KMB Legal | 10 Tips for a Successful Personal Injury Claim in QLD

How Is Pain and Suffering Compensation Calculated in Queensland?

Tue, 27 Oct 2026 14:00:18 GMT

PERSONAL INJURY

How Is Pain and Suffering Compensation Calculated in Queensland?

If you have been injured in an accident, you may hear compensation for “pain and suffering” discussed as part of your personal injury claim.

By Katie Chan

Pain and suffering is different from compensation for lost wages, medical expenses or future treatment. It is intended to compensate an injured person for the impact the injury itself has had on their life.

In Queensland, this component of compensation is generally referred to as general damages. For claims governed by Queensland's statutory personal injury regimes, general damages are assessed using an Injury Scale Value (ISV) system. For CTP claims, for example, the Motor Accident Insurance Commission explains that an ISV between 0 and 100 is used to assess general damages.

However, the ISV is only one part of a personal injury claim. The total compensation available can include a number of other types of loss.

What does “pain and suffering” compensation cover?

General damages are intended to compensate for the non-economic consequences of an injury.

This can include the impact of:

physical pain;
ongoing symptoms;
disability or impairment;
loss of enjoyment of life;
reduced ability to participate in recreational or social activities; and
the overall effect of the injury on everyday life.

MAIC describes general damages in Queensland CTP claims as compensation for matters including pain, suffering and loss of quality of life.

Unlike a medical bill or a specific period of lost wages, these consequences cannot simply be calculated by adding up receipts.

Queensland legislation therefore uses the ISV framework to provide a structured method of assessing general damages.

Pain and suffering compensation may also form part of a motor vehicle accident claim in Queensland. If you have been injured in a car or motorcycle accident, our Gold Coast motor vehicle accident lawyers can advise you about your potential CTP compensation entitlements, including general damages for pain and suffering.

What is an Injury Scale Value?

An Injury Scale Value, or ISV, is a numerical value used to represent the severity of an injury for the purpose of calculating general damages.

The scale runs from 0 to 100.

At the lower end are injuries that attract little or no general damages. At the upper end are injuries of the most serious kind.

Queensland's Civil Liability framework contains injury categories and corresponding ISV ranges that are used when assessing an injury. MAIC confirms that the current CTP framework refers to the Civil Liability Regulation 2025 for the rules, injury categories and ISV ranges used in the assessment.

The ISV is then converted into a monetary amount using the applicable indexed general damages provisions.

This means that an ISV of, for example, 10 does not mean that a person receives 10% of their total compensation claim.

It relates specifically to the assessment of general damages.

How is the appropriate ISV determined?

An ISV is not selected simply by looking at the name of an injury.

The nature and severity of the injury and its consequences must be considered within the applicable legislative framework.

Medical evidence is therefore important.

Depending upon the injury, relevant evidence may include reports from:

treating doctors;
orthopaedic surgeons;
neurologists;
psychiatrists;
psychologists;
rehabilitation specialists; or
other appropriate medical experts.

The medical evidence may address matters such as diagnosis, treatment, prognosis, ongoing symptoms and the likely long-term effects of the injury.

Does permanent impairment determine pain and suffering compensation?

Permanent impairment can be important, but it should not automatically be treated as interchangeable with an ISV.

Different Queensland compensation schemes use different statutory concepts and assessment processes.

For example, the workers' compensation scheme uses assessments of degree of permanent impairment (DPI) for certain statutory and common law purposes, while general damages for pain and suffering are separately dealt with under the relevant legislative framework. WorkSafe explains that the assessment of common law damages can take account of the degree of impairment alongside other evidence and losses.

This distinction is important when trying to understand the value of a claim.

Does the length of recovery matter?

It can.

Two people can suffer injuries with similar initial diagnoses but experience very different recoveries.

One person may recover relatively quickly and return to their usual activities. Another may experience persistent pain, require surgery or rehabilitation, or continue to have restrictions long after the accident.

The medical evidence about the course of the injury and prognosis can therefore be significant.

In many claims, it may be difficult to properly assess the long-term consequences of an injury until the medical position has become sufficiently clear.

What if you have more than one injury?

Many accidents cause multiple injuries.

For example, a person injured in a motor vehicle accident might suffer:

a knee injury;
a shoulder injury;
a spinal injury; and
a psychological injury.

The calculation is not necessarily performed by independently valuing each injury and simply adding all of those amounts together.

The applicable Queensland ISV rules address the assessment of multiple injuries and their combined impact.

The particular approach will depend upon the injuries and the statutory scheme applying to the claim.

This is one reason that online compensation calculators can provide a misleading impression of what an actual personal injury claim may be worth.

Can psychological injuries be included?

Yes , psychological or psychiatric injuries can be relevant to a personal injury claim where the applicable legal requirements are satisfied.

Queensland's injury assessment framework includes mental disorders within the ISV system.

A psychological injury may arise independently or alongside a physical injury.

For example, following a serious accident, a person may develop a diagnosed psychological condition in addition to their physical injuries.

The existence of symptoms alone does not automatically establish an entitlement to compensation. Medical evidence, causation and the requirements of the particular compensation scheme remain important.

Is pain and suffering the same as the total compensation payout?

No.

This is one of the most important distinctions to understand.

General damages are only one potential component of a personal injury claim.

Depending upon the circumstances, damages may also include compensation for:

Past economic loss

Income lost between the accident and settlement because of the injury.

Future economic loss

Loss of future earning capacity where the injury is expected to affect the person's ability to earn income in the future.

Lost superannuation

Loss of employer-funded superannuation associated with past or future loss of earnings may also be relevant.

Medical and rehabilitation expenses

This may include reasonable expenses associated with treatment, rehabilitation, medication and other injury-related costs.

Future treatment

Where medical evidence indicates that treatment will be required in the future, those costs may form part of the damages assessment.

Care and assistance

In some circumstances, compensation may also be available in relation to care and assistance required because of the injury, subject to the applicable legal requirements.

WorkSafe similarly identifies pain and suffering, past and future economic loss and past and future medical expenses as components that may form part of a Queensland workers' common law damages claim.

This means a person's overall compensation cannot be determined simply by knowing their ISV.

How is pain and suffering assessed in a Queensland car accident claim?

Queensland motor vehicle accident compensation claims are made through the compulsory third party (CTP) insurance scheme.

Where general damages are available, MAIC confirms that they are calculated using the ISV system. The purpose of the system is to provide greater consistency between similar injuries and between injuries having similar effects on a person's life.

However, not every injury necessarily results in an award of general damages.

MAIC states that only injuries sufficiently serious to qualify attract general damages under the scheme. MAIC

The total CTP claim may also include other losses, such as past and future loss of income and treatment-related expenses.

For more information about the broader damages claim, read What Compensation Can You Claim After a Car Accident in Queensland?

What about a public liability claim?

General damages may also form part of a public liability claim where the injured person establishes an entitlement to damages.

Examples might include injuries arising from incidents at:

shopping centres;
commercial premises;
recreational areas;
footpaths;
rental properties; or
other public or private premises.

The value of the overall claim depends upon considerably more than the initial injury diagnosis.

What about a workplace injury?

Workers' compensation is different because Queensland has both statutory compensation and, in appropriate circumstances, common law damages.

Statutory compensation can include weekly benefits, medical and rehabilitation expenses and lump sum compensation for permanent impairment.

A common law damages claim is different. It involves establishing that the employer breached its duty of care and that the breach caused injury and loss.

Where a worker establishes a common law claim, damages can include pain and suffering together with other losses such as economic loss and medical expenses.

Why can two people with similar injuries receive different compensation?

Because the value of a personal injury claim is not determined solely by the name of the injury.

Consider two people who both sustain a knee injury.

One may:

recover after conservative treatment;
return to full-time employment;
resume normal recreational activities; and
require little future treatment.

The other may:

require surgery;
develop ongoing pain;
be unable to return to physically demanding employment;
require future treatment; and
experience a permanent reduction in earning capacity.

Even if both injuries initially appear similar, the financial and personal consequences can be very different.

The total damages in each claim may therefore differ substantially.

Does your age or occupation affect compensation?

These factors can be relevant to some components of the overall claim.

For example, age, occupation, employment history and likely remaining working life may be important when assessing future economic loss.

WorkSafe identifies factors including a worker's likely remaining working years, employment circumstances, impairment and income history when assessing common law damages.

However, these factors should not simply be confused with the assessment of the ISV itself.

General damages and economic loss are separate heads of damage.

Can you calculate your claim using someone else's settlement?

Usually not reliably.

It can be tempting to compare a claim with a friend, family member or a reported case involving a seemingly similar injury.

However, personal injury claims are highly fact-specific.

Differences can arise in relation to:

the exact injury;
recovery;
medical prognosis;
age;
occupation;
earnings;
future earning capacity;
treatment requirements;
care needs;
liability;
contributory negligence; and
the applicable statutory scheme.

A reported settlement figure may also represent the entire claim, rather than simply the amount awarded for pain and suffering.

What if you were partly responsible for the accident?

A person's own conduct can sometimes affect the amount of damages ultimately recovered.

Where contributory negligence is established, damages may be reduced to reflect the injured person's share of responsibility.

This is a separate issue from determining the medical severity of the injury itself.

It can nevertheless have a significant effect on the final amount recovered.

Should you settle before your injury has stabilised?

Care should be taken when considering settlement while the long-term medical outcome remains uncertain.

Depending upon the circumstances, questions may remain about:

whether surgery will be required;
whether symptoms will improve;
whether the person can return to their previous employment;
whether restrictions will be permanent;
future treatment costs; and
future earning capacity.

Once a personal injury claim is finally settled, it will ordinarily resolve the damages claim.

For example, WorkSafe explains that after a common law settlement is finalised, the worker acknowledges that they will not be able to seek further money from the insurer or employer for the work-related injury.

This makes medical evidence and prognosis particularly important when assessing whether a claim is ready to resolve.

How much is my personal injury claim worth?

There is no single formula that can accurately value every Queensland personal injury claim.

The ISV system provides a framework for assessing general damages, but the overall value of a claim may also depend upon economic loss, treatment expenses, future care, liability and the individual consequences of the injury.

The appropriate assessment therefore requires consideration of the claim as a whole.

This article provides general information only and is not legal advice. Personal injury entitlements and the assessment of damages depend upon the circumstances of the claim and the statutory scheme that applies.

Personal injury lawyers on the Gold Coast

KMB Legal assists clients with Queensland personal injury

claims arising from motor vehicle accidents, workplace injuries

and public liability incidents.

Our Gold Coast personal injury lawyers can advise on the

compensation that may be available and the evidence required

to properly assess a claim.

Free 30-minute initial telephone consultation.

How to Get a Divorce in Australia: Step-by-Step Guide

Tue, 27 Oct 2026 12:20:30 GMT

Family Law

How to get a divorce in Australia

A Step-by-Step Guide

Separating from your spouse can be a difficult time, particularly when you are also making decisions about your children, finances and future. Understanding the divorce process in Australia can help you approach the next steps with greater clarity and confidence.

By Katie Chan

In Australia, divorce is generally a straightforward legal process where the eligibility requirements are met. However, it is important to understand that obtaining a divorce is different from resolving property settlements, parenting arrangements and other financial matters.

At KMB Legal, our Gold Coast family lawyers assist clients with divorce applications and the legal issues that can arise following separation.

Who Can Apply for Divorce in Australia?

Australia has a no-fault divorce system under the Family Law Act 1975 (Cth). This means the Court does not consider who was responsible for the breakdown of the marriage.

The only ground for divorce is that the marriage has broken down irretrievably, demonstrated by the parties having separated for at least 12 months with no reasonable likelihood of resuming their relationship.

To apply for divorce in Australia, you must generally satisfy the following requirements:

Separation: You and your spouse have been separated for at least 12 months and one day before filing the application.
Connection to Australia: You or your spouse must meet the relevant Australian citizenship, domicile or ordinary residence requirements.
Valid marriage: You must provide a marriage certificate or other evidence of the marriage accepted by the Court.
Arrangements for children: If there are children of the marriage under 18, the Court must be satisfied that proper arrangements have been made for their care, welfare and development, or that there are circumstances justifying the divorce being granted despite those arrangements.

You do not need your spouse's agreement to obtain a divorce, provided you satisfy the legal requirements.

How to Apply for Divorce in Australia: Five Steps

Step 1: Confirm You Meet the Divorce Requirements

Before applying, confirm that you have been separated for at least 12 months and one day and meet the Australian jurisdictional requirements.

You do not necessarily need to have lived in separate homes throughout the separation period. In some circumstances, spouses can be considered separated while continuing to live under the same roof.

If you reconciled for a period during separation, additional rules may apply when calculating the required 12-month period.

Step 2: Decide Whether to Make a Joint or Sole Application

There are two ways to apply for divorce.

Joint divorce application

A joint application is made by both spouses. Both parties participate in the application process, and formal service of the application on the other spouse is not required.

A joint application can be a practical option where the parties are communicating and agree to proceed with the divorce.

Sole divorce application

A sole application is made by one spouse without the other spouse joining the application.

You do not need your spouse's consent, but you will generally need to arrange for the application and supporting documents to be formally served on them.

Special requirements apply where your spouse cannot be located or service cannot be completed in the usual way.

Step 3: Prepare and File Your Divorce Application

Divorce applications are generally filed electronically through the Commonwealth Courts Portal and dealt with by the Federal Circuit and Family Court of Australia.

You will usually need:

A copy of your marriage certificate.
Information about the date of separation.
Details of any children under 18.
Information establishing your connection to Australia, where required.
Supporting affidavits or other documents if your circumstances require them.

Additional documentation may be necessary if you were married overseas, separated under one roof or cannot locate your spouse.

Once the application is filed and the fee is paid, the Court will allocate a hearing date.

Step 4: Serve the Application if Required

If you make a sole application, you must generally serve the divorce documents on your spouse within the required timeframe.

The usual minimum service periods are:

28 days before the hearing if your spouse is in Australia.
42 days before the hearing if your spouse is overseas.

You cannot personally serve the divorce application on your spouse yourself. Service must be carried out using an accepted method, and evidence of service must be filed.

If your spouse cannot be located or ordinary service is impracticable, you may be able to apply for substituted service or dispensation of service.

Step 5: Attend the Hearing if Required and Obtain Your Divorce Order

Not every divorce application requires attendance at a Court hearing.

Whether attendance is necessary depends on factors including whether the application is joint or sole, whether there are children under 18, and whether there are outstanding issues concerning service or the application.

The Court will consider whether the legal requirements for divorce have been satisfied.

If the divorce is granted, it ordinarily becomes final one month and one day after the divorce order is made, unless the Court makes a different order.

You should not arrange to remarry until your divorce has taken effect.

How Much Does a Divorce Cost in Australia?

The cost of a divorce depends on the Court filing fee and whether you require legal assistance.

The Federal Circuit and Family Court of Australia charges a filing fee for divorce applications. Eligible applicants may qualify for a reduced fee.

Court fees are reviewed periodically, so it is important to check the current amount before filing.

If you engage a family lawyer, legal fees will depend on the work required. A straightforward joint application will generally involve less work than a sole application involving difficulties with service, separation under one roof or disputed circumstances.

At KMB Legal, we can discuss the process and anticipated legal costs based on your individual circumstances.

How Long Does a Divorce Take in Australia?

You must be separated for at least 12 months and one day before applying for divorce.

After filing, the timeframe depends on the Court's hearing availability, whether the application is complete, and whether there are any issues with service or supporting evidence.

If the Court grants the divorce, the order ordinarily takes effect one month and one day later.

Accordingly, while the divorce application itself may be relatively straightforward, the overall process can take several months after filing.

Can You Get Divorced While Living Under the Same Roof?

Yes. It is possible to be legally separated while continuing to live in the same home.

This is commonly referred to as separation under one roof. For example, spouses may remain in the family home for financial reasons, because of their children or while alternative accommodation is being arranged.

However, simply stating that you were separated may not be sufficient. The Court may require affidavit evidence explaining how the marital relationship changed.

Relevant circumstances may include:

Sleeping in separate bedrooms.
Changes to financial arrangements and household responsibilities.
Whether you continued to socialise or present yourselves as a couple.
Whether family members or friends were informed of the separation.
Changes to the emotional and practical aspects of the relationship.

The evidence required will depend on the circumstances, including whether the application is joint or sole.

What if You Were Married Overseas?

You can potentially obtain a divorce in Australia even if your marriage took place overseas.

You must satisfy the Australian jurisdictional requirements and provide evidence of a valid marriage.

If your marriage certificate is not in English, you will generally need to provide an English translation and the required supporting documentation.

Issues can arise where marriage certificates are incomplete, difficult to read or unavailable. Legal advice may assist in determining what alternative evidence or supporting affidavit material is needed.

What Happens if You Have Children?

A divorce application does not automatically determine where children live, how much time they spend with each parent or how parental responsibility is exercised.

These are separate family law matters.

Where there are children of the marriage under 18, the Court must consider whether proper arrangements have been made for their care, welfare and development before granting a divorce, subject to the statutory exception.

Parents may be able to reach agreements about parenting arrangements through negotiation, mediation or family dispute resolution.

Depending on the circumstances, those arrangements may be documented in a parenting plan or formalised through consent orders.

Where an agreement cannot be reached, Court proceedings may be necessary.

The paramount consideration in determining parenting arrangements is the best interests of the child. For more information about parenting arrangements following separation, read our article on equal shared parental responsibility and family law .

Does Divorce Automatically Divide Your Property?

No. Divorce and property settlement are separate legal processes.

A divorce legally ends the marriage. It does not automatically divide assets, transfer ownership of property, determine spousal maintenance or resolve financial arrangements.

A property settlement may involve consideration of:

The family home and investment properties.
Bank accounts, savings and liabilities.
Superannuation.
Businesses and company interests.
Family trusts and other financial structures.
Financial and non-financial contributions.
The parties' current and future circumstances.

Importantly, you do not need to wait until you are divorced to negotiate or formalise a property settlement.

Is There a Time Limit for Property Settlement After Divorce?

For married couples, an application for property settl ement or spousal maintenance must generally be commenced within 12 months after the divorce becomes final, unless an exception applies.

If this period expires, Court permission may be required to commence proceedings.

For this reason, it is often advisable to obtain legal advice about property settlement before finalising a divorce, particularly where there are substantial assets, businesses, trusts or complex financial arrangements.

This article provides general information about Australian family law and is not a substitute for legal advice tailored to your circumstances.

Frequently Asked Questions About Divorce in Australia

Speak With a Gold Coast Divorce Lawyer

Although divorce is often a relatively straightforward legal process,

the decisions made during separation can have significant consequences

for your property, finances and children.

At KMB Legal , our Gold Coast family lawyers provide practical advice on

divorce applications, separation, property settlements, parenting arrangements

and related family law matters.

Whether you are considering separation, preparing a divorce application or

seeking to finalise your financial arrangements, we can help you understand your

legal position and available options.

We offer a free 30-minute initial telephone consultation.

What to Do After a Motor Vehicle Accident in Queensland

Mon, 26 Oct 2026 19:00:00 GMT

PERSONAL INJURY - MOTOR VEHICLE ACCIDENTS

What to Do After a Motor Vehicle Accident in Queensland

If you have been injured in a motor vehicle accident, the steps you take afterwards can be important for both your recovery and any compensation claim you may be entitled to make.

By Katie Chan

A motor vehicle accident can happen without warning. In the days and weeks afterwards, you may be dealing with injuries, medical appointments, time away from work and uncertainty about what to do next.

Queensland has a compulsory third party (CTP) insurance scheme that may provide access to treatment, rehabilitation and compensation where a person is injured in a motor vehicle accident caused wholly or partly by another driver.

Understanding the steps to take after an accident can help protect your position and ensure important evidence and time limits are not overlooked.

1. Seek Medical Attention

Your health should be the immediate priority following an accident.

Some injuries are obvious at the scene, while others may become apparent later. Even if your symptoms initially seem minor, consider obtaining appropriate medical assessment.

Medical records can also become important evidence in a CTP claim because they document your injuries, symptoms, treatment and recovery.

Continue to follow appropriate medical advice and attend recommended treatment or rehabilitation. Under Queensland's CTP scheme, reasonable and appropriate treatment and rehabilitation may be funded where the relevant requirements are met.

Motor vehicle accidents can also result in psychological injuries, either independently or alongside physical injuries. Read more about Psychological Injury Claims in Queensland.

2. Record Details of the Accident

If you are able to do so safely, gather as much information as possible about the accident.

Useful information can include:

the other vehicle's registration number;
the other driver's name and contact details;
the driver's licence details;
details of any witnesses;
photographs or video of the vehicles and accident scene;
the location, date and time of the accident;
road and weather conditions; and
details of any conversations at the scene.

Photographs taken shortly after an accident can be particularly useful because vehicles may later be repaired and the accident scene may change.

Keep copies of documents relating to the accident and your injuries together.

3. Report the Accident to Police

Queensland Police require certain traffic crashes to be reported, including crashes involving an injury requiring medical attention, a driver who fails or refuses to provide required details, or a vehicle that has to be towed.

There is another important reason to report an accident if you have been injured: a traffic crash must be reported to police to make a Queensland CTP insurance claim.

You should obtain the traffic incident number, commonly referred to as t he QP or QPrime number, as this is required for the Notice of Accident Claim Form. If the accident has not already been reported and you intend to make a CTP claim, MAIC advises reporting it at a police station so that a QP number can be obtained.

4. Keep Records of Your Injuries and Expenses

A personal injury claim is not determined simply by the fact that an accident occurred. The consequences of the injury for the particular person are important.

Keep records of matters such as:

medical appointments and treatment;
medications;
rehabilitation and physiotherapy;
out-of-pocket medical expenses;
travel associated with treatment;
time away from work;
payslips and evidence of lost income; and
assistance you require because of your injuries.

It can also be useful to keep a simple record of how your injuries affect your work, household activities and everyday life.

5. Understand Queensland's CTP Scheme

CTP insurance is attached to registered motor vehicles in Queensland.

If another driver was wholly or partly responsible for an accid ent that caused your injuries, a claim will generally be made against the CTP insurer of the vehicle that caused the accident.

You do not necessarily need to have been driving a vehicle yourself. Depending upon the circumstances, claims may involve drivers, passengers, pedestrians, cyclists and other road users.

If you were partly responsible for the accident, that does not necessarily prevent you from making a claim. However, your compensation may be reduced to reflect your contribution to the accident.

If you were entirely at fault, or nobody else was at fault — for example, some single-vehicle accidents — compensation ordinarily will not be available through the fault-based CTP claim process.

6. Lodge a Notice of Accident Claim

A Queensland CTP claim is commenced by lodging a Notice of Accident Claim Form with the relevant CTP insurer.

MAIC currently allows injured people to register through the Queensland CTP portal or use the Notice of Accident Claim Form for non-fatal injuries. Supporting information is required, and the completed claim form must be printed and signed in the presence of an eligible witness.

If you know the registration number of the vehicle that caused the accident, the relevant CTP insurer can be identified through MAIC.

What If the Vehicle Was Unregistered or Cannot Be Identified?

There are special arrangements where the vehicle responsible for an accident was unregistered or cannot be identified , including some hit-and-run accidents.

In those circumstances, a claim may be made against the Nominal Defendant rather than an ordinary CTP insurer.

Different and particularly strict time limits can apply to these claims, so early advice is important.

What Are the Time Limits for a CTP Claim in Queensland?

This is one of the most important parts of the process.

Strict time limits can apply to personal injury claims, including CTP claims following a motor vehicle accident. Read more in How Long Do You Have to Make a Personal Injury Claim in Queensland?

For most claims, t he Notice of Accident Claim Form must be lodged by the earlier of:

nine months after the accident, or nine months after symptoms first appear if the injury was not immediately apparent; or
one month after first consulting a lawyer about the possibility of making a claim.

I f the at-fault vehicle cannot be identified, notice to the Nominal Defendant generally must be given within three months of the accident. I f notice is not given within nine months in an unidentified-vehicle claim, the claim against the Nominal Defendant is barred.

There can be circumstances in which a late claim is accompanied by an explanation or reasonable excuse, but you should not assume that a late claim will be accepted.

For that reason, it is preferable to obtain advice well before any deadline approaches.

What Compensation Can Be Claimed?

The compensation available depends upon the individual circumstances, including the nature and severity of the injuries and their consequences.

Depending on the claim, compensation may include amounts relating to:

Medical treatment and rehabilitation

This may include reasonable and appropriate treatment and rehabilitation associated with the accident.

Loss of income

Compensation may be available for income lost because an injury prevents or limits a person's ability to work, including in appropriate cases future loss of earning capacity.

Care and assistance

In some circumstances, the effect of an injury on a person's need for care, assistance or services may form part of the assessment.

Pain and suffering

Depending upon the nature and severity of the injury, compensation may include general damages for the impact of the injury.

Every claim is different. The amount of compensation cannot be determined simply from the type of accident or diagnosis. The amount of compensation available depends on the individual circumstances and the losses caused by the injury. Read more about How Personal Injury Compensation Is Calculated in Queensland.

What Happens After a CTP Claim Is Lodged?

Once a claim has been lodged, the insurer will investigate the circumstances of the accident and the injuries claimed.

You may be asked to provide documents, medical information, photographs or other records. You may also be required to attend a medical examination or assessment.

Treatment and rehabilitation may continue while the claim progresses.

It is generally important not to finalise a claim before the longer-term effects of the injuries can be properly assessed. Once a claim is settled, the settlement ordinarily brings the compensation claim to an end.

Do I Need a Lawyer to Make a CTP Claim?

You are not required to have a lawyer to make a Queensland CTP claim and may deal directly with the insurer.

However, MAIC itself notes that legal advice may be appropriate where a claim is complex or disputed.

Legal advice can also assist in identifying the appropriate insurer, complying with time limits, gathering evidence, assessing the consequences of an injury and considering whether a proposed settlement adequately reflects the claim.

This can be particularly important where injuries are significant, recovery is uncertain or the accident has affected a person's capacity to work.

Injured in a Motor Vehicle Accident?

The period following an accident can be difficult, particularly where an injury affects your ability to work or carry out your usual activities.

Obtaining advice early can help you understand the CTP process, applicable time limits and the evidence that may be required to support your claim.

If you have been injured in a car accident and need advice about your compensation entitlements, our Gold Coast motor vehicle accident lawyers can assist with Queensland CTP claims, insurer negotiations and settlement advice.

KMB Legal assists clients with motor vehicle accident and CTP claims across the Gold Coast and Queensland.

Speak With a Gold Coast Personal Injury Lawyer

KMB Legal assists clients with motor vehicle accident and personal

injury claims across the Gold Coast and Queensland.

We provide straightforward legal advice and direct access to an

experienced solicitor throughout your matter.

Free 30-minute initial telephone consultation.

Motor Vehicle Accident Claims QLD: Who Can Claim? | KMB Legal

Mon, 26 Oct 2026 18:55:03 GMT

PERSONAL INJURY - MOTOR VEHICLE ACCIDENTS

Motor Vehicle Accident Injuries in Queensland:

Who Can Claim Compensation?

If you have been injured in a motor vehicle accident in Queensland, you may be entitled to compensation for your injuries and associated financial losses.

Motor vehicle accidents can involve cars, motorcycles, trucks, buses and other vehicles. Injuries may range from relatively minor soft tissue injuries to serious physical or psychological conditions that affect your ability to work and carry out everyday activities.

Queensland's Compulsory Third Party (CTP) insurance scheme allows eligible injured people to pursue compensation where another party's negligence caused or contributed to the accident.

Understanding who can make a claim, what compensation may be available and the applicable time limits is an important first step.

By Katie Chan

Who Can Make a Motor Vehicle Accident Compensation Claim?

You may be entitled to make a CTP compensation claim if you were injured in a motor vehicle accident caused wholly or partly by another person's negligence.

Depending on the circumstances, eligible claimants may include:

Drivers: People injured while driving a vehicle where another party was wholly or partly responsible for the accident.
Passengers: People injured while travelling in a car, taxi, rideshare vehicle, bus or another motor vehicle.
Pedestrians: People injured after being struck by a motor vehicle.
Cyclists: Bicycle riders injured in accidents involving motor vehicles.
Motorcyclists: Motorcycle riders or passengers injured in road accidents.

Eligibility depends on the particular circumstances of the accident, including whether negligence can be established.

If you are unsure whether you qualify, our Gold Coast motor vehicle accident lawyers can assess your circumstances and explain your options.

Can You Claim Compensation if You Were Partly at Fault?

Being partly responsible for a motor vehicle accident does not necessarily prevent you from making a compensation claim.

Under Queensland law, a person's compensation may be reduced to reflect their contribution to the accident. This is known as contributory negligence .

For example, a driver may still have a claim where another motorist caused an accident but the injured driver also contributed to what occurred.

Whether compensation is available, and the extent of any reduction, depends on the evidence and circumstances of the accident.

What Happens if the At-Fault Vehicle Is Uninsured or Unidentified?

In Queensland, CTP insurance is generally attached to the registration of motor vehicles.

Where an accident involves an uninsured or unidentified vehicle, an injured person may be able to pursue a claim against the Nominal Defendant.

This can be relevant in circumstances such as:

A hit-and-run accident where the responsible vehicle cannot be identified.
An accident involving an unregistered vehicle without applicable CTP insurance.

Claims involving the Nominal Defendant have additional procedural requirements and can involve particularly short time limits.

If the responsible vehicle cannot be identified, it is important to seek legal advice promptly and preserve any available evidence, including photographs, witness details, dashcam footage and police reports.

What Compensation Can You Claim After a Motor Vehicle Accident?

The compensation available depends on the nature and severity of your injuries, the circumstances of the accident and the impact on your life.

