though extensions are available). Different rules apply for different types of defendants:
- Individuals: Personal service (hand-delivered) or substituted service if personal service is not practicable
- Corporations: Service at the registered office, by post, or on a director
- Interstate or overseas defendants: Service rules vary; leave of the court may be required for overseas service
Service is a formality, but getting it wrong can be costly. If service is defective, the proceedings may be set aside on application by the defendant.
Step 5: The Defence (and Counterclaim)
After service, the defendant has a specified time to respond — typically 28 days under the UCPR (longer for overseas defendants). The response may include:
- Defence: The defendant’s answer to each allegation in the Statement of Claim — admitting, denying, or not admitting each material fact
- Counterclaim: If the defendant has its own claim against the plaintiff, it can be filed alongside the Defence
- Third-party notice: If the defendant believes a third party is responsible, it can join that party to the proceedings
A defendant who fails to file a Defence within time is in default. The plaintiff can apply for default judgment — a judgment in its favour without a hearing. Default judgment can be set aside if the defendant applies promptly and has a good reason for the delay.
Step 6: Case Management — Directions Hearings
Queensland courts actively manage commercial litigation. Shortly after the Defence is filed, parties typically receive a date for a directions hearing before a judge or registrar. At this hearing, the court will make orders about:
- The exchange of documents (discovery)
- Delivery of witness statements
- Expert evidence — whether experts are required, their fields, and deadlines
- Mediation — courts frequently order parties to attend mediation before trial
- The trial date (or a provisional listing)
In the Supreme Court’s Commercial List, cases are typically assigned to a single judge for case management through to trial. This promotes continuity and judicial familiarity with the dispute.
Step 7: Discovery
Discovery is the process by which parties exchange documents relevant to the dispute. Under the UCPR, each party must produce documents in its possession or control that are directly relevant to the facts in issue (the “standard discovery” rule — Queensland moved away from the broader “train of inquiry” discovery model).
Discovery involves:
- Identification: Review of your own records (emails, contracts, invoices, internal communications) for relevant documents
- List of documents: A formal list provided to the other party identifying all relevant documents, including those claimed as privileged
- Inspection: The other party’s right to inspect (and copy) documents on the list that are not privileged
Discovery can be expensive, particularly in document-heavy commercial disputes. Electronic discovery (e-discovery) of large email archives adds complexity. Courts can and do limit the scope of discovery where the cost is disproportionate to what is at stake.
Documents protected by legal professional privilege (communications with your lawyers for the dominant purpose of giving or receiving legal advice) do not need to be produced.
Step 8: Interlocutory Applications
During the lead-up to trial, parties may bring interlocutory applications — court applications for interim relief or procedural orders. Common interlocutory applications in commercial litigation include:
- Injunctions: To restrain a party from doing something (or to compel them to act) pending trial — for example, to prevent dissipation of assets or misuse of confidential information
- Freezing orders: A type of injunction that freezes a party’s assets to prevent them being removed or dissipated before judgment — see our guide on how to respond to a freezing order
- Summary judgment: Where a party applies for judgment without a trial on the basis that the other party’s case has no real prospect of success
- Security for costs: An order requiring a corporate claimant to pay money into court or provide a bank guarantee as security for the defendant’s legal costs if the case is lost
Interlocutory applications add cost and delay. However, in appropriate cases they can be strategically decisive — a well-timed injunction or freezing order can resolve a dispute entirely.
Step 9: Mediation
Mediation is a confidential, without-prejudice process in which a neutral mediator (often a senior barrister or retired judge) facilitates negotiation between the parties. Queensland courts order mediation in most commercial matters before trial. Even where mediation is not ordered, it is strongly advisable.
The statistics are compelling: the overwhelming majority of commercial disputes settle — before trial, at mediation, or in the corridor outside the courtroom. Commercial litigation cases that actually reach a contested trial are a small minority. This means that the litigation process is, in practice, largely a process of managed negotiation with a trial as the backstop.
Mediation is not a sign of weakness. It is the standard commercial approach. A party who refuses reasonable settlement may face costs consequences at the end of trial, even if they win on the merits.
Step 10: Trial
If mediation does not resolve the dispute, the case proceeds to trial. Commercial trials in Queensland are typically heard by a judge alone (without a jury). The trial process involves:
- Opening submissions: Each party outlines their case and the issues for decision
- Examination-in-chief and cross-examination of witnesses (fact witnesses and expert witnesses)
- Documentary evidence: Relevant documents are tendered and referred to in evidence
- Closing submissions: Each party argues why the judge should find in their favour on the facts and law
Commercial trials can range from a single day (a simple debt recovery) to several weeks (a complex shareholder or insolvency dispute). Trial preparation is intensive — witness statements, expert reports, agreed statement of facts, chronologies, and written submissions all require significant work before the hearing begins.
Step 11: Judgment
After trial, the judge will deliver a judgment** — either immediately (in simpler cases) or in writing at a later date (in complex matters, sometimes weeks or months after the trial). The judgment will determine:
- Who wins on the merits of each disputed issue
- The amount of damages or the specific relief ordered
- Who pays the legal costs (the general rule is that costs follow the event — the loser pays, assessed on the standard basis)
A party who is dissatisfied with a judgment can appeal to the Queensland Court of Appeal (and ultimately, with leave, to the High Court of Australia). Appeals on questions of fact are difficult — appellate courts are reluctant to interfere with a trial judge’s findings where the judge had the advantage of seeing and hearing the witnesses.
