Cease and Desist Letter

Dec 10, 2020 Ben

Table of Contents

Cease and Desist Letter Templates, NSW Australia

Here are some of the cease and desist templates that you can buy.

Cease and Desist Letters NSW Australia

When rights are infringed (or likely to be infringed), injured parties often try to persuade the other side to stop the problematic conduct (aka a cease and desist letter) and usually they also seek a promise that the troublemaker will not do it again (aka give an undertaking) or else an approach wil be made to the court for orders to restrain the conduct.

It is not uncommon for disputes to end reasonably soon after a well crafted cease and desist letter if the underlying rights are sound although there can sometimes be a  degree of "argy bargy" as both sides flex their position right up until the matter is settled. 

A critical part of a cease and desist letter is to ask for an undertaking from the other side not to engage in the offensive conduct or else ...

Send or Serve a Cease and Desist Letter?

There is no need to serve a cease and desist letter. What is critical is to make sure that you have the correct address for the recipient and that the letter is sent in such a way that you can prove down the track that it was sent and likely received. 

Types of Cease and Desist Letters

There are a myriad of instances where these letters have been used to try and restrain conduct. Examplease of the types of conduct that may potentially be restrained include seeking to stop:

  • employment - a former employee, director or store manager from using confidential information or even competing against their former employer (aka employment contracts containing restraint of trade clauses). Often this could involve cases where it is alleged the employee breached a non-solicitation provision in an employement contract by dealing with clients of their former boss.
  • property disputes - a developer from knocking down extremely rare Wollemi Pines that are located on your property, in the context of a boundary dispute, where these trees cannot be replaced by money
  • safety - an event going ahead where the holding of the event will breach safety regulations made by the government
  • agency arrangements - restraining the marketing of goods by "x" when "y" is the holder of an exclusive agency
  • intellectual property - a copy right holder may threaten legal action against a purported breach, however, the recipient may content that it was groundless (see: s 202 of the Copyright Act 1968 and also s 18 of the Australian Consumer Law)
  • confidential information - if you provided your lawyer with confidential information that the lawyer may be able to use in another case then it may be possible for you to ask the lawyer to cease acting in the other case

Naturally, there are many other examples and each case will be decided on its own facts and the law as it applies to the case involved. In some cases consideration needs to be given to whether there is a restraint that is against public policy.  

Legal Basis for Cease and Desist Letter

A key component of any cease and desist letter is the need to properly articulate the jurisdictional basis for the letter. Naturally, rights do not exist in a vacuum so it may be important to look at:

  • what the relevant contract says about the rights and how the facts fit in
  • if legislation applies, what its intent is and how it operates, or
  • whether it is necessary to rely upon the inherent jurisdiction of the court to support the case

Court Applications for Injunctions

Some applications are not made on notice given that there may be risks attached to letting the other party know that an approach will be made to the court.

For instance, if the potential benefit of a judgement will be destroyed then there may be an occasion for an ex-parte application to the court. 

Is a Cease and Desist letter enforceable?

A cease and desist letter is typically the first stage in the process as it asks the recipient to stop certain conduct. If the recipient ignores it other steps are needed such as approaching the court for orders as discussed below. 

What may happen if you ignore a Cease and Desist Letter?

Sometimes, a recipient of a cease and desist letter simply does not take legal advice, acts against any advice given or just believes that they have done nothing wrong and in so doing decides to ignore a cease and desist letter. 

What happens when such a letter is ingnored depends on the approach taken by the sender. In some cases the sender might take the view that there is no other option but to go to court to seek an injunction of sorts. If the case progesses that far then the sender may insist on orders being made, and on there being a costs order (for the application to the court) against the recipient who ignored the letter. 

On that basis a cease and desist letter can be enforceable but only after a court order is obtained to give it real "teeth". More often than not it is best to take legal advice on whether the letter should be ignored, responded to or otherwise dealt with.

Proving the Contents of Your Cease and Desist Letter

Depending upon the case, it may be necessary to prove matters such as:

  • You have a prima facie case - i.e. if things stay the same you are likely to win at trial
  • The balance of convenience favours an injunction -  basically the court will look at what happens if an injunction is granted, and what happens if it is not granted. In weighing it all up, the balance of convenience must favour the granting of the injunction.
  • Irreparable harm - this is also known as the test of damages being inadequate. That is, if the injunction is not granted then the loss or harm will be so great that money cannot fully compensate for it. 

Obviously, some cases involve statutory rights and that may affect the extend and degree to which the above criteria apply. 

Mandatory Injunctions (as opposed to cease and desist ones)

Some cases need more than just asking someone to cease and desist from doing something, and in those cases you want to positively force someone to perform certain acts. These are known as mandatory injunctions.

Defences to Cease and Desist Letters

There can be a range of defence to cease and desist letters (and applications to the court for such orders). What is key is the underlying rights, the length of time involved before bringing the application and whether the person seeking such rights has "clean hands". 

What Will My Lawyer Need?

If the matter rapidly escalates then both you, and your lawyers will need to move quickly. As it is likely that Counsel will be involved and because court fees will need to be paid it makes sense to have sufficient funds available early on. These applications are inevitably expensive and if both sides dig in the costs can be significant and substantial and easily running into the tens of thousands. 

How We Assist with Cease and Desist Letters

Often we assist not only with the preliminary work but also with the court application involved. As many of these cases settle before court it makes sense to get a well worded cease and desist letter from the get go. 

We help with only the serious cases that involve significant sums or substantial infringement of rights. 

Cease and Desist Resources

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