Heads of Agreement NSW: When Is It Legally Binding?

Email exchanges can create binding contracts if they contain clear agreement on all essential terms. The challenge is that email conversations often reference different versions of proposals, include conditional acceptance, or leave key terms "to be determined." If you're relying on emails as your documentation, make sure one message clearly sets out all essential terms and the other party's response clearly accepts those terms without conditions. Better still, document the agreed terms in a single clear document that both parties sign.

Start by checking your contract to understand what payment terms were agreed and what rights you have. Then send a professional written reminder referencing the specific invoice, due date, and your payment terms. Keep records of all communication. If that doesn't work, send a firmer follow-up outlining next steps. Most payment issues resolve with clear, documented communication before escalation is necessary.

The base filing fee with IP Australia starts around $330 for a single class filed online. Professional fees for trade mark searches, application preparation, and examination response typically range from $1,500 to $3,500 depending on complexity.

Yes, digital products require different refund and access provisions. Physical goods have straightforward return processes—customers send items back. Digital products can't be "returned" once downloaded or accessed. Your terms should address how you handle refunds for digital products, what access limits apply, and what happens if the product is defective. Australian Consumer Law allows some flexibility for digital products, but you need to be clear and fair in how you apply these provisions.

Templates provide a starting point, but they need significant customisation for your specific services. Generic templates often include inappropriate clauses or miss provisions critical for your business model. I work with service providers to develop agreements that are practical, enforceable, and aligned with how they actually work.

Yes, in most cases. Having retention of title terms in your contract creates a security interest under the PPSA, but that interest needs to be registered on the PPSR to be enforceable, particularly if your customer becomes insolvent. The contract creates the right, but registration is what makes it work when you need it. I can help you understand whether your specific contract terms create a registrable security interest and establish a process for registering new supplies.

Templates provide a starting point, but collaboration agreements should be tailored to your specific project and business structures. If significant revenue, intellectual property, or ongoing client relationships are involved, professional guidance helps ensure the agreement addresses your actual commercial arrangement.

Look at how the relationship actually operates, not just what you call it. Genuine contractors control how they complete work, provide their own equipment, work for multiple clients, and bear commercial risk. If you control their working hours, provide equipment and training, integrate them into your business structure, and they work exclusively for you, the relationship may be employment regardless of what the contract says. I can help you assess your specific situation and structure arrangements appropriately.

Templates provide starting points but rarely suit your specific circumstances without modification. Confidentiality agreements need to define precisely what information you're protecting, how it can be used, and how long obligations last. Generic templates often include vague definitions that make enforcement difficult or omit provisions that matter for your particular situation. Having an agreement reviewed before use ensures it actually protects what matters to you.

Templates provide a starting point, but they rarely fit your specific business operations without significant customisation. Working with a commercial lawyer ensures your terms accurately reflect how your business works and are enforceable under Australian law.

Yes, even small businesses benefit from clear website terms. If your site collects any data, processes payments, accepts bookings, or provides information, T&Cs help manage expectations and reduce legal risk. The complexity should match your business, but having no terms leaves you more exposed than having appropriate ones. We can work through what your specific situation requires.

Yes, you can offer incentives like discounts, free products, or competition entries to encourage reviews. The critical requirement is disclosure—the incentive must be disclosed clearly where the review appears. The incentive shouldn't be conditional on leaving a positive review specifically; it should be offered for honest feedback regardless of rating.

A company constitution sets out the basic legal framework for how your company operates - things like share classes, director powers, and meeting procedures. It's a public document lodged with ASIC that anyone can access. A shareholders agreement is a private commercial contract between shareholders addressing the practical aspects of business ownership - governance details, funding commitments, exit strategies, and dispute resolution. The constitution provides the legal structure; the shareholders agreement addresses the commercial realities of working together.

Modifying a template can address some issues, but there's significant risk. Templates don't prompt you to think about your property's characteristics and how those should influence lease terms. You might modify rent and term clauses, but miss how shared systems should affect maintenance provisions, how aging equipment should shape repair obligations, or how unmetered services should influence outgoings. Having a commercial lease lawyer review your modified template can identify these mismatches - but proper drafting that accounts for property characteristics from the start is often more effective.

