This Practice Note contains a jurisdiction-specific Q&A guide to commercial contracts in Australia published as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2022). Authors: Baker McKenzie—Adrian J. Lawrence; Caitlin Whale 1. Is there an obligation to use good faith when negotiating a contract? There is no general principle in Australian contract law to use good faith when negotiating a contract. Australian courts have held that an express contractual obligation to negotiate a matter in good faith can be enforceable. However, an express obligation to negotiate in good faith needs to be drafted carefully to ensure the clause is capable of being given meaning. A requirement to negotiate a contract in good faith has been imposed by law in select circumstances. The Franchising Code of Conduct requires the parties to a franchise agreement to act in good faith towards each other, including in negotiating the franchise agreement. Although not a good faith obligation, it is important to note that legislation prohibiting misleading and deceptive conduct is also often relevant

Contract formation Under English contract law, a contract is formed when: • a valid offer is accepted • there is valid consideration • the parties intend to create legal relations A purchase order for goods or service may be sufficient to comprise a legally binding contract if the terms and conditions (T&Cs) attached to it make the purchase order capable of acceptance. Incorporation of standard T&Cs To establish that express T&Cs have been incorporated into a contract, the party seeking to rely on them must show that it has done what is reasonably sufficient to give the other party notice of them (Thornton v Shoe Lane Parking Ltd). This will be a question of fact in each case. The more onerous or unusual the terms, the more that needs to be done to bring them to the notice of the other party. If the court finds that the T&Cs were not incorporated into

This Practice Note considers when an individual will be an employee, and the implications of that employment status. Key concepts For employment law purposes, an individual who provides work or services for another person may be: • a worker (see Practice Note: Worker status), in which case they will have certain rights under employment law • an employee, in which case they will have additional rights under employment law (eg unfair dismissal, maternity leave and redundancy rights) • neither a worker nor an employee (ie the individual is self-employed, or an independent contractor), in which case they will have no rights under employment law All individuals who have employee status also fulfil the statutory definition of a 'worker' for the purpose of the statutory protections that are accorded to that wider category of working individuals. However, not all workers will meet the definition of 'employee'. It follows that, even if an individual does not qualify for employee status, they may still qualify as a 'worker'. For a quick-reference checklist of the sets of rights accorded to employees and

This Deed is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Outgoing Party); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Incoming Party); and 3 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Remaining Party), each of the Outgoing Party, Incoming Party and Remaining Party being a party and together the Outgoing Party, Incoming Party and Remaining Party are the parties. BACKGROUND (A) The Outgoing Party wishes to transfer, by way of novation, its rights and obligations under the Original Contract (as defined below) to the Incoming Party, in accordance with this Deed. (B) The Outgoing Party wishes to be released and discharged from its future obligations and liabilities under the Original Contract. (C) The Remaining Party agrees to release and

The derivative contracts rules govern the taxation of a company’s profits and losses arising from its ‘derivative contracts’. The rules are primarily found in Part 7 of the Corporation Tax Act 2009 (CTA 2009), referred to in this Practice Note as Part 7. Some secondary legislation is also relevant, particularly the regulations known as the ‘Disregard Regs’ (the Loan Relationships and Derivative Contracts (Disregard and Bringing into Account of Profits and Losses) Regulations 2004, SI 2004/3256). This Practice Note looks at the entities and the types of instruments and transactions that fall within the scope of the derivative contracts regime. For the computational rules which govern how profits and losses on derivative contracts are calculated and brought into account for corporation tax purposes, see Practice Note: Taxation of derivatives—the main rules. This Practice Note considers: • the broad concept of what a derivative is and what one might be used for • who is taxed within the derivative contracts rules • the definition of a derivative contract for the purposes of the derivative contracts taxing regime

Construction analysis: On 10 July 2024, the Joint Contracts Tribunal (JCT) published the 2024 editions of its Intermediate Building Contract, Intermediate Building Contract with contractor’s design, Intermediate Sub-Contract, Intermediate Sub-Contract with sub-contractor’s design and Intermediate Named Sub–Contracts 2024 to add to the publication of its Design and Build Contract and Minor Works Contract suites, along with associated guides. In this article, we consider how these contracts differ from their 2016 equivalents and the extent to which the same changes have been made in the Intermediate Contracts and sub-contracts as had been made in the 2024 DB and MW forms.