Depending on your circumstances, you may be able to claim compensation for:

Past loss of income: Earnings lost because you were unable to work following the accident.
Future economic loss: Reduced earning capacity caused by ongoing injuries or permanent restrictions.
Medical and hospital expenses: Reasonable costs of medical appointments, investigations, hospital treatment and medication.
Rehabilitation expenses: Physiotherapy and other necessary rehabilitation or treatment.
Care and assistance: Eligible assistance required with personal care, domestic tasks or other everyday activities.
Pain and suffering: General damages for eligible injuries, assessed under the applicable Queensland legislation.
Other out-of-pocket expenses: Reasonable accident-related costs that are legally recoverable.

Not every category of compensation will apply to every claim. The amount recoverable will depend on the medical evidence, liability and the particular losses established.

How Does the Queensland CTP Claims Process Work?

Although every claim is different, the process generally involves several key stages.

1. Obtain Medical Treatment and Report the Accident

Seek appropriate medical attention and ensure your injuries are documented.

Report the accident to police where required and retain any relevant information, including photographs, registration details and witness contact information.

2. Identify the Relevant CTP Insurer

The claim will generally be directed to the CTP insurer of the vehicle alleged to be responsible for the accident.

If the vehicle is uninsured or unidentified, different arrangements may apply.

3. Prepare and Lodge the Claim

A Notice of Accident Claim Form and supporting information must be provided in accordance with Queensland's CTP requirements.

It is important to ensure the claim is lodged within the applicable time limits.

4. Gather Medical and Financial Evidence

Evidence may include medical records, specialist reports, employment information, income records and receipts for treatment and other expenses.

This information helps establish the nature of your injuries and the financial impact of the accident.

5. Assess and Negotiate Settlement

Once sufficient evidence is available and your injuries can be appropriately assessed, the insurer may make a settlement offer.

Before accepting an offer, it is important to consider the potential long-term effects of your injuries, including future treatment needs and loss of earning capacity.

Many claims resolve through negotiation without proceeding to a court hearing.

What Are the Time Limits for Motor Vehicle Accident Claims in Queensland?

Strict time limits apply to Queensland CTP compensation claims. Generally, a Notice of Accident Claim Form must be Generally, a Notice of Accident Claim Form must be given within:

Nine months of the accident, or
One month after first consulting a lawyer about the possibility of making a claim,

whichever occurs earlier.

Special rules and shorter time limits may apply, particularly for claims involving unidentified vehicles and the Nominal Defendant.

Court proceedings are also generally subject to a three-year limitation period, although exceptions and additional procedural requirements can apply.

A late claim may be possible in some circumstances, but it should never be assumed that an extension will be available.

Because the applicable requirements depend on the particular claim, obtaining legal advice promptly is important.

How Much Compensation Could You Receive?

There is no standard compensation amount for a motor vehicle accident injury in Queensland.

The value of a claim depends on factors including:

The nature and severity of your injuries.
Whether you are expected to make a full recovery.
The effect of your injuries on your employment and earning capacity.
Your medical treatment and rehabilitation requirements.
Any ongoing care or assistance you may require.
The extent to which another party was legally responsible for the accident.

A person with relatively minor injuries and a short recovery period may have a very different claim from someone experiencing permanent restrictions or significant ongoing financial losses.

It is important to assess the available medical and financial evidence before deciding whether a proposed settlement is appropriate.

Should You Accept an Insurance Settlement Offer?

Before accepting a final settlement offer, you should understand what compensation is being offered and whether it adequately accounts for your injuries and future needs.

A final settlement will generally prevent you from making a further claim for additional compensation arising from the same injuries.

This is particularly important where your medical condition has not stabilised or the long-term effect on your ability to work remains uncertain.

Obtaining legal advice before accepting a final offer can help you make an informed decision.

Speak With Our Gold Coast Motor Vehicle Accident Lawyers

If you have been injured in a car, motorcycle or other motor vehicle accident, KMB Legal

can help you understand your rights and the steps involved in making a Queensland

CTP compensation claim.

Our Gold Coast motor vehicle accident lawyers assist clients with claim preparation,

evidence gathering, insurer negotiations and settlement advice.

We offer a free 30-minute initial telephone consultation to discuss your circumstances

and how we may be able to assist.

What Happens If You Can’t Agree on a Property Settlement After Separation?

Tue, 20 Oct 2026 14:03:27 GMT

FAMILY LAW

What Happens If You Can't Agree on a Property Settlement After Separation?

Reaching agreement about property after separation is not always straightforward.

By Katie Chan

Former spouses or de facto partners may disagree about the value of assets, their respective contributions, what should happen to the family home, how a business should be treated, or what percentage of the property each person should ultimately receive.

If you cannot agree, it does not necessarily mean that you need to go straight to Court.

Australian family law provides several ways for separating couples to attempt to resolve a property dispute. In fact, before commencing most financial or property proceedings, parties are generally required to take genuine steps to try to resolve their dispute, unless an exemption applies.

How is a property settlement determined?

There is no automatic rule that property must be divided equally after separation.

The outcome depends upon the circumstances of the particular relationship.

Broadly, determining an appropriate property settlement involves considering matters including:

the parties' existing property, liabilities and financial resources;
financial and non-financial contributions;
contributions as a homemaker and parent;
relevant current and future circumstances; and
whether the proposed outcome is just and equitable.

The Court applies the principles contained in the Family Law Act 1975 when determining property disputes for both married and eligible de facto couples.

For a more detailed explanation, read How Is a Property Settlement Calculated After Separation in Australia?

What should happen if negotiations have stalled?

A disagreement does not necessarily mean negotiations have failed permanently.

Sometimes the difficulty is caused by a specific unresolved issue, such as:

the value of the family home;
the value of a business;
incomplete financial disclosure;
disagreement about contributions;
whether one person can refinance and retain the home;
how superannuation should be treated;
disagreement about particular liabilities; or
substantially different views about the appropriate overall division.

Identifying the issues actually preventing settlement can help determine the next step.

For example, obtaining a joint valuation of a property or business may narrow a dispute about value considerably.

Financial disclosure is an important part of the process

It is difficult to negotiate a property settlement properly if the parties do not have adequate information about their financial circumstances.

Parties to a family law financial matter have extensive disclosure obligations. The pre-action procedures also require parties, as far as practicable, to comply with their duty of disclosure by exchanging relevant documents before proceedings are commenced.

Disclosure may include documents relating to:

bank accounts;
property;
mortgages and other liabilities;
superannuation;
companies;
trusts;
businesses;
investments;
income; and
other relevant financial interests.

If one party is refusing to provide relevant financial information, this may need to be addressed before meaningful negotiations can occur.

Read Duty of Financial Disclosure in Family Law Property Settlements for more information.

Can solicitors negotiate a property settlement?

Yes.

Many property matters are resolved through negotiations between the parties and their solicitors without requiring a final Court hearing.

A solicitor can assist by identifying the relevant legal and factual issues, obtaining disclosure, arranging valuations where necessary, making or responding to settlement proposals and advising about the range of potential outcomes.

Written offers can also help narrow the issues between the parties.

The objective is not simply to exchange competing percentages. Effective negotiations should identify why each party says a particular outcome is appropriate and what practical arrangements are required to implement a settlement.

Can you use mediation?

Yes . Mediation or another form of dispute resolution can be particularly useful where direct negotiations have reached an impasse.

The Federal Circuit and Family Court of Australia requires prospective parties in financial matters to make inquiries about dispute resolution and, where it is safe and appropriate, participate in a dispute resolution process before filing proceedings, unless an exemption applies. This may include negotiation, conciliation or arbitration.

During mediation, an independent mediator assists the parties to explore whether an agreement can be reached.

The mediator does not determine the outcome for the parties.

If agreement is reached, the terms can then usually be documented and formalised.

What if the other person refuses to negotiate or mediate?

One person cannot force the other to agree to a property settlement.

However, refusing to engage does not necessarily prevent the matter from progressing.

The Court's pre-action procedures set out steps to be followed where dispute resolution is unsuccessful, unavailable, or another party refuses or fails to participate. These can include providing written notice of the issues in dispute, the orders that would be sought, and a genuine settlement offer before proceedings are commenced.

If reasonable attempts to resolve the dispute are unsuccessful, an application can ultimately be made to the Federal Circuit and Family Court of Australia.

There are exemptions from the usual pre-action requirements in certain circumstances, including some matters involving family violence, urgency or potential prejudice.

When might Court proceedings become necessary?

Court proceedings may become necessary where the parties cannot resolve the dispute despite genuine attempts to negotiate.

Proceedings may also be required where, for example:

a party refuses to provide disclosure;
there is a significant disagreement about the property available for division;
a business or trust structure requires investigation;
assets may be sold or dealt with;
one party refuses to participate meaningfully in negotiations;
urgent orders are required; or
the parties have fundamentally different positions that cannot be resolved.

Court proceedings do not necessarily mean the matter will ultimately proceed to a final trial.

Agreement can still be reached after proceedings have commenced. The Court's own information expressly recognises that parties may reach agreement at any stage of the proceedings.

What happens when a property case is filed?

A financial or property proceeding is generally commenced by filing an Initiating Application (Family Law), together with the other documents required by the Court.

These commonly include a Financial Statement, Financial Questionnaire, Genuine Steps Certificate and Undertaking as to Disclosure. Additional material is required in some circumstances, including where interlocutory orders are sought.

The Court then allocates the matter a first Court event and manages the case through the applicable case management pathway.

The process may involve further disclosure, valuations, dispute resolution and other procedural steps before a matter is ready for final determination.

Can the Court make temporary orders before the final property settlement?

Yes.

Sometimes an issue cannot wait until the entire property dispute is resolved.

A party may seek interlocutory orders, sometimes referred to as interim orders, while the substantive proceeding remains on foot. The Court's Financial Proceedings Practice Direction expressly provides for an Initiating Application to include an application for interlocutory orders.

The orders required depend upon the circumstances of the case.

For example, a dispute may arise concerning the sale of property or another financial issue that needs to be addressed before the final property settlement can be determined.

Urgent applications are dealt with under specific Court procedures, and urgency does not automatically mean that an earlier hearing will be granted.

What if the property settlement involves a business, company or trust?

Property settlements involving businesses, companies and trusts can be more complicated.

Issues may arise concerning:

the value of a business;
company shares;
retained earnings;
shareholder or director loans;
trust interests;
control of a trust;
business liabilities;
income generated by the business; and
the distinction between legal ownership and the broader financial circumstances of the parties.

Expert valuation evidence may also be required where the parties cannot agree on the value of a business or other significant asset.

For more information, read Complex Property Settlements: Businesses, Companies and Trusts .

What if you eventually reach an agreement?

Reaching an agreement is not the end of the process.

The parties should consider formally documenting their property settlement so that their financial relationship is properly resolved.

Two common options are:

Consent Orders ; or
a Binding Financial Agreement .

Consent Orders are orders agreed between the parties and made by the Court. The Court must be satisfied that proposed financial or property orders are just and equitable.

Read Property Settlement Consent Orders: How Do They Work? You can also read Consent Orders vs Binding Financial Agreements: What's the Difference?

What if no agreement is ever reached?

If the parties cannot resolve their dispute, the Court can ultimately determine the property settlement.

Each party can present their case and relevant evidence, and the Court will determine what orders should be made under the Family Law Act 1975 .

A final hearing is therefore available where agreement cannot be reached, but it is not the outcome of every property proceeding.

The Court describes litigation as a last resort after genuine attempts to resolve the matter have failed.

Are there time limits for starting property proceedings?

Yes , and they are important.

For a married couple, property proceedings generally need to be commenced within 12 months after a divorce order takes effect.

For a de facto couple, proceedings generally need to be commenced within two years after the breakdown of the de facto relationship.

Proceedings can sometimes be commenced outside these periods, but additional requirements apply. A person seeking to commence proceedings out of time may need the Court's leave.

Importantly, a married couple does not have to wait until they are divorced before resolving their property settlement.

If a limitation period is approaching, legal advice should be obtained promptly rather than allowing negotiations to continue indefinitely.

Does going to Court mean the other person pays your legal costs?

Not necessarily.

People should not assume that commencing or successfully defending family law property proceedings means the other party will automatically pay their legal fees.

Costs are a separate issue and depend upon the circumstances and the applicable family law principles.

The way parties conduct themselves can nevertheless have costs consequences. For example, the Court warns that unreasonable failure to comply with required pre-action procedures can result in an order to pay all or part of another party's costs.

This is another reason why genuine attempts to resolve a dispute should be taken seriously.

When should you get legal advice?

It can be useful to obtain advice before negotiations become entrenched.

Understanding your position can help you assess whether a proposed settlement is appropriate, what further information is required and whether a dispute could be resolved without Court proceedings.

Legal advice may be particularly important where:

there is substantial property;
a business, company or trust is involved;
one person is withholding financial information;
there are significant superannuation interests;
the family home needs to be sold or refinanced;
there are concerns about assets being disposed of;
negotiations have stalled; or
a limitation period is approaching.

Property settlement lawyers on the Gold Coast

Not agreeing at the beginning does not necessarily mean a property dispute

needs to end in a final Court hearing.

Negotiation, disclosure, valuations and dispute resolution can often help narrow the issues and may ultimately result in an agreement.

Where agreement cannot be reached, Court proceedings provide a process through which the dispute can be determined.

This article provides general information only and is not legal advice. Family law outcomes depend upon the individual circumstances of each matter .

Property settlement lawyers on the Gold Coast

KMB Legal's Gold Coast family lawyers assist clients with

property settlement negotiations, financial disclosure, mediation,

Consent Orders and property proceedings in the Federal Circuit and

Family Court of Australia.

Free 30-minute initial telephone consultation.

10 Tips for a Successful Personal Injury Compensation Claim in Queensland

Thu, 15 Oct 2026 10:33:25 GMT

PERSONAL INJURY

10 Tips for a Successful Personal Injury Compensation Claim in Queensland

If you have suffered an injury because of someone else's negligence, you may be entitled to claim compensation for your injuries, lost income, medical expenses and other losses.

By Katie Chan

Whether you have been injured in a motor vehicle accident , a workplace incident or a public place , the steps you take after your injury can affect your ability to pursue compensation.

Understanding your rights, obtaining appropriate medical treatment and keeping accurate records can help protect your interests throughout the claims process.

Here are 10 practical tips to help you prepare for a personal injury compensation claim in Queensland.

1. Seek Legal Advice Early

Personal injury claims can involve strict time limits , complex legal requirements and negotiations with insurers. Obtaining legal advice early can help you understand whether you may be entitled to compensation, what evidence you need and which deadlines apply to your circumstances.

Different rules apply depending on whether your injury arose from a motor vehicle accident, workplace incident or public liability matter.

An experienced personal injury lawyer can explain the claims process and help you avoid mistakes that may affect your entitlements.

2. Obtain Medical Treatment and Follow Your Doctor's Advice

Your health should always be your first priority following an injury.

Seek medical attention as soon as reasonably possible and continue attending recommended appointments. Tell your treating practitioners about all symptoms you experience, including pain, restricted movement, psychological symptoms and any difficulties with everyday activities.

Your medical records can provide important evidence of your injuries, treatment and recovery.

It is also important to follow reasonable treatment recommendations and discuss any concerns about your recovery with your doctor.

3. Keep a Record of Your Injuries and Symptoms

Not every consequence of an injury is immediately apparent.

Consider keeping a diary recording how your injuries affect your daily life, including:

Pain, discomfort and changes in symptoms
Difficulty sleeping or completing household tasks
Activities you can no longer perform or find difficult
Psychological symptoms associated with your injury
Medical appointments, treatment and rehabilitation
Changes in your ability to work

These records may help explain the ongoing impact of your injuries when your claim is assessed.

4. Report the Accident and Preserve Evidence

Where possible, report the incident to the appropriate person or organisation.

Depending on the circumstances, this may include your employer, the business responsible for the premises, the police or another relevant authority.

You should also preserve any available evidence, such as:

Photographs of the accident location and your injuries
Incident reports and relevant correspondence
Contact details of witnesses
Dashcam footage, CCTV footage or other recordings
Details of vehicles or other parties involved

Evidence can become harder to obtain over time, so early preservation is important.

5. Keep Accurate Records of Lost Income and Expenses

If your injury affects your ability to work, you may experience financial losses.

Keep copies of payslips, tax returns, employment records, medical certificates and correspondence relating to your employment. You should also retain receipts and records for expenses associated with your injury, including medical treatment, medication, rehabilitation and travel to appointments.

The types of losses recoverable will depend on the circumstances of your claim and the applicable legislation.

6. Discuss Changes to Your Working Capacity With Your Doctor

If your injuries make it difficult to perform your usual duties, speak with your treating doctor about your capacity to work.

Your doctor may recommend temporary restrictions, modified duties, reduced hours or time away from work. Where appropriate, obtain medical certificates documenting these recommendations.

Avoid making assumptions about what work you can or cannot perform. Your medical evidence and individual circumstances should guide decisions about your recovery and employment.

7. Obtain Advice Before Resigning or Changing Employment

An injury can have a significant impact on your employment and future earning capacity.

However, resigning, reducing your hours or accepting a different position may have consequences for your financial circumstances and compensation claim.

Before making significant employment decisions because of your injuries, consider obtaining both medical and legal advice.

Your lawyer can help you understand how changes in employment may affect the assessment of your claim.

8. Keep Your Lawyer Informed of Changes in Your Circumstances

Personal injury claims often take time to resolve, and your circumstances may change during the process.

Tell your lawyer about significant developments, including:

Changes in your medical condition
New treatment or specialist recommendations
Returning to work or changes in your duties
Changes in your income or employment
Further accidents or injuries

Keeping your lawyer informed helps ensure your claim is assessed using accurate and current information.

9. Obtain Witness Details and Keep Important Documents

Independent evidence can be particularly important where the circumstances of an accident are disputed.

If anyone witnessed the incident, record their name and contact details where possible.

Keep copies of relevant documents, including incident reports, emails, photographs and correspondence from insurers. Do not assume that an employer, business or other party will retain relevant evidence indefinitely.

Your lawyer may be able to assist in identifying and obtaining additional evidence.

10. Do Not Rush Into a Final Settlement

An early settlement offer may be tempting, particularly if you are experiencing financial pressure.

However, the full impact of an injury may not be apparent until your condition has stabilised and your future treatment needs and earning capacity can be properly assessed.

In many circumstances, accepting a final settlement will prevent you from seeking further compensation for the same injury.

Before accepting an offer, obtain legal advice about whether the proposed amount adequately reflects your injuries and recoverable losses.

Get Legal Advice About Your Personal Injury Claim

Every personal injury claim is different. Your potential entitlements

will depend on how the injury occurred, the evidence available, the

applicable law and the effect of your injuries on your life.

At KMB Legal, we assist clients across the Gold Coast and Queensland

with motor vehicle accident compensation, public liability claims and

other personal injury matters.

Our Gold Coast personal injury lawyers can explain the claims process,

help you understand your potential entitlements and provide guidance

tailored to your circumstances.

We offer a free 30-minute initial telephone consultation to discuss your

situation and how we may be able to assist.

Buying Property in Queensland: What Searches Should You Do Before Settlement?

Tue, 13 Oct 2026 14:15:19 GMT

PROPERTY LAW

Buying Property in Queensland: What Searches Should You Do Before Settlement?

Buying a property involves more than inspecting the home, obtaining finance and arranging a building and pest inspection.

By Katie Chan

Property searches can reveal information about the land, title, Council records and, where applicable, the body corporate that may not be apparent from physically inspecting the property.

The searches appropriate for a particular purchase will depend upon the property itself. A buyer purchasing a freestanding house may require different investigations from someone purchasing an apartment, townhouse, vacant land or investment property.

Although Queensland's seller disclosure laws now require sellers to provide certain information before a buyer signs a contract, seller disclosure is not a substitute for a buyer carrying out their own due diligence.

What are property searches?

Property searches involve obtaining information from government authorities, registers, Councils and other relevant bodies about a particular property.

Depending upon the property, searches can help a buyer investigate matters including:

ownership and registered interests;
easements and other dealings affecting the title;
survey information;
Council records;
rates and water information;
planning and zoning;
flood or other property-specific information;
body corporate records; and
other matters relevant to the intended use of the property.

Queensland Government services allow buyers to obtain title searches, survey plans and other property information.

1. Title search

A current title search is one of the fundamental searches when purchasing property.

Among other things, the title identifies the registered owner and registered interests affecting the land.

Depending upon the property, the title may refer to matters such as easements or other registered dealings that warrant further investigation.

It is important not only to identify an entry on the title but, where relevant, to understand what the underlying registered document actually provides.

For example, an easement may give another person or authority rights over part of the land.

2. Survey plan

A survey plan can provide information about the legal parcel of land being purchased.

Queensland Government property services allow copies of survey plans to be obtained together with title and other property products.

Depending upon the property and the buyer's concerns, additional advice from a registered surveyor may also be appropriate.

This may be particularly relevant where there are concerns about:

boundaries;
fences;
structures close to boundaries;
encroachments; or
the physical location of improvements.

A title or plan search should not be confused with having a surveyor physically survey the property.

3. Council searches

Local Council searches can provide additional information about a property.

The searches available and information provided vary between Councils.

Depending upon the property and the relevant local authority, searches may assist with investigating matters such as:

rates;
property records;
planning information;
building or development information; and
other Council-held records.

The appropriate searches should be considered in light of the particular property and the buyer's intended use.

For a Gold Coast property, this may involve searches and information held by the City of Gold Coast .

4. Rates and water information

Rates and water information is also relevant to the conveyancing process.

Amounts payable in relation to the property can be relevant to settlement adjustments so that responsibility for particular charges is appropriately apportioned between the seller and buyer under the contract.

The precise treatment of rates, water and other outgoings depends upon the contract and the particular charges involved.

These searches can therefore serve both a due diligence and settlement preparation function.

5. Planning and zoning information

A buyer should not assume that because a property is currently being used in a particular way, every future use they have in mind will necessarily be permitted.

Planning controls can become particularly important where a buyer intends to:

renovate or extend;
redevelop the property;
operate a business;
change the use of the property;
subdivide; or
undertake significant building work.

Where the intended use is important to the purchase decision, appropriate planning investigations may be required before the buyer becomes unconditionally bound.

6. Flood and other hazard information

Depending upon the location, buyers may also wish to investigate flood, overland flow or other hazard information relevant to the property.

This can be particularly important where the property's location or history raises concerns.

A search result does not necessarily predict whether a particular property will or will not be affected by a future event. However, available mapping and property information can help a buyer make a more informed decision.

7. Body corporate searches

If you are purchasing an apartment, townhouse or another property within a community titles scheme, the body corporate warrants particular attention.

Since Queensland's seller disclosure reforms commenced on 1 August 2025, buyers of body corporate properties receive additional information before entering the contract, including relevant body corporate documentation.

However, a buyer may still wish to investigate the body corporate's records in more detail.

Queensland Government guidance identifies potentially useful records including:

contracts entered into by the body corporate;
financial information;
committee meeting minutes; and
general meeting minutes.

These records can reveal matters that may be financially or practically important after settlement.

What can a body corporate records search reveal?

Depending upon the scheme and records available, a search may assist in identifying matters such as:

financial issues;
proposed expenditure;
significant maintenance;
disputes;
insurance information;
contracts with body corporate managers or service contractors;
decisions concerning common property; and
issues raised at committee or general meetings.

Queensland bodies corporate are required to retain various records, including accounting and financial records, insurance policies, correspondence, meeting minutes and certain contracts.

A buyer of a lot in a relevant community titles scheme is also among the people entitled to request access to body corporate records, subject to the applicable process and fees.

This is why a body corporate search can provide information beyond simply knowing the current quarterly levy.

What about body corporate levies?

The amount of the current levies is important, but buyers should consider the broader financial position of the scheme.

For example, a relatively modest current levy does not necessarily tell you whether substantial expenditure is being contemplated.

The current Queensland body corporate certificate provides buyers with information concerning the body corporate and the lot, including levies and other specified information. Buyers can also seek access to additional records where appropriate.

Meeting minutes and financial records can therefore be particularly useful when investigating a community titles property.

8. Easements and registered interests

An easement may allow another person or authority to use part of the property for a specified purpose.

Examples can include rights associated with:

access;
drainage;
sewerage;
utilities; or
services.

The existence of an easement does not necessarily mean a buyer should not purchase the property.

The important issue is understanding what rights exist and whether they affect the buyer's intended use of the land.

For example, an easement could potentially become relevant to plans for an extension, pool or other development.

9. Searches relevant to the particular property

There is no single search package that is appropriate for every Queensland property.

Additional investigations may be warranted depending upon matters such as:

the property's location;
age and type;
whether it is strata or community title;
proposed renovations;
intended development;
the buyer's proposed use;
matters disclosed by the seller; and
issues identified during the transaction.

The objective is not necessarily to order every conceivable search. It is to identify the searches that are appropriate for the particular property and the buyer's plans for it.

Doesn't the seller now have to disclose property information?

Yes , but this does not eliminate the need for buyer due diligence.

Queensland's statutory seller disclosure scheme commenced on 1 August 2025.

Most sellers must provide the buyer with a prescribed disclosure statement and prescribed certificates before the buyer signs the contract.

For community titles properties, the disclosure process also involves body corporate information.

For a detailed explanation, read Queensland Seller Disclosure Laws: What Property Sellers Need to Know.

The important point for buyers is that seller disclosure and buyer searches perform different functions.

The fact that something is not required to be included in the seller's disclosure material does not necessarily mean it is irrelevant to the buyer.

Should searches be done before signing the contract or before settlement?

This depends upon the search and the terms of the contract.

Some matters may be sufficiently important that they should be investigated before the buyer signs.

Others are commonly undertaken during the conveyancing period after the contract has been entered into.

The distinction matters because once a buyer signs a contract, their ability to terminate or require the seller to rectify an issue depends upon the terms of the contract and applicable law.

A buyer should therefore not assume that discovering an undesirable search result automatically gives them a right to withdraw from the purchase.

For more information about what should be considered before signing, read Buying Property in Queensland: What to Know Before You Sign a Contract.

Are property searches the same as building and pest inspections?

No.

They serve different purposes.

A building and pest inspection generally investigates the physical condition of the property, whereas legal and government searches investigate records and information associated with the land and property.

A buyer may therefore require both.

For more information, read Building and Pest Conditions in Queensland Property Contracts: What Buyers Need to Know.

What happens with searches at settlement?

Some searches and enquiries are also relevant to preparing for settlement.

Your conveyancer or solicitor will undertake the steps required to prepare the transaction for settlement, including dealing with relevant adjustments and settlement requirements.

Most Queensland conveyancing settlements are conducted electronically.

You can read more about the final stage of the transaction in Property Settlement in Queensland: What Happens on Settlement Day?

Why are property searches important?

The purchase price of a property is usually significant, and problems discovered after settlement can be difficult or expensive to address.

Searches can help a buyer understand more about what they are purchasing before the transaction is completed.

The appropriate searches will depend upon the property, but they can form an important part of the overall due diligence process.

This article provides general information only and is not legal advice. The searches appropriate to a property purchase depend upon the property, contract and buyer's individual circumstances.

Property lawyers and conveyancing on the Gold Coast

KMB Legal assists buyers with Queensland residential

property purchases, including contract reviews, conveyancing,

property searches and settlement.

Our Gold Coast property lawyers can advise on the searches

appropriate to the particular property and any issues identified

during the conveyancing process.

Free 30-minute initial telephone consultation.

Selling a Business in Queensland: What Should You Do Before Putting It on the Market?

Fri, 09 Oct 2026 05:05:41 GMT

COMMERCIAL & BUSINESS LAW

Selling a Business in Queensland: What Should You Do Before Putting It on the Market?

Selling a business is often more complicated than finding a buyer and agreeing on a price.

By Katie Chan

Before a Queensland business is placed on the market, a seller should understand exactly what is being sold, who owns the relevant assets, what third-party approvals may be required and whether there are legal or commercial issues that could delay or reduce the value of the sale.

Preparing early can also make the buyer's due diligence process easier and reduce the risk of problems emerging after a business sale contract has been signed.

Business Queensland recommends allowing as much time as possible to prepare a business for sale and addressing outstanding legal, taxation and superannuation matters before going to market.

1. Decide exactly what you are selling

One of the first questions is whether the transaction will be structured as an asset sale or a share sale.

In an asset sale, the buyer purchases specified assets used to operate the business. These might include:

goodwill;
plant and equipment;
stock;
intellectual property;
the business name;
customer information;
contractual rights; and
other assets identified in the contract.

In a share sale, the buyer acquires shares in the company operating the business. The company itself generally continues to own its assets and remain subject to its liabilities.

Business Queensland identifies asset sales and share sales as the two main methods of purchasing a business and notes the significant structural difference between them.

The appropriate structure can have substantial legal, taxation and commercial consequences.

For more information, read Buying a Business: Assets vs Shares — What's the Difference?

2. Check who actually owns the business assets

Sellers should not assume that everything used in the business is necessarily owned by the entity selling it.

For example:

equipment may be leased or financed;
vehicles may be registered to another entity;
intellectual property may be personally owned by a director or shareholder;
software may only be licensed;
premises may be leased;
equipment may be subject to finance arrangements; and
assets may be owned by a related company or trust.

This should be identified before the business is marketed.

If an important asset is owned by another entity, the transaction may need to be structured so that the buyer obtains the rights necessary to continue operating the business.

3. Review the ownership and business structure

Where the business is operated through a company, sellers should understand the company's ownership structure before entering negotiations.

This can include reviewing:

current shareholders;
share classes;
shareholder agreements;
company constitution;
director arrangements;
related entities;
trusts; and
agreements between owners.

A shareholders agreement or constitution may contain restrictions or procedures relevant to a proposed sale.

These issues become particularly important where not all shareholders intend to sell or where approval is required before shares or assets can be transferred.

4. Review the commercial lease

For many businesses, the lease is one of the most important components of the sale.

