The Electricity Retail Code

The Electricity Retail Code

Energy Law

The Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019 (the Code) applies to all electricity retailers that supply to small customers in the applicable distribution regions of New South Wales, South Australia and south-east Queensland.

The Code sets a cap on standing offer prices and specifies how prices and discounts must be advertised, published or offered.

I. Introduction

The Code is an instrument made under the Competition and Consumer Act 2010. The Code:

Places a cap on standing offer prices: standing offer prices must be set such that, were a small customer to be supplied in a financial year at those prices with the amount of electricity determined by the AER for the financial year under Part 3 (the model annual usage), the total amount the customer would have to pay for the supply would not exceed the price determined by the AER under that Part (the reference price) (see section 10); and

Regulates the advertising of offers by requiring prices to be compared to the reference price: small customers must be told how prices for supplying electricity compare with the reference price (see section 12); and

Regulates the advertising of discounts:  an advertisement for supplying electricity to small customers must not have a discount as its most conspicuous price‑related matter, and must state any conditions on discounts clearly (see section 14).

II. Operation alongside NECF

The Code, unlike the NERL and NERR, is a Commonwealth instrument. It is enforced by the ACCC rather than the AER and defines terms differently. In NECF jurisdictions, retail pricing is also regulated by the AER’s Retail Pricing Information Guidelines.

For example, a small customer is defined in the Code to be a customer with or without controlled load who uses electricity principally for personal, household or domestic use. A small customer is also defined to include a small business who uses less than 100 MWh per annum who is not charged a controlled load tariff or a flexible tariff.

The Code does not apply to embedded network customers, those with pre-paid meters or those whose supply includes a demand tariff. Further, solar Feed-in Tariffs are to be ignored for the purposes of calculations under the Code.

III. Subdivision A: Caps on Standing Offers

Where there is a reference price and model annual usage in force, a retailer must ensure that its standing offer is at or below that reference price.

The Code says that: ‘The standing offer prices comply with the price cap if the total amount a representative customer, who was a small customer of that type, would be charged for the supply of electricity in the region in the year at the standing offer prices would not exceed the reference price.’

IV. Subdivision B: Advertising 

There are two ‘options’ for advertising, publications and offers that are subject to the Code.

Option 1: Advertising, publications and offers that are subject to the Code must:

a. Include the difference between the reference price and the unconditional price as a percentage of the reference price;

b. For each proportional conditional discount mentioned in the advertisement, publication or offer, include the difference between the unconditional price and the conditional price for the discount as a percentage of the reference price; and

c. Include the lowest possible price.

Option 2: The alternative to Option 1 is for a retailer to ‘state the total amount the electricity retailer estimates the small customer would be charged for the supply of electricity in the region in the year, assuming that the conditions on all conditional discounts (if any) mentioned in the offer were met.’

V. Advertising Conditional Discounts

Additional requirements apply to the advertising of conditional discounts. These are that:

a. The conditional discount must not be the price‑related matter that is mentioned most conspicuously in the advertisement; and

b. The advertisement must state the conditions on the conditional discount clearly and conspicuously.

VI. Key Terms

To understand these obligations, it is necessary to review the definitions of key terms used in the Code:

conditional price for a proportional conditional discount means the total amount a representative customer would be charged for the supply of electricity in the financial year at the offered prices, assuming that the conditions on the discount were met and disregarding any other conditional discounts.

lowest possible price means the total amount a representative customer would be charged for the supply of electricity in the financial year at the offered prices, assuming that the conditions on all conditional discounts (if any) mentioned in the advertisement, publication or offer were met.

proportional conditional discount means a conditional discount that is calculated as a proportion of all or part of the amount a small customer is charged for the supply of electricity at the offered prices.

unconditional price means the total amount a representative customer would be charged for the supply of electricity in the financial year at the offered prices, disregarding any conditional discounts.

Legal Assistance for Individuals

Legal Assistance for Individuals

Private Law

In challenging times: we work together

 

 

These are challenging times for many. Apart from the clear health impacts of the current situation, many have now lost employment and are facing financial hardship.

The purpose of this page is to provide information for individuals who have been affected by COVID-19.  If you have any feedback on the information provided on this page please get in touch.

What you will find on this page:

  • Free document generators including to request hardship assistance;
  • Information on how you can obtain free or reduced fee legal assistance;
  • Resources. 

