One of our commercial lawyers, Sarah Balk, attended the Contract Law Conference: A Brave New World last month in Sydney. Sarah has many years’ experience advising clients in relation to commercial contracts, in the UK and Australia.
Sarah found the conference a useful update and was interested to hear the opinions of the speakers (including barristers, general counsel and lawyers from top tier firms) on recent cases.
Some practical take-aways from the conference which are helpful tips for clients to consider before entering commercial contracts include:
Think about what (if any) pre-contractual representations should be included in the contract. If you want to rely on something, include it in the contract.
Consider the risks if a supplier can’t deliver and factor these into the contract where possible, would you really want to ‘step in’ or is there a better way to secure performance?
Genuine pre-estimates of interest or damages are likely to be upheld by the courts. Contract provisions tend to only be set aside where they are clearly intended to be punitive.
If you are using ‘standard terms’ supplying a small business, you need to make sure your standard terms protect a legitimate interest of yours, and are not unfair.
If you are a small business being issued with standard terms, you have good grounds to negotiate the removal of any unfair terms as well as protection under changes to the Australian Consumer Law and Australian Securities & Investments Commission Act 2001 (Cth).
Recent cases show the courts are taking a ‘common sense’ approach to interpreting contracts and will determine any contract terms objectively based on the written document. This highlights the need for contracts to be clear, concise and purposive.
When contracting with a party overseas, think about how to secure performance and where the best place for a resolution of disputes might be. Singapore is a popular option when contracting in Asia or the Middle East.
Jenkins Legal Services has offices in Newcastle and North Sydney. If you need assistance with a contract, please do not hesitate to contact us (Newcastle: 02 4929 2000, North Sydney: 02
9929 4258) to discuss how we may be able to assist you.