A café, restaurant, retail store, medical practice or other premises-based business may have little value to a purchaser if the purchaser cannot continue operating from the existing location.

Before marketing the business, a seller should review matters including:

the remaining lease term;
options;
current rent;
outgoings;
guarantees;
security deposits or bank guarantees;
assignment provisions;
landlord consent requirements;
permitted use; and
any existing breaches or disputes.

Business Queensland specifically recommends considering lease arrangements when preparing a business for sale and identifies leases among the legal documents that prospective buyers may want to review.

For more information, read Commercial Leases in Queensland .

5. Will the landlord consent to an assignment?

If the buyer will take over the existing lease, landlord consent may be required.

The lease should be checked to determine the assignment procedure and what information the landlord may require about the incoming tenant.

Depending upon the premises and lease, this could involve information about the proposed buyer's:

financial position;
business experience;
directors;
guarantors; and
ability to meet the lease obligations.

For retail shop leases, additional statutory requirements may also apply.

Landlord consent should not be left until the last minute if continued occupation of the premises is essential to the transaction.

6. Review important customer and supplier contracts

A prospective buyer will often want to understand which contracts contribute to the value and ongoing operation of the business.

These may include:

major customer contracts;
supplier agreements;
distribution agreements;
service agreements;
equipment leases;
software agreements;
franchise agreements; and
other long-term commercial arrangements.

Business Queensland recommends reviewing contracts and agreements to determine whether they can be transferred to a new owner.

Some agreements can be assigned. Others may require the other party's consent or contain change-of-control provisions.

A seller should identify these issues early.

7. Make sure important agreements are documented

A business may rely heavily on relationships that have developed informally over many years.

That may work while the existing owner operates the business, but it can make the business more difficult for a buyer to assess.

Business Queensland recommends formal written arrangements with customers and suppliers rather than relying solely on informal or verbal arrangements when preparing a business for sale.

Where appropriate, having important commercial relationships properly documented can provide a prospective buyer with greater clarity about what will continue after settlement.

8. Identify the intellectual property

Intellectual property can represent a substantial part of a business's value.

Depending upon the business, this might include:

registered trade marks;
business names;
logos;
websites;
domain names;
copyright;
designs;
proprietary processes;
software;
databases;
marketing material; and
other valuable intangible assets.

The seller should establish who owns these assets and whether they can be transferred.

The PPSR recognises that security interests can potentially relate to intangible assets, including certain intellectual property rights.

If valuable IP is owned outside the selling entity, that should be addressed before the transaction progresses.

9. Check the business name

The registered business name should also be considered.

A business name is not the same thing as a company name or a trade mark.

If the business name is included in an asset sale, arrangements will need to be made for the buyer to take over the registration following the applicable ASIC process.

The sale contract should clearly identify whether the business name is included.

10. Review PPSR registrations and security interests

Before a business is sold, sellers should identify whether assets included in the transaction are affected by existing security interests.

The Personal Property Securities Register (PPSR) is the national register of security interests in personal property.

It can apply to assets such as machinery, vehicles, stock and certain intangible property. Importantly, the PPSR records security interests rather than ownership.

A buyer may conduct PPSR searches as part of its due diligence. The official PPSR guidance expressly recommends searching to determine whether assets being acquired may be subject to another party's interest.

If relevant assets are subject to finance or other security interests, the seller may need to arrange appropriate releases or other steps as part of settlement.

11. Get the financial records in order

A prospective purchaser will generally want to investigate the financial performance of the business.

Business Queensland recommends that a seller preparing a business for sale collate financial information, and its guidance for selling privately refers to assembling financials for at least the previous three years.

Depending upon the business, a buyer may request information concerning:

profit and loss statements;
balance sheets;
tax returns;
BAS records;
sales information;
payroll;
expenses;
debtors and creditors;
stock;
major capital expenditure; and
financial forecasts.

The seller's accountant will often play an important role in preparing the business for sale.

12. Identify related-party transactions

Related-party arrangements can become an issue during due diligence.

For example, the business might:

lease premises from a related entity;
use equipment owned by a director;
receive management services from another company;
borrow money from shareholders;
share employees with another business; or
use intellectual property owned elsewhere.

These arrangements should be identified so the seller can explain whether they will continue after settlement or need to be replaced.

A buyer needs to understand what the business wil l look like after the seller and its related entities are no longer involved.

13. Prepare for buyer due diligence

A well-prepared seller should expect a buyer to conduct due diligence.

The buyer may want to investigate:

financial performance;
assets and liabilities;
material contracts;
leases;
employees;
intellectual property;
licences;
disputes;
regulatory matters;
insurance;
PPSR registrations; and
other risks associated with the business.

Business Queensland recommends preparing documents for prospective buyers and specifically identifies financial, operational and legal records as part of the sale process.

For more information, read Due Diligence When Buying a Business in Queensland .

14. Protect confidential business information

Selling a business usually requires giving prospective buyers information that would not ordinarily be made public.

That may include:

financial results;
customer information;
pricing;
margins;
supplier arrangements;
business strategies;
employee information; and
proprietary information.

Sellers should consider how information will be disclosed and whether a confidentiality agreement or non-disclosure agreement (NDA) should be entered into before sensitive mat erial is provided.

Access to particularly sensitive information can also be staged so that more detailed material is only provided once a prospective buyer has demonstrated genuine interest.

Privacy obligations should also be considered where personal information is involved.

15. Consider employees before the sale

Employees can be one of the more complicated parts of a business sale.

The parties should determine:

which employees may be offered employment by the buyer;
how accrued entitlements will be dealt with;
whether service will be recognised;
whether redundancies may arise;
how employee information will be disclosed; and
when employees should be informed.

Under the Fair Work framework, a transfer of business can occur where specified requirements are met, including where an employee begins working for the new employer within three months, performs the same or substantially the same work and there is the required connection between the employers.

A new employer must recognise prior service for some employee entitlements, while different rules can apply to matters including annual leave, redundancy, long service leave and certain other entitlements.

The employment consequences should therefore be considered before the business sale contract is finalised.

16. Check licences, permits and approvals

Some businesses cannot operate without particular licences or regulatory approvals.

Examples may include businesses operating in hospitality, childcare, health services, building and construction or other regulated industries.

A seller should identify:

what licences the business currently relies upon;
who holds them;
whether they can be transferred;
whether the buyer must make a new application; and
how long approval is likely to take.

If a particular licence is essential to the business, the contract may need to make settlement conditional upon the buyer obtaining the required approval.

17. Decide what is included and excluded from the sale

The parties should not rely on assumptions about what comes with the business.

The seller should identify what will be included, potentially covering:

goodwill;
plant and equipment;
stock;
vehicles;
intellectual property;
business name;
website;
domain names;
telephone numbers;
customer databases;
social media accounts; and
other operating assets.

Any assets the seller intends to retain should also be identified.

Business Queensland recommends deciding what tangible and intangible assets will form part of the transaction before listing the business.

18. Consider stock and work in progress

Stock is often dealt with separately from the headline purchase price.

Before marketing the business, sellers should understand:

how stock will be valued;
whether there will be a stock cap;
whether obsolete or damaged stock will be excluded;
when the stocktake will occur; and
how stock will be paid for.

For service businesses, professional practices and businesses with long-running projects, work in progress may also require specific treatment.

The contract should make clear how these amounts will be determined.

19. Think about the restraint of trade

A purchaser paying for the goodwill of a business will commonly want protection against the seller immediately establishing a competing business and taking customers with them.

This may result in the proposed contract containing restraint provisions dealing with matters such as:

competing businesses;
geographical areas;
time periods;
customers;
suppliers; and
employees.

The appropriate scope depends upon the business and circumstances.

Sellers should understand the practical effect of a proposed restraint before agreeing to it, particularly if they intend to continue working in the same industry.

20. Obtain tax and accounting advice early

The way a business sale is structured can have significant taxation consequences.

Depending upon the circumstances, issues may include:

capital gains tax;
GST;
treatment of trading stock;
allocation of the purchase price;
employee entitlements;
company or trust consequences; and
other taxation matters.

Queensland transfer duty may also be relevant to the transaction. Queensland Revenue Office identifies a range of Queensland business assets that can be dutiable, including goodwill, business names, statutory business licences, franchise rights, intellectual property, trading stock and plant and equipment.

Taxation and accounting advice should therefore ideally be obta ined before the seller commits to the structure and commercial terms of the transaction.

21. Be careful with a heads of agreement

A seller may be asked to sign a document described as a:

heads of agreement;
term sheet;
memorandum of understanding;
offer; or
letter of intent.

The document might appear preliminary, but its legal effect depends upon its wording and circumstances.

It may also establish important commercial terms that become difficult to renegotiate later.

These can include:

purchase price;
deposit;
assets included;
due diligence period;
exclusivity;
confidentiality;
restraint provisions;
settlement date; and
conditions of the transaction.

Legal and accounting advice is therefore bes t obtained before, rather than after, the seller commits to the structure of the proposed deal.

22. Should you have a business sale contract prepared before finding a buyer?

Not necessarily in every case, but it is useful to consider the likely contractual structure before negotiations become advanced.

A business sale contract needs to deal with considerably more than price.

Depending upon the transaction, it may address:

assets included and excluded;
stock;
employees;
lease assignment;
conditions precedent;
licences;
warranties;
restraints;
adjustments;
settlement arrangements;
training and handover; and
default provisions.

Having the key issues identified early can make negotiations more efficient once a buyer is found.

23. What will the buyer investigate?

A buyer will generally want to know whether the business they think they are purchasing is actually the business they will receive at settlement.

That may mean asking questions such as:

Are the reported earnings sustainable?
Will the lease continue?
Can the key contracts be transferred?
Will important employees remain?
Does the seller own the IP?
Are assets subject to security interests?
Are licences transferable?
Are there undisclosed liabilities?
Are there disputes?
Are important customers likely to remain?

Sellers who anticipate these questions are generally better positioned to respond efficiently during due diligence.

24. What happens once a buyer is found?

Once the commercial terms have been negotiated, the parties will generally move towards preparing and signing the business sale contract.

There may then be a period between signing and settlement during which the parties deal with matters such as:

due diligence;
finance;
landlord consent;
employee arrangements;
licences;
third-party consents;
PPSR matters;
stocktake;
settlement adjustments; and
handover preparations.

Start preparing before the business goes on the market

The legal preparation for a business sale should ideally begin before a buyer has been found.

By reviewing the structure, assets, lease, contracts, employees, intellectual property, licences and security interests early, a seller has an opportunity to identify problems while there is still time to address them.

It can also make the business easier for a prospective purchaser to investigate and reduce the risk of an unexpected issue disrupting the transaction.

For an overview of the broader sale process, read Buying or Selling a Business in Queensland: Key Legal Considerations.

This article provides general information only and is not legal, taxation, accounting or financial advice. Business sales vary and advice should be obtained about the particular transaction and business structure.

Commercial and business lawyers on the Gold Coast

KMB Legal assists Queensland business owners with business sales,

including preparing and reviewing business sale contracts, commercial

leases, due diligence and settlement.

Our Gold Coast commercial and business lawyers can assist sellers from

the early stages of preparing a business for sale through to negotiation,

contract and settlement.

Free 30-minute initial telephone consultation .

Buying a Business in Queensland: What Should You Check Before Signing a Contract?

Tue, 06 Oct 2026 14:03:33 GMT

COMMERCIAL & BUSINESS LAW

Buying a Business in Queensland: What Should You Check Before Signing a Contract?

Buying an existing business can provide an opportunity to acquire an established customer base, trading history, employees, equipment and goodwill without starting from the beginning.

However, a business purchase can also involve significant legal and financial obligations.

By Katie Chan

One of the most important stages of a business acquisition occurs before the contract is signed.

Once a buyer enters into a binding contract, their ability to withdraw from the transaction or renegotiate its terms will usually depend upon the conditions contained in that contract. It is therefore important to understand exactly what is being purchased and whether the contract gives the buyer appropriate protections before committing to the transaction.

KMB Legal's Gold Coast commercial lawyers assist business owners and purchasers with business acquisitions, contract reviews, due diligence and settlement.

Here are some of the key matters a buyer should consider.

1. What exactly are you buying?

The first question is whether the transaction involves purchasing the assets of the business or acquiring the shares in the company that operates the business.

These structures can have very different consequences.

In an asset sale, the contract should identify which assets are being transferred. These may include:

plant and equipment;
stock;
intellectual property;
business names;
customer databases;
telephone numbers and websites;
goodwill;
licences or permits, where transferable;
contracts; and
other assets used in operating the business.

A share purchase involves acquiring ownership of the company itself. This requires careful investigation because the company generally continues to hold its existing assets and liabilities after the shares change hands.

For a more detailed comparison, read Buying a Business: Assets vs Shares — What's the Difference?

2. Have you checked the financial information?

The purchase price of a business is often influenced heavily by its historical and expected profitability.

Before committing to the transaction, a buyer should consider the financial information available and obtain appropriate accounting advice.

Depending upon the business, relevant documents may include:

profit and loss statements;
balance sheets;
tax returns;
Business Activity Statements;
sales records;
payroll information;
bank or merchant records;
aged debtors and creditors;
stock records; and
details of significant expenses.

You should review a business's financial records, operations and legal documents as part of due diligence before signing a contract.

The figures provided by a seller should also be considered in the context of the business itself. For example, a buyer may need to understand whether revenue depends heavily on one customer, whether particular expenses are likely to increase or whether the owner's personal involvement has affected reported profitability

3. Should the contract be subject to due diligence?

A buyer may not always have sufficient information to complete comprehensive due diligence before the contract is signed.

In those circumstances, consideration should be given to whether the contract should contain a due diligence condition.

The wording matters.

A properly drafted condition should address issues such as:

the period available for due diligence;
the information the seller must provide;
what aspects of the business can be investigated;
whether the buyer must be satisfied with the results;
how the buyer exercises any right to terminate; and
what happens to the deposit if the condition is not satisfied.

A due diligence condition should not simply be assumed to provide a general right to change your mind.

Read our guide to Due Diligence When Buying a Business in Queensland for more information.

4. Is there a lease?

For many businesses, the premises are critical to the value of the business.

If the seller leases the premises, the buyer should determine whether the existing lease will be assigned or whether the landlord will grant a new lease.

Before signing the business sale contract, consider matters including:

the remaining lease term;
options to renew;
current rent;
rent review provisions;
outgoings;
permitted use;
security or bank guarantee requirements;
make-good obligations;
redevelopment or relocation provisions;
landlord consent requirements; and
whether the premises have the approvals required for the intended business use.

It is important that ycu heck whether the landlord's written approval has been obtained for an assignment and whether the proposed use of the premises is permitted.

Where the premises are a retail shop governed by Queensland's Retail Shop Leases Act 1994, statutory disclosure requirements can also apply to an assignment. For example, the approved Form 9 guidance states that where the assignment occurs in connection with the sale of the retail business, the assignor's disclosure statement must generally be given to the prospective assignee at least seven days before the assignee enters into the business sale contract, subject to the Act's provisions concerning disclosure.

For more information, read Commercial Leases in Queensland.

5. What happens to the employees?

Employees should be considered before the contract is signed rather than left until settlement.

Questions may include:

which employees will be offered employment by the buyer;
their current wages and conditions;
accrued leave and other entitlements;
whether an award or enterprise agreement applies;
whether prior service must be recognised;
how employee entitlements are dealt with between buyer and seller; and
whether adjustments or indemnities are required under the contract.

The Fair Work Ombudsman explains that a transfer of business can occur where an employee starts with the new employer within three months, performs the same or substantially the same work and there is the required connection between the employers. Different rules apply to recognition of various employee entitlements.

These issues can affect the actual cost of acquiring the business.

6. Are important contracts transferable?

A business may depend upon contracts with:

customers;
suppliers;
distributors;
franchise networks;
software providers;
payment providers; or
other commercial partners.

A buyer should determine whether these contracts will automatically continue, can be assigned or require the other party's consent.

A profitable business may be considerably less valuable if an important customer or supplier contract cannot be transferred to the buyer.

7. What licences, permits and approvals does the business need?

Some businesses cannot legally operate without particular licences, registrations or regulatory approvals.

The buyer should determine:

what licences and permits are required;
whether they are current;
whether they can be transferred;
whether the buyer must apply for new approvals; and
whether completion should depend upon those approvals being obtained.

Government guidance specifically identifies licences and permits as matters buyers should investigate during due diligence.

This can be particularly important for businesses operating in regulated industries.

8. Is the purchase price allocated between different assets?

The contract may allocate the purchase price between components such as:

goodwill;
plant and equipment;
stock;
intellectual property; and
other business assets.

This allocation should not be treated merely as a drafting exercise.

It can have taxation, accounting and duty consequences for both buyer and seller, so appropriate accounting and taxation advice should be obtained before the allocation is agreed.

9. Will transfer duty apply?

Buying a Queensland business can have transfer duty implications.

The Queensland Revenue Office states that transfer duty may apply to the acquisition of Queensland business assets. Relevant business assets can include goodwill, statutory business licences, business names, franchise rights, intellectual property, supply rights and certain personal property.

The duty consequences depend upon the particular transaction and assets involved.

Buyers should therefore understand the potential duty liability before committing to the purchase price.

10. What happens to the stock?

If stock is being purchased in addition to the agreed business purchase price, the contract should specify how it will be valued.

For example:

Is stock included in the purchase price?
Is it payable separately?
Is there a maximum stock value?
Who conducts the stocktake?
How are obsolete or damaged items treated?
When is the stocktake undertaken?

A business advertised at a particular purchase price can ultimately require a significantly larger payment if substantial stock is payable in addition to that amount.

11. What warranties is the seller giving?

A business sale contract may contain warranties from the seller about particular aspects of the business.

These might concern matters such as:

ownership of the assets;
accuracy of information provided;
undisclosed liabilities;
litigation;
employee matters;
contracts;
licences;
intellectual property; or
compliance issues.

The precise warranties appropriate to a transaction will depend upon the business and the purchase structure.

The buyer should understand both what the seller is warranting and what is expressly excluded.

12. Is the seller restrained from competing?

Goodwill can form a significant part of the value of an established business.

A buyer may therefore want appropriate contractual protection against the seller immediately establishing a competing business and soliciting the customers or employees of the business that has just been sold.

A restraint clause may address:

competing businesses;
geographical areas;
time periods;
solicitation of customers;
solicitation of employees; and
use of confidential information.

Whether a restraint is enforceable will depend upon its terms and the circumstances, so restraint provisions should be carefully drafted rather than treated as boilerplate.

13. What happens between signing and settlement?

A business can continue trading for weeks or months between contract date and settlement.

The contract should therefore address how the business is to be operated during that period.

Depending upon the transaction, the buyer may want obligations requiring the seller to:

operate the business in the ordinary course;
preserve goodwill;
maintain stock levels;
retain key employees;
maintain insurance;
avoid entering unusual contracts; and
notify the buyer of significant changes.

This can be particularly important where the buyer has agreed to purchase the business based upon its condition and performance at the time the contract was negotiated.

14. Are finance or other conditions required?

If the buyer requires finance to complete the purchase, the contract should be considered carefully before signing.

A buyer should not assume that obtaining finance after signing will automatically allow them to withdraw if funding cannot be secured.

Depending upon the transaction, conditions may also be required concerning:

due diligence;
finance;
landlord consent;
lease assignment;
licences and approvals;
franchisor approval;
transfer of material contracts; or
other matters essential to the acquisition.

The conditions should be tailored to the particular transaction.

Why should the contract be reviewed before you sign?

The most useful time to obtain advice about a business sale contract is usually before you become legally committed to it.

A pre-contract review provides an opportunity to identify issues and negotiate appropriate amendments or conditions before the buyer is bound.

Once a contract has been signed, the buyer's rights will generally depend upon the agreement actually entered into.

This is particularly important where:

substantial deposits are payable;
finance is required;
due diligence is incomplete;
the premises are leased;
regulatory approvals are required;
employees will transfer;
the purchase involves substantial goodwill; or
the business is being acquired through a company or other structure.

Buying a business on the Gold Coast

Buying a business involves much more than agreeing on a purchase price. The structure of the transaction,

contract terms, due diligence, lease arrangements, employees, licences, taxation and settlement requirements should all be considered before completion—and preferably before the contract is signed.

For an overview of the broader transaction process, read Buying or Selling a Business in Queensland: Key Legal Considerations.

This article provides general information only and is not legal, taxation, accounting or financial advice. The appropriate investigations and contractual protections will depend upon the particular business and transaction.

Buying a business on the Gold Coast

KMB Legal's Gold Coast commercial and business lawyers assist

with business purchases and sales, contract reviews, due diligence,

commercial leases and transaction documentation.

Free 30-minute initial telephone consultation.

Consent Orders vs Binding Financial Agreements: What's the Difference?

Tue, 29 Sep 2026 06:13:12 GMT

FAMILY LAW

Consent Orders vs Binding Financial Agreements: What's the Difference?

When separating couples reach agreement about how their property will be divided, the next question is often how that agreement should be formally documented.

By Katie Chan

Two options commonly considered are Consent Orders and a Binding Financial Agreement (BFA).

Both can be used to formalise financial arrangements following separation, but they are fundamentally different legal mechanisms.

Consent Orders are orders made by the Federal Circuit and Family Court of Australia with the agreement of the parties. A Financial Agreement is a private agreement made under the Family Law Act 1975.

Understanding the differences can help separating couples determine which approach may be appropriate for their circumstances.

What are Consent Orders?

Consent Orders are proposed orders that separating parties agree upon and ask the Court to make.

They can deal with financial and property matters including:

the sale or transfer of the family home;
division of sale proceeds;
payment of lump sums;
bank accounts and investments;
motor vehicles and other assets;
responsibility for liabilities;
business interests; and
superannuation splitting.

Once made, Consent Orders are legally binding Court orders. They have the same legal effect as orders made following a Court hearing.

You can read more in our guide Property Settlement Consent Orders: How Do They Work?

What is a Binding Financial Agreement?

A Binding Financial Agreement is different because the parties do not ask the Court to approve the agreed property division.

It is a private agreement made under the Family Law Act .

Binding Financial Agreements can be entered into before, during or after a marriage or de facto relationship, provided the relevant statutory requirements are satisfied. In the context of separation, a Binding Financial Agreement can be used to document how property and financial resources will be dealt with.

Although commonly called a Binding Financial Agreement, whether a Financial Agreement is actually binding depends upon compliance with the requirements of the Family Law Act.

What is the main difference?

The fundamental distinction is:

Consent Orders are Court orders. A Binding Financial Agreement is a private statutory agreement.

When parties apply for Consent Orders concerning property, the Court must be satisfied that the proposed orders are just and equitable before making them.

A Binding Financial Agreement does not go through that Court approval process when it is entered into. Instead, its effectiveness depends upon satisfying the requirements of the Family Law Act , including requirements relating to independent legal advice.

Do both parties need independent lawyers?

This is another significant difference.

Consent Orders

There is no requirement that each party obtain independent legal advice before entering into Consent Orders.

However, the Court recommends obtaining legal advice because family law is complex and legal advice can help a person understand their rights, responsibilities and the effect of the proposed orders.

Financial Agreements

The requirements are different for a Financial Agreement.

Section 90G of the Family Law Act, in relation to married couples, provides that before signing the agreement each spouse party must receive independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of entering into it. There are corresponding provisions for de facto Binding Financial Agreements.

This means the parties cannot simply use the same lawyer to provide the required independent advice.

Does the Court review whether the settlement is fair?

With Consent Orders, the Court considers the proposed financial and property orders before making them.

Even though both parties agree, the Court can only make the proposed property orders if the statutory requirements are satisfied, including that the orders are just and equitable.

A Financial Agreement operates differently.

The parties are effectively contracting about their financial relationship rather than asking the Court to determine whether the agreed division should be made as property orders.

That distinction can be relevant where deciding which method of formalisation is appropriate.

What about financial disclosure?

Financial disclosure remains important when resolving a property settlement.

An Application for Consent Orders requires each party to disclose their financial circumstances and confirm that the information provided is true and correct. The Court recommends exchanging supporting material such as tax returns, payslips, bank statements and superannuation statements so each party can satisfy themselves about the other's disclosure.

The consequences of inadequate or misleading disclosure can also be significant in the context of Financial Agreements.

Before finalising any property settlement, each party should therefore understand the other party's financial position.

For more information, read Duty of Financial Disclosure in Family Law Property Settlements.

Can Consent Orders deal with superannuation?

Yes.

Consent Orders can include a superannuation splitting order.

There are additional procedural requirements for proposed superannuation splitting orders, including requirements concerning valuation and the superannuation trustee.

Where superannuation forms a significant part of the property pool, the wording and implementation of the proposed split should be considered carefully.

Can a Financial Agreement cover more than a property settlement?

Yes.

A Financial Agreement can deal with all or part of the parties' financial relationship and can address matters such as property, financial resources and maintenance within the scope permitted by the Family Law Act.

This flexibility is one reason Financial Agreements may be considered in particular circumstances.

Which option is cheaper?

There is no universal answer.

The cost will depend upon matters such as:

the complexity of the property settlement;
the number and type of assets;
whether businesses or trusts are involved;
whether superannuation splitting is required;
the complexity of the drafting;
the extent of negotiations required; and
the amount of legal advice each party requires.

A Financial Agreement requires each party to obtain independent legal advice, which is an important factor when considering the process.

However, cost alone should not determine which document is used. The legal effect and suitability of each option are more important considerations.

Can Consent Orders be changed later?

Final financial Consent Orders are intended to bring the parties' financial relationship to an end.

Once final property orders have been made, they can only be changed or set aside in limited circumstances provided for by the Family Law Act .

This is one reason it is important to understand the proposed settlement before asking the Court to make final orders.

Can a Binding Financial Agreement be set aside?

Yes, in certain circumstances.

The fact that an agreement is described as a Binding Financial Agreement does not make it immune from challenge.

The Family Law Act gives the Court power to set aside Financial Agreements in specified circumstances. For marriages, these are addressed by section 90K; corresponding provisions apply to de facto relationships. The Court itself describes the law concerning Financial Agreements as complex.

Careful preparation and compliance with the statutory requirements are therefore important.

What if your property settlement is straightforward?

For separating couples who have reached a relatively straightforward agreement about their property, Consent Orders are commonly considered as a way of formally documenting the agreed outcome.

The Court specifically provides a process by which parties who have agreed can jointly apply for financial or property Consent Orders without attending Court.

However, the appropriate method will depend upon the circumstances of the particular matter.

What if businesses, companies or trusts are involved?

More complex financial structures may require additional consideration regardless of which method is used.

This may include:

determining the value of a business;
identifying company assets and liabilities;
considering shareholder or beneficiary loan accounts;
examining trust interests;
determining taxation consequences; and
considering how transfers or payments will actually be implemented.

Read our guide Complex Property Settlements: Businesses, Companies and Trusts for more information.

Consent Orders or a Binding Financial Agreement: which should you use?

There is no single option that is appropriate for every separating couple.

The decision may depend upon:

the nature of the property settlement;
whether the parties have already reached agreement;
whether superannuation is being divided;
whether maintenance arrangements need to be addressed;
the complexity of the parties' financial affairs;
whether businesses or trusts are involved; and
the particular legal effect the parties are seeking.

If you are unsure whether the proposed division itself appropriately reflects your circumstances, read How Is a Property Settlement Calculated After Separation in Australia?

This article provides general information only and is not legal advice. Whether Consent Orders or a Financial Agreement is appropriate will depend upon the circumstances of each matter.

Formalising a property settlement after separation

Whether an agreement is documented through Consent Orders

or a Financial Agreement, it is important to understand its legal

consequences before signing final documents.

Our Gold Coast family lawyers assist separating couples with

property settlements, Consent Orders, Financial Agreements and

complex financial matters.

Free 30-minute initial telephone consultation.

Do You Need a Lawyer for a Property Settlement After Separation?

Tue, 29 Sep 2026 05:38:00 GMT

FAMILY LAW

Do You Need a Lawyer for a Property Settlement After Separation?

After separation, many people are able to discuss how they would like to divide their property without immediately involving lawyers.

This often leads to the question: do you actually need a lawyer for a property settlement?

By Katie Chan

The short answer is that not every property settlement requires a lawyer to negotiate every aspect of the agreement. However, obtaining legal advice before finalising a property settlement can be important, even where you and your former partner are on good terms and have already agreed about how your property should be divided.

A property settlement can affect your home, savings, superannuation, debts, businesses and future financial position. Once final property orders are made, there are only limited circumstances in which they can later be changed.

Understanding the legal effect of an agreement before it becomes final can therefore be just as important as reaching the agreement itself.

Can you agree on a property settlement without a lawyer?

Yes.

Separating couples can negotiate directly with each other and may be able to reach agreement without lawyers conducting the negotiations.

The Federal Circuit and Family Court of Australia encourages separating couples, where it is safe and appropriate to do so, to try to reach their own agreement about property and financial matters.

An agreement might deal with matters such as:

who retains the family home;
whether property will be sold;
how sale proceeds will be divided;
bank accounts and savings;
motor vehicles;
investments;
debts and mortgages;
businesses or companies; and
superannuation.

However, reaching an agreement and properly formalising that agreement are two different things.

That distinction is important.

Why isn't a verbal or informal agreement necessarily enough?

You and your former partner might agree that one person will keep the house while the other receives savings or other property.

But an informal agreement may not provide the same certainty and enforceability as formally documenting the property settlement.

The Court recommends formally documenting an agreed property division to ensure both parties understand what has been agreed and to help avoid future disputes or misunderstandings.

There are generally two ways of formally documenting an agreed property settlement under the Family Law Act 1975:

Consent Orders ; or
a Binding Financial Agreement .

What does a lawyer actually do in a property settlement?

The role of a family lawyer depends on how much assistance you require.

If you and your former partner have already reached agreement, you may primarily require advice about whether the proposed settlement appropriately addresses the relevant issues and assistance documenting it.