Step 12: Enforcement
Winning a judgment is not the same as getting paid. If the judgment debtor does not pay voluntarily, the judgment creditor must enforce. Queensland enforcement mechanisms include:
- Garnishee orders: To seize money owed to the judgment debtor by a third party (including bank accounts and wages)
- Enforcement warrants: To seize and sell property of the judgment debtor
- Charging orders: To create a charge over the judgment debtor’s real property
- Examination of the debtor: Court examination of the judgment debtor about their financial position
- Bankruptcy or winding-up: If the judgment debtor is insolvent, insolvency proceedings may be the most effective enforcement mechanism
For a detailed guide to enforcing judgments in Queensland, see our article on garnishee orders and how to collect a judgment debt.
How Long Does Commercial Litigation Take?
There is no single answer. The following are broad guidelines for Queensland courts:
- Uncontested debt (default judgment): 4–8 weeks from filing
- Simple commercial dispute (District Court): 12–18 months from filing to judgment
- Complex commercial dispute (Supreme Court): 2–4 years from filing to judgment
- Appeal: Add 12–18 months for a Court of Appeal hearing after the trial judgment
These timeframes can be compressed by applying for an expedited trial or by resolving the dispute at mediation.
How Much Does Commercial Litigation Cost?
Legal costs in commercial litigation vary enormously depending on the complexity of the dispute, the amount at stake, and the conduct of the parties. As a rough guide:
- Simple debt recovery to default judgment: $3,000–$10,000
- Contested claim, settled at mediation: $20,000–$100,000+ (depending on discovery and interlocutory applications)
- Full trial in the Supreme Court: $150,000–$500,000+ per party for a complex dispute
Courts award costs to successful parties, but “party and party” costs orders typically recover only 60–70% of actual legal costs. You will rarely recover all of your legal costs even if you win.
This is why early commercial advice — before a dispute escalates — is so valuable. A well-timed letter of demand or early mediation can save tens or hundreds of thousands of dollars in legal fees.
Key Strategic Decisions in Commercial Litigation
- Is the defendant good for the money? The most successful judgment is worthless against a defendant with no assets. Conduct an asset check before committing to expensive litigation.
- Do you have the better evidence? Commercial litigation is decided on evidence. Assess the strength of your documentary record before filing.
- What is the settlement range? Know your best and worst case before going to court. Settlement at 70 cents in the dollar may be better than winning 100 cents after 3 years of litigation costs.
- Is there a quicker path? Statutory demands, injunctions, and summary judgment applications can resolve some disputes faster than a full trial.
- Who are your witnesses? Commercial disputes often turn on credibility. Identify your key witnesses early and assess their reliability under cross-examination.
How Boss Lawyers Can Help
Boss Lawyers act for commercial clients across the full spectrum of commercial litigation — from pre-litigation demand through to Supreme Court trials and enforcement. We are direct, strategic, and focused on results. We will tell you honestly whether litigation is worth it, and if it is, we will pursue it with everything we have.
Learn more about our commercial litigation services →
Frequently Asked Questions
Do I need a lawyer for commercial litigation in Queensland?
You are not legally required to have a lawyer, but commercial litigation involves complex procedural rules, strict deadlines, and strategic decisions that can significantly affect the outcome. Self-represented litigants consistently face disadvantages in court. For any claim over $20,000, legal representation is strongly advisable.
What is a without-prejudice offer and how does it affect costs?
A without-prejudice offer is an offer to settle that cannot be referred to in evidence except to establish that it was made (not its terms). Under the UCPR, a formal Calderbank offer or offer to settle can affect costs — if the offeree rejects a reasonable offer and then does no better at trial, the court may order indemnity costs from the date of the offer. Making and responding to settlement offers is a critical strategic element of commercial litigation.
Can I get an urgent injunction in a commercial dispute?
Yes. The Supreme Court can grant an urgent interlocutory injunction — sometimes on an ex parte basis (without the other party present) — where there is a serious question to be tried, the balance of convenience favours an injunction, and damages would not be an adequate remedy. Applications for urgent injunctions are heard quickly, often within 24–48 hours of filing.
What is the Commercial List in the Queensland Supreme Court?
The Commercial List is a specialist list in the Supreme Court of Queensland for complex commercial disputes. Cases on the Commercial List are managed by a dedicated judge and follow a structured timetable. The list is designed to move cases to trial more efficiently than the general list.
How long do I have to start proceedings for a commercial dispute?
Under the Limitation of Actions Act 1974 (Qld), the standard limitation period for a contract claim is 6 years from the date the cause of action accrued (usually when the breach occurred). For claims under a deed, the period is 12 years. Delay in commencing proceedings can also prejudice your case on the merits, even before the limitation period expires. Act promptly.
This article contains general information only and is not legal advice. You should obtain professional advice specific to your circumstances before taking any action. For expert advice, contact Boss Lawyers on 1300 267 711 or at bosslawyers.com.au.
Boss Lawyers act for businesses and individuals in commercial litigation throughout Queensland. If you need advice about a commercial dispute, contact us today.