Strata levies are calculated based on your lot's unit entitlement, which is determined by factors like lot size, value, or use. As a tenant, you'll typically pay the proportionate share of levies that the landlord passes on to you as outgoings under the lease. Your lease should specify whether you pay based on the lot's unit entitlement percentage or a floor area calculation. Always review the strata scheme's levy history to understand what you'll actually be paying beyond base rent.

"Subject to contract" language supports non-binding intent but doesn't guarantee it. Courts look at the document as a whole, including whether all essential terms are agreed, how the parties described their obligations, and how they behaved afterward. For strongest protection, combine this language with explicit statements that the document isn't binding.

Base rent is the fixed amount you pay for occupying the premises - it's the core rental component. Outgoings are additional costs for operating and maintaining the property, such as council rates, insurance, repairs and common area costs. This distinction matters because each component is calculated, reviewed and recovered differently, and understanding both is essential for accurately budgeting occupancy costs.

No, stamp duty in NSW is calculated on the market value of the property regardless of the amount paid. Even gifts attract full stamp duty liability unless specific exemptions apply. This is a common misconception that can result in unexpected costs.

For straightforward arrangements with established templates, documentation can be completed in a few days. More complex deals or those requiring negotiation on risk provisions might take 1-2 weeks. The timeline depends on how quickly both parties can review and approve terms, not just drafting time. If you need to move quickly, focus on getting core terms documented first, with more detailed provisions following shortly after. Let's discuss your specific timeline.

If your contract includes a suspension clause—stating that work can be paused if invoices remain unpaid—then yes, you can stop work. Without this provision in your contract, suspending work might put you in breach of contract yourself. This is why payment terms that specifically address suspension rights are so valuable. Let's discuss whether your current contracts give you this protection.

ASIC business name registration is separate from trade mark registration. You can technically register a business name that's identical to someone else's registered trade mark, but doing so doesn't give you the right to use that name commercially if it infringes the registered trade mark.

Your Privacy Policy specifically addresses how you collect, use, store, and share personal information. It's required under Australian privacy law if you handle personal data. Website Terms of Use govern broader interactions with your site—intellectual property, acceptable use, account terms, and general conditions. Both documents serve different purposes and you need both for a comprehensive legal framework.

Courts can refuse to enforce unfair contract terms, particularly in consumer relationships or where there's significant power imbalance. The goal isn't maximum protection regardless of fairness—it's balanced documentation that protects legitimate interests whilst maintaining reasonable client relationships.

You choose the registration period when you register—anywhere from 1 year to 25 years, or you can register for an indefinite period. For ongoing trading relationships, an indefinite registration makes sense. For single transactions, you might register for a specific period that covers your payment terms plus a buffer. The registration remains effective until it expires or until you discharge it.

The agreement should be detailed enough that if you stopped speaking to your collaborator, the document would still clearly explain your arrangement. Even trusted partners benefit from documented clarity. The agreement protects both parties' interests and typically strengthens rather than undermines good working relationships.

Your business may face claims for unpaid superannuation, annual leave, and other employment entitlements from when the relationship began. The Australian Taxation Office can pursue unpaid PAYG withholding and superannuation guarantee charges, including penalties and interest. Fair Work protections would also apply, meaning you'd need just cause for any termination and would face potential unfair dismissal claims. This is why getting the structure right initially matters—remedying misclassification retrospectively is expensive and complicated.

This depends on how long the information remains commercially sensitive. Technical specifications might need protection for several years as you develop and market products. Transaction-specific information might only need confidentiality until the deal completes or discussions conclude. Financial projections lose relevance as time passes. The duration should match how long disclosure would actually harm your interests, not just impose indefinite obligations that might be difficult to enforce.

Enforceability requires several elements: your terms must be brought to the client's attention before they accept your service, they need to be clearly worded, and they can't be unconscionable or unfair under consumer law.

Free templates provide starting points but rarely fit your specific business model. A template designed for e-commerce won't suit professional services. One created for US businesses won't address Australian law requirements. Templates often include irrelevant clauses while missing provisions you actually need. The better approach is having terms drafted to match how your site actually works.

You can and should remove content that's defamatory, false, or violates your documented moderation policy. The key is having that policy documented and applying it consistently. For potentially defamatory content, consider seeking legal advice before removal as defamation has specific legal meanings.