In a disputed matter, considerably more work may be required.

A family lawyer may assist with:

identifying the property and liabilities;
obtaining and reviewing financial disclosure;
advising about the legal principles relevant to the proposed division;
identifying assets or liabilities that may have been overlooked;
negotiating with your former partner or their solicitor;
arranging valuations where required;
considering businesses, companies and trusts;
dealing with superannuation;
advising about proposed Consent Orders or a Financial Agreement;
drafting documents required to formalise the settlement; and
commencing or responding to Court proceedings where agreement cannot be reached.

How do you know whether a proposed property division is reasonable?

A common difficulty for people negotiating their own property settlement is knowing whether the proposed division appropriately reflects their circumstances.

There is no automatic 50/50 rule.

Under the current Family Law Act 1975, when determining a property settlement the Court identifies the parties' existing property interests and liabilities and considers the matters specified by the legislation, including relevant contributions and current and future circumstances. The Court must ultimately be satisfied that making the property order is just and equitable.

Relevant circumstances can differ significantly from one relationship to another.

For a detailed explanation, read How Is a Property Settlement Calculated After Separation in Australia?

What if you don't know everything your former partner owns?

This is one situation where obtaining advice can be particularly important.

Parties to family law financial matters have obligations concerning financial disclosure.

The financial circumstances requiring consideration can extend beyond the family home and bank accounts and may involve:

companies;
trusts;
business interests;
investments;
shares;
superannuation;
loans;
cryptocurrency;
property held through other structures; and
financial resources.

Even an Application for Consent Orders requires each party to provide full disclosure of their respective financial circumstances.

What if a business, company or trust is involved?

Property settlements involving businesses and corporate or trust structures can require additional consideration.

For example, it may be necessary to determine:

who legally owns particular assets;
the value of a business;
interests held through a company or trust;
shareholder or beneficiary loan accounts;
related-party liabilities;
taxation consequences; and
how any proposed transfer can practically be implemented.

A business shown in financial statements at a particular value may not necessarily have that market value.

Independent valuation evidence may therefore be required in some matters.

For more information, read Complex Property Settlements: Businesses, Companies and Trusts.

What if superannuation needs to be divided?

Superannuation can form an important part of a property settlement.

The Family Law Act allows property orders to include orders concerning superannuation interests, subject to the specific requirements governing superannuation splitting.

Where a superannuation split is proposed, additional procedural requirements can apply.

This is an area where carefully drafted documents are particularly important.

Do you need separate lawyers?

If the property settlement is being documented by a Binding Financial Agreement , each party must receive the prescribed independent legal advice from an Australian legal practitioner.

Consent Orders are different.

You are not legally required to have a lawyer or obtain legal advice before entering into Consent Orders.

However, the Court expressly recommends obtaining legal advice so that you understand your rights, responsibilities and the effect of the proposed orders.

This distinction can be important when deciding how an agreed property settlement should be documented.

Do you need to go to Court for a property settlement?

Not necessarily.

Many property settlements are resolved without a contested Court hearing.

If agreement is reached, parties can apply for Consent Orders , which can generally be considered by the Court without the parties appearing in Court.

If the parties cannot reach agreement after genuine attempts to resolve the dispute, one party may ultimately apply to the Court for property orders. The Court has pre-action procedures that generally require parties to take genuine steps to resolve a financial dispute before commencing proceedings, subject to exceptions.

When should you consider getting legal advice?

It can be particularly important to obtain advice where:

there is a significant difference in the parties' proposed settlement;
you are unsure what you may be entitled to;
financial disclosure is incomplete;
one person controlled the finances during the relationship;
a business, company or trust is involved;
there are substantial assets or debts;
there is disagreement about asset values;
one party received a significant inheritance;
there are overseas assets;
superannuation is to be divided;
one person wants to retain the family home;
there are taxation issues;
there are concerns about assets being sold or transferred;
family violence or financial abuse is relevant; or
proceedings have already commenced.

Even where none of these issues arises, obtaining advice before signing final documents can help you understand the legal consequences of the proposed settlement.

Is it cheaper to reach an agreement without going to Court?

Generally, resolving a property matter by agreement can avoid much of the time and expense associated with contested litigation.

The Court itself notes that Consent Orders can help separating couples resolve their financial relationship while avoiding the time and expense of litigation.

That does not necessarily mean avoiding lawyers altogether.

In many matters, legal advice can instead be used strategically: to understand your position, assist with negotiations where necessary and properly document the settlement once agreement has been reached.

Are there time limits for property settlements?

Yes.

For married couples, an application for property orders should generally be made within 12 months after a divorce becomes final.

For former de facto couples, the general period is two years after the breakdown of the de facto relationship.

Importantly, married couples do not have to wait until they are divorced before dealing with their property settlement.

If the relevant period has already expired, legal advice should be obtained about whether an application can still be made.

Property settlement lawyers on the Gold Coast

You do not necessarily need a lawyer to conduct every stage of a property settlement.

However, obtaining advice can help you understand your legal position, identify issues that may not have been considered and ensure that an agreement is appropriately documented.

This article provides general information only and is not legal advice. The appropriate approach to a property settlement depends upon the circumstances of each matter.

Our Gold Coast family lawyers assist clients with property settlements

following marriage and de facto relationship breakdowns, including

negotiations, financial disclosure, Consent Orders, complex property matters

and Court proceedings where necessary.

Free 30-minute initial telephone consultation.

What Compensation Can You Claim After a Car Accident in Queensland?

Tue, 29 Sep 2026 05:07:53 GMT

PERSONAL INJURY - MOTOR VEHICLE ACCIDENTS

What Compensation Can You Claim After a Car Accident in Queensland?

Being injured in a motor vehicle accident can affect much more than your immediate health. You may need time away from work, ongoing medical treatment or rehabilitation, and assistance with activities you previously managed independently.

By Katie Chan

If another driver was wholly or partly responsible for a motor vehicle accident in Queensland, you may be entitled to make a claim against the Compulsory Third Party (CTP) insurer of the vehicle responsible for the accident.

But what can you actually claim?

There is no standard compensation amount for a car accident injury. The value of a claim depends upon the nature and severity of the injuries, the financial consequences of those injuries and the individual circumstances of the injured person.

What does Queensland CTP insurance cover?

Queensland's CTP insurance scheme provides compensation for people injured in motor vehicle accidents where another driver was wholly or partly at fault.

A claim is generally made against the CTP insurer of the vehicle responsible for the accident.

Importantly, CTP is concerned with personal injury. It is different from insurance dealing with damage to your vehicle or other property.

Depending upon the circumstances, compensation following a motor vehicle accident may include several different categories of loss.

1. Medical treatment and rehabilitation expenses

An injured person may require treatment immediately following an accident and for months or sometimes years afterwards.

Treatment and rehabilitation may include:

GP and specialist appointments;
physiotherapy;
occupational therapy;
psychological treatment;
medication;
rehabilitation programs; and
other reasonable accident-related treatment.

MAIC states that treatment and rehabilitation under the Queensland CTP scheme can include both past and future treatment and is directed towards returning an injured person to their pre-injury function. Treatment funded by the insurer must satisfy requirements including being reasonable and appropriate and related to the accident injuries.

The future treatment needs of an injured person can therefore be an important consideration when assessing a claim.

2. Past loss of income

If your injuries prevent you from working or reduce the amount of work you can perform, you may be able to claim compensation for income you have already lost.

For example, an injured person might:

be unable to work for several months;
return initially on reduced hours;
use sick leave or other leave because of the injury;
lose overtime or allowances; or
be unable to perform their previous employment.

Evidence of pre-accident earnings and the period of incapacity will generally be important.

Unlike workers' compensation weekly benefits, lost wages under the CTP scheme are generally considered as part of settlement negotiations rather than paid progressively as wages are lost.

3. Future economic loss

Some injuries continue to affect a person's ability to work long after the accident.

A person may return to work but still have a reduced capacity to earn income.

For example, an injury may prevent someone from:

returning to physically demanding employment;
working the same number of hours;
undertaking overtime;
pursuing particular career opportunities; or
remaining in their previous occupation.

A claim can therefore involve not only wages already lost but also the future financial effect of an impaired earning capacity.

Loss of income under CTP can include both past and estimated future loss.

The assessment of future economic loss can be particularly important for a younger injured person or someone whose injuries are likely to have a long-term effect on their career.

4. Superannuation loss

Where an injury results in a loss of earnings, there may also be an associated loss of employer superannuation contributions.

Queensland personal injury legislation contains provisions dealing with damages for loss of superannuation entitlements associated with an impairment of earning capacity.

This can form another component of the overall economic loss calculation where applicable.

5. Pain and suffering and loss of enjoyment of life

Compensation for the non-financial consequences of an injury is commonly referred to as general damages.

General damages is defined as damages for pain and suffering, loss of amenities of life, loss of expectation of life or disfigurement.

In motor vehicle accident claims, the assessment of general damages is governed by the applicable Queensland statutory scheme and uses an Injury Scale Value (ISV) system.

Not every injury qualifies for an award of general damages and that the ISV system is used to provide consistency in the assessment of qualifying injuries.

The amount will therefore depend upon the nature and severity of the particular injury rather than simply the fact that an accident occurred.

6. Care and assistance

Serious injuries can also affect a person's ability to perform ordinary activities at home.

A person may require assistance with matters such as:

cleaning;
cooking;
shopping;
personal care;
household activities; or
other everyday tasks.

Depending upon the circumstances, a claim may include compensation associated with necessary care and assistance.

However, this area is subject to specific statutory requirements and thresholds. The availability of compensation for care should therefore be considered in the context of the particular claim rather than assumed to apply automatically.

How much is a car accident compensation claim worth?

There is no standard amount.

Two people injured in similar accidents can receive very different compensation because the financial and personal consequences of their injuries may be very different.

Relevant matters can include:

the nature and severity of the injuries;
whether the injuries are permanent;
the person's age;
occupation and pre-accident earnings;
time away from work;
future earning capacity;
medical and rehabilitation requirements;
the effect of the injuries on everyday activities;
the need for future assistance; and
whether the injured person contributed to the accident.

CTP claims are assessed individually and that compensation depends upon the type and severity of the injury and the claimant's personal circumstances.

What if you were partly responsible for the accident?

Being partly responsible does not necessarily prevent you from making a CTP claim.

A person injured in an accident caused partly by another driver may still make a claim, although their compensation may be reduced if they were also at fault.

The effect of contributory negligence will depend upon the circumstances.

What if you had a pre-existing injury?

Having a pre-existing medical condition does not necessarily prevent a claim.

The important issue is generally determining what injury, aggravation or additional loss was caused by the motor vehicle accident.

Accident-related treatment can include treatment for an aggravation of a pre-existing condition, provided there is sufficient evidence connecting it to the accident.

Medical evidence can therefore become particularly important where a person had symptoms or treatment before the accident.

Should you settle your claim early?

Care should be taken before resolving a claim while the longer-term effects of an injury remain uncertain.

Before assessing a final settlement, it may be necessary to understand:

whether the injury is likely to resolve;
whether further treatment is required;
whether surgery may be necessary;
whether there is a permanent impairment;
whether the person will return to their previous work; and
what future financial losses may result.

It is recommended to consider both costs already incurred and future costs caused by the injuries when working out a settlement amount and advises claimants to understand how their injuries may affect them in the future before settling.

Once a claim is finally settled, an injured person will ordinarily need to rely upon the settlement to account for relevant future losses included in the claim.

What evidence can help support a CTP claim?

The evidence required depends upon the losses being claimed.

It may include:

medical records and reports;
specialist reports;
rehabilitation records;
tax returns;
payslips;
employment records;
evidence of time away from work;
receipts for treatment expenses; and
evidence about future employment or treatment needs.

We recommend retaining documents such as doctors' reports, receipts and proof of lost wages to support a claim.

Do you need a lawyer for a car accident compensation claim?

You are not required to have a lawyer to make a Queensland CTP claim.

However, legal advice can be useful where an injury is significant, liability is disputed or the accident has resulted in substantial past or future financial loss.

A personal injury lawyer can assist with matters including:

identifying the CTP insurer;
lodging and progressing the claim;
obtaining medical and other expert evidence;
assessing past and future economic loss;
considering future treatment and rehabilitation;
assessing the effect of contributory negligence;
quantifying the different components of the claim; and
negotiating the claim with the CTP insurer.

For more information about the overall claims process, read our guide to Motor Vehicle Accident Claims in Queensland .

This article provides general information only and is not legal advice. The compensation available in a motor vehicle accident claim depends upon the circumstances of the accident, the injuries sustained and the individual losses suffered.

Car accident compensation lawyers on the Gold Coast

Our Gold Coast personal injury lawyers assist people injured in

motor vehicle accidents with Queensland CTP compensation claims.

Free 30-minute initial telephone consultation.

Property Settlement Consent Orders: How Do They Work?

Tue, 29 Sep 2026 04:30:24 GMT

FAMILY LAW

Property Settlement Consent Orders: How Do They Work?

Reaching an agreement with your former partner about how to divide your property is an important step after separation. However, simply agreeing about who keeps the house, savings, superannuation or other assets does not necessarily provide the same finality and enforceability as formally documenting the agreement.

By Katie Chan

One common way to formalise an agreed property settlement is through Consent Orders.

Consent Orders are orders that the parties agree upon and ask the Federal Circuit and Family Court of Australia to make. Once made, they are Court orders and the parties are required to comply with them. Importantly, an application for Consent Orders can generally be dealt with without the parties attending Court.

What are property settlement Consent Orders?

Property settlement Consent Orders are Court orders made by agreement between separated spouses or former de facto partners.

They can record how the parties have agreed to divide their property and financial interests following separation.

For example, Consent Orders may provide for:

the sale or transfer of the family home;
payment of a lump sum from one party to the other;
refinancing of a mortgage;
division of bank accounts;
retention or transfer of investments;
division of business interests;
responsibility for particular liabilities;
superannuation splitting; and
steps and timeframes required to implement the settlement.

The precise orders required will depend upon the assets, liabilities and circumstances of the parties.

Do you need to go to Court to obtain Consent Orders?

Usually, no Court appearance is required.

Where the parties have reached agreement, they can jointly apply to the Federal Circuit and Family Court of Australia for Consent Orders.

The Court considers the application and proposed orders. For financial and property matters, the Court must be satisfied that the proposed orders are just and equitable before making them.

This means Consent Orders are not simply a private contract that automatically becomes a Court order because both parties have signed it.

How does the Consent Orders process work?

Once the terms of the property settlement have been agreed, the proposed Court orders need to be carefully drafted.

An Application for Consent Orders is then prepared. The application provides the Court with information about the parties and their financial circumstances so that the Court can consider the proposed settlement.

The parties currently file an Application for Consent Orders together with their proposed orders. Since 31 October 2025, the Court also requires an identical unsigned Word version of the proposed orders in addition to the signed PDF version when filing electronically.

The documents are generally filed electronically through the Commonwealth Courts Portal.

If the Court is satisfied with the application and proposed orders, the orders can be made without the parties attending a hearing.

What financial information has to be provided?

An application for property Consent Orders requires disclosure of the parties' financial circumstances.

The Court's current guidance states that each party must provide full disclosure of their respective financial circumstances in the Application for Consent Orders and confirm that the information provided is true and correct.

Depending upon the circumstances, relevant information may include:

real estate;
mortgages;
bank accounts;
shares and investments;
motor vehicles;
businesses;
companies and trusts;
superannuation;
other assets;
liabilities; and
relevant financial resources.

This is why financial disclosure remains important even when the parties have already r eached agreement.

Does the Court automatically a pprove the agreement?

No.

For property and financial orders, the Court must be satisfied that the proposed orders are just and equitable.

The application therefore provides financial information that assists the Court in considering the proposed settlement.

This is also one reason why it can be helpful to obtain legal advice about a proposed settlement before applying for Consent Orders.

For more information about the factors relevant to determining a property settlement, read How Is a Property Settlement Calculated After Separation in Australia?

What happens to the family home?

Consent Orders can be drafted to deal with the family home in different ways.

For example, the parties may agree that:

the property will be sold and the net proceeds divided;
one party will retain the property;
ownership will be transferred to one party;
a mortgage will be refinanced;
one party will make a payment to the other; or
certain steps must occur before the property is sold or transferred.

The orders should clearly specify the steps each person must take and the relevant timeframes.

Poorly drafted orders can create practical problems later, particularly where a transfer, refinance or sale depends upon a sequence of events.

Can Consent Orders deal with superannuation?

Yes.

Property Consent Orders can include orders dealing with superannuation, including a superannuation split where appropriate.

There are additional procedural requirements associated with proposed superannuation splitting orders, and the Court's current filing guidance requires proof of the value of superannuation interests, particularly where superannuation orders are sought.

The terms of any proposed superannuation split therefore need to be considered carefully.

What if a business, company or trust is involved?

Consent Orders can also form part of a property settlement involving more complicated financial structures.

This might include:

companies;
family businesses;
discretionary trusts;
unit trusts;
business assets;
shareholder interests;
director or beneficiary loan accounts; or
related-party liabilities.

The structure of the settlement becomes particularly important in these matters because transferring an asset is not necessarily the same as transferring an interest in the entity that owns it.

Consent Orders or a Binding Financial Agreement?

Consent Orders are not the only way an agreed property settlement can be formally documented.

Depending upon the circumstances, parties may instead use a Binding Financial Agreement .

A key distinction is that Consent Orders are orders made by the Court, whereas a Financial Agreement is a private agreement made under the relevant provisions of the Family Law Act 1975. The Court's guidance also confirms that a person cannot enter into a Financial Agreement without first obtaining the required independent legal advice from an Australian lawyer.

Which approach is appropriate depends upon the circumstances and the terms of the proposed settlement.

Are there time limits for applying for property Consent Orders?

Yes, and this is important.

For parties to a marriage, an Application for Consent Orders dealing with financial or property matters should generally be filed within 12 months after the divorce becomes final.

For former de facto partners, it should generally be filed within two years after the breakdown of the de facto relationship.

Importantly, married parties do not have to wait until they are divorced to deal with their property settlement.

If an application is made outside the applicable period, additional requirements arise and leave of the Court may be required. The Court's current Consent Orders guidance specifically explains the additional steps for applications filed out of time.

Legal advice should be obtained promptly where a limitation period has expired or is approaching.

Can Consent Orders be changed later?

Final property Consent Orders are intended to provide finality.

They cannot simply be changed because one party later regrets the agreement or considers that they could have negotiated a better outcome.

The Family Law Act provides only limited circumstances in which final property orders may subsequently be set aside or varied. The Court expressly cautions that once final financial or property orders are made, including Consent Orders, there are limited circumstances in which they can be changed.

This is another reason to obtain advice before agreeing to final orders.

What if we have already agreed on the property division?

If you and your former partner have already reached an agreement, the next step may be to determine how that agreement should be formally documented.

The Court recommends formally documenting property agreements even where the parties have reached agreement themselves, to help ensure each person understands the agreement and reduce future disputes or misunderstandings.

Depending upon the circumstances, this may involve Consent Orders or a Binding Financial Agreement.

You can also read our guide to Property Settlements After Separation for more information about resolving financial matters following the breakdown of a relationship.

Do I need a lawyer for property Consent Orders?

A person is not required to be legally represented to apply for Consent Orders. However, the Court itself recommends obtaining legal advice before deciding what to agree upon or applying for Consent Orders.

A family lawyer can assist with:

advising on the proposed property settlement;
identifying issues that may not have been addressed;
reviewing financial disclosure;
drafting precise and workable orders;
dealing with property transfers;
considering superannuation;
preparing the Application for Consent Orders; and
filing the documents with the Court.

This can be particularly important where the settlement involves real property, businesses, trusts, companies, significant superannuation or complex liabilities.

This article provides general information only and is not legal advice. Family law outcomes depend upon the individual circumstances of each matter.

Property Settlement Consent Orders on the Gold Coast

Our Gold Coast family lawyers assist married and de facto couples with

negotiating, documenting and formalising property settlements, including

applications for Consent Orders.

If you have reached an agreement with your former partner, or would

like advice about a proposed property settlement, contact KMB Legal.

Free 30-minute initial telephone consultation.

How Is a Property Settlement Calculated After Separation in Australia?

Tue, 29 Sep 2026 01:12:11 GMT

FAMILY LAW

How Is a Property Settlement Calculated After Separation in Australia?

One of the most common questions after separation is: “How much am I entitled to in a property settlement?”

By Katie Chan

There is no simple formula and property is not automatically divided 50/50.

Under the Family Law Act 1975 (Cth), a property settlement involves considering the parties' existing property interests and liabilities, their respective contributions, their current and future circumstances, and whether the proposed outcome is just and equitable.

Every relationship is different, which means the outcome will depend on the particular financial and personal circumstances of the parties.

What is included in a property settlement?

A property settlement can involve much more than the family home.

The financial circumstances of both parties need to be identified. Depending on the relationship, this may include:

houses and other real estate;
mortgages and other loans;
bank accounts and cash;
shares and investments;
businesses and business interests;
companies and trusts;
motor vehicles;
superannuation;
cryptocurrency;
personal property; and
other assets, liabilities and financial resources.

Property may be relevant regardless of whose name it is registered in.

This is one reason why obtaining proper financial disclosure is an important part of the property settlement process.

See our article Duty of Financial Disclosure in Family Law Property Settlements .

1. Identifying the property and liabilities

The first part of the process involves identifying the parties' existing legal and equitable rights and interests in property and their existing liabilities.

The current legislation expressly requires the Court to undertake this identification when considering what property settlement order should be made.

For many couples, this may be relatively straightforward: a home, mortgage, bank accounts, vehicles and superannuation.

For others, determining the financial position can be considerably more complicated.

For example, there may be:

a family business;
interests in companies or trusts;
investment properties;
loans involving family members;
complex taxation liabilities;
overseas property;
significant superannuation interests; or
disagreement about the value or ownership of particular assets.

Professional valuations may sometimes be required, particularly for businesses or real property.

2. Considering each person's contributions

The next consideration is the contributions made by each party.

Importantly, contributions are not limited to who earned the most money.

The Court can consider financial contributions, non-financial contributions and contributions to the welfare of the family, including contributions as a homemaker or parent. The current Act expressly provides for these categories of contribution.

Financial contributions

These can include:

assets owned when the relationship began;
wages and other income;
mortgage payments;
savings;
investments;
inheritances;
gifts from family; and
money contributed towards acquiring or improving property.

The significance of a particular contribution depends on the circumstances of the relationship.

Non-financial contributions

A person may also contribute significantly without directly contributing money.

Examples can include undertaking renovations, managing aspects of a family business or making other contributions that improve or preserve property.

Homemaker and parenting contributions

Looking after children and maintaining the household are also recognised contributions.

Accordingly, the fact that one person earned most of the income during a relationship does not mean that person will necessarily receive most of the property.

3. Considering current and future circumstances

The parties' respective current and future circumstances must also be considered.

Depending on the case, relevant matters can include:

age and health;
income and earning capacity;
care of children;
financial resources;
responsibilities to support another person;
the duration of the relationship;
child support circumstances; and
other matters specified by the legislation.

Since the family law amendments that commenced on 10 June 2025, the legislation also expressly addresses the economic effect of family violence where relevant to the property settlement assessment.

These considerations can result in an adjustment to the division that might otherwise result from the parties' contributions.

4. Is a 50/50 property settlement automatic?

No.

There is no rule that separating couples must divide their property equally.

In some relationships an equal division may be appropriate. In others, the circumstances may justify a different outcome.

For example, two people may have made broadly comparable contributions during a long relationship, but one may have substantially lower earning capacity and greater responsibility for the future care of young children.

Conversely, a shorter relationship involving substantial assets brought in by one party may raise quite different considerations.

The outcome therefore depends on the circumstances rather than a predetermined percentage.

What happens to superannuation?

Superannuation can form an important part of a property settlement.

Family law allows superannuation interests to be dealt with through property settlement arrangements, including by way of a superannuation splitting order or agreement where appropriate.

This does not necessarily mean the superannuation account is immediately converted into cash. A split generally transfers an interest for the benefit of the other party, subject to the applicable superannuation rules.

For relationships where one party has accumulated significantly more superannuation than the other, superannuation can be an important part of the overall settlement.

What if a business, company or trust is involved?

Property settlements involving businesses, companies and trusts can be significantly more complicated.

It may be necessary to determine:

the value of a business;
the parties' respective interests;
the structure through which the business operates;
interests held through companies or trusts;
loans between related entities;
taxation consequences; and
whether expert valuation evidence is required.

Simply looking at whose name appears on a company or trust document may not provide the complete picture.

You can read more in our guide to Complex Property Settlements: Businesses, Companies and Trusts.

Does property have to be sold?

Not necessarily.

There are many ways a property settlement can be structured.

For example, one party may retain the family home and refinance the mortgage, while the other receives other property or a cash payment.

Alternatively, property may be sold and the net proceeds divided.

The appropriate structure will depend upon matters including the available assets, borrowing capacity, taxation implications and the parties' circumstances.

How can a property settlement be formalised?

Reaching an agreement with your former partner does not necessarily mean the financial relationship has been legally finalised.

Depending upon the circumstances, an agreed property settlement may be formalised through:

Consent Orders approved by the Federal Circuit and Family Court of Australia; or
a Binding Financial Agreement , where the legislative requirements for such an agreement are satisfied.

The appropriate method depends upon the circumstances of the parties and the proposed settlement.

Properly formalising a settlement can provide certainty and reduce the risk of future property claims.

Do you need to go to Court?

Not necessarily.

Many property settlements are negotiated and resolved without a final Court hearing.

Parties may reach agreement through direct negotiations, negotiations between solicitors, mediation or another dispute-resolution process.

Where agreement cannot be reached, an application may ultimately need to be made to the Federal Circuit and Family Court of Australia.

You can also read more about property settlements after separation and the steps involved in resolving financial matters in our article Property Settlements After Separation .

Getting advice about a property settlement

There is no standard percentage that applies to every separation.

Two couples with assets of the same value can have very different property settlement outcomes because their contributions, financial circumstances, family arrangements and future circumstances may be entirely different.

Obtaining legal advice early can help you understand the property available for division, the matters relevant to your circumstances and the options for reaching and formalising a settlement.

This article provides general information only and is not legal advice. The appropriate outcome of a property settlement depends on the individual circumstances of each matter.

Our Gold Coast family lawyers assist clients across

the Gold Coast and Queensland with property settlements

following marriage and de facto relationship breakdowns.

Free 30-minute free initial telephone consultation.

Buying a Business: Assets vs Shares — What’s the Difference?

Sat, 26 Sep 2026 01:48:52 GMT

COMMERICAL & BUSINESS LAW

Buying a Business: Assets vs Shares — What’s the Difference?

When buying an established business, one of the

first issues to consider is what exactly you are buying.

By Katie Chan

A business acquisition may be structured as an asset sale, where the buyer purchases selected assets used to operate the business, or as a share sale, where the buyer purchases shares in the company that owns and operates the business.

Although both structures can result in the buyer taking control of an existing business, the legal effect can be quite different.

Understanding the distinction is important before signing a contract, as the structure can affect liabilities, contracts, employees, licences, tax, due diligence and the documentation required to complete the transaction.

For advice on buying a business, including transaction structures, contract preparation and due diligence, speak with KMB Legal's Gold Coast commercial lawyers .

What is an asset sale?

In an asset sale, the buyer purchases some or all of the assets that make up the business rather than purchasing the company itself.

Depending on the business, those assets may include:

plant and equipment;
stock and inventory;
business names;
intellectual property;
websites and domain names;
customer or supplier contracts;
licences and permits, where transferable;
goodwill;
telephone numbers and social media accounts; and
rights relating to the business premises or lease.

The buyer will usually operate the acquired business through their own company, trust or other business structure after settlement.

This means it is important for the sale contract to clearly identify which assets are included and which are excluded.

What is a share sale?

A share sale is different.

Instead of purchasing the individual assets of the business, the buyer purchases some or all of the shares in the company that operates the business.

Shares represent ownership in a company, and ASIC requires proprietary companies to notify it of changes to member and share details. A transfer of shares must generally be notified to ASIC within 28 days.

The company itself continues to exist after the transaction. It generally continues to own its assets and remains the party to its existing contracts and obligations.

This continuity can make a share acquisition attractive in some circumstances, but it also means that careful due diligence is particularly important.

The key difference: what does the buyer acquire?

The simplest way to distinguish the two structures is:

Asset sale: the buyer acquires specified assets of the business.

Share sale: the buyer acquires ownership of the company that owns the business.

That distinction can have significant consequences.

With an asset purchase, the parties can generally identify the particular assets being transferred and deal specifically with the liabilities and obligations associated with the transaction.

With a share purchase, the underlying company remains the same legal entity. The buyer therefore needs to understand the company's existing affairs, including its assets, liabilities, contracts and other obligations.

What happens to existing liabilities?

Liabilities are one of the most important issues to investigate when determining how a business purchase should be structured.

In an asset sale, the contract should clearly address which liabilities, if any, the buyer will assume and which remain with the seller.

However, purchasing assets rather than shares should not simply be assumed to eliminate every possible exposure. Employee arrangements, contractual obligations, securities, tax matters and the particular terms of the transaction may all require separate consideration.

In a share sale, the company continues to exist with its historical affairs. This makes it particularly important for a buyer to investigate matters such as:

existing debts;
taxation liabilities;
employee entitlements;
litigation or potential claims;
warranties given to customers;
regulatory compliance;
loans and securities;
contractual obligations; and
any other actual or contingent liabilities.

The scope of due diligence should be tailored to the particular company and transaction.

What happens to contracts?

Existing contracts can also be affected differently.

In an asset sale, contracts used by the business may need to be assigned or replaced. Some contracts require the consent of the other contracting party before an assignment or change can occur.

The buyer should therefore identify important contracts early in the transaction and determine what needs to happen for those arrangements to continue after settlement.