Table of Contents

Generate a free letter requesting assistance

Complete the form below if you have lost your job and you need to request help from your bank, energy, internet, or phone provider. This is provided for free by Law Quarter.

Am I able to go out (NSW)?

Many are finding it difficult to understand the government’s latest instructions on when it is possible to go out. Use our simple tool to check.

Helpful Resources

Support Services

Beyond Blue provides information and support to help everyone in Australia achieve their best possible mental health, whatever their age and wherever they live.

Call: 1300 224 636 (24×7 Support)

Visit: http://www.beyondblue.org.au


Kids Helpline is is a free, 24×7 phone and online counselling service for young people aged 5 to 25.

Call: 1800 55 1800 (24×7 Support)

Visit: https://kidshelpline.com.au


Lifeline is a national charity providing all access to crisis support and suicide prevention services.

Call: 13 11 14

Visit: whttp://www.lifeline.org.au


WIRE stands for Women’s Information and Referral Exchange Inc. and is a Victorian (only) organisation offering free information, support and referrals for women, by women.

Call: 1300 134 130 (Monday to  Friday: 9:00am – 5:00pm except public holidays)

Visit: https://www.wire.org.au

Financial Support

National Debt Helpline: Get free and independent assistance by speaking to one of National Debt Helpline’s Financial Counsellors.

Call: 1800 007 007 (Monday to Friday: 9:30am – 4:30pm)

Visit: http://www.ndh.org.au


MoneySmart offer free, independent guidance so you can make most of your money.

Visit: https://www.moneysmart.gov.au

Free Legal Assistance

If you require legal assistance, please contact us. We may be able to assist you even if you don’t have funds to pay for legal services. For certain matters we act on a pro bono basis. Legal Aid is also an option for NSW residents. Our Principal, Connor James, is on the Civil Law and Family Law panels of Legal Aid NSW.

COVID-19: Working from Home

COVID-19: Working from Home

Private Law

COVID-19: Working from Home

COVID-19 has caused disruption to many around the world and is set to continue to do so. The consequences are multifaceted and extend into many aspects of our everyday life. 

We are now seeing more and more businesses preparing to direct employees to work from home. As those businesses dust off their business continuity plans, they are also forced to quickly consider the steps that are needed to be taken to implement remote work. 

In this post we share our experiences with a remote workforce- both the benefits and the lessons. The key is to plan, execute, and prepare to adjust your processes and policies in response to feedback from your employees. 

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Legal work in 2020 is nothing like it was 50 years ago. Software empowers remote work by making it easier to communicate and to provide legal services. At Law Quarter, we use Titan to review and generate contracts, Zoom for video conferencing, Slack to communicate between our teams, and Clio to track our work. 

At Law Quarter, you could say we have flexible working arrangements. All full time staff enjoy the discretion to work from home at any time and without notice. Flexibility requires trust and trust in your employees pays dividends. However, having your employees work from home does require planning and thought to be effective. 

Step One: Prepare your Systems, Processes and People

To prepare for remote work, ensure that you have the systems and processes in place to support your employees. 

Systems

Examine and evaluate the software you need to work effectively. Consider speaking to those in similar industries or companies to see what works and what does not work for them. As we note above, we use a range of SaaS  products in the delivery of legal services.  

Where you are using specialist software or proprietary databases consider implementing VPNs for staff to use to connect. 

A range of large software providers are offering free subscriptions during the COVID-19 crisis, including Zoom (see here) and others.

Security continues to be a key concern. If your employees are using laptops ensure that they have up to date software and comprehensive anti-virus software installed.  

Processes

Ensure that you have processes in place to support your clients and staff while your company operates remotely. 

This may mean changes to your existing processes and policies or the development of new processes and policies. Contact us if you would like free assistance with remote work policies and procedures. 

People

Clearly explain your plans and expectations to your employees. Give them the opportunity to participate in the decision-making process and give them the opportunity to identify and resolve potential challenges. 

Ensuring that your employees are safe is a key concern, so ensure that you have processes in place that verify the safety of their home-work set up. There are a variety of online courses available that help employees understand how to set up a safe home work-place.  Your business will remain responsible for the health and safety of your employees as they work from home.

Step two: Set up your Employees for Success

There are a variety of safety risks that need to be managed effectively for at home workers. These include ensuring that your employees are set up with a work station that is safe, that your employees have a good chair and, where possible, a standing desk, and that their monitor and desk are set up for maximum ergonomic efficiency. 