Yes, shareholders agreements can be implemented at any time, though it's easier when done early. Existing shareholders will need to agree to the terms and sign the agreement - this can be straightforward if everyone recognizes the value, or challenging if some shareholders see proposed terms as disadvantaging them. It's worth implementing even for existing companies, particularly before bringing in new shareholders, planning for exits, or addressing emerging governance issues.

This requires understanding how your property actually functions. Key characteristics to consider: Are building systems shared or separate? What's the age and condition of major equipment? Are utilities separately metered? How do common areas work and who benefits from them? Are there structural, heritage, or compliance constraints? What's the actual current condition? A commercial lease lawyer helps identify which characteristics matter for lease drafting and how provisions should be tailored to your property's operational realities.

You need approval from both. Your lease governs what alterations require landlord consent, but any work affecting common property or potentially breaching by-laws also requires owners corporation approval. Common property includes building structure, shared services, and external elements. In practice, this means most commercial fitouts need dual approval, which takes longer than single-landlord approval processes. Start the approval process early and confirm requirements with both parties before committing to contractors.

Yes, and this is common practice. You can specify that certain provisions - typically confidentiality, exclusivity, good faith negotiation, and cost-sharing arrangements - are immediately binding, while commercial terms remain non-binding until formal contracts are signed. The key is clearly identifying which clauses are binding.

Make-good obligations should be specific enough that both landlord and tenant would reach the same conclusion about what's required. Better practice is to itemise specific requirements: repainting (including how many coats and what areas), carpet condition or replacement, fixture repairs, removal of tenant installations, and any specific finishes or standards that apply. We can work through what specific make-good provisions make sense for your situation.

From a stamp duty perspective, both approaches result in the same liability. However, selling at market value may provide better asset protection and clearer documentation of the transaction terms. The CGT implications are also the same in both scenarios.

Starting work before documentation is finalized creates risk for both parties. If terms haven't been clearly agreed, you might find yourselves disputing what was actually agreed to when it's time to perform or pay. If you genuinely need to start before full documentation is ready, at minimum document the core commercial terms in writing—scope, payment, timing—and clearly state that detailed terms will follow. This at least creates a framework both parties have agreed to.

It depends on your contract. If your terms state that deliverables won't be transferred until payment is received, you have a clear right to withhold them. If your contract is silent on this, the situation becomes less clear—you might be obligated to deliver even if payment hasn't been made. The best approach is having this documented in your terms from the start.

Once you're registered, later applications for confusingly similar marks in your classes will likely face examination objections based on your earlier registration. Your registration date establishes your priority, and later applicants need to work around your registered mark.

This rarely works well. Terms from US or UK websites are written for different legal systems and don't address Australian Consumer Law requirements. They often try to exclude rights that can't be excluded in Australia, or include provisions that aren't enforceable here. It's better to have terms written for Australian law that reflect your actual business practices. We can work together to create terms that properly protect your business within the applicable legal framework.

Yes, and this often makes commercial sense. You might have different agreements for corporate versus individual clients, or different terms for ongoing retainers versus one-off projects. The key is maintaining consistent core protections whilst allowing flexibility for different relationship types.

This is a real concern because defective registrations can be challenged and may not be enforceable. The PPSA requires specific information including correct debtor details (legal name, ABN/ACN), collateral description, and secured party details. If you get these wrong, your registration may be considered seriously misleading and therefore defective. It's worth taking the time to get it right or working with someone who regularly handles PPSR registrations to ensure accuracy.

You can create an agreement at any point, though it's simpler to address expectations before work begins. If documenting an existing collaboration, focus on clarifying the current arrangement, who owns what's been created so far, and what terms will govern the collaboration going forward.

Not automatically. Under Australian copyright law, the person who creates original work owns the copyright unless there's an agreement that IP transfers to someone else. This is why explicit IP clauses are essential—they ensure work you're paying for becomes your business asset rather than remaining the contractor's property. I can help you draft IP provisions that properly transfer ownership and address any background IP the contractor uses.

Intent usually doesn't matter for breach—your confidentiality agreement likely establishes strict obligations regardless of whether breach was deliberate or careless. However, remedies might differ. Accidental disclosure to a single individual might warrant requiring immediate steps to retrieve information and prevent further distribution, while deliberate disclosure to competitors might justify seeking injunctive relief and damages.