In a share sale, the company remains the contracting party because the company itself has not changed.

H owever, that does not necessarily mean every contract continues unaffected. Some agreements contain change-of-control provisions that may require consent or trigger particular rights if ownership or control of the company changes.

These provisions should form part of the buyer's due diligence.

What about the business premises?

If the business operates from leased premises, the lease can be critical to the transaction.

For an asset purchase, the existing lease may need to be assigned to the buyer or a new lease may need to be negotiated with the landlord.

Landlord consent and other requirements under the lease should be investigated well before settlement.

In a share sale, the tenant company generally remains the same entity. Nevertheless, the lease should still be reviewed for any provisions dealing with a change in ownership or control.

Employees

Employees also require careful consideration in a business acquisition.

The parties need to establish what will happen to employees at settlement and how matters such as accrued entitlements and ongoing employment will be dealt with.

The consequences can differ depending on whether the transaction is an asset sale or share sale, the employees involved and the terms of the transaction.

Employee arrangements should therefore be considered before the sale contract is finalised rather than left until settlement.

Licences, permits and approvals

Some businesses rely heavily on government licences, industry accreditations, permits or other regulatory approvals.

In an asset sale, a buyer should not assume that these automatically transfer with the other business assets.

Some licences may require a new application, approval or consent.

In a share sale, a licence may remain held by the same company, but a change in control can still have regulatory consequences depending on the particular licence.

Identifying these requirements early can prevent a situation where a buyer completes the acquisition but cannot immediately operate the business as intended.

Due diligence in an asset purchase

Due diligence remains important when purchasing business assets.

Depending on the transaction, a buyer may need to investigate:

ownership of the assets;
security interests over assets;
financial performance;
stock;
equipment;
intellectual property;
important contracts;
employees;
leases;
licences and permits; and
any liabilities the buyer has agreed to assume.

The sale contract should also clearly document exactly what is being purchased.

Due diligence in a share purchase

A share acquisition usually requires detailed investigation of the company itself because the buyer is acquiring an ownership interest in the existing entity.

Due diligence may extend to:

company records and share ownership;
financial statements;
tax records;
assets and liabilities;
financing arrangements and securities;
material contracts;
employees;
leases;
intellectual property;
licences;
insurance;
disputes or litigation; and
regulatory compliance.

The findings from due diligence may influence the purchase price, conditions of the transaction and the warranties and indemnities sought from the seller.

Warranties and indemnities

The sale contract is important in allocating risk between the buyer and seller.

Depending on the transaction, a buyer may seek warranties about matters such as ownership of assets, financial information, contracts, taxation, employees, litigation and compliance.

Indemnities may also be negotiated for particular identified risks.

These provisions should be tailored to the transaction rather than treated as standard wording.

GST and tax considerations

The tax consequences can differ substantially between an asset sale and a share sale.

For example, some business asset transactions may potentially qualify as the GST-free supply of a going concern if the legislative requirements are satisfied. The ATO states that these include the purchaser being registered or required to be registered for GST, the parties agreeing in writing that the sale is of a going concern, the seller supplying everything necessary for the continued operation of the business and continuing the business until the day of supply.

Capital gains tax, GST and other tax consequences may also differ according to the transaction structure and the circumstances of the parties.

Buyers and sellers should obtain appropriate accounting and tax advice before settling on the structure of a transaction.

Which structure is right for your transaction?

There is no single structure that is appropriate for every business acquisition.

The decision between an asset purchase and a share purchase may depend on matters including:

the type of business;
the assets being acquired;
the company's existing liabilities;
important contracts;
employees;
licences;
taxation consequences;
financing arrangements; and
the commercial objectives of the buyer and seller.

Ideally, the proposed structure should be considered before the parties commit to the transaction, as changing the structure later can affect negotiations, due diligence and the sale documentation.

This article provides general information only and does not constitute legal, taxation or financial advice. Advice should be obtained for your individual circumstances.

Buying a business on the Gold Coast or in Queensland?

KMB Legal assists clients with buying and selling businesses across the

Gold Coast and Queensland.

We can assist with reviewing and negotiating business sale agreements,

due diligence, commercial leases, business structures and other legal aspects

of a business acquisition.

If you are considering purchasing a business, obtaining legal advice before signing

the sale contract can help you understand what you are acquiring and identify issues

that should be addressed before you become legally committed.

Free 30 minute initial telephone consultation.

Property Settlement in Queensland: What Happens on Settlement Day?

Sun, 20 Sep 2026 03:21:20 GMT

PROPERTY LAW

Property Settlement in Queensland: What Happens on Settlement Day?

Buying or selling property in Queensland? Settlement is the final stage of the conveyancing process, when the purchase price is paid, ownership is transferred and the buyer becomes entitled to possession of the property. Understanding what happens before and on settlement day can help avoid unnecessary delays and last-minute surprises.

By Katie Chan

After weeks of contracts, finance approvals, inspections and conveyancing searches, settlement day is when a property transaction is completed.

For buyers, it is the day they complete the purchase and can ordinarily collect the keys to their new property.

For sellers, it is the day they receive the sale proceeds, discharge any existing mortgage and transfer ownership to the buyer.

Although settlement is often described as a single event, considerable preparation takes place beforehand.

In Queensland, most straightforward conveyancing transactions are now completed electronically, with solicitors, conveyancers and financial institutions coordinating the transfer of funds and registration of the necessary documents.

1. What Is Property Settlement?

Property settlement is the process by which the buyer completes the purchase and the seller completes the sale in accordance with the contract.

At settlement, the transaction generally involves:

payment of the balance of the purchase price;
discharge of the seller's existing mortgage, where applicable;
payment of relevant settlement expenses;
transfer of ownership;
lodgement of the transfer and associated documents; and
the buyer becoming entitled to possession of the property.

Settlement day is the occasion when the seller receives the remaining purchase price, transfers title and hands over possession and keys.

The precise arrangements depend on the contract and the circumstances of the transaction.

2. What Happens Once the Contract Becomes Unconditional?

A contract may initially be subject to conditions such as finance or building and pest inspections.

Once those conditions have been satisfied or waived, the transaction generally proceeds towards settlement.

Your solicitor will continue preparing the legal and financial aspects of the purchase or sale.

This can include:

completing conveyancing searches;
preparing or reviewing transfer documents;
liaising with the lender;
confirming the settlement date;
calculating settlement adjustments;
arranging transfer duty;
confirming funds required;
preparing the electronic settlement workspace; and
addressing any outstanding contractual requirements.

If you are still considering a property purchase, our article Buying Property in Queensland: What to Know Before You Sign a Contract explains the earlier stages of the process.

3. What Is Electronic Settlement?

Electronic settlement allows participating legal representatives and financial institutions to complete a conveyancing transaction through an electronic lodgement network.

Rather than physically exchanging bank cheques and paper documents at a settlement venue, the parties coordinate the financial settlement and electronic lodgement of the relevant instruments.

Queensland Revenue Office provides procedures for assessing and paying transfer duty in transactions completed through an electronic conveyancing network.

Electronic settlement is designed to coordinate the financial and registration components of the transaction.

4. What Is PEXA?

PEXA is an electronic conveyancing platform used to facilitate property settlements.

It allows participating parties to prepare documents, coordinate settlement funds and arrange electronic lodgement.

A typical electronic settlement may involve:

the buyer's solicitor;
the seller's solicitor;
the buyer's lender; and
the seller's lender.

Not every transaction can necessarily be completed electronically. The available method depends on the type of transaction and applicable requirements.

For most buyers and sellers, their solicitor manages the settlement process rather than requiring them to attend personally.

5. What Does the Buyer's Solicitor Do Before Settlement?

The buyer's solicitor will ordinarily prepare the transaction for completion by:

reviewing relevant searches;
confirming the contractual position;
checking the title;
preparing transfer documentation;
calculating transfer duty;
reviewing settlement adjustments;
liaising with the buyer's lender;
confirming the funds required from the buyer; and
coordinating settlement arrangements with the seller's solicitor.

The buyer may also need to sign documents, verify their identity and provide information required by their solicitor or lender.

Responding promptly to requests can help prevent delays.

6. What Does the Seller's Solicitor Do Before Settlement?

For sellers, preparation may include:

liaising with the existing mortgagee;
arranging discharge of the mortgage;
confirming the mortgage payout figure;
reviewing the settlement statement;
calculating rates, water and other adjustments;
confirming the seller's payment directions;
coordinating with the buyer's solicitor; and
arranging completion of the electronic settlement.

If the seller has an existing mortgage, the lender will generally need to receive sufficient funds to discharge it as part of settlement.

Sellers should begin the mortgage discharge process early rather than waiting until the final days before settlement.

7. What Happens to the Seller's Mortgage?

A seller can ordinarily sell a property that is subject to a mortgage.

However, the buyer will generally expect to receive title free from the seller's mortgage, unless the contract provides otherwise.

The seller's lender therefore needs to participate in the settlement process.

At settlement, the required mortgage payout is generally deducted from the sale proceeds and paid to the lender.

The mortgage discharge is then dealt with as part of the conveyancing transaction.

Queensland's land title legislation provides for the execution and registration of mortgage discharges, including electronic conveyancing documents.

The seller receives the remaining proceeds after the required payments and adjustments have been made.

8. How Does the Buyer Pay the Purchase Price?

The buyer's settlement funds may come from:

their own savings;
proceeds from another property sale;
a home loan; or
a combination of these sources.

The buyer's lender will generally provide the approved loan funds for settlement.

The buyer must also contribute any additional funds required to complete the purchase.

These may include:

the balance of the purchase price not covered by the loan;
transfer duty;
registration fees;
electronic settlement fees;
settlement adjustments; and
other transaction costs.

Your solicitor should provide a settlement funds calculation so you know what must be available before settlement.

Do not assume the deposit and approved loan will cover every amount payable.

9. What Is a Settlement Statement?

A settlement statement sets out the financial calculation required to complete the transaction.

It generally begins with the purchase price and then accounts for matters such as:

the deposit already paid;
council rates adjustments;
water adjustments;
body corporate levies, if applicable;
rent adjustments, if applicable;
other contractual adjustments; and
amounts required to complete settlement.

The resulting figure establishes the amount payable at settlement, subject to the particular transaction and any final changes.

The buyer's solicitor and seller's solicitor ordinarily agree on the relevant settlement calculations before completion.

10. What Are Settlement Adjustments?

Settlement adjustments allocate certain property expenses or income between the buyer and seller.

The general principle is that each party should bear the relevant amounts attributable to their period of responsibility, subject to the contract.

Common adjustments include:

council rates;
water access and usage charges;
body corporate levies;
rent; and
other relevant outgoings.

The seller is responsible for council rates up to and including settlement day, with the buyer responsible from the following day.

The actual calculations must be made under the particular contract.

11. How Are Council Rates Adjusted?

Council rates are commonly assessed for a period that extends beyond settlement.

For example, the seller may have paid a council rates account covering three months, but settlement occurs halfway through that period.

An adjustment may be required so the buyer bears the portion attributable to the period after settlement.

Alternatively, if rates remain unpaid, the settlement statement may need to account for the outstanding amount.

The treatment of unpaid amounts depends on the contract and the arrangements for payment to the relevant authority.

Example: Rates paid in advance

Assume:

If the seller has already paid the full $900, the buyer may need to reimburse the seller $500 through the settlement adjustments.

This is a simplified illustration. Actual calculations depend on the assessment period, settlement date, contractual provisions and applicable charges.

12. How Are Water Charges Adjusted?

Water adjustments can be more complicated because an account may include both fixed charges and consumption-based charges.

Depending on the relevant water authority and contract, the calculation may involve:

water access charges;
sewerage charges;
water usage;
the date of the last paid account;
the reading shown on the last account;
a special meter reading;
the date of that reading;
the applicable usage rates; and
the settlement date.

The fixed charges and consumption charges may need to be calculated differently.

For this reason, the water adjustment is not always a straightforward daily apportionment of the latest bill.

13. Why Is a Special Water Meter Reading Important?

A special water meter reading can help identify consumption since the last billed reading.

For example:

The relevant consumption period and charges then need to be considered under the contract.

If the special reading occurs before settlement, the contract may require an estimated calculation for the remaining period.

Where the water authority uses tiered pricing, the applicable tariff structure can also affect the result.

A seller and buyer should not assume that dividing the latest water account by the number of days will necessarily produce the correct adjustment.

14. What if the Water Meter Reading Is Before Settlement?

A special meter reading is often obtained several days before settlement.

That creates a period between the reading date and settlement for which actual consumption may not yet be known.

Depending on the contract, the adjustment may use the consumption rate established by the available readings to estimate usage for the relevant remaining period.

For example, if 60 kL was consumed over 30 days, the average usage would be:

60÷30=2 kL per day

If the relevant remaining period were five days, estimated consumption would be:

2×5=10 kL2

This is an illustration of the arithmetic, not a universal Queensland contractual formula. The actual calculation must follow the contract and the water authority's applicable charges.

15. How Are Body Corporate Levies Adjusted?

For a unit or townhouse in a community titles scheme, body corporate levies may need to be adjusted at settlement.

These can include:

administrative fund contributions;
sinking fund contributions; and
other amounts payable under the contract.

If the seller has paid levies for a period extending beyond settlement, an adjustment may be required.

Outstanding levies or special levies can require separate consideration.

The body corporate certificate and conveyancing searches can assist in identifying amounts relevant to the transaction.

16. What Happens if the Property Is Tenanted?

Where a property is sold subject to an existing tenancy, rent may need to be adjusted at settlement.

For example, if the tenant has paid rent in advance covering days after settlement, the buyer may be entitled to an adjustment for the relevant period.

The parties may also need to address:

tenancy documentation;
bond arrangements;
rent arrears;
property management arrangements; and
any other matters required by the contract.

The position is different where the seller is required to provide vacant possession.

17. When Is Transfer Duty Paid?

Transfer duty, commonly called stamp duty, is an important purchasing cost.

Queensland Revenue Office explains that duty generally applies to transactions involving the purchase or transfer of Queensland land, and that duty assessment and payment are required as part of completing the transfer.

In electronic conveyancing, the assessment and payment arrangements are coordinated with the electronic settlement process.

Your solicitor will calculate or arrange assessment of the applicable duty and account for it in the funds required to complete the purchase.

See here to accessthe State Revenue Transfer Duty Estimator .

Buyers should not assume transfer duty is included in their home loan.

18. What About Registration Fees?

Registration fees are separate from transfer duty.

They relate to registration of the relevant dealings with Titles Queensland.

Depending on the transaction, fees may be payable for:

the transfer;
a new mortgage;
discharge of an existing mortgage; and
other registrable documents.

Electronic conveyancing platform fees may also apply separately from statutory registration fees.

See here to access the Titles Queensland Fee Calculator .

These amounts should be included in the buyer's or seller's settlement calculations as appropriate.

19. What Is the Buyer's Final Inspection?

A buyer will commonly arrange a final inspection shortly before settlement.

The purpose is to check the property's condition and whether the seller has complied with relevant contractual obligations.

The buyer may wish to confirm that:

the property is in the expected condition;
included fixtures and chattels remain;
excluded items have been removed;
agreed repairs have been completed;
the property is vacant where required; and
no unexpected damage has occurred.

If there is a problem, contact your solicitor immediately.

Do not assume that the buyer can automatically delay settlement or withhold part of the purchase price.

The available rights depend on the contract and circumstances.

20. What Does Vacant Possession Mean?

Where the contract requires vacant possession, the seller must provide possession in accordance with that obligation.

Potential problems can arise if:

tenants remain at the property;
another person continues occupying it;
substantial belongings remain;
rubbish has not been removed; or
the seller is not ready to vacate.

Sellers should organise removalists and moving arrangements well before settlement.

If vacant possession may be difficult to provide, obtain advice early rather than waiting until settlement day.

21. What Actually Happens on Settlement Day?

In a typical electronic settlement, the following events are coordinated:

THE SETTLEMENT PROCESS

Final figures are confirmed. The legal representatives agree on the settlement calculations and required payments.

Funds are made available. The buyer and lender provide the funds required for settlement.

The electronic workspace is ready. Participating representatives and lenders complete the necessary authorisations.

Financial settlement occurs. Funds are distributed in accordance with the settlement arrangements.

Documents are lodged. The transfer, mortgage discharge and any new mortgage are dealt with through the electronic conveyancing process.

Completion is confirmed. The solicitors notify their clients and the real estate agent can ordinarily be authorised to release the keys.

The precise sequence and timing can differ between transactions.

22. When Does the Seller Receive the Money?

The seller generally receives the net sale proceeds after settlement completes and the required payments have been made.

The amount received may be less than the headline purchase price because of:

the deposit already held;
mortgage payout;
settlement adjustments;
agent's commission;
legal fees; and
other authorised payments.

The exact timing of funds reaching the seller's nominated bank account can depend on the settlement arrangements and banking processes.

Sellers should avoid committing to an immediate outgoing payment based on an assumption that cleared funds will be available at a particular minute.

23. When Does the Buyer Get the Keys?

Keys are ordinarily released once settlement has completed and the seller's solicitor has authorised the real estate agent to release them.

The buyer should not assume that the keys will be available at the scheduled settlement time if the transaction has not yet completed.

If you have removalists booked, allow for the possibility of a delay.

Where settlement is occurring late in the day, practical arrangements for collecting keys should be discussed with the agent beforehand.

24. What Happens if Settlement Is Delayed?

Settlement can be delayed for a range of reasons, including:

the buyer's lender not being ready;
the seller's mortgage discharge being incomplete;
insufficient funds;
incorrect payment details;
unresolved settlement adjustments;
outstanding documentation;
an issue with the electronic workspace; or
a problem affecting title or contractual completion.

A delay does not necessarily mean the contract has automatically terminated.

The parties' rights and obligations depend on the contract, the reason for the delay and any applicable legislation.

Where the standard REIQ residential contract applies, either party may also have the right under clause 6.2 to extend settlement by up to five business days without the other party's agreement, provided the required notice is given.

25. What if the Electronic Settlement System Is Unavailable?

Queensland's Property Law Act 2023 contains provisions dealing with certain failures of the systems required for electronic settlement.

Section 80 addresses circumstances where an e-conveyance cannot settle on the scheduled day because specified systems or institutions are inoperative. Where the statutory conditions apply, settlement is taken to be the next business day, and the parties are not in breach merely because settlement could not occur for that reason.

This is not a general extension for every technological problem or every delay.

The statutory conditions and the contract must be considered.

26. Can the Buyer or Seller Extend Settlement Without the Other Party's Agreement?

Yes, in many Queensland residential property transactions.

Under clause 6.2 of the standard REIQ residential contract, either the buyer or seller may extend the settlement date without obtaining the other party's agreement.

To exercise this right, the party must generally:

Give an extension notice to the other party by 4pm on the Settlement Date.
Nominate a new settlement date.
Ensure the new date is no later than five business days after the Scheduled Settlement Date.

The clause permits more than one extension notice, but the nominated settlement date cannot exceed the overall five-business-day period. The parties do not each receive a separate five-business-day entitlement.

Example

If settlement is scheduled for Monday, a buyer whose lender is not ready may be able to give the required notice and extend settlement to Wednesday without the seller's agreement.

If the lender then requires further time, another extension notice may be available, provided the new settlement date remains within the permitted five-business-day period.

What if more than five business days are needed?

An extension beyond the period permitted by clause 6.2 will generally require the parties' agreement or another applicable contractual or statutory basis.

The parties can agree to a longer extension, but neither should assume that the other must consent.

Does the extension clause apply to every Queensland property contract?

Not necessarily.

The right depends on the terms of the particular contract. Special conditions may modify or exclude the standard extension provision, and different contract forms may contain different requirements.

If settlement on a particular date is essential — for example, because a sale and purchase are being completed together — this should be considered before signing the contract.

Importantly, clause 6.2 extends the settlement date, not the finance or building and pest deadlines. Those conditions have their own contractual requirements.

27. What Happens After Settlement?

After settlement, there may still be practical matters to complete.

For buyers, these can include:

collecting keys;
arranging utilities;
confirming insurance;
notifying relevant organisations of the new address;
arranging property management if applicable; and
retaining the settlement statement and conveyancing records.

For sellers, these can include:

confirming receipt of proceeds;
finalising agent arrangements;
cancelling or updating relevant services;
redirecting mail; and
retaining records for taxation and other purposes.

Your solicitor will confirm completion and provide the relevant final documentation.

Common Settlement-Day Mistakes to Avoid

Some common problems can be reduced by preparing early.

For buyers:

failing to arrange sufficient funds;
overlooking transfer duty and fees;
assuming the lender will provide the entire purchase price;
leaving loan documents unsigned;
failing to arrange a final inspection;
booking removalists too tightly around settlement time; and
assuming the keys can be collected before completion.

For sellers:

delaying the mortgage discharge request;
failing to provide payment directions;
not being ready to vacate;
removing items included in the sale;
leaving belongings behind;
overlooking outstanding rates or body corporate amounts; and
assuming sale proceeds will be available before settlement completes.

Settlement Day Checklist

Before settlement, buyers and sellers should confirm:

Before Settlement

All contractual conditions have been addressed.

The lender is ready, where applicable.

Required funds are available.

The settlement statement has been reviewed.

Rates, water and other adjustments have been checked.

Transfer duty and registration requirements have been addressed.

The buyer has arranged a final inspection.

The seller is ready to provide possession as required.

Key collection arrangements are understood.

The solicitor has confirmed the settlement arrangements.

Property Settlement and Conveyancing Advice on the Gold Coast

KMB Legal assists buyers and sellers with Queensland property

contracts, conveyancing, settlement adjustments and property

settlements across the Gold Coast and Queensland.

We manage the legal aspects of the transaction from contract review

through to settlement, including liaising with lenders, arranging searches,

preparing settlement calculations and coordinating completion.

If you are buying or selling property, early preparation can help ensure

the transaction proceeds as smoothly as possible.

Free 30-minute initial telephone consultation.

Subject to Finance Clauses in Queensland Property Contracts: How Do They Work?

Sun, 20 Sep 2026 00:04:19 GMT

PROPERTY LAW

Subject to Finance Clauses in Queensland Property Contracts: How Do They Work?

Buying property in Queensland? A subject to finance clause can provide important protection if your home loan is not approved. However, buyers need to understand their obligations, the finance deadline and the consequences of giving notice that finance has been approved.

By Katie Chan

For many property buyers, obtaining finance is an essential part of completing a purchase.

A buyer may find the right property, negotiate an acceptable price and sign a contract, but still need their bank or lender to approve the home loan.

In Queensland, a property contract can be made subject to finance, giving the buyer an opportunity to obtain satisfactory loan approval before becoming unconditionally committed to the purchase.

However, a finance condition does not give a buyer an unrestricted right to withdraw from the contract.

The buyer must comply with the particular contractual requirements, take reasonable steps to obtain finance and give the appropriate notice within the required timeframe.

1. What Does “Subject to Finance” Mean?

A subject to finance clause makes the contract conditional upon the buyer obtaining finance approval in accordance with the contract.

Under the standard REIQ residential contract, the finance condition generally concerns the buyer obtaining approval of a loan for the specified finance amount from the specified financier by the finance date, on terms satisfactory to the buyer.

The buyer must also take all reasonable steps to obtain that approval.

This condition is particularly important where a buyer cannot complete the purchase without borrowed funds.

It can provide a contractual pathway to terminate if satisfactory finance is not obtained, provided the buyer has complied with the clause.

2. Make Sure the Finance Condition Is Properly Completed

Before signing, buyers should check that the finance section of the contract has been completed correctly.

The standard REIQ finance condition requires three important details:

Finance amount: The amount of the loan the buyer needs.
Financier: The lender or financier identified in the contract.
Finance date: The date by which approval must be obtained.

Under the standard form, the finance condition does not operate unless all three details are completed.

A buyer should not assume that mentioning finance to the real estate agent means the contract is automatically conditional upon loan approval.

For a broader overview of what buyers should check before signing, read Buying Property in Queensland: What to Know Before You Sign a Contract.

3. Is Home Loan Pre-Approval Enough?

Not necessarily.

Pre-approval can provide an indication of how much a lender may be prepared to lend, but it is not always final approval for a particular property.

A lender may still need to:

assess the signed contract;
complete a property valuation;
verify the buyer's income and liabilities;
review the buyer's financial circumstances;
confirm the proposed security;
assess the property's suitability; and
satisfy other lending requirements.

For example, Queensland Treasury's home-buying process distinguishes provisional approval from final approval after the buyer has found a property and supplied the contract to the lender.

Buyers should therefore avoid treating pre-approval as a guarantee that finance will be available at settlement.

4. How Long Should the Finance Period Be?

The appropriate finance period depends on the transaction.

Relevant considerations include:

whether the buyer already has pre-approval;
the lender's processing times;
whether a valuation is required;
the buyer's employment or business structure;
whether the buyer is self-employed;
whether the purchase involves a company or trust;
whether another property must be sold; and
whether additional loan documentation is required.

A buyer purchasing through a company or trust, for example, may need additional time for lender assessment.

Before agreeing to the finance date, speak with your broker or lender about a realistic timeframe.

Do not simply accept a short finance period because the seller or agent wants the contract to become unconditional quickly.

5. What Must the Buyer Do to Obtain Finance?

A finance condition is not an opportunity to sign a contract and then decide whether to apply for a loan.

Under the standard REIQ condition, the buyer must take all reasonable steps to obtain approval.

Depending on the circumstances, reasonable steps may include:

submitting a finance application promptly;
providing requested documents;
supplying financial statements or tax returns;
responding to lender enquiries;
arranging any required valuation;
following up outstanding requirements; and
keeping the broker or lender informed of contractual deadlines.

A buyer who deliberately fails to pursue finance may not be entitled to rely on the condition to escape the contract.

6. What Does “Finance on Terms Satisfactory to the Buyer” Mean?

The standard REIQ finance condition refers to approval on terms satisfactory to the buyer.

This is important because a lender may approve a loan, but the approval may not necessarily be suitable for the buyer.

For example, the proposed loan might involve:

a lower loan amount than required;
an unacceptable interest rate;
additional security;
a requirement for a guarantor;
an unexpectedly large cash contribution; or
other conditions affecting the buyer's ability to complete the purchase.

The standard wording allows a buyer acting honestly to determine whether the finance terms are satisfactory to their particular needs.

However, the buyer must act honestly and comply with the contract.

A buyer should obtain legal advice before relying on dissatisfaction with finance terms as a basis for termination.

7. What Happens if the Bank Values the Property Below the Purchase Price?

A lender may obtain a valuation of the property before approving the loan.

Sometimes the valuation is lower than the price the buyer has agreed to pay.

In this example, the buyer may need to contribute more funds than originally anticipated, in addition to purchase costs.

A lower valuation does not automatically mean the contract can be terminated.

The position depends on whether the buyer can obtain finance on the terms required by the contract and whether the buyer has complied with the finance condition.

If the lender's valuation creates a funding shortfall, contact your broker and solicitor promptly.

8. What if Finance Is Declined?

If finance is declined, the buyer should obtain written confirmation from the lender or broker and immediately contact their solicitor.

Under the standard REIQ finance condition, the buyer may be entitled to terminate where the required approval has not been obtained by the finance date, provided the contractual requirements are satisfied.

The buyer should not assume that a verbal statement from the bank automatically terminates the property contract.

The contract ordinarily requires the buyer to give the seller the appropriate notice.

9. What if Finance Is Still Being Processed?

A lender may not have made a final decision by the finance date.

This can happen because:

a valuation is outstanding;
the lender needs further documents;
the buyer's circumstances require additional assessment;
a guarantor is involved;
the application has been delayed internally; or
a third party has not supplied required information.

If approval is still pending, the buyer should consider the available contractual options before the deadline.

Depending on the circumstances, these may include:

Requesting an extension of the finance date.
Terminating under the finance condition if the contractual requirements are satisfied.
Waiving the finance condition and proceeding, if the buyer is prepared to accept the resulting risk.

Do not assume that a pending application automatically extends the finance date.

10. Can You Request an Extension of the Finance Date?

Yes.

If the lender needs more time, the buyer can request an extension from the seller.

However, the seller is not necessarily required to agree.

Legal Aid Queensland has explained that a buyer does not have an automatic entitlement to extend a finance date merely because the bank has delayed processing the application.

Any extension should be agreed and properly documented.

The buyer should not rely on an info rmal conversation with the real estate agent as confirmation that the contractual deadline has changed.

11. What Notice Must Be Given by the Finance Date?

Under the standard REIQ residential finance condition, the buyer must give notice to the seller that either:

finance approval has not been obtained and the buyer terminates the contract; or
the finance condition has been satisfied or waived.

The standard clause gives the seller a termination right if the buyer has not given the required notice by 5pm on the finance date.

The exact notice requirements must always be checked against the particular contract and any special conditions.

Your solicitor should ensure the correct notice is given to the correct party in the required manner .

12. What Happens if You Miss the Finance Date?

Missing the finance deadline can create significant risk.

Under the standard REIQ condition, if the buyer fails to give the required notice by 5pm on the finance date, the seller may terminate by notice.

The standard wording also preserves the buyer's continuing rights to give an applicable finance notice before the seller exercises that termination right.

Accordingly, a missed deadline does not necessarily mean the contract automatically becomes unconditional or automatically terminates.

The consequences depend on the contract and which party takes the next valid step.

If the deadline has passed, obtain advice immediately.

13. Can the Seller Terminate if Finance Is Delayed?

Potentially.

Under the standard REIQ condition, the seller's right to terminate can arise where the buyer fails to give the required finance notice by the contractual deadline.

However, the seller does not necessarily have an unrestricted right to terminate simply because the buyer's lender is taking longer than expected.

The contract wording, notices already given and any agreed extensions must be considered.

14. Can You Terminate if You Simply Change Your Mind?

No.