Beyond concerns with physical safety, you should ensure that your employees are supported with the mental health challenges that follow from working in isolation. Consider running ‘virtual meetings’ on a regular basis, check in with your employees to ensure that they are not overworked and overstressed and ensure that they have access to mental health services. 

Keep communication channels open to your employees. With Zoom, you can keep a meeting ‘open’ so that employees can check in with you when they need to. To do so, simply start a meeting and have your mic on mute. 

Step Three: Monitor, Engage, and Improve

You will need to continually monitor the effectiveness of your work from home program. This will involve ensuring that your employees are safe, engaged, and satisfied. 

Avoid assuming that business will operate ‘as usual.’ Adjustments will be required on an individual and organisation basis. 

When monitoring the effectiveness of your work from home program, ask yourself what you could do better and ensure that you listen to the feedback given to you by employees. That feedback may mean that you need to change the systems and processes you use and may mean that you need to make adjustments on an ongoing basis. 

Who to Contact for More Information

Please get in touch if you have any questions or concerns. 

COVID19: Contractual Obligations of Musicians

COVID19: Contractual Obligations of Musicians

Private Law

COVID-19: A Guide for Musicians

For musicians and others in the performing visual arts, COVID-19 has been disastrous. While many events and public performances have now been cancelled, resulting in a loss of income- others remain in a state of limbo.

This has left many performers wondering if they are required to attend and perform at events  scheduled over the coming months. This uncertainty has added to the already overwhelming stress experienced by these people. 

The legal concepts discussed below can work for and against musicians- a double edged sword. Musicians and other performers rely on events and gigs to survive. As a result, in many cases, the best outcome would be for event organisers and performers to work together to ensure that the industry remains viable with this, hopefully, temporary set back. This may be effected by rescheduling events or by conducting virtual events. Targeted Government support is also urgently needed.

 

Summary

If you are worried about your obligation to perform you should:

1. Review your contract;

2. Check if your contract includes a ‘termination for convenience’ or ‘force majeure’ clause; and

3. Negotiate with the organisers on a without prejudice basis – draw their attention to the risks and to possible solutions.

Finally, given the Governments recent announcements on support for small business, consider if you should register for PAYG and speak with your accountant.

Table of Contents

Termination for convenience

Your first port of call in understanding your obligations with respect to upcoming events and performances is your contract.

Should your contract expressly provide for ‘termination for convenience’ it will be open to you to rely on such a clause provided that you ensure strict compliance with its terms. A termination for convenience clause allows the benefiting party to terminate the contract for any reason. 

A termination for convenience clause removes the need to wait for a breach, repudiation, frustration, or some other stated termination trigger. When it comes to performances and events, termination for convenience is often only permitted prior to the promotion of an event.

Force Majeure is an expression that derives from French Civil Law. A force majeure clause is a risk allocation mechanism used to limit the liability of a party for events which delay, restrict, or hinder the performance of the contract – where such events are beyond the control of the parties and fall within defined triggers. 

The party seeking to rely on a force majeure clause has the ‘burden of proof.’ i.e. is required to prove that the clause has been triggered. The triggers of a force majeure event often include acts of God such as fire, storms, earthquakes, and floods, as well as civil unrest, strikes, riots, and acts of war or terrorism. As COVID-19 has and will continue to have far reaching consequences, a force majeure clause may be triggered even where the clause does not specify that an epidemic or pandemic is a trigger i.e. triggered as a result of a consequence of COVID-19.

Force majeure is different to frustration. Force majeure is a contractual construct and typically operates to suspend performance. Frustration, on the other hand, operates where the performance of the contract is impossible or radically different and termination results. As such, force majeure can only be relied upon if express provision is made for it within the contract (it cannot be implied as a term of the contract). 

 Unfortunately, as force majeure is a contractual construct, and is limited in operation by the clause itself which is often poorly drafted, a force majeure clause may not be of assistance to you. 

The common law principle of frustration may come into play where performance of a contract becomes impossible or illegal. For example, in the case of Taylor v Caldwell, a licence to use a music hall for a series of performances was held to be frustrated when the hall burnt down. As a result, the owner of the hall was not liable to reimburse the hirer for advertising expenses and the hirer was relived from the obligation to pay the licence fee for use of the hall. 