Your standard terms are the operational clauses that apply across all your client relationships. They work together with project-specific details to create the complete contract. Think of standard terms as your operational framework.

Website T&Cs govern the relationship between you and users—what they can do on your site, what you're responsible for, payment terms, and dispute resolution. A privacy policy specifically addresses data collection, use, storage, and user rights regarding personal information. Most businesses need both, and they should be consistent with each other.

You're not automatically responsible for every review on third-party platforms. However, if you're actively using these platforms, monitoring them, and responding to reviews, you may need to take reasonable steps about misleading content you become aware of.

The company constitution generally takes precedence as the governing legal document for the company. However, shareholders agreements operate as binding contracts between shareholders personally. If conflicts exist, you'll want to amend one document to align with the other. Well-drafted shareholders agreements include provisions stating that they're subject to and read in conjunction with the constitution to minimize conflict risks.

You get ongoing disputes about whether standard clauses actually apply to your situation. Every maintenance issue becomes an argument about responsibility given your property's specific systems and condition. Cost recovery disputes arise when outgoings provisions don't match how expenses occur. Alteration requests create friction when standard clauses don't address your constraints. Make-good expectations differ when generic terms don't account for actual age and wear. These disputes happen regularly when lease terms don't fit property realities.

If a repair involves common property, the owners corporation is legally responsible for carrying out the work under the Strata Schemes Management Act. However, your lease likely makes your landlord responsible for maintaining the premises. This creates a situation where your landlord has the obligation to you, but must work through the owners corporation to fulfil it. Repairs can take longer as they require committee approval and the owners corporation's selected contractors. Your lease should address rent abatement if common property repairs make your premises unusable.

This creates a dispute that may require court determination. Courts will examine the language used, whether essential terms are complete, evidence of parties' intentions, and how you both behaved after signing. This uncertainty is costly and time-consuming, which is why clear drafting matters.

The best approach depends on your circumstances and risk appetite, but all review mechanisms must be unambiguous, mathematically workable and consistent with other lease terms. Fixed percentage increases provide certainty, CPI-linked reviews move with inflation, and market reviews can be more favourable in softening markets. Let's work through the options together to find a review mechanism that suits your circumstances.

In my experience, these transfers typically take 6-8 weeks from documentation to registration, assuming all parties are ready to proceed and there are no complex title issues. The timeline can extend if we need to resolve taxation or family agreement matters.

The value and complexity of the arrangement should guide the level of documentation, but even simple deals benefit from clear written terms. Most business disputes I handle aren't about complex transactions—they're about straightforward arrangements where terms weren't documented clearly enough. The question isn't whether you need documentation, it's what level of documentation matches the risk and value of your specific deal. We can work through what makes sense for your situation.

The PPSR is a national register where you can record security interests in personal property (including goods you've supplied on credit). If you supply goods and retain ownership until payment, registering on the PPSR gives you priority over other creditors if your client becomes insolvent. Without registration, you might lose your goods to other creditors even though technically you still own them. PPSR protection requires clear contract terms and proper registration before or shortly after delivery.

This depends on how you use your branding. Many businesses register a word mark covering the business name in any presentation, and a device mark covering the specific logo design. Registering both provides comprehensive protection.

Review your documents whenever your business model changes—adding new products, changing refund policies, moving to a new platform, or starting international sales. Also review when Australian Consumer Law or privacy legislation changes. At minimum, do an annual review to ensure your terms still match your operational reality. Terms that don't reflect how you actually operate create legal risk rather than reducing it.

Enforcement options depend on the breach. For payment issues, you might suspend work, charge interest, or commence debt recovery. For scope breaches, your variation provisions create clear documentation about what's actually agreed. Having well-drafted terms makes enforcement considerably more straightforward.

You can register at any time, but your priority position depends on when you register. If you're claiming a PMSI in inventory, you need to register within 15 business days after delivery to get super priority. If you register later, you'll still have a registered interest, but you'll only have priority from the date of registration—meaning anyone who registered before you will rank ahead. For this reason, establishing a process to register promptly after delivery protects each transaction properly.