A finance condition is not intended to operate as a general change-of-mind provision.

A buyer cannot necessarily avoid the contract by:

deciding they no longer like the property;
failing to submit a loan application;
deliberately withholding information from the lender; or
abandoning an otherwise viable finance application.

The buyer must comply with the contractual requirement to take reasonable steps to obtain finance.

If the buyer has obtained satisfactory finance, the finance condition should not be treated as a substitute for a general cooling-off right.

15. What Happens Once You Confirm Finance Approval?

This is a particularly important point.

Once the buyer gives notice that the finance condition has been satisfied or waived, the buyer should not assume they can later revive that condition if the lender changes its position.

Where a buyer has already notified the seller of finance approval, the buyer cannot simply rely on the finance condition to cancel if the bank subsequently withdraws approval.

Before confirming finance approval, make sure you understand:

whether approval is unconditional;
whether the approved amount is sufficient;
whether the lender requires additional security;
whether all significant approval conditions can be met;
whether the buyer has sufficient funds for the balance of the purchase price and costs; and
whether the lender can complete settlement on time.

Do not give a finance satisfaction or waiver notice merely because the bank has indicated that approval is likely.

16. Conditional Approval Versus Unconditional Approval

Lenders use different terminology, and the significance of an approval letter depends on its actual terms.

A conditional approval may still require:

a satisfactory valuation;
mortgage insurance approval;
verification of income;
discharge of an existing loan;
evidence of savings;
insurance;
additional documents; or
other matters.

Some conditions may be routine, while others could materially affect the buyer's ability to obtain the loan.

Your solicitor and broker should consider the actual approval terms before the finance condition is confirmed as satisfied.

17. What if the Bank Withdraws Finance After Approval?

A lender may withdraw or alter an approval before settlement in some circumstances.

For example, the lender may become aware of a material change in the buyer's financial circumstances or discover that an approval condition has not been satisfied.

If the buyer has already confirmed finance under the contract, the finance condition may no longer provide an available termination right.

The buyer may then face the risk of being unable to complete settlement.

This is why buyers should avoid making significant financial changes between approval and settlement without considering their effect on the loan.

18. What Happens to the Deposit if Finance Is Not Approved?

Where a buyer validly terminates under an applicable finance condition, the deposit will generally be refundable in accordance with the contract.

However, the deposit is not automatically refundable merely because the buyer says the bank declined finance.

The buyer must have a valid contractual basis for termination and comply with the relevant requirements.

If the seller disputes the termination, a dispute about the deposit may arise.

Obtain legal advice before issuing a termination notice.

19. What if the Contract Is Not Subject to Finance?

If the contract is unconditional as to finance, the buyer generally bears the risk of obtaining the money needed to complete the purchase.

If the lender subsequently refuses the loan, the buyer may still be contractually required to settle.

Failure to settle can expose the buyer to serious consequences under the contract, potentially including loss of the deposit and a claim for additional loss.

You should obtain legal advice about appropriate conditions before signing a property contract.

20. Buying at Auction

Auction purchases require particular care.

A successful bidder will ordinarily enter into an unconditional contract without a finance condition or statutory cooling-off period.

Queensland Government guidance warns that auction buyers should arrange their finance and other investigations before bidding.

A buyer who intends to bid at auction should understand the lender's requirements and the consequences if final finance approval is not obtained.

Do not assume that pre-approval alone eliminates the financial risk.

21. Finance and Building and Pest Conditions Are Separate

A property contract may be subject to both:

finance; and
building and pest inspections.

These conditions serve different purposes and may have different deadlines.

A buyer may receive satisfactory building and pest reports but still be waiting for finance.

Alternatively, finance may be approved while a significant defect remains under investigation.

Each condition must be addressed separately in accordance with the contract.

For more information about inspection requirements, read Building and Pest Conditions in Queensland Property Contracts: What Buyers Need to Know.

22. What if You Are Selling One Property to Buy Another?

Some buyers need proceeds from the sale of their existing property to complete a new purchase.

A finance condition does not necessarily protect a buyer against every problem arising from a linked sale.

For example, the buyer may have finance approval but still be unable to settle because the sale of their existing property is delayed.

If your purchase depends on another transaction, obtain advice about whether an appropriate subject to sale condition or another special condition is required.

The contracts and settlement dates should be considered together.

23. What if You Are Buying Through a Company or Trust?

A company or trust purchase can involve additional financing requirements.

A lender may require:

trust documents;
company records;
financial statements;
guarantees;
evidence of the purchasing structure; and
additional security or approvals.

The purchasing entity should be considered before signing the contract.

Changing the buyer after signing can have legal, financing and transfer duty consequences.

Where a company or trust is involved, coordinate legal and finance advice early.

24. Common Mistakes Buyers Should Avoid

Common mistakes include:

assuming pre-approval is final approval;
failing to complete the finance section of the contract;
agreeing to an unrealistic finance date;
delaying the loan application;
failing to provide documents requested by the lender;
assuming the bank will approve the contract price;
overlooking a valuation shortfall;
treating conditional approval as unconditional;
missing the finance deadline;
relying on a verbal extension;
confirming finance before understanding the approval conditions;
assuming finance can be withdrawn without contractual consequences;
failing to coordinate a linked property sale; and
terminating without obtaining legal advice.

A finance condition is valuable, but the protection depends on its wording and proper compliance.

Before Your Finance Date: A Practical Checklist

Before the finance deadline, ask:

Have I submitted my loan application?

Have I provided all documents requested by the lender?

Has the property valuation been completed?

Is the approved loan amount sufficient?

Do I understand all approval conditions?

Do I have enough funds for the balance of the purchase price and costs?

Can the lender settle on time?

Do I need an extension?

Have I spoken with my solicitor?

Has the correct contractual notice been given?

If there is uncertainty about finance, seek advice before the deadline rather than assuming the matter can be resolved later.

Property Contract and Conveyancing Advice on the Gold Coast

KMB Legal assists buyers and sellers with Queensland property contracts,

finance conditions, contract reviews and conveyancing across the Gold Coast

and Queensland.

For buyers, we can review the proposed contract before signing, advise on

appropriate finance conditions, assist with contractual notices and advise

on the available options if finance is delayed or declined.

For sellers, we can advise on requests for finance extensions, contractual

notices and the consequences of an unresolved finance condition.

If you are considering buying property or your finance deadline is approaching,

obtain advice before becoming unconditionally committed.

Free 30-minute initial telephone consultation.

Building and Pest Conditions in Queensland Property Contracts: What Buyers Need to Know

Sat, 19 Sep 2026 23:09:51 GMT

PROPERTY LAW

Building and Pest Conditions in Queensland Property Contracts: What Buyers Need to Know

Buying property in Queensland? A building and pest condition can provide an important opportunity to investigate the property's condition before proceeding with the purchase. However, buyers need to understand the inspection deadline, what happens when defects are identified and when the contract may be terminated.

By Katie Chan

A building and pest inspection is one of the most important steps in purchasing a residential property.

A home may look well maintained during an open inspection but still have structural defects, water damage, termite activity or other issues that are not immediately apparent.

In Queensland, many residential property contracts include a building and pest condition allowing the buyer to obtain professional inspection reports before deciding whether to proceed.

However, a building and pest condition does not give a buyer an unrestricted right to withdraw from a contract simply because they have changed their mind.

The buyer's rights depend on the contract wording, the inspection findings and compliance with the relevant deadlines.

1. What Is a Building and Pest Condition?

A building and pest condition makes the contract conditional upon the buyer obtaining satisfactory inspection reports within the period specified in the contract.

Under the standard REIQ residential contract, the condition generally requires the buyer to obtain a written building report and a written pest report by the inspection date. The buyer must take reasonable steps to obtain the reports and act reasonably when deciding whether to terminate on the basis of an unsatisfactory report.

The condition provides an opportunity to investigate the property before becoming unconditionally committed to the purchase.

It is particularly important because many building defects and pest problems may not be obvious during an ordinary property inspection.

2. Make Sure the Contract Actually Includes the Condition

Buyers should never assume that every property contract automatically includes a building and pest condition.

Before signing, check that:

the condition is included and applies to the transaction;
the inspection date is correctly completed;
the period allows sufficient time to arrange inspections;
the condition covers the inspections you require; and
any special conditions do not alter your rights unexpectedly.

Under the standard REIQ residential contract, the building and pest condition operates where the relevant inspection date is completed in the contract.

If the contract is not properly completed, a buyer may discover that they do not have the protection they expected.

For a broader overview of the matters to check before signing, read our article Buying Property in Queensland: What to Know Before You Sign a Contract.

3. When Should You Arrange the Inspections?

Arrange the inspections as soon as possible after the contract is signed.

The contract will specify the relevant inspection date.

There is no single inspection period that should be assumed to apply to every Queensland contract. The parties may agree to different dates, and special conditions may affect the standard position.

Do not wait until the final day to book an inspector.

If the inspector identifies a problem, you may need additional time to:

obtain clarification;
arrange a specialist assessment;
obtain repair estimates;
discuss the findings with your solicitor;
negotiate with the seller; or
decide whether to terminate the contract.

The Queensland Building and Construction Commission recommends obtaining building and pest inspections before purchasing and making the contract conditional upon satisfactory results.

4. What Does a Building Inspection Cover?

A pre-purchase building inspection assesses the property's visible and accessible condition.

Depending on the property and inspection scope, the report may identify:

cracking in walls;
roof defects;
leaking ceilings;
water damage;
drainage problems;
dampness or mould;
deterioration;
damaged foundations;
defective waterproofing; and
other building concerns.

The QBCC explains that a pre-purchase building inspection looks for apparent defects and areas of concern, but it is not a guarantee that the property is free from every defect.

A building inspection is therefore an important risk-management step, not a warranty about the property's future condition.

5. What Does a Pest Inspection Cover?

A timber pest inspection focuses on issues such as:

termite activity;
termite damage;
conditions conducive to termite infestation;
other relevant timber pests; and
evidence of previous pest activity or treatment.

A pest report may identify active termites, historical damage or conditions that increase the risk of future infestation.

It is important to distinguish between those findings.

For example, evidence of previous termite treatment does not necessarily establish that the property has an active infestation. Equally, an absence of visible termite activity does not guarantee that termites are not present in inaccessible areas.

Where significant concerns are identified, further investigation may be appropriate.

6. Choose Appropriately Qualified Inspectors

A buyer should engage appropriately licensed and qualified professionals to undertake the relevant inspections.

The inspector should have suitable experience with the type of property being purchased.

For example, a modern high-rise apartment may require a different inspection approach from an older detached house.

Before booking, ask what the inspection includes and whether there are limitations.

The scope of a standard pre-purchase inspection may not extend to every structure, service or inaccessible area.

7. Attend the Inspection if Possible

Where practical, attending the inspection can be useful.

It provides an opportunity to:

ask questions;
understand the location of defects;
distinguish urgent concerns from ordinary maintenance;
discuss areas that could not be inspected; and
understand whether further specialist advice is recommended.

The QBCC recommends that buyers attend the building inspection and consider obtaining more detailed reports from appropriate specialists where particular concerns arise.

A written report remains important, but discussing the findings directly with the inspector may help you understand their significance.

8. What Happens if the Report Identifies Defects?

Most established properties will have some maintenance issues.

A report might identify:

cracked tiles;
worn paint;
minor leaks;
damaged fixtures;
deteriorating sealant;
drainage concerns;
roof defects;
structural cracking;
termite damage; or
extensive water damage.

The important question is not simply whether the report identifies a defect.

It is whether the findings, considered in the context of the contract and property, provide a reasonable basis for the buyer to be dissatisfied.

A buyer may need to distinguish between ordinary wear and tear and defects that materially affect the property's condition, value or suitability.

9. Can You Terminate a Queensland Property Contract Because of Building Defects?

Potentially, yes.

However, the right to terminate depends on the wording of the particular building and pest condition.

Under the standard REIQ residential contract, the buyer must act reasonably when relying on an unsatisfactory inspection report to terminate.

That means a buyer cannot necessarily rely on any minor defect as a reason to withdraw.

Relevant considerations may include:

the age of the property;
the nature of the defect;
its severity;
the likely repair cost;
whether it was apparent before signing;
the overall condition of the property; and
whether the defect affects the property's value or liveability.

The REIQ has explained that reasonableness is assessed objectively, taking account of the report and the circumstances of the property.

A buyer considering termination should obtain legal advice before giving notice.

10. What Does “Acting Reasonably” Mean?

This is one of the most frequently misunderstood aspects of the building and pest condition.

A buyer might be disappointed that a property requires maintenance, but disappointment alone may not justify termination.

For example, a buyer purchasing an older home should generally expect some deterioration consistent with its age.

A minor cosmetic issue may be very different from an unexpected structural defect requiring substantial rectification.

The REIQ identifies the age of the property, severity of the problems, visibility of the defects and potential rectification cost as relevant considerations.

Each matter must be assessed on its own facts and contractual terms.

11. Minor Defects Versus Significant Defects

Consider two examples.

Example A: Minor maintenance

The inspection identifies weathered paint, a cracked bathroom tile and minor deterioration to external sealant.

These issues may be consistent with the age and condition of the property and may not, without more, provide a reasonable basis to terminate.

Example B: Significant structural concerns

The inspection identifies substantial structural movement, extensive water damage or serious termite damage that was not apparent when the buyer inspected the property.

These findings may provide a substantially different basis for assessing whether termination is reasonable.

Neither example determines the outcome of a real transaction. The contract, reports and surrounding circumstances must be considered.

12. What if Termites Are Found?

Termite activity or damage should be investigated carefully.

The seriousness of the issue may depend on:

whether termites are active;
the extent of damage;
whether structural components are affected;
whether previous treatment has occurred;
whether further investigation is required; and
the likely cost of treatment and repairs.

A buyer may need a specialist report or additional advice to understand the implications.

Do not assume that every reference to termites automatically entitles a buyer to terminate, or that evidence of historical treatment necessarily makes a property unsuitable.

13. What if Structural Damage Is Found?

Structural concerns can be particularly significant because they may affect safety, repair costs, insurability and the property's value.

Examples include:

substantial foundation movement;
significant cracking;
deterioration of structural timber;
serious roof defects; and
extensive water-related damage.

Where a building inspector recommends further investigation by a structural engineer or another specialist, buyers should consider that recommendation promptly.

The QBCC specifically recommends obtaining a more detailed report from an appropriate expert where the buyer is concerned about a particular part of the property.

If additional time is required, speak with your solicitor about requesting an extension of the inspection date.

14. Can You Negotiate a Price Reduction?

Yes. If an inspection identifies defects, the buyer and seller may negotiate a variation to the transaction.

Possible outcomes include:

the buyer proceeding without changes;
a reduction in the purchase price;
the seller agreeing to specified repairs;
an extension to obtain further reports; or
termination where the contractual requirements are satisfied.

However, the building and pest condition does not automatically entitle a buyer to demand a price reduction or require the seller to complete repairs.

Those outcomes generally require agreement between the parties.

Any agreed variation should be properly documented through the parties' solicitors.

15. Should the Seller Complete Repairs Before Settlement?

Sometimes the parties agree that the seller will rectify identified defects before settlement.

If so, the agreement should clearly address:

the precise work required;
who will perform it;
whether licensed tradespeople are required;
when the work must be completed;
whether certificates or invoices must be provided;
whether the buyer may inspect the work; and
what happens if the work is not completed.

Vague promises such as “the seller will fix the leak” can create uncertainty.

Where the work is substantial, a price adjustment or another carefully documented arrangement may be more appropriate.

16. What Notice Must Be Given Before the Inspection Date?

The notice requirements depend on the contract.

Under the standard REIQ residential contract, the buyer must give notice stating whether the condition has been satisfied or waived, or whether the buyer terminates because a satisfactory report has not been obtained.

The standard clause requires notice by the inspection deadline, ordinarily 5pm on the Inspection Date.

Do not assume that telling the real estate agent informally is sufficient.

Your solicitor should ensure the required notice is given to the correct party in the required manner and within the contractual timeframe.

17. What Happens if You Miss the Building and Pest Deadline?

Missing the inspection date can create significant risk.

Under the standard REIQ residential contract, where the buyer fails to give the required notice by 5pm on the inspection date, the seller may have a contractual right to terminate by notice.

The standard clause also preserves the buyer's continuing right to give the relevant notice before the seller exercises that termination right.

The precise position depends on the contract and any special conditions.

A missed deadline should never be treated casually.

18. What if the Inspector Cannot Attend Before the Deadline?

Contact your solicitor immediately.

It may be possible to request an extension from the seller.

However, the seller is not necessarily required to agree.

The buyer should not assume that an inspection date has been extended simply because an agent has indicated that more time should be available.

Any extension should be properly agreed and documented before the existing deadline.

19. Does the Seller Have a Right to See the Reports?

Under the standard REIQ residential contract, if the buyer terminates under the building and pest condition and the seller requests the reports, the buyer must provide copies without delay.

This is relevant where a seller questions whether the buyer acted reasonably in terminating.

The reports may help establish the nature and seriousness of the concerns relied upon.

20. What Happens to the Deposit if the Contract Is Validly Terminated?

Where a buyer validly terminates under an applicable building and pest condition, the deposit will generally be refundable in accordance with the contract.

However, the buyer should not assume that the deposit will automatically be returned merely because an inspection identifies a problem.

The termination must be valid and the contractual requirements must be satisfied.

If there is disagreement about the buyer's entitlement to terminate, a dispute about the deposit may follow.

This is another reason to obtain advice before issuing a termination notice.

21. What if You Are Buying at Auction?

Auction purchases require particular care.

A buyer should not assume that an auction contract includes a building and pest condition.

If the contract is unconditional, the buyer may have no contractual opportunity to withdraw following an unsatisfactory inspection.

Buyers considering bidding at auction should arrange appropriate inspections and contract advice beforehand.

The Queensland Government recommends arranging inspections early in negotiations and ensuring suitable contractual protections are included where inspections will occur after signing.

22. Does Form 2 Seller Disclosure Replace a Building and Pest Inspection?

No.

Queensland's seller disclosure regime commenced on 1 August 2025, but it does not provide buyers with a comprehensive assessment of the physical condition of a property.

In particular, buyers should not assume that a Form 2 Seller Disclosure Statement establishes that the building is structurally sound or free from pests.

A building and pest inspection serves a different purpose from statutory seller disclosure.

For more information about the disclosure requirements, read Queensland Seller Disclosure Laws: What Property Sellers Need to Know.

23. What About Unapproved Building Work?

An inspector may identify an extension, deck, patio, retaining wall or other improvement that raises concerns about approvals.

However, a building and pest inspection does not necessarily establish whether all improvements have the required council or building approvals.

Where approvals are important, separate enquiries may be needed.

If you are purchasing a property with substantial renovations or additions, consider whether the contract should include additional protections or due diligence requirements.

24. Should Sellers Obtain a Building and Pest Report Before Listing?

Some sellers choose to obtain inspections before marketing their property.

This can help identify issues that may otherwise arise after a buyer signs a conditional contract.

A seller might then decide to:

complete repairs;
obtain specialist advice;
clarify the condition of an improvement; or
prepare for likely buyer enquiries.

However, a seller-commissioned report is not necessarily a substitute for a buyer obtaining independent advice.

Sellers should also consider their disclosure obligations and obtain advice about how known issues should be addressed in the sale process.

25. Common Mistakes Buyers Should Avoid

Common mistakes include:

signing without checking whether a building and pest condition applies;
leaving the inspection date blank;
booking inspections too late;
relying on verbal comments rather than obtaining written reports;
failing to investigate serious findings;
assuming any defect permits termination;
missing the contractual notice deadline;
sending notice to the wrong person;
assuming the seller must agree to repairs;
agreeing to a price reduction without documenting it;
overlooking areas excluded from the inspection; and
terminating without obtaining legal advice.

A building and pest condition is valuable, but its protection depends on using it correctly.

Before Your Building and Pest Date: A Practical Checklist

Before the deadline, make sure you can answer these questions:

Have I booked appropriately qualified inspectors?

Have I received the written reports?

Do I understand the significant findings?

Are any areas excluded from the inspections?

Do I need further specialist advice?

Do I understand the likely repair costs?

Am I satisfied with the property's condition?

If not, do I have a reasonable contractual basis to terminate?

Do I want to negotiate with the seller?

Have I spoken with my solicitor?

Has the required notice been given before the deadline?

Addressing these questions promptly can help you make an informed decision before the condition expires.

Building and Pest Contract Advice on the Gold Coast

KMB Legal assists buyers and sellers with Queensland property contracts,

contract conditions, conveyancing and property settlements across the Gold

Coast and Queensland.

For buyers, we can review the contract before signing, advise on building and

pest conditions, assist with contractual notices and advise on the available

options if an inspection identifies significant concerns.

For sellers, we can advise on requests for repairs, price adjustments, extensions

and proposed termination under a building and pest condition.

If you are considering buying property or have received an unsatisfactory

inspection report, obtain advice before the contractual deadline.

Free 30-minute initial telephone consultation.

Queensland Seller Disclosure Laws: What Property Sellers Need to Know

Fri, 18 Sep 2026 16:14:15 GMT

PROPERTY LAW

Queensland Seller Disclosure Laws: What Property Sellers Need to Know

Queensland introduced a mandatory seller disclosure scheme on 1 August 2025. Most sellers must now give buyers a Form 2 Seller Disclosure Statement and applicable prescribed certificates before the buyer signs the contract.

By Katie Chan

Selling property in Queensland now involves an important additional step before the contract is signed.

On 1 August 2025, the seller disclosure scheme under the Property Law Act 2023 (Qld) commenced. The scheme applies broadly to residential property, commercial property and vacant land, subject to statutory exceptions.

For most transactions, the seller must provide the buyer with a completed Form 2 Seller Disclosure Statement, together with the prescribed certificates that apply to the property, before the buyer signs the contract.

The requirements are significant because non-compliance can, in certain circumstances, give the buyer a right to terminate the contract before settlement.

What Is the Queensland Seller Disclosure Scheme?

The seller disclosure scheme creates a standardised process for giving prospective buyers specified information about a property before they become contractually bound.

Section 99 of the Property Law Act 2023 requires the seller, before the buyer signs the contract, to give the buyer:

a disclosure statement in the approved form; and
each applicable prescribed certificate.

The disclosure statement must contain the prescribed information, be completed with information that is true when it is given to the buyer and be signed by the seller.

The approved disclosure statement is known as the Form 2 Seller Disclosure Statement.

When Did the New Requirements Start?

The scheme commenced on 1 August 2025, when the relevant provisions of the Property Law Act 2023 and Property Law Regulation 2024 commenced.

This means Queensland sellers now need to think about disclosure before a buyer is ready to sign, rather than treating disclosure as something to deal with later in the conveyancing process.

For sellers, early preparation is important because some of the required documents need to be obtained from government, Titles Queensland or a body corporate.

What Properties Does the Seller Disclosure Scheme Apply To?

The scheme applies broadly to the sale of Queensland land, including:

houses;
apartments and units;
townhouses;
vacant land; and
commercial property.

There are statutory exceptions, so the requirements should always be considered in the context of the particular transaction.

What Is Form 2?

The Seller Disclosure Statement – Form 2 is the approved form used for the statutory disclosure scheme.

It records prescribed information about the seller and property and is accompanied by applicable prescribed certificates.

Importantly, the Form 2 itself is only one part of the disclosure package.

A seller may also need to obtain and provide several supporting documents.

What Information Is Included in Form 2?

The prescribed information is extensive and varies according to the property.

It includes matters such as:

the seller's name;
property address;
lot and plan description;
whether the property forms part of a community titles or BUGTA scheme;
unregistered encumbrances;
zoning;
certain contamination and environmental matters;
certain tree applications or orders;
particular transport infrastructure notices;
heritage information;
particular resumptions;
relevant pool information;
rates and water information; and
certain information about residential tenancies or rooming accommodation agreements.

The applicable requirements are prescribed by the Property Law Regulation 2024.

The information required will therefore depend on the characteristics of the parti cular property.

What Are Prescribed Certificates?

The legislation requires applicable prescribed certificates to be provided with the Form 2.

For most properties, these include:

a current title search; and
a copy of the registered survey plan.

Depending on the property, additional documents can be required concerning matters such as:

owner-builder work;
building or planning notices;
environmental matters;
tree applications or orders;
swimming pools; and
body corporate schemes.

This is one reason sellers should not leave preparation of the disclosure package until a buyer is waiting to sign.

What About Units and Townhouses?

Additional requirements apply when selling a lot in a community titles scheme.

The seller will generally need to provide the relevant community management statement and a body corporate certificate as part of the disclosure process.

Depending on the scheme, the body corporate certificate may be a BCCM Form 33 or, for certain specified two-lot schemes, a BCCM Form 34.

The body corporate certificate can contain useful information about matters such as:

levies;
insurance;
body corporate management;
assets and liabilities;
improvements;
common property;
exclusive-use areas; and
other scheme information.

For sellers of apartments and townhouses, obtaining the necessary body corporate documents early can help prevent delays once a buyer is ready to sign.

We'll cover the buyer's side of this in our separate article Buying a Unit or Apartment in Queensland: Body Corporate and Disclosure Issues.

When Must the Disclosure Documents Be Given?

The timing requirement is critical.

The seller must give the disclosure documents to the buyer before the buyer signs the contract.

It is not enough to provide them after both parties have already entered into the contract.

This changes the practical sequence of many Queensland property transactions.

Sellers and agents should ensure the disclosure package is ready before inviting a buyer to execute the contract.

Can the Documents Be Sent Electronically?

Yes.

Queensland Government guidance confirms that the disclosure statement and prescribed certificates can be given:

personally;
by post; or
by email or another form of electronic communication.

The seller should retain evidence that the disclosure documents were actually provided to the buyer. This might include an email record, read receipt or signed acknowledgement.

Keeping evidence of delivery can become important if there is later a dispute about whether disclosure occurred before the contract was signed.

What Happens at an Auction?

Seller disclosure obligations also need to be addressed for auction sales.

Different procedural rules apply, but the disclosure statement and prescribed certificates must still be given or made available to the buyer in accordance with the statutory requirements before the fall of the hammer.

Sellers planning an auction should therefore arrange the disclosure documents well before auction day.

Does Form 2 Tell a Buyer Everything About the Property?

No.

This is particularly important for buyers to understand.

The statutory seller disclosure scheme is not a complete due diligence report on the property.

Queensland Government guidance expressly identifies information that sellers are not required to include in the disclosure statement, including matters such as:

structural soundness;
flooding history; and
previous building or development approvals.

The Form 2 itself also alerts buyers that the disclosure regime does not provide comprehensive information about every possible issue affecting a property.

A buyer should therefore not assume:

“It isn't mentioned in the Form 2, so there can't be a problem.”

Seller disclosure and buyer due diligence serve different purposes.

Buyers Should Still Conduct Their Own Searches

Depending on the property, a buyer may still need to investigate matters such as:

flooding and overland flow;
building approvals;
planning restrictions;
proposed development;
structural condition;
building and pest issues;
services;
easements and covenants;
body corporate records;
special levies;
council information; and
the suitability of the property for the buyer's intended use.

The appropriate investigations will v ary considerably between a detached house, an apartment, vacant land and commercial property.

Our article Buying Property in Queensland: What to Know Before You Sign a Contract explains the broader due diligence and conveyancing issues buyers should consider.

Does the Seller Have to Guarantee the Information Is Correct?

The Act requires the disclosure statement to contain information that is true at the time the statement is given to the buyer.

Sellers should therefore carefully review the Form 2 and supporting documents before signing the disclosure statement.

They should not assume that because an agent, solicitor or another person assisted in preparing the documents, they do not need to check the information.

If something appears incorrect or incomplete, raise it before the documents are provided to the buyer.

What If Something Changes After the Form 2 Is Given?

The statutory requirement focuses on the information being true when the disclosure statement is given.

However, if circumstances change after disclosure but before the contract is signed, the issue should be raised with the seller's solicitor promptly.

Depending on what has changed, the disclosure package or contractual documentation may need to be reconsidered.

There may also be separate obligations arising under other legislation or the contract.

What Happens If the Seller Does Not Give a Form 2?

Non-compliance can have significant consequences.

Queensland Government guidance states that a buyer may have a right to terminate the contract at any time before settlement where the seller fails to provide the required disclosure documents.

This is why the disclosure process should be treated as an important part of the sale rather than simply another administrative document.

What If the Disclosure Is Inaccurate or Incomplete?

An error does not necessarily mean every contract can automatically be terminated.

Where disclosure is inaccurate or incomplete, Queensland Government guidance explains that the buyer's statutory termination right depends on requirements including that:

the matter is material;
the buyer was unaware of the true position when signing; and
the buyer would not have signed the contract had they known the true position.

Different consequences can also apply where the same issue constitutes non-compliance with another Act.

Whether a buyer actually has a right to terminate therefore requires consideration of the legislation and the particular facts.

A buyer concerned about incorrect disclosure should obtain legal advice before purporting to terminate the contract.

Can the Parties Simply Agree That Seller Disclosure Does Not Apply?

Generally, no.

Section 98 of the Property Law Act provides that the seller disclosure division applies despite an agreement to the contrary. In other words, parties cannot simply insert a contractual clause that generally contracts out of the statutory scheme.

However, the legislation contains specific exceptions to the disclosure requirements.

Are There Exceptions to Seller Disclosure?

Yes.

The legislation provides exceptions for particular transactions.

Queensland Government identifies examples including certain transactions where:

the buyer is the State or another specified government entity;
the buyer and seller are related parties;
the sale price exceeds $10 million and the buyer validly waives disclosure; or
a local government is selling land in connection with recovering unpaid rates.

These are examples rather than the complete list of statutory exceptions.

Sellers should obtain advice before assuming an exception applies.

What About Property Sold for More Than $10 Million?

There is an important exception for certain higher-value transactions.