The question is, can a landlord refuse to permit a tenant to keep a guide dog, or other assistance dog, in a flat, the lease of which contains an absolute prohibition on keeping pets? The short answer is no for several reasons. The first is that guide dogs, and other assistance dogs, such as hearing dogs for the deaf, are working animals, not pets, and are relied on by their owners for independence and mobility. The training that these dogs receive and the monitoring of their health and wellbeing means that they are unlikely to be a problem to the landlord or other tenants. They are under the close supervision and control of their owner at all times.

It is assumed that the assignee has failed to pay rent and/or service charge and it is the arrears which the landlord is seeking to recover. At common law, in the absence of an express provision in the lease, the landlord can recover arrears from the original tenant or his guarantor even though he has not informed them of the assignee’s default. Section 17 of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) contains restrictions on the liability of the original tenant and his guarantor for arrears of rent and service charge not previously notified to them. In order to

This Checklist sets out drafting tips to take into account when drafting or negotiating liquidated damages (LADs) provisions in a building contract, focussing on LADs for late completion. It sets out practical tips and guidance intended to help ensure that LADs provisions in a building contract will be enforceable. The parties must: • ensure that the building contract makes specific provision for the payment/deduction of LADs in the event of delay • retain any correspondence concerning the relevant clause(s) of the building contract, as it will be admissible as evidence of the reasons for the drafting of the liquidated damages clause and the level of LADs set by the contract • ensure that the building contract sets out a trigger date from which LADs will run and provision for this to be re-fixed to allow for any extension of time due to an act of prevention • be able to evidence the steps taken to estimate the loss that would result from late completion—keep a good record of how the LADs figure was calculated, including any

When a consumer falls into arrears or defaults under a consumer credit agreement, the lender may seek to recover the debt itself or may instruct a third-party debt collection firm to pursue payment. Alternatively, a consumer experiencing financial difficulties may seek assistance from a debt advice or debt management firm, which may advise on or assist with arrangements for repaying or otherwise dealing with their debts, including through a debt management plan. This Practice Note examines the rules that debt management firms must follow under Chapter 8 (Debt Advice) of the Financial Conduct Authority’s (FCA’s) Consumer Credit sourcebook (CONC) when dealing with customers. It covers the application of CONC 8, including conduct standards for providing advice, pre-contract information and advice requirements, debt solution contracts, debt management plans, rules for debt packagers and the use of lead generators. For information about the FCA's approach to arrears and default, see Practice Note: Consumer credit: rules relating to arrears, default and recovery. Application of CONC 8 Under CONC 8, there are three main types of regulated debt advice service that a

For the purposes of this Q&A it is assumed that: • the employer owns, or has a proprietary interest in, the utilities that were damaged • the employer’s claim is for loss resulting from the physical damage to the utilities • the sub-contractor has not provided the employer with a collateral warranty, or entered into any contract with the employer Liability for the damage Two related issues arise from the potential claims against the contractor and/or sub-contractor. The first concerns what course of action the employer may adopt. The second concerns the matter of substantive liability for the damage—ie which party is ultimately liable. Regarding the course of action the employer might take, it is in

This Practice Note is for use when determining applicable law where the contract was entered into on or after 17 December 2009. This Practice Note considers the application of Regulation (EC) 593/2008 on the law applicable to contractual obligations, commonly known as Rome I, in circumstances in which the parties have not chosen the applicable law. It considers the law governing specific forms of contract such as sale of goods, provision of services and distribution contracts. It also considers the position when contracts do not fall within the specific categories, the application of the so called ‘escape clause’. In such cases, the following terms are of importance: ‘characteristic performance’, ‘habitual residence’ and ‘more closely connected’. This Practice Note considers each of these terms as well as how the escape clause differs compared to Rome I’s predecessor, the Rome Convention. Rome I provides both for situations in which parties choose the applicable law, see Practice Note: Rome I—applicable law chosen by the parties and for when they fail to choose any applicable