Commercial law

Services

Ellery Brookman offers a wide range of commercial services. We understand that fast and competent service is crucial in the commercial sphere, where deals can be lost due to slow turnaround of documents or poor or ineffective communication with the other party.

We can assist you with any of the following:

(a) Reviewing of contracts with which you are presented in order to ensure the contract doesn't contain any commercially inappropriate or unreasonable provisions, and ensuring that you understand its legal effect;

(b) Negotiating required changes with the other party where you instruct us to do so, bearing in mind the strength of your particular negotiating position;

(c) Drafting contracts to say what you need them to say and ensuring your legal interests are protected to reduce your exposure to liability and litigation.

(d) Preparing or reviewing commercial leases and arranging renewal, extension, variation or surrender documents;

(e) Drafting or reviewing loan agreements and mortgages;

(f) Setting up business structures such as trusts, partnerships and companies;

(g) Preparing partnership and shareholder agreements to record the arrangements between business partners (including the crucial matters of division of profits and arrangements in the event that one party wishes to retire from the partnership);

(h) Preparation of buy/sell agreements to set out arrangements where one partner in a business dies or becomes totally and permanently incapacitated, including buy/sell agreements funded by life insurance (see "Wills and estate planning" on this website for further information on buy/sell agreements);

(i) For businesses, preparation of or review of your client contracts or your standard "terms and conditions"; and

(j) Registration of leases or lodging of caveats for lessees to protect their interest in leased property.

We will work closely with you and your other professional advisors including your financial advisor, accountant and insurance broker (in respect of the insurance and indemnity clauses of your contract).

We believe in doing things right the first time. A properly drafted document can save you thousands of dollars and many sleepless nights in the future, and we take pride in knowing that our documents are always drafted precisely and with consideration to the latest legal developments.

Transfer of commercial real property into self managed super

Recent amendments to superannuation legislation have opened the way for gearing in superannuation, which will see self-managed superannuation – previously a vehicle of use only for those nearing retirement – become an important estate planning vehicle for Generations X and Y.

If your accountant or financial advisor recommends the sale or transfer of commercial real property into your self-managed superannuation fund, we can assist you with the preparation of the required documentation and complete all aspects of the transaction for you at extremely competitive prices.

FAQ

Q. Why are legal contracts so long? Can’t you just keep it simple?

A. The reality is that you are not going to be pulling out your legal contract every day and consulting it for the answer every time a business or personal decision is required. Most people never look at their contract again after their lawyer has laboured for a week to draft it. Contracts are often largely unnecessary – when everything is going well. The idea of a contract is to ensure that if things are starting to look like they’re not going so well, the parties can look to the contract for the answer as to who is in the right. Our goal is to ensure that when things turn “pear-shaped” and the parties look to the contract … the person in the right will be you.

This is why contracts are so long. Three quarters of most contracts are generally devoted to saying what will happen if things go wrong. As it is impossible to predict which of the many and varied ways that things can go wrong will apply in your case, modern contracts simply address them all. The risk of shortening the contract is that the clause you cut out could be the one that dealt with the particular thing that goes wrong in your deal. The decision to shorten a lengthy contract, therefore, depends on whether you are feeling lucky.

Q. What are the “indemnity” clauses in my contract? My eyes glaze over if I try to read them.

A. There is often a provision headed “insurance and indemnities” in commercial contracts. It requires you to hold certain insurances and you should always check with your broker to make sure that you either do hold those insurances or can get them (and can otherwise comply with the insurance requirements). Never sign a contract that requires you to get insurance on a basis that your broker says is impossible.

This clause also details a series of indemnities which are often in convoluted legalese and appear to make no sense at all. These are promises by you that you will pay money to or on behalf of the other party if things go wrong, where you wouldn’t have necessarily have had to do so if you hadn’t signed a contract which includes that clause. It is imperative that you understand what you are letting yourself in for here. It is also vital that you show the indemnity clauses to your insurance broker. They will tell you whether you have cover for the promises you are making, or whether, if you make these promises and wind up having to pay, the money will be coming out of your own pocket.

There are things which can be done in terms of legal drafting to make these clauses significantly less onerous than they usually are. We strongly recommend that you allow us to review these clauses even if we don’t review anything else in your contract. If something goes wrong (such as death, injury or damage to very expensive machine) they can cost you everything.