Queensland Government guidance confirms that where the sale price is more th an $10 million, the statutory conditions can permit the buyer to waive seller disclosure.

This does not mean every sale above $10 million automatically falls outside the regime.

The relevant statutory requirements for the exception and waiver must be satisfied.

Does the Scheme Apply to Commercial Property?

Yes.

The scheme is not limited to residential conveyancing.

Queensland Government expressly identifies commercial property as one of the property categories covered by the seller disclosure scheme.

That makes the new regime relevant to sellers and buyers of:

commercial premises;
offices;
shops;
warehouses;
development land; and
other forms of Queensland land.

Different due diligence considerations may of course arise for commercial transactions.

Does Seller Disclosure Replace the Contract?

No.

The Form 2 and prescribed certificates form part of the pre-contract disclosure process, but the contract remains the document governing the sale transaction.

Sellers and buyers still need to carefully consider matters including:

purchase price;
deposit;
settlement;
finance;
building and pest conditions;
inclusions and exclusions;
special conditions;
tenancies;
vacant possession; and
other transaction-specific terms.

Seller disclosure is one part of the conveyancing process.

Preparing to Sell: A Practical Checklist

For sellers, the safest approach is to start preparing before a buyer is waiting to sign.

Before listing or accepting an offer, consider:

Speak with your solicitor early.
Confirm the correct registered owner and title details.
Obtain a current title search and survey plan.
Identify any registered and unregistered encumbrances.
Consider whether additional statutory notices or certificates apply.
If there is a pool, check the relevant pool documentation.
For a unit or townhouse, obtain the necessary body corporate documents.
Provide accurate rates and water information.
Check relevant tenancy information.
Review the Form 2 carefully before signing it.
Provide the complete disclosure package before the buyer signs.
Keep evidence showing when and how the documents were provided.

Preparing these documents early can help prevent the disclosure process from delaying a sale.

Seller disclosure is only one part of preparing a property for sale. For a broader overview of contracts, mortgages, deposits and settlement, read our article Selling Property in Queensland: What Sellers Need to Know Before Signing a Contract .

What Should Buyers Do When They Receive Form 2?

Buyers should read the disclosure package carefully rather than treating it as paperwork that simply needs to be acknowledged.

Consider:

Does the title reveal easements, covenants or other interests?
Are there unregistered encumbrances?
Is the property part of a body corporate?
Are there government notices?
Is there relevant environmental information?
Is there a pool?
Is the property tenanted?
Do the rates and water details appear consistent with expectations?
Are there issues requiring further investigation?

Most importantly, consider what is not disclosed and whether further searches or enquiries are required.

Seller Disclosure and Gold Coast Property Transactions

The Gold Coast includes a diverse range of property, from detached homes and waterfront properties to high-rise apartments, commercial premises and development sites.

The investigations relevant to each can be very different.

For example, a buyer of an apartment may need to closely consider body corporate records and proposed major expenditure, while a buyer of a waterfront home may have different concerns about planning, structures, flooding, waterways or improvements.

The Form 2 provides an important starting point, but it does not replace transaction-specific legal advice and due diligence.

Queensland Property and Conveyancing Advice

KMB Legal assists buyers and sellers with Queensland property contracts,

seller disclosure requirements, contract reviews and conveyancing across

the Gold Coast and Queensland.

For sellers, we can assist with preparing the required disclosure documentation

before a buyer signs the contract and manage the conveyancing process through

to settlement.

For buyers, we can review the contract and disclosure package, advise on issues

requiring further investigation and assist throughout the purchase.

If you are buying or selling property, obtaining advice before the contract is signed

provides the best opportunity to identify and address issues early.

Free 30-minute initial telephone consultation.

Selling Property in Queensland: What Sellers Need to Know Before Signing a Contract

Fri, 18 Sep 2026 15:31:21 GMT

PROPERTY LAW

Selling Property in Queensland:

What Sellers Need to Know Before Signing a Contract

Selling a property involves more than agreeing on a price. Queensland sellers need to consider disclosure obligations, the terms of the sale contract, mortgages, inclusions and exclusions, settlement requirements and other issues before becoming legally bound.

By Katie Chan

Selling a home or investment property can move quickly once a buyer makes an acceptable offer. However, there are several legal matters that are better addressed before the contract is signed rather than after the property is under contract.

This is particularly important following the introduction of Queensland's statutory seller disclosure scheme on 1 August 2025, which changed the information and documents sellers generally need to provide to buyers before a contract is entered into.

Preparing early can help avoid unnecessary delays, contractual problems and issues at settlement.

1. Speak With Your Solicitor Before a Contract Is Signed

Sellers often contact their solicitor only after the real estate agent has negotiated the sale and circulated a signed contract.

Ideally, legal advice should be obtained earlier.

Before signing, a seller should consider matters including:

seller disclosure requirements;
the proposed purchase price;
deposit arrangements;
settlement date;
inclusions and exclusions;
any existing mortgage;
finance conditions requested by the buyer;
building and pest conditions;
special conditions;
tenancies;
body corporate matters;
swimming pool requirements; and
whether there are any unusual issues affecting the property.

A contract can become legally binding very quickly. It is much easier to address an issue before signing than to try to renegotiate the contract afterwards.

2. Queensland's Seller Disclosure Scheme

Since 1 August 2025, Queensland has had a statutory seller disclosure scheme under the Property Law Act 2023 (Qld).

Subject to exceptions, a seller must provide the buyer with a prescribed disclosure statement and applicable prescribed certificates before the buyer signs the contract. The disclosure statement must contain the prescribed information, be accurate when given and be signed by the seller.

The scheme applies broadly to sales of:

houses;
townhouses;
units;
commercial property; and
vacant land.

There are statutory exceptions, so the requirements should be considered for the particular transaction.

This is now an important part of preparing a Queensland property for sale.

3. What Does a Seller Need to Disclose?

The information required depends on the property.

The prescribed disclosure information includes matters such as:

the seller's name;
property address;
lot and plan description;
whether the property is in a community titles or certain other schemes;
unregistered encumbrances;
zoning;
certain environmental and contamination information;
certain government notices;
relevant pool information;
rates and water information; and
certain tenancy information where applicable.

Prescribed certificates can include a current title search, registered survey plan and particular certificates or notices that apply to the property.

For a property in a community titles scheme, additional body corporate documentation may also be required.

Because the disclosure documents must generally be provided before the buyer signs, sellers should allow enough time to prepare them before expecting a buyer to execute a contract.

4. Accuracy of the Disclosure Is Important

Seller disclosure should not be treated as an administrative formality.

If the seller fails to provide the required disclosure documents, the buyer may have a statutory right to terminate the contract before settlement.

A buyer can also potentially terminate where disclosure is inaccurate or incomplete in relation to a material matter if the statutory requirements are satisfied — including that the buyer was unaware of the true position and would not have signed had they known it.

Accordingly, sellers should carefully review the disclosure statement rather than simply signing documents prepared by someone else without checking the information.

We'll deal with these requirements in greater detail in our separate article Queensland Seller Disclosure Laws: What Property Sellers Need to Know.

5. Seller Disclosure Does Not Cover Everything About the Property

The statutory disclosure scheme does not require a seller to provide every conceivable piece of information about the property.

For example, the prescribed disclosure statement expressly warns that it does not include information about matters such as:

flooding or other natural hazard history;
structural soundness or pest infestation;
current or historical use of the property;
current or previous building or development approvals;
planning-law restrictions;
services connected or potentially connected to the property; and
asbestos in buildings or improvements.

Other statutory, contractual or legal disclosure obligations may also apply depending on the property and transaction.

6. Make Sure the Seller Is Correctly Identified

The contract needs to identify the correct legal owner of the property.

This sounds straightforward, but complications can arise where:

the property is owned jointly;
an owner has changed their name;
an owner has died;
the registered owner is a company;
the property is held by a trustee;
there is an enduring power of attorney involved; or
there is another issue affecting the seller's authority to transact.

Identifying these matters early can prevent settlement delays.

7. Check the Title Before Selling

A current title search forms part of the prescribed disclosure material and also assists in identifying interests affecting the property.

The title may reveal matters such as:

registered mortgages;
easements;
covenants; and
other registered interests.

If something unusual appears on the title, it should be investigated before the contract is signed.

For example, an existing mortgage will generally need to be discharged as part of settlement.

8. If You Have a Mortgage

Having a mortgage does not prevent you from selling the property.

However, your lender will generally need to be involved in the settlement process so that the mortgage can be discharged.

Sellers should notify their lender early and complete any required mortgage discharge documentation.

Waiting until immediately before settlement can create unnecessary pressure, particularly if the lender requires additional information or processing time.

Your solicitor will coordinate with the lender and the buyer's solicitor as settlement approaches.

9. Be Clear About What Is Included in the Sale

T he contract should clearly identify any items that are included or excluded.

Potential issues can arise with:

dishwashers;
refrigerators;
wall-mounted televisions;
curtains and blinds;
security systems;
solar equipment;
pool equipment;
outdoor furniture;
garden structures; and
other items at the property.

Whether something is a fixture or a chattel can sometimes become contentious.

If you intend to remove something that a buyer might reasonably expect to remain, make that position clear in the contract.

Similarly, if a particular item is being sold with the property, ensure the contract accurately reflects that agreement.

10. Swimming Pools

Properties with regulated swimming pools can have additional requirements.

The seller disclosure regime itself requires information concerning relevant pools, and prescribed documentation may include a pool safety certificate where applicable.

Separate Queensland pool safety requirements also apply to property sales. The precise obligations differ depending on matters including whether the pool is shared or non-shared and whether a current pool safety certificate exists.

If your property has a pool, check its status early rather than leaving the issue until settlement.

11. Smoke Alarms

Queensland residential properties are subject to smoke alarm requirements.

For a transfer of residential land, Queensland legislation requires the transferor to give the transferee written notice, on or before possession, stating whether complying smoke alarms are installed.

Sellers should make sure smoke alarms are addressed as part of their pre-sale preparation rather than assuming this is something the buyer will deal with after settlement.

12. Selling a Tenanted Property

Additional considerations arise where an investment property is occupied by tenants.

Before entering into a contract, consider:

the existing tenancy agreement;
whether the property is being sold subject to the tenancy or with vacant possession;
the tenancy end date;
rent paid;
bond arrangements;
notices already given;
the date of the last rent increase; and
how rent will be adjusted at settlement.

Certain tenancy information is also part of the prescribed seller disclosure regime where the property was subject to a residential tenancy or rooming accommodation agreement during the relevant period before the contract.

Do not promise vacant possession unless you understand whether it can actually be provided by the contractual settlement date.

13. Selling a Unit or Townhouse

If the property forms part of a community titles scheme, additional issues need to be considered.

These may include:

body corporate disclosure;
administrative and sinking fund levies;
special levies;
body corporate insurance;
exclusive-use areas;
by-laws;
outstanding amounts; and
body corporate certificates.

Under the seller disclosure scheme, sales of lots in community titles schemes can require the community management statement and body corporate certificate as prescribed documentation.

If obtaining the necessary documentation will take time, start the process before a buyer is ready to sign.

14. Consider the Buyer's Conditions Carefully

A buyer may make an offer subject to conditions such as:

finance;
building and pest inspection;
sale of another property;
due diligence;
satisfactory searches; or
another event occurring before the contract becomes unconditional.

Conditions can be entirely appropriate, but sellers should understand their effect.

A broadly drafted condition may give the buyer significantly greater flexibility to withdraw than the seller anticipated.

The wording matters.

15. Building and Pest Conditions

Building and pest conditions are common in residential property contracts.

From the seller's perspective, consider:

how long the buyer has to obtain the reports;
what contractual rights the buyer has following the inspection;
what notice must be given;
whether the buyer may seek to renegotiate the price; and
what happens if the condition is not satisfied.

If a buyer raises an issue following an inspection, obtain advice before agreeing to repairs, a price reduction or another variation to the contract.

16. Subject to Finance

A buyer may also require the contract to be conditional upon obtaining finance.

Until the finance condition has been satisfied or otherwise resolved under the contract, the transaction may remain conditional.

Sellers should understand the finance date and what rights arise if the buyer does not obtain finance.

A higher offer containing uncertain or extensive conditions is not necessarily commercially preferable to a slightly different offer with fewer conditions.

The overall contract should be considered, not just the headline price.

17. The Deposit

The contract ordinarily specifies:

the deposit amount;
when it is payable;
who will hold it; and
whether it is payable in one or more instalments.

The deposit is usually held by a stakeholder pending completion of the transaction.

Sellers should not assume that the deposit automatically becomes available for their personal use once the contract is signed.

If there is a proposal for early release of a deposit, obtain legal advice about the contractual and practical consequences.

18. Special Conditions

Special conditions can significantly alter the standard contractual position.

They may deal with matters such as:

repairs before settlement;
sale of another property;
early access;
furniture;
tenancy arrangements;
due diligence;
development approvals;
deposit arrangements;
extended settlement periods; or
other property-specific issues.

Special conditions should be carefully drafted.

Informal wording added to a contract can create ambiguity about what the parties actually intended.

19. Choosing the Settlement Date

The settlement date should be realistic.

Before agreeing to a date, consider:

your mortgage discharge;
whether you are purchasing another property;
moving arrangements;
tenants;
holidays or travel;
the buyer's finance;
any work required before settlement; and
whether vacant possession must be provided.

If you are simultaneously buying another property, coordinating the two transactions can require additional planning.

20. Preparing for Settlement

As settlement approaches, the seller will generally need to:

complete any lender requirements;
respond to conveyancing enquiries;
review settlement figures;
ensure contractual obligations have been met;
arrange to vacate where required;
remove excluded items;
leave included fixtures and chattels at the property; and
make arrangements for keys.

Your solicitor will coordinate the legal and financial aspects of settlement with the buyer's solicitor and relevant financial institutions.

21. Settlement Adjustments

The purchase price is not necessarily the exact amount transferred to the seller at settlement.

Settlement calculations may include adjustments for matters such as:

council rates;
water charges;
body corporate levies;
rent;
deposits already paid; and
other amounts relevant to the transaction.

These adjustments allocate expenses or income between the parties in accordance with the contract and their respective periods of responsibility.

Any mortgage payout and other required payments will also affect the net amount ultimately received by the seller.

22. Electronic Settlement

Most Queensland conveyancing transactions are settled electronically.

At settlement, the electronic workspace facilitates matters including:

payment of the purchase price;
payment to the seller's lender;
discharge of the seller's mortgage;
transfer of title;
payment of other required amounts; and
lodgement of the relevant documents.

Once settlement has completed, your solicitor will confirm completion and the real estate agent can ordinarily be authorised to release the keys.

23. Vacant Possession

If the contract requires vacant possession, the seller needs to ensure the property is vacated as required.

This ordinarily means more than simply moving out personally.

Issues can arise if:

tenants remain in occupation;
substantial possessions remain at the property;
rubbish has not been removed; or
another person remains entitled to occupy the property.

If you may have difficulty providing vacant possession by settlement, raise it early.

24. The Buyer's Final Inspection

A buyer will commonly conduct a final inspection shortly before settlement.

The buyer may check that:

the property remains in the expected condition;
included items remain;
excluded items have been removed;
agreed work has been completed; and
vacant possession can be provided where required.

If an issue is raised after the final inspection, speak with your solicitor before agreeing to any proposed arrangement.

25. What If the Seller Cannot Settle on Time?

Settlement dates matter.

If a seller cannot complete settlement when contractually required, the consequences depend on the contract and circumstances.

Possible issues may arise from:

delayed mortgage discharge;
difficulties obtaining documents;
a linked purchase or sale failing to settle;
inability to provide vacant possession;
title issues; or
failure to complete agreed work.

If a potential settlement problem becomes apparent, tell your solicitor as early as possible.

Do not assume that the buyer must automatically agree to an extension.

Common Mistakes Sellers Can Avoid

Many conveyancing problems can be reduced through preparation.

Common mistakes include:

waiting until a buyer is ready to sign before preparing disclosure documents;
providing inaccurate or incomplete disclosure information;
signing a contract without legal review;
failing to disclose relevant title or property issues;
overlooking pool requirements;
not starting the mortgage discharge process early enough;
promising vacant possession without considering an existing tenancy;
failing to specify inclusions and exclusions clearly;
agreeing to poorly drafted special conditions;
overlooking body corporate documentation;
agreeing to an unrealistic settlement date; and
making informal promises to a buyer that are not properly reflected in the contract.

Before You Sign a Queensland Sale Contract

Before signing, sellers should ask:

Have the seller disclosure documents been properly prepared and provided?

Is the seller correctly named?

Have I checked the title?

Does my lender need to discharge a mortgage?

Are the inclusions and exclusions clear?

Are there any tenancy issues?

Does the property have a pool?

Are there body corporate requirements?

Do I understand the buyer's finance and building and pest conditions?

Are there any unusual special conditions?

Can I provide vacant possession?

Is the settlement date realistic?

Do I understand what needs to happen before settlement?

Addressing these matters before signing can make the transaction considerably smoother.

Selling Property on the Gold Coast

KMB Legal assists sellers with contract preparation and review,

seller disclosure requirements and conveyancing for property sales

across the Gold Coast and Queensland.

We can assist before the property goes under contract, prepare or

review the necessary documentation, advise on contractual conditions

and manage the conveyancing process through to settlement.

Getting your solicitor involved before the buyer signs the contract can

help identify issues early and reduce the risk of problems arising later

in the transaction.

Free 30-minute initial telephone consultation.

Buying Property in Queensland: What to Know Before You Sign a Contract

Fri, 18 Sep 2026 14:40:16 GMT

PROPERTY LAW

Buying Property in Queensland: What to Know Before You Sign a Contract

Buying a home or investment property is a significant financial commitment. Before signing a contract in Queensland, it is important to understand the contract terms, seller disclosure documents, finance and building and pest conditions, property searches, transfer duty and what will happen between signing and settlement.

By Katie Chan

Finding the right property can be exciting. Once a buyer decides to make an offer, however, the transaction can move very quickly.

It is common for buyers to focus on the purchase price, settlement date and whether their finance is approved.

But a Queensland property contract can create significant legal obligations from the moment it is signed.

Ideally, a buyer should have the proposed co ntract reviewed before signing it.

That provides an opportunity to identify unusual terms, ensure appropriate conditions are included and understand exactly what the buyer is agreeing to.

1. Review the Contract Before You Sign

A contract for the purchase of property is a legally binding document.

Before signing, a buyer should understand matters including:

the correct names of the buyers;
purchase price;
deposit;
settlement date;
finance condition;
building and pest condition;
inclusions and exclusions;
title details;
any special conditions;
seller disclosure information;
whether the property is tenanted;
body corporate issues, if applicable; and
any other terms particular to the transaction.

Standard-form contracts are widely used in Queensland, but that does not mean every contract is identical or that every standard provision will suit every buyer.

Special conditions can materially change a buyer's rights.

2. Check Who Should Be the Buyer

Before signing, make sure the correct purchasing entity is named.

The purchaser might be:

an individual;
two or more individuals;
a company; or
a trustee purchasing property for a trust.

This should be considered before the contract is executed, particularly where a company or trust structure is contemplated.

Changing the buyer after signing is not always simply a matter of replacing one name with another. It can have legal, financing and transfer duty consequences.

If a property is being acquired through a company or trust, legal and accounting advice should ideally be coordinated before the contract is signed.

3. Queensland's Seller Disclosure Scheme

Queensland introduced a mandatory statutory seller disclosure scheme on 1 August 2025 under the Property Law Act 2023 (Qld).

For transactions caught by the scheme, the seller must provide the buyer with the prescribed disclosure statement and applicable prescribed certificates before the buyer signs the contract.

The scheme applies broadly to sales of residential properties, including houses, townhouses and units, as well as commercial property and vacant land, subject to statutory exceptions.

The disclosure material can contain important information about the property.

However, buyers should not mistake seller disclosure for comprehensive due diligence.

4. Seller Disclosure Does Not Replace Your Own Searches

The introduction of mandatory seller disclosure does not mean a buyer no longer needs to investigate the property.

Depending on the property and transaction, searches and enquiries may still be appropriate concerning matters such as:

title;
registered easements;
covenants;
council records;
planning;
flooding;
building approvals;
rates and water;
body corporate records;
land tax;
contamination or environmental matters; and
other matters relevant to the property.

The searches appropriate for one property may be quite different from those required for another.

For example, buying a detached residential house presents different considerations from buying an apartment in a large body corporate scheme or acquiring commercial premises.

5. Check the Title

A title search confirms important information about the registered title to the land.

It can identify matters such as:

the registered owner;
the lot and plan;
registered mortgages;
easements;
covenants; and
other registered interests.

An easement might, for example, give another person or authority rights over part of the property.

A covenant may restrict how land can be used or developed.

The existence of an easement or covenant does not necessarily mean the property should not be purchased. It does mean the buyer should understand its effect before becoming committed.

6. Understand the Deposit

The contract will ordinarily specify:

the amount of the deposit;
when it must be paid;
who will hold it; and
whether it is payable in one or more instalments.

A deposit is not simply a reservation fee.

Once the contract becomes binding, failure to pay the deposit when required can potentially have serious contractual consequences.

Buyers should make sure they can comply with the payment deadlines in the contract.

7. Subject to Finance

Many residential property contracts are made subject to finance.

A finance condition will generally specify matters such as:

the amount of finance required;
the financier or type of financier;
the finance date; and
any other contractual requirements.

A buyer should not assume that merely submitting a loan application is enough.

The buyer needs to understand what the particular finance clause requires and ensure the necessary steps are taken before the finance date.

Pre-approval is not necessarily final approval

A lender's pre-approval can be useful, but it should not automatically be treated as unconditional approval for a particular property.

The lender may still need to:

value the property;
verify financial information;
assess the particular transaction; and
satisfy other lending requirements.

If finance has not been approved by the contractual finance date, obtain legal advice promptly about the available options and the notice requirements under the contract.

8. Building and Pest Conditions

A building and pest condition gives a buyer an opportunity to obtain appropriate inspections within the timeframe specified by the contract.

A building inspection may identify matters such as:

structural issues;
water damage;
deterioration;
defects;
maintenance problems; and
other building concerns.

A pest inspection may identify termites or other timber pest activity and associated damage.

The precise contractual rights arising from an unsatisfactory report depend on the wording of the contract and the circumstances.

A buyer should not assume that any defect automatically gives them a right to terminate the contract.

If a report identifies a significant problem, obtain advice before the relevant deadline.

9. Do Not Miss Contract Dates

Queensland conveyancing transactions involve important dates.

These can include:

deposit due date;
finance date;
building and pest date;
due diligence date, where applicable;
other special-condition dates; and
settlement date.

Missing a contractual deadline can affect a buyer's rights.

Once the contract is signed, note the important dates immediately and respond promptly to requests from your solicitor, lender and inspectors.

10. The Cooling-Off Period

Most contracts for the sale of residential property in Queensland have a statutory 5-business-day cooling-off period for the buyer.

The period generally begins on the day the buyer receives a copy of the contract signed by both parties and ends at 5pm on the fifth business day.

There are exceptions.

For example, the statutory cooling-off period does not apply to a sale by auction, and there are other exempt transactions.

A buyer who terminates during the statutory cooling-off period may also be liable for the statutory termination penalty.

For that reason, the cooling-off period should not be regarded as a substitute for having the contract reviewed before signing.

11. Arrange Insurance Promptly

One feature of Queensland property transactions that can surprise interstate buyers is when risk passes.

Queensland Government guidance states that, in most cases, a buyer becomes responsible for the property from 5pm on the next business day after the contract date, well before settlement.

Accordingly, buyers should consider arranging appropriate building insurance immediately after signing rather than waiting until settlement.

A lender may also require evidence of insurance before advancing funds.

Different considerations can apply to units and community titles schemes because the body corporate will generally insure common property and relevant building components.

12. Understand What Is Included in the Sale

The contract should make clear what fixtures and chattels are included or excluded.

Potential issues can arise with items such as:

dishwashers;
wall-mounted televisions;
pool equipment;
security systems;
solar systems;
curtains and blinds;
outdoor equipment;
refrigerators;
furniture; and
other items at the property.

If there is something you specifically expect to remain at the property, make sure the contractual position is clear.

Do not rely solely on photographs in the online listing or assumptions arising from an inspection.

13. Buying a Unit or Apartment

Buying an apartment or townhouse involves additional considerations because the property will usually form part of a community titles scheme.

A buyer should consider matters such as:

body corporate levies;
sinking fund position;
administrative fund;
insurance;
by-laws;
exclusive-use areas;
proposed major expenditure;
body corporate records;
maintenance issues; and
other matters affecting the scheme.

A low purchase price can become considerably less attractive if the body corporate is facing substantial building works or special levies.

The seller disclosure regime provides buyers with certain information, but appropriate body corporate investigations remain important.

We'll deal with this separately in our upcoming article Buying a Unit or Apartment in Queensland: Body Corporate and Disclosure Issues.

14. Consider Flooding and Other Property-Specific Risks

Gold Coast and Queensland properties can have very different physical and planning characteristics.

Depending on the location, buyers may wish to investigate matters such as:

flood mapping;
overland flow;
coastal hazards;
bushfire overlays;
planning constraints;
easements;
proposed road infrastructure; and
development approvals.

The appropriate enquiries depend on the property.

A buyer intending to renovate, extend, redevelop or construct additional improvements should be particularly careful not to assume that their proposed use will automatically be permitted.

15. Building Approvals and Improvements

A visually impressive renovation does not necessarily mean every structure has appropriate approval.

Depending on the property, buyers may wish to investigate approval issues concerning:

extensions;
decks;
patios;
swimming pools;
sheds;
retaining walls;
secondary dwellings; and
other improvements.

If a particular improvement is important to your decision to purchase, raise it with your solicitor before the contract becomes unconditional.

16. Transfer Duty

Buyers of Queensland property will generally need to consider transfer duty, historically called stamp duty.

Queensland Revenue Office confirms that transfer duty applies to transactions including contracts to acquire property, and the buyer is ordinarily responsible for paying it.

The amount depends on factors including:

the property's dutiable value;
whether it will be the buyer's home or an investment;
whether the buyer qualifies for a concession;
whether the buyer is a first home buyer; and
in some cases, the buyer's residency status.

The dutiable value is generally the higher of the consideration paid and the property's unencumbered value.

17. Home and First Home Buyer Concessions

Queensland has several transfer duty concessions, but eligibility requirements differ.

As at September 2026, an eligible first home buyer purchasing an established home can receive a full first-home concession where the home's value is $700,000 or less, with the additional first-home concession tapering up to $800,000.

For eligible contracts entered into from 1 May 2025, a first home buyer acquiring a qualifying new home may receive a full transfer duty concession with no value cap applying to the residential home component.

There were also eligibility changes from 1 August 2026, including citizenship/residency requirements for Queensland home concessions.

Because duty rules and concessions change, buyers should check their individual eligibility rather than relying on what a friend or family member paid on an earlier purchase.

18. Foreign Buyers Have Additional Considerations

Foreign purchasers may have additional legal, taxation and approval requirements.

Queensland's additional foreign acquirer duty (AFAD) can apply in addition to ordinary transfer duty to relevant acquisitions of residential land by foreign persons. The current Queensland surcharge is 8%.

Federal foreign investment requirements may also need to be considered.

Foreign purchasers should obtain advice before signing a contract because the consequences can be substantial and may depend on the purchaser and property.

19. What Happens Between Contract and Settlement?

Once the contract is signed, the conveyancing process begins.

Depending on the transaction, this can involve:

reviewing the contract and disclosure documents;
conducting searches;
satisfying finance;
arranging building and pest inspections;
liaising with the lender;
calculating transfer duty;
preparing transfer documentation;
checking title;
dealing with contractual conditions;
preparing settlement adjustments; and
arranging electronic settlement.

Your solicitor will also communicate with the seller's solicitor and your lender to prepare the transaction for settlement.

20. What Are Settlement Adjustments?

At settlement, amounts associated with the property may need to be apportioned between the buyer and seller.

Depending on the transaction, adjustments can involve matters such as:

council rates;
water charges;
body corporate levies;
rent, if the property is tenanted; and
other relevant amounts.

The objective is generally to allocate the relevant expense or income between the parties according to their respective periods of ownership or contractual responsibility.

The calculations form part of the final settlement figures.

21. Electronic Settlement

Most Queensland conveyancing settlements are completed electronically.

The parties' legal representatives and financial institutions coordinate the transfer of funds and title through the electronic settlement system.

On settlement, funds are distributed as required, the transfer is lodged and the seller's mortgage can be discharged as part of the transaction where applicable.

Your solicitor will confirm when settlement has completed.

22. Final Inspection

A buyer will ordinarily arrange a final inspection shortly before settlement.

This gives the buyer an opportunity to check matters such as whether:

the property is in the expected condition;
included fixtures and chattels remain;
the seller has vacated where required; and
agreed work has been completed.

If a problem is identified, contact your solicitor promptly.

Do not simply assume settlement can be delayed or money withheld without considering the contractual position.

23. When Do You Get the Keys?

Keys are usually released once settlement has been completed and the seller's agent has authority to hand them over.

This may occur through the real estate agent rather than the solicitors.

Buyers should avoid arranging removalists on the assumption that settlement will occur at a particular minute of the day.

Although most settlements proceed as scheduled, delays can occur.

Common Mistakes Buyers Can Avoid

Some problems arise simply because legal advice is obtained too late.

Common examples include:

signing before having the contract reviewed;
assuming finance pre-approval is unconditional;
missing finance or building and pest dates;
assuming seller disclosure replaces searches;
failing to investigate body corporate records;
nominating the wrong purchasing entity;
overlooking easements or covenants;
failing to arrange insurance promptly;
assuming renovations have approvals;
relying on representations not recorded in the contract; and
underestimating transfer duty and other purchasing costs.

A property transaction is easier to structure before the contract is signed than after the buyer is already bound.