A contract will be frustrated where, without the default of either party, circumstances would result in performance being radically different from that originally contemplated in the contract. So the question is (as expressed in Brisbane City Council v Group Projects Pty Ltd by Stephen J:)  ‘how dramatic must be the impact of an allegedly frustrating event. To what degree or extent must such an event overturn expectations, or affect the foundation upon which the parties have contracted…’

In considering frustration, a court will look at whether events were foreseeable at the time the contract was made. Consequently, it will be harder to argue that COVID-19 has frustrated a contract made yesterday than it would be if the contract had been made in November 2019.  

There are some clear cases where a contract will be frustrated: such as when a musician has been given an order by a government department to isolate themselves for a set period of time that corresponds to a performance. 

The more difficult question is whether frustration occurs where there are voluntary recommendations from health officials but nothing else or perhaps where a performer’s existing medical condition may lead to their health being compromised if they were to be exposed to the virus. Where this is the case, or where you are worried regardless, the best course of action is to obtain legal advice.  If your legal advice is that you have no basis to not perform, you can then speak to the organisers on a without prejudice basis to express your concerns and to ask for a resolution. In doing so, you should be careful to not say that you are not willing and able to perform your contractual obligations.  

If you are concerned about an upcoming performance or event, you should first consider your contractual rights including under any termination and force majeure provisions.

In any event, where you are concerned, we recommend that you speak to the organiser to seek a resolution. Any such discussion should be on a without prejudice basis and you should take care to ensure that you are not repudiating the contract. If ever there were a time for people to work together and support one another, this is it.  

–  –  –

On a final note, many musicians and others in the industry are self-employed. Many in the industry are also paid cash-in-hand. If you are a small business who is not registered for PAYG (which does not mean you need to register for GST), consider doing so now. The Government’s recently announced support schemes for small business will be administered via the PAYG system- meaning if you are not registered and do not report wages, you will miss out altogether. 

Free Advice Sesions

This Thursday (19 March 2020) we will be providing free advice to musicians during 40 minute one-on-one Zoom sessions. To register your interest, complete the form below. 

Who to contact for more information

Our lawyers are here to support you with advice and representation. Please contact us if you have any concerns or questions. 

AEMC issue paper on the uptake of electric vehicles in Australia

AEMC issue paper on the uptake of electric vehicles in Australia

Energy Law

The Australian Energy Market Commission (AEMC) has published a new issues paper examining the impact of the uptake in electric vehicles in Australia on the energy market.

The issues paper examines a variety of aspects of the uptake including the potential for new electric vehicle products and services, charging stations and their impact on the grid, and the benefits provided by electric vehicles in promoting more efficient use of existing infrastructure.

The AEMC has recognised that: “if we get ahead of the curve, we can make sure this technology makes a positive contribution to our future power system and doesn’t become another cost driver.”

The Numbers

Between 2018 and 2019 the sales of electric vehicles increased by more than 200%. In 2009, 6700 electric vehicles were sold in Australia. There are currently over 1930 public vehicle charging stations in Australia. The primary driver of the uptake of electric vehicles has been cost.

Australia currently has 22 battery and plug-in hybrid electric vehicle models available and it is expected that that number will increase by at least nine during 2020. The AEMC notes that while the global uptake of electric vehicles is expected to continue to increase substantially over the coming decade, the actual rate of increase is uncertain.

Electric vehicle charging stations

The number of public charging stations in Australia increased by 143% between June 2018 in July 2019. There are three categories of recognised electric charging stations:

  • Level one being charging via an existing standard power point;
  • Level two being a dedicated electric vehicle charger: typically found in homes, shopping centres, hotels and workplaces; and
  • Level three being fast charging units: typically found in commercial premises or en-route highway locations.

Interestingly, the AEMC considers the application of s 88 of the National Energy Retail Law in the context of the sale of energy from an electric vehicle charging station. Section 88 provides that any person who sells energy to a person for premises in the NEM is required to have a retail authorisation or hold an exemption.

The AEMC notes that the Australian Energy Regulator considers that the sale of energy to a person for premises captures electric vehicle charges at home or at a small business but does not apply to commercial electric vehicle charging stations.

The Role of the Retailer

In its paper, the AEMC examines the role of an energy retailer with respect to the electric vehicle market. The AEMC notes that electric vehicle charging habits will be primarily shaped by convenience.

