Managing the Risks in Commercial Contracts - a recorded online conference

You can put your staff in the boardroom and watch it there. You can watch it on your computer or on your portable electronic device. All for the same low price.

The conference will be based on our highly successful video webinar technology: there’ll be a chairperson, a panel of experts, presentations and discussion.

Session 1: Dodging the Traps of Unfair Contract Terms in Small Business Contracts

Under the unfair contract regime, any term found to be an unfair will be void and unenforceable. This session examines those terms likely to be considered unfair and explores the key drafting strategies you can use to avoid them. It covers:

• What is a ‘small business’ and ‘standard form contract’ under the laws?
• What is an unfair contract term? Understanding the key issues that make the term ‘unfair’
• The impact of unilateral provisions in the contract, including the right to vary terms
• Checking existing contracts for enforceability
• Case report - Australian Competition and Consumer Commission v JJ Richards Sons Pty Ltd [2017] FCA 1224; Australian Competition and Consumer Commission v Servcorp Limited [2018] FCA 1044

Session 2: Pre-Contractual Representations: When Can They Come Back to Bite?

What was said during the negotiations leading up to an agreement can have a major impact on the expectations of each party. Where a pre-contractual representation turns out to be false, the implications for the contract can be significant. The other party may have a right to rescind, or to claim damages. This session will provide practical guidance on how to avoid the pitfalls of pre-contractual representations, including:

• What is a pre-contractual representation? Understanding the various types:
  • Innocent misrepresentation
  • Negligent or fraudulent misrepresentation
  • Representation amounting to misleading or deceptive conduct
• The legal effect of pre-contractual representations
• When pre-contractual representations affect the risk management of contracts
• Managing the risk of pre-contractual representations – the role of exclusion clauses, entire agreement clauses, non-reliance statements and other contractual protections
• Case study: Estoppel by pre-contractual representation
• Case study: Misrepresentation amounting to an unconscionability claim

Session 3: Interpreting Commercial Contracts: When the Parties Fail to See Eye to Eye

Parties typically don’t worry about how a contract will be interpreted until the parties no longer see eye to eye. Understanding how the courts will interpret your client’s contract is key, especially when things go wrong. This session will:

• Understanding the guiding principles of contractual interpretation and rules of construction

• How the courts find the objective intention of the parties

• How is ambiguity addressed when it arises?

• Contextual facts and the consideration of extrinsic evidence

• When can the court change the words in a contract?

• Equitable remedies available

• Case update