Collaboration agreements typically align with project timeframes. For ongoing collaborations without a defined end date, consider including an initial term such as 12 months with automatic renewal unless either party provides notice. Include terms for reviewing and updating the agreement periodically as circumstances change.

You can include restraint provisions in your contractor agreement, but they need to be reasonable to be enforceable. Courts balance your legitimate business interests against the contractor's right to earn a living. A well-drafted restraint might prevent a contractor from working for direct competitors in your specific geographic area or market segment for a reasonable period, particularly if they've accessed confidential information or trade secrets. Let's discuss what's reasonable for your specific situation.

Not directly. Confidentiality obligations prevent disclosure of your confidential information, but they don't stop people from changing employers or working in the same industry. If you want to restrict where former employees can work, you need restraint of trade provisions, which are separate from and more complex than confidentiality obligations.

Generally, you can't unilaterally change terms for existing relationships - changes require mutual agreement. New terms typically apply to new work or new engagements.

They should be easily accessible and visible at key user interaction points. Link to your T&Cs in your footer, but also ensure users see and agree to them before submitting forms, creating accounts, making purchases, or booking services. For e-commerce, require checkbox acceptance during checkout. For contact forms, include a statement about agreeing to your terms and privacy policy.

Your policy should be specific enough that someone could apply it consistently. Rather than "we remove unhelpful reviews," say what makes a review unhelpful—for example, reviews containing profanity, reviews from non-customers, spam, defamatory content, or reviews that violate privacy.

For the agreement to be effective, all shareholders should sign. Some agreements allow for new shareholders to be added by having them sign a deed of accession. If a shareholder refuses to sign, the agreement can still bind those who do sign, but it won't restrict the non-signing shareholder's actions. For this reason, shareholders agreements often include provisions making signing a condition of becoming or remaining a shareholder.

Even if the physical property is similar, this creates problems. The property's condition has changed - equipment is older, fixtures show more wear, systems may have been modified. The previous tenant's needs were different, so provisions tailored to that tenancy may not fit. Cost structures have shifted. NSW leasing law evolves. Most importantly, your new tenant's business and operational needs are different - lease terms should account for how they'll actually use the property's characteristics, not how the previous tenant did.

Yes. By-laws are legally binding on all lot owners and occupiers, including tenants. They can restrict operating hours, noise levels, waste management, vehicle access, and even certain business types. Review the current by-laws before signing your lease to confirm your intended use is permitted. Ask about any proposed by-law amendments and whether there's a history of by-law enforcement in the building. Your lease should require the landlord to provide you with current by-laws and any amendments during the lease term.

It depends on the complexity of your transaction and the consequences of getting it wrong. For significant transactions, complex commercial arrangements, or situations where you need certain obligations to be binding, legal guidance ensures your document matches your intentions. The cost of proper drafting is typically far less than the cost of later disputes.

Whether tenant fitout becomes the landlord's property depends on both property law principles about fixtures and what the lease specifically provides. This matters because it affects who insures the fitout, impacts make-good obligations, affects valuation and finance, and impacts tax treatment. Your lease should clearly address fitout ownership to avoid complications.

Yes, you can transfer a percentage interest in property to family members. This approach can help manage stamp duty and CGT liabilities while allowing you to retain some ownership and control. The same legal requirements apply to partial transfers.

How much should I expect to pay for business agreement documentation?

Should I use a debt recovery agency or go straight to legal action?

Can I register a trade mark if I'm planning to use it but haven't started yet?

Do my terms need to be accepted by customers before they can purchase?

Should my service agreement include confidentiality provisions?

What's the difference between a security interest and a PPS lease?

Can one party end the collaboration early and what protection do I have if my collaborator withdraws?

What should I do if a contractor isn't meeting the agreed standards?

Do mutual confidentiality agreements mean we're both equally at risk?

My business model is changing - do I need to update my standard terms?

How often should I update my website T&Cs?

Can I ask customers to remove or edit negative reviews?

How much does a shareholders agreement cost to prepare?

What's the difference between retail and commercial leases under NSW law?

How long does owners corporation approval take for commercial fitout?

How does this apply to retail leases in NSW?

How do I know if the permitted use clause is appropriate for my business?

What happens if my child can't afford the stamp duty on a property transfer?