Key takeaway
- Simple, preventative actions you can take now to reduce risk and protect your business later.
Overview
At RedeMont, we’ve seen firsthand how fast-moving deals and commercial pressure can lead to overlooked details and, eventually, disputes.
With over 40 years of experience advising on some of Australia’s most complex and iconic projects, we know that the best outcomes come from being prepared.
This insight brings together practical tips based on our deep experience, strategic thinking, and strong local knowledge. They’re designed to help you identify risks early, avoid common pitfalls, and position your business for stronger legal outcomes if issues do arise.
Our independent, full-service approach means we can support you across all stages of the transaction, without the need to engage multiple advisors. The earlier you get the right guidance, the better your chances of avoiding costly problems later.
The below non-comprehensive list of tips, if followed, will help mitigate transactional risks or increase your chances of success in any commercial dispute that may arise.
Authority to contract
You need to ensure that you understand the scope and type of contracts each staff member can enter into and that signatories are appropriately authorised (and available to sign).
Identification
Given the use of limited liability or “two dollar” companies as trading entities (and the impact of the unfair contracts regime), it is important to understand precisely with whom you are contracting and that other person’s or entity’s abilities and financial capacity and size. Care should also be taken to ensure that person has authority to contract on behalf of the company and that you have a contract with the correct entity. If they do not have the demonstrated ability to meet their financial obligations, some form of security should be taken.
Single point of contact
To avoid conflict and disputes about exactly what was contracted, it is prudent, where practicable, to appoint a single, authorised person to be responsible point of contact with the other party.
Don’t underestimate complexity, risk or time required
Sufficient time should be allowed for negotiation and stakeholder input. This always takes longer than those running the day-to-day of a transaction would like and can be challenging to get quickly around holiday times.
Record pre-contract negotiations
It is important to record, in writing, the principal terms of any proposed contract, or any warranties, and the reason for their inclusion (or deletion from any draft). Otherwise, particular terms in a contract may be read in a different light once problems or a dispute arise at a later time. The better documented your case, the stronger your position.
Also don’t try and get too clever with wording or what is left unsaid, both positive statements or omissions (silence) can give rise to claims under the Australian Consumer Law.
Written is best
Where a deal is done or varied over the phone or in person, it is important to take notes and confirm your discussion in writing to the other party as soon as possible. Seek their response in writing, confirming the position as set out in your correspondence. Keep clear records of the performance of obligations by both parties under any contracts.
Seek advice early and often
Seeking guidance early will help avoid or minimise the cost of any dispute by ensuring you take the correct steps right from the start.
Protect your business before a problem starts.
Whether you’re dealing with fast-moving negotiations, internal complexity or unclear responsibilities, RedeMont helps you get it right the first time.
Our team of nationally recognised advisors, dealmakers and problem solvers bring top-tier expertise and a client-first mindset to every engagement.
Speak with us today to ensure your contracts, negotiations and commercial arrangements are set up for long-term success.
Contact our Disputes experts if you have any queries.