The electrification of Australia’s passenger vehicle fleet is expected to materially increase electricity consumption in Australia and will change markets underlying residential demand profile. The AEMC notes that this presents an opportunity for retailers to develop innovative products for electric vehicle consumers who are likely to have greater consumption than non-electric vehicle consumers.

One limitation of the existing market framework is that a consumer is only able to have a single financially responsible market participant (FRMP) at each connection point. This limitation is familiar to those market participants who are registered as small generation aggregators (SGAs). Should the limitation be removed, it may be possible, for example, for a single customer to engage with separate service providers with different responsibilities i.e. for air-conditioning load, hot water, pool pumps and electric vehicle charging.

The question of multiple FRMPs was examined in the 2015 review of a proposed AEMO rule change conducted by the Commission where it was found that it would be uneconomical to enable multiple FRMPs at the one connection point. The commission has recognised that this question warrants further examination given evolutions in the market.

Submissions on the issues paper are invited until 19 March 2020 using the AEMC’s website under the project reference code RPR0012.

Complying with Australian Privacy Law

Complying with Australian Privacy Law

Commercial Law

Many businesses believe that once they have a privacy policy in place, they are compliance with the Privacy Act and Australian Privacy Principles. This is not the case.

Who is bound by the Privacy Act 1988?

The first step in determining your obligations under the Privacy Act is to determine if you are required to comply.

Businesses that have had annual turnover of more than $3 million in any year since 2002 must comply with the Privacy Act. Annual turnover is calculated by including income from all sources but excludes assets held, capital gains, and the proceeds of capital sales. The Privacy Act also covers a number of business regardless of turnover where, for example, that business is a health services provider or trades in personal information.

What are your obligations under the Privacy Act?

if your business is required to comply with the Privacy Act, it must comply with the Australian Privacy Principles (APPs).

The APPs include various obligations setting out how you must collect, store, de-identify, use, and disclose personal information.

The concept of personal information is broad and it can be difficult to determine whether information is personal information. Personal information is defined in the Privacy Act to be information or an opinion about an identified individual, or individual who is reasonably identifiable: whether the information or opinion is true or not; and whether the information or opinion is recorded in a material form or not.

Personal information is further categorised into sensitive information, health information, credit information, employee record information, and tax file number information. Additional obligations apply to each of these further subcategories.

Is a Privacy Policy All that is Needed?

A business that is required to comply with the Privacy Act must have a clearly expressed up-to-date privacy policy pursuant to APP 1.3. Our sister business Compliance Quarter has developed a tool that reviews privacy policies against the requirements set out in APP 1.4 giving you a report with recommendations in a matter of seconds. To access the privacy policy tool, click here.

Businesses obligations under the APPs do not end with the publication of a privacy policy. The business must ensure that it takes reasonable steps to implement practices, procedures and systems so as to comply with the APPs. In practice this means ensuring that you, for example,  must only collect personal information that you require and for the purposes disclosed, that you securely store personal information, that you destroy or de-identify personal information when it is no longer needed, and that you are careful about how you disclose personal information.

Going to court- the basics

Going to court- the basics

Criminal Law, Private Law

For most people, going to court is not an everyday experience. It can be stressful, disruptive and expensive. If you are aware that you need to go to court it is imperative that you contact a solicitor as soon as possible.

If you are going to court for a criminal matter you should check the details provided to you on your Court Attendance Notice or bail form. You must make sure that you are in the court on that date and time.  When preparing for court, you should review all of the paperwork provided to you. If you have not been given paperwork, you should ring the police and obtain a copy or instruct your solicitor to do so.

You can check your court date and time on this website. The NSW Online Registry will usually tell you which court number your matter is listed at. It will also often tell you who the presiding officer is for your matter.

You should dress neatly and formally for your court appearance. You should arrive at the court early. You will need to enter the building and go through security. You will usually find signs to the court number your matter is to be heard in.

You should bow as you enter the court room towards the registrar or magistrate. You should ensure that your phone is off. When your matter is called you should sit at the table facing the registrar or magistrate. You should address a registrar as ‘Registrar’ and a magistrate or judge as ‘Your Honour.’ If you are unsure about orders made you should ask the registrar or judge to repeat them to you.

If you have a matter listed for court, you can contact our lawyers to attend on your behalf. Ensure that you call us as soon as possible so that we can adequately prepare to get you the best possible outcome.

Time in the police station

Time in the police station

Criminal Law

Spending time in a police station is a daunting experience for most. It is imperative that you call your solicitor if you have been taken to a police station or if you have been asked to go to the police station.

When you are at a police station, police will typically seek to question you about the relevant events and may seek to conduct certain forensic procedures.  In other words, they will carry out an investigation. There are time limits placed on police under legislation that are designed to limit the amount of time of detention for the purposes of investigation.

Pursuant to s 115 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) -, the investigation period is determined by what is reasonable in all the circumstances, up to a maximum of six hours, subject to specific ‘time out’ periods. Time out periods mean periods of time that do not count towards the maximum period and these include the time that you spend talking to a solicitor, and time allowed for medical assistance being provided to you.

Police may apply for an extension of the maximum period of time from a Local Court Magistrate, Local Court Registrar, or an employee of the NSW Attorney-General’s Department.

The right to silence

The right to silence

Criminal Law, Private Law

If you have been charged with a crime you should contact a solicitor immediately. Typically, your solicitor will tell you that you have a right to silence and will tell you to refuse to answer any questions from police. The right to silence literally means that you do not have to say anything, give information or answer questions. Even if the Police ask you a direct question, you have the right to not answer it.

Criminal lawyers

Police will typically ask you questions about whether you were at a location at a time, whether you recognise someone in CCTV footage, and what you were doing at a particular time. The right to silence means that if you refuse to answer, police cannot assume your guilt as a result of your silence.

There are some exceptions and modifications to the right. Exceptions to the right to silence include where police ask for your identification- i.e. name and address- where they have the right to do so. Also, if your car was involved in a serious crime then you are obliged to give the police details of the driver and any passengers at the time of the offence.

These days, thanks to s 89A of the Evidence Act 1995 (NSW) your solicitor may refuse to come and visit the police with you in relation to an offence that you have been, or are at risk of being, charged with.

Before the introduction of s 89A, police would issue a general caution that anything you say could be used in evidence against you and they would tell you that you have the right to remain silent. Since 1 August 2013 and pursuant to s 89A, police can now give a special caution in certain circumstances.

When police give you a special caution they will tell you that a) you do not have to say or do anything, but it may harm your defence if you do not mention something when questioned that you later rely on in court, and (b) anything that you do or say be used in evidence. This means that, after receiving the special caution, by remaining silent, you may jeopardise your defence in court if you fail to mention things you rely on during questioning.

A special caution may not be given unless you are accompanied by a solicitor who is acting for you. As a result, solicitors will often refuse to come to the police station and will prefer to give you advice over the phone.

GST clauses

GST clauses

Commercial Law

GST clauses are an essential feature of a contract as they allow a vendor/supplier to claim GST from its purchaser/customer.  Despite their significance and the fact that these clauses are found in almost every contract, they are frequently ill-drafted, and insufficient consideration is given to the wording and whether it properly reflects and protects the GST position of the party.

When GST clause is missing

When a GST clause is missing from a contract then the vendor’s duty to pay GST and the purchaser’s entitlement to claim GST is reliant on GST legislation. Without such a clause the vendor does not have a contractual right to a GST reimbursement nor the purchaser the right to a GST credit.

The inclusion of the GST clause recognises that GST is a matter that the parties are conscious of and can make an informed assessment on.

Drafting considerations

When a GST clause is badly drafted, it may not be defended in court.  As a consequence, one of the parties may end up incurring an additional 10% charge of the purchase price which may lead to further unintended charges such as stamp duty.

The following points should be considered when drafting a GST clause:

  • The basis of the clause will depend on the parties entering the contract, so give careful consideration to the parties’ roles before drafting.
  • Ensure that the contract is clear on whether the contract price is inclusive or exclusive of GST.
  • Ensure that the specific requirements of the GST Act are considered. For example, ensuring that requirements that satisfy exemption have been included if the sale is being treated as GST free supply of a going concern.
  • Include a provision which allows the price to be increased by 10% if it turns out that GST is applicable; and the vendor to issue a tax invoice to the purchaser at such time. This will provide the vendor with the opportunity to recover GST from the purchaser if it becomes payable (in addition to the contract price).

However, it is a good idea for practitioners to draft on the basis that the transaction is subject to GST until it is otherwise satisfied.