Before You Sign a Queensland Property Contract

Before signing, ask:

Is the purchaser named correctly?

Have I had the contract reviewed?

Have I received the required seller disclosure documents?

Do I need a finance condition?

Do I need building and pest conditions?

Are there any special conditions?

What searches should I undertake?

Have I checked the title?

Are there easements or covenants?

If it is a unit, have I considered the body corporate?

What transfer duty will I need to pay?

Do I qualify for a concession?

When do I need insurance?

What is included in the sale?

When is settlement?

Knowing the answers before signing can prevent unpleasant surprises later.

Property Purchase and Conveyancing

Advice on the Gold Coast

KMB Legal assists buyers with residential property

purchases, contract reviews and conveyancing across

the Gold Coast and Queensland.

We can review the proposed contract before you sign,

advise on contractual conditions and seller disclosure,

conduct appropriate conveyancing searches and manage

the transaction through to settlement.

If you are considering purchasing a property, obtaining advice

before signing the contract gives you the best opportunity to

ensure the contract reflects your requirements.

Free 30-minute initial telephone consultation.

Shareholders’ Agreements: Why Every Business With Multiple Owners Should Have One

Fri, 18 Sep 2026 12:06:16 GMT

COMMERCIAL & BUSINESS LAW

Shareholders’ Agreements:

Why Every Business With Multiple Owners Should Have One

When two or more people own a company

together, a shareholders’ agreement can

establish the rules for how important decisions

are made, how the business is funded, what

happens when someone wants to leave and how ownership changes are managed.

By Katie Chan

Starting a business with another person is often exciting.

At the beginning, shareholders may have the same objectives, trust one another and assume they will simply work things out as issues arise.

The difficulty is that circumstances change.

One shareholder may want to sell. Another may stop working in the business. The company may need additional funding. A shareholder may die or become incapacitated. A new investor may want to come in. A 50/50 company may reach a point where its owners simply cannot agree.

A well-dra fted shareholders’ agreement establishes how those situations will be dealt with before they arise.

ASIC confirms that shareholder rights can arise under the Corporations Act 2001 (Cth), a company's constitution or replaceable rules, and a shareholders’ agreement where one exists.

For privately owned companies, a shareholders’ agreement can therefore be one of the most important documents governing the relationship between the owners.

What Is a Shareholders’ Agreement?

A shareholders’ agreement is a private agreement between some or all of the shareholders of a company and, commonly, the company itself.

It can establish rules dealing with matters such as:

ownership and control;
appointment of directors;
decision-making;
funding;
shareholder loans;
issuing new shares;
dividends;
transfer of shares;
introducing new shareholders;
sale of the company;
death or incapacity;
shareholder exits;
valuation of shares;
confidentiality;
intellectual property;
restraints; and
deadlocks between shareholders.

The agreement can be tailored to the particular business and the relationship between its owners.

That is particularly valuable because two businesses with identical shareholdings may have completely different commercial requirements.

Isn't the Company Constitution Enough?

Not necessarily.

Every Australian company must have rules governing its internal management. Depending on the company, these can come from the replaceable rules in the Corporations Act , a company constitution, or a combination of the two.

A constitution deals with the company's internal governance. Under section 140 of the Corporations Act , a company's constitution and applicable replaceable rules have statutory contractual effect between the company and its members, directors and secretary, and between members themselves.

A shareholders’ agreement serves a different, complementary purpose.

It can address the particular commercial relationship between the shareholders in considerably greater detail.

For example, a constitution may establish how directors are appointed and meetings are conducted, while a shareholders’ agreement might establish that:

neither shareholder can sell their shares without first offering them to the other shareholder.

Or:

certain significant business decisions require unanimous shareholder approval even though one shareholder owns more than 50%.

The constitution and shareholders’ agreement should therefore be reviewed together to ensure they operate consistently.

Who Should Have a Shareholders’ Agreement?

A shareholders’ agreement should be considered whenever a private company has more than one shareholder.

This can include:

two friends starting a business together;
spouses or family members operating a company;
professional practices;
companies owned by several unrelated investors;
family businesses involving different generations;
joint ventures operated through a company; and
established businesses bringing in a new shareholder.

The agreement becomes particularly important where ownersh ip is 50/50, bec ause neither shareholder necessarily has sufficient voting control to resolve a disagreement alone.

Define Ownership Clearly

The starting point is understanding who owns what.

ASIC confirms that a share represents part ownership of a company and that different classes of shares can carry different rights and obligations.

For example:

ShareholderOwnershipShareholder A50%Shareholder B30%Shareholder C20%

The percentages alone do not answer every governance question.

The agreement should also consider:

what class of shares each person holds;
voting rights;
dividend rights;
whether particular shareholders have director appointment rights; and
whether different rights attach to particular shares.

This becomes especially important when investors or key employees are introduced later.

Who Makes the Decisions?

One of the most im portant functions of a shareholders’ agreement is establishing who has authority to make which decisions.

Under the replaceable rules, the business of a company is generally managed by or under the direction of its directors, subject to powers reserved to shareholders under the Corporations Act or constitution.

But shareholders may want particular significant decisions to require additional approval.

These are sometimes called reserved matters.

They might include:

borrowing above a specified amount;
purchasing or selling major assets;
acquiring another business;
selling the company's business;
issuing new shares;
changing the nature of the business;
entering significant contracts;
changing senior management remuneration;
paying dividends;
taking on significant debt;
providing guarantees;
commencing a major new venture; or
winding up the company.

The appropriate approval threshold depends on the ownership structure.

Some matters might require a simple majority, others a special majority, and particularly significant matters might require unanimous approval.

Directors and Shareholders Are Different

It is also important to distinguish between shareholders and directors.

Shareholders own shares in the company.

Directors are responsible for managing or directing the company's business.

In many small businesses, the shareholders are also the directors, so the distinction can easily become blurred.

A shareholders’ agreement can establish:

who may appoint a director;
how many directors there will be;
whether a shareholder must hold a minimum percentage to appoint a director;
what happens when a shareholder sells their shares;
who chairs meetings;
whether the chair has a casting vote; and
what constitutes a quorum.

These provisions can significantly affect control of the business.

What Happens When the Company Needs More Money?

Businesses often need additional capital.

The shareholders’ agreement should establish what happens if the company requires further funding.

Possible funding sources include:

retained earnings;
additional shareholder equity;
shareholder loans;
bank finance; or
external investment.

Questions worth addressing include:

Are shareholders required to contribute additional capital?

Must they contribute in proportion to their ownership?

What happens if one shareholder cannot or will not contribute?

Can another shareholder provide the funding as a loan?

Can new shares be issued?

Could a shareholder's ownership percentage be diluted?

Without agreed rules, a funding requirement can quickly become a source of disagreement.

Shareholder Loans

It is common for owners of private companies to lend money to their company.

Those loans should be properly documented.

The shareholders’ agreement may address principles concerning shareholder funding, while separate loan agreements can record matters such as:

amount advanced;
interest;
repayment;
priority;
security;
further advances; and
what happens to the loan if the shareholder exits.

Share ownership and shareholder debt are different things.

A shareholder selling their shares does not necessarily mean that a loan owed to them by the company automatically disappears.

The exit documentation needs to deal with both.

Issuing New Shares

Issuing additional shares can alter the ownership and control of a company.

For example, if two shareholders each hold 50 shares and the company issues another 50 shares to an investor, the original shareholders' percentages will change.

The Corporations Act contains a replaceable rule for proprietary companies requiring shares of a particular class generally to be offered first to existing holders of that class in proportion to their holdings, subject to the statutory rule and any applicable constitution.

A shareholders’ agreement can establish more detailed rules about:

pre-emptive rights;
valuation;
approval for new issues;
permitted employee equity;
investor rounds; and
dilution.

This allows shareholders to understand from the outset how future capital raising may affect their ownership.

What if a Shareholder Wants to Sell?

A shareholder should not necessarily be free to sell their interest to anyone they choose.

Imagine owning a business 50/50 with someone you have worked with for ten years.

Without appropriate transfer restrictions, you may face the prospect of their interest being transferred to someone you never intended to be in business with, subject to the company's governing documents and applicable law.

A shareholders’ agreement can establish a structured transfer process.

For example, it may require a selling shareholder to first offer their shares to the existing shareholders before selling them to an outsider.

This is commonly known a s a pre-emptive right or ri ght of first offer/refusal, depending on how the mechanism is drafted.

ASIC notes that share transfer rights can also be affected by the company's governing rules; for example, a replaceable rule gives directors of a proprietary company a general discretion to refuse registration of a share transfer.

The shareholders’ agreement and constitution therefore need to work together.

How Are Shares Valued When Someone Leaves?

This can become one of the most contentious issues if it has not been addressed beforehand.

The agreement can establish a valuation mechanism.

Options might include:

an agreed formula;
an independent business valuation;
appointment of an accountant or valuer;
market value;
a valuation methodology based on maintainable earnings; or
another mechanism appropriate to the business.

The agreement should also deal with who appoints the valuer and who pays the valuation costs.

Different valuation rules may apply depending on why the shareholder is leaving.

For example, the parties may agree that a voluntary retirement is treated differently from serious misconduct.

What Are Good Leaver and Bad Leaver Provisions?

Some shareholders’ agreements contain good leaver/bad leaver provisions.

These are particularly common where shareholders are also employees or executives.

A “good leaver” might include someone who leaves because of:

retirement;
illness;
incapacity;
death; or
another agreed circumstance.

A “bad leaver” provision may apply to circumstances such as serious misconduct or a material breach of the shareholders’ agreement.

The classification may affect matters such as:

whether shares must be sold;
how they are valued; and
when payment occurs.

These clauses can have significant financial consequences and should be drafted carefully.

What Happens if a Shareholder Dies?

Death is an important issue that is often overlooked when the business is established.

ASIC confirms that under the relevant replaceable rule, where shares are not jointly held, the company recognises the deceased shareholder's personal representative as entitled to the deceased shareholder's interest.

But the shareholders may not want the deceased owner's beneficiaries to become long-term participants in the business.

A shareholders’ agreement can establish what happens on death, potentially including:

an option or obligation to purchase the deceased shareholder's shares;
valuation methodology;
payment arrangements;
insurance-funded buy-sell arrangements; and
transitional management arrangements.

These provisions should be coordinated with estate planning and insurance advice.

What if a Shareholder Becomes Incapacitated?

Long-term incapacity can create similar difficulties.

If a shareholder is also a key director or employee, incapacity can affect both ownership and day-to-day management.

The agreement can address:

how incapacity is determined;
whether the shareholder must sell;
who can exercise management functions;
valuation;
payment terms; and
insurance arrangements.

Planning in advance avoids having to design a solution during an already difficult period.

What Happens in a 50/50 Deadlock?

A company owned equally by two shareholders requires particular attention.

If both shareholders must agree on significant decisions and they reach an impasse, neither has a majority capable of resolving it.

A shareholders’ agreement can establish a deadlock procedure.

Rather than immediately forcing an exit, the process might progress through stages such as:

referral to the shareholders;
a formal meeting;
negotiation between the principals;
mediation; and
an agreed buy-out or exit mechanism if the deadlock cannot be resolved.

The precise mechanism needs careful thought.

Some aggressive buy-sell mechanisms can disadvantage a shareholder with less access to capital, even where ownership is equal.

The goal should be to establish a commercially workable process appropriate to the owners and business.

Minority Shareholder Protections

A shareholder with 20% of a company does not ordinarily control decisions decided by simple majority.

But that shareholder may have made a substantial financial investment.

A shareholders’ agreement can give minority shareholders additional protections concerning specified fundamental decisions.

For example, their consent might be required before:

issuing new shares;
selling the business;
changing the company's core activities;
taking on substantial debt;
entering related-party transactions; or
changing particular shareholder rights.

The appropriate protections depend on the commercial bargain between the shareholders.

Majority Shareholder Protections

The agreement also needs to work for majority shareholders.

If a very small shareholder has veto rights over too many ordinary business decisions, the company may become difficult to operate.

The agreement should therefore strike an appropriate balance between:

protecting minority investors; and
allowing the company to make ordinary commercial decisions efficiently.

That balance is one reason generic shareholders’ agreement templates can be problematic.

The right arrangement depends on the actual ownership structure.

What Is a Tag-Along Right?

A tag-along right generally protects minority shareholders where a majority shareholder proposes to sell their shares to a third party.

For example, if a shareholder holding 70% finds a purchaser for their shares, a tag-along clause may allow the 30% shareholder to require the purchaser to acquire their shares on the same or corresponding terms.

Without such a provision, the minority shareholder could potentially remain in the company with a completely new controlling shareholder.

What Is a Drag-Along Right?

A drag-along right works in the other direction.

It can allow shareholders holding an agreed threshold to require the remaining shareholders to participate in a sale of the company.

For example, a purchaser may offer to acquire 100% of a business but refuse to proceed unless every shareholder sells.

A properly drafted drag provision can prevent a small minority holding from frustrating a whole-of-company sale where the agreed threshold has been satisfied.

Because drag rights can compel a shareholder to sell, the triggering conditions and protections should be carefully drafted.

What Happens if the Whole Business Is Sold?

A shareholders’ agreement should contemplate an eventual sale.

The provisions may deal with:

who can approve a sale;
required shareholder thresholds;
drag-along rights;
tag-along rights;
distribution of sale proceeds;
repayment of shareholder loans;
transaction costs;
confidentiality;
warranties given to the buyer;
restraints; and
completion mechanics.

A well-prepared ownership structure can make a future sale considerably easier.

Dividends and Profit Distribution

Shareholders may have different expectations about profits.

One shareholder may want profits distributed as dividends.

Another may want them reinvested to grow the business.

ASIC notes that directors determine whether dividends are payable and their amount, timing and method, subject to the Corporations Act and the company's governing arrangements.

A shareholders’ agreement can establish an agreed commercial approach to distributions, subject to the company's legal obligations and financial circumstances.

For example, it might establish principles concerning:

maintaining minimum working capital;
repaying external debt;
funding future expansion; and
considering dividends after those requirements have been met.

Salary and Dividends Are Different

Where shareholders also work in the business, the agreement should distinguish between returns received as an employee or director and returns received as a shareholder.

For example, a 50% shareholder working full-time in the business may receive a salary for their work.

Another 50% shareholder may not work in the business at all.

That does not necessarily mean they should receive the same salary.

Dividends, on the other hand, relate to share ownership and the rights attaching to the shares.

Separating these concepts helps avoid misunderstandings about how owners are being remunerated.

Confidentiality

Shareholders frequently have access to sensitive information including:

financial records;
pricing;
customer information;
supplier arrangements;
intellectual property;
business strategies; and
employee information.

The agreement can impose continuing confidentiality obligations governing how that information may be used and disclosed.

Those obligations may continue after a shareholder leaves the company.

Intellectual Property

If intellectual property is important to the business, ownership should be clear.'

This might include:

trade marks;
software;
copyright;
business processes;
websites;
domain names;
branding;
databases; and
proprietary materials.

Problems can arise where a founder personally owns intellectual property that everyone assumed belonged to the company.

The appropriate ownership and licensing arrangements should be documented.

Restraints

A shareholders’ agreement may contain restraints applying when a shareholder exits.

These might seek to restrict matters such as:

competing with the business;
soliciting customers;
soliciting employees; or
interfering with supplier relationships.

Restraints need to be considered carefully.

Their enforceability depends on their wording and circumstances, and an overly broad restraint is not automatically enforceable simply because the shareholder signed it.

Bringing in a New Shareholder

A shareholders’ agreement should also establish what happens when someone new acquires shares.

Commonly, the agreement will require the incoming shareholder to sign a deed of accession.

The deed allows the new shareholder to become bound by the existing shareholders’ agreement without requiring all parties to replace the original document.

This means the governance framework can continue as ownership changes.

Shareholders’ Agreement vs Partnership Agreement

These documents should not be confused.

A shareholders’ agreement governs relationships between shareholders of a company.

A partnership agreement governs parties operating through a partnership.

The appropriate document therefore depends upon the underlying business structure.

If you are still determining how the business should be structured, see Business Structures in Australia: Company, Trust, Partnership or Sole Trader?

When Should a Shareholders’ Agreement Be Prepared?

Ideally, before or when the company is established.

That is generally when everyone is aligned and willing to discuss difficult future scenarios objectively.

However, it is not too late merely because a company has been operating for several years.

A shareholders’ agreement can also be prepared when:

a new shareholder is joining;
ownership percentages change;
external investment is introduced;
the business is growing;
succession planning begins; or
the existing owners recognise that their current arrangements are inadequate.

The company's constitution and existing corporate documents should be reviewed at the same time.

Should an Existing Shareholders’ Agreement Be Reviewed?

Yes.

Businesses change.

An agreement prepared for two founders operating a small business may no longer be appropriate once the company has:

several shareholders;
significant employees;
external investors;
substantial debt;
valuable intellectual property;
interstate operations; or
plans for a future sale.

The agreement should also be reviewed when ownership or management changes materially.

Questions a Good Shareholders’ Agreement Should Answer

Before finalising the agreement, the owners should be able to answer:

Who controls day-to-day management?

Who can appoint directors?

Which decisions require shareholder approval?

Which decisions require unanimous approval?

What happens when the company needs more money?

Can new shares be issued?

Can ownership percentages be diluted?

Can a shareholder sell to an outsider?

How are shares valued?

What happens if a shareholder dies or becomes incapacitated?

What happens if a shareholder stops working in the business?

What happens if the owners cannot agree?

Can a majority owner sell the whole company?

Can a minority shareholder participate in a sale?

What happens to shareholder loans on exit?

If those questions do not have clear answers, the shareholders may be relying on assumptions rather than agreed rules.

Put the Rules in Place Before You Need Them

A shareholders’ agreement is not prepared because the shareholders expect their relationship to fail.

It is prepared because successful businesses change.

Owners come and go. Businesses need capital. Companies acquire assets. New investors arrive. People retire. Families change. Opportunities to sell arise.

Agreeing on the rules while everyone is aligned can make those transitions considerably easier to manage.

Shareholders’ Agreements on the Gold Coast

KMB Legal assists businesses and business owners with shareholders’

agreements, company structures and commercial agreements across

the Gold Coast and Queensland.

We can assist with preparing or reviewing shareholders’ agreements,

constitutions, share transfer arrangements, deeds of accession and other

documents associated with business ownership and succession.

The agreement can be tailored to the company's ownership structure,

commercial objectives and future plans rather than relying on a generic template.

Free 30-minute initial telephone consultation.

What Is a Deed? When Should a Business Use a Deed Instead of an Agreement?

Fri, 18 Sep 2026 11:03:29 GMT

COMMERCIAL & PROPERTY LAW

What Is a Deed? When Should a Business Use a Deed Instead of an Agreement?

Deeds and agreements are both commonly used '

to document commercial arrangements, but they

are not the same. Understanding the difference

can be important when documenting releases, confidentiality obligations, shareholder arrangements a

nd other business transactions.

By Katie Chan

Businesses enter into agreements every day.

A customer contract, supply agreement, shareholders’ agreement, commercial lease or business sale contract will ordinarily create contractual obligations between the parties.

Sometimes, however, a transaction is documented as a deed rather than an ordinary agreement.

The distinction is more than terminology. A deed has particular legal requirements and can be useful where a party is making a binding promise even though the usual contractual requirement for consideration may be absent.

In Queensland, the requirem ents for deeds are now principally contained in the Property Law Act 2023 (Qld). A document takes effect as a deed if it is in writing, clearly states that it is a deed, is properly executed and is delivered in accordance with the Act.

What Is a Deed?

A deed is a particular form of legally binding instrument.

Historically, deeds were subject to formal requirements involving paper, seals and delivery. Modern legislation has simplified many of those requirements considerably.

Under the current Queensland legislation, a deed does not need to be written on paper or parchment and does not need to be sealed. A deed may also be an electronic document and may be electronically signed.

What remains important is that the document is intended to operate as a deed and satisfies the applicable requirements for making and executing one.

Simply typing “Deed” across the top of an ordinary contract is not, by itself, enough.

What Is the Difference Between a Deed and an Agreement?

One of the most important differences concerns consideration.

For an ordinary contract to be enforceable, there will generally need to be consideration — something of legal value passing between the parties — unless another legal principle applies.

For example:

A business agrees to provide services and the customer agrees to pay $10,000.

Each party is providing something in exchange for the other's promise.

A deed can generally create an enforceable obligation without consideration.

That can make a deed useful where one party needs to make a binding promise but there is uncertainty about whether anything is being provided in exchange for it.

There are also different formal requirements for executing a deed.

When Might a Business Use a Deed?

There is no reason to turn every commercial contract into a deed.

An ordinary agreement will often be entirely appropriate.

Deeds tend to be used where the nature of the transaction or obligation makes the additional formality useful.

Common examples include:

deeds of release;
deeds of settlement;
deeds of confidentiality;
deeds of accession;
deeds of variation;
certain guarantees and indemnities;
documents containing unilateral promises;
some intellectual property arrangements; and
particular corporate or financing transactions.

Whether a deed is appropriate depends on what the parties are trying to achieve.

Deeds of Release

A deed of release is one o f the most common deeds used in business.

It can document an agreement under which one or more parties release legal rights or claims.

For example, a deed of release may arise when:

a commercial arrangement is being brought to an end;
a departing shareholder is exiting a company;
contractual obligations are being resolved;
money is being paid in exchange for a release;
a business relationship is being formally concluded; or
the parties want certainty about future claims.

The scope of the release is critical.

A release can potentially be drafted to cover particular identified claims or a much broader category of claims.

Before signing, a party should understand exactly what rights are being released and whether any rights need to be expressly preserved.

Deeds of Settlement

A deed can also document the agreed resolution of a commercial issue.

A deed of settlement may address matters such as:

payments;
timing;
releases;
confidentiality;
return of property;
future conduct;
warranties;
indemnities; and
consequences if obligations are not performed.

The fact that the document is called a deed does not make the drafting less important.

The practical question remains: what has each party actually agreed to do, and what happens if they do not do it?

Confidentiality Deeds

Businesses frequently need to disclose confidential information.

This may occur when:

considering a business sale;
negotiating with a potential investor;
discussing a joint venture;
sharing proprietary information with a contractor;
exploring a new commercial relationship; or
providing information during due diligence.

Confidentiality obligations can be documented in an ordinary agreement or, depending on the circumstances, a deed.

A well-drafted confidentiality document should identify matters such as:

what information is confidential;
permitted uses;
who may receive the information;
required security measures;
exclusions from confidentiality;
compelled disclosure;
return or destruction of information; and
how long the obligations continue.

The appropriate document depends on the particular transaction rather than simply choosing a deed because it appears more formal.

What Is a Deed of Accession?

A deed of accession is particularly useful where a new party is joining an existing legal arrangement.

A common example involves a shareholders’ agreement.

Suppose three shareholders enter into a shareholders’ agreement governing their company.

Two years later, a fourth person acquires shares.

The existing shareholders generally want the new shareholder to become bound by the same rules without having to renegotiate and re-sign the entire shareholders’ agreement.

The shareholders’ agreement may therefore require the incoming shareholder to execute a deed of accession.

Through that document, the incoming shareholder agrees to become bound by the existing agreement as though they were an original party, subject to the wording of the relevant documents.

This is why properly drafted shareholders’ agreements commonly anticipate what will happen when new shareholders enter the company.

Deeds of Variation

Businesses sometimes need to change an existing legal document.

A deed of variation may be used to formally amend an earlier deed or other arrangement where a deed is appropriate.

For example, parties may need to alter:

payment obligations;
ownership arrangements;
contractual rights;
timeframes;
security arrangements; or
other existing obligations.

It is important to check the original document first.

The original agreement or deed may prescribe how it can be amended and whether particular approvals or formalities are required.

Guarantees and Indemnities

Commercial transactions commonly involve guarantees and indemnities.

For example, a landlord may require directors to personally guarantee a company's obligations under a commercial lease.

A lender, supplier or purchaser may also require particular guarantees or indemnities.

These obligations can create substantial personal or commercial exposure.

Whether they are documented in an agreement or deed, the wording should be reviewed carefully.

Questions include:

What obligations are guaranteed?
Is liability capped?
How long does the obligation continue?
Does it survive termination of the underlying contract?
Can the beneficiary recover directly from the guarantor?
What events trigger the indemnity?
Are there exclusions or limitations?

The title of the document is much less important than understanding the actual liability being assumed.

Does a Deed Need Consideration?

One of the principal reasons for using a deed is that a deed can generally be binding without consideration.

Consider this example:

A company promises to transfer a particular right to another person but there is no obvious payment or other value being provided in return.

If the promise is documented only as an ordinary contract, the absence of consideration may create an issue.

Depending on the circumstances, properly documenting the promise as a deed may address that problem.

However, this does not mean a deed should automatically be used whenever consideration is uncertain.

The document still needs to satisfy the legal requirements for a deed and accurately record the intended transaction.

How Is a Deed Executed by an Individual in Queensland?

Queensland's Property Law Act 2023 modernised the execution requirements.

An individual may execute a deed by signing it, and the Act provides that the individual may sign whether or not in the presence of a witness.

This is a significant simplification from traditional deed formalities.

However, special rules can apply to particular documents. For example, the legislation contains separate requirements concerning certain powers of attorney and enduring documents.

Accordingly, the execution requirements should be checked for the particular document rather than assuming every document described as a deed can be executed identically.

How Does a Company Execute a Deed?

Australian companies commonly execute documents under section 127 of the Corporations Act 2001 ( Cth).

A company may execute a document without using a common seal where it is signed by:

two directors;
a director and company secretary; or
for a proprietary company with a sole director, that director where the statutory requirements concerning the company secretary are satisfied.

Section 127 expressly deals with deeds and allows qualifying execution electronically and without witnessing.

Companies may also have other legally available methods of execution, so the circumstances and company structure should be checked.

Can a Deed Be Signed Electronically?

Yes — in many commercial circumstances.

In Queensland, the Property Law Act expressly provides that a document intended to have effect as a deed may be an electronic document and may be electronically signed.

Federal company law also permits technology-neutral signing of relevant documents and provides for electronic execution of deeds by companies in accordance with the Corporations Act .

This means businesses no longer need to assume that every deed requires everyone to meet around a table and sign the same physical piece of paper.

However, exceptions and special requirements can apply to particular types of documents or transactions .

Can Parties Sign Different Copies?

Queensland law also allows a deed to be signed by signing a counterpart or true copy of the document.

This is useful in commercial transactions involving several parties in different locations.

For example, the seller may sign one counterpart on the Gold Coast while the purchaser signs another in Sydney.

The execution provisions need to be drafted and followed correctly, but the parties do not necessarily need to sign the same physical document.

What Does “Delivery” of a Deed Mean?

Delivery has a technical legal meaning in relation to deeds.

It does not necessarily mean physically handing the document to the other party.

Queensland's Property Law Act requires delivery as part of the general requirements for a deed, with section 56 dealing specifically with when a deed is delivered.

In commercial documents, this is commonly addressed through wording dealing with when the deed takes effect.

Interestingly, the federal Corporations Act expressly provides that delivery is not necessary where an individual executes a deed in exercise of a company's powers in accordance with the relevant section 126 provisions.

This is another reason execution provisions should be tailored to the parties rather than copied mechanically from an old precedent.

Does a Deed Need a Seal?

Not generally.

The traditional concept of a deed being “signed, sealed and deliver ed” can create confusion.

Queensland legislation expressly provides that a document can take effect as a deed even though it is not sealed or stated to be sealed.

Companies can also execute deeds without a common seal where the requirements of the Corporations Act are satisfied.

Is the Limitation Period Longer for a Deed?

This is an area where businesses — and old website articles — can easily become outdated.

Historically, deeds were often associated with a longer limitation period than ordinary contracts in Queensland.

That is no longer the general position.

The current Limitation of Actions Act 1974 (Qld) provides a six-year limitation period for an action upon a deed, subject to any shorter period prescribed elsewhere in the Act.

Accordingly, an old Queensland article stating that using a deed automatically provides a 12-year limitation period should be updated.

This is particularly important for your KMB Legal rewrite because we do not want to preserve outdated information from the old article.

Does Calling a Document a “Deed” Make It a Deed?

No.

Queensland law requires more than a title.

For a document to take effect as a deed under the general provisions, it must:

be in writing;
contain a clear statement that it is a deed;
be executed in accordance with the applicable statutory requirements; and
be delivered in accordance with the Act.

The substance and execution of the document therefore matter.

Conversely, elaborate old-fashioned wording and a red seal are not what make a modern Queensland deed legally effective.

Should Y ou Use a Deed or an Agreement?

The answer depends on the transaction.

An ordinary agreement may be appropriate where:

there are clear reciprocal obligations;
consideration is being provided;
there is no particular reason for deed formalities; and
a standard commercial contract appropriately records the arrangement.

A deed may be considered where:

a binding promise needs to be documented without conventional consideration;
a release is being given;
a new party is acceding to an existing arrangement;
the underlying transaction is conventionally documented by deed; or
there is another legal or commercial reason for using a deed.

The choice should be deliberate rather than simply using whichever precedent happens to be available.

Deeds in Business Sale Transactions

Deeds can arise at several stages of buying or selling a business.

For example, a transaction may involve:

confidentiality deeds before due diligence;
deeds concerning guarantees or security;
deeds of assignment or accession;
releases associated with existing owners;
deeds documenting post-settlement arrangements; or
variations to existing legal documents.

The deed should be considered alongside the broader transaction rather than in isolation.

Deeds and Shareholder Arrangements

Companies with multiple owners are another area where deeds frequently appear.

A shareholders’ agreement may require a new shareholder to execute a deed of accession.

A departing shareholder may enter into a deed dealing with matters such as:

transfer of shares;
repayment of shareholder loans;
resignation as director;
confidentiality;
restraints;
releases; and
continuing obligations.

These documents should work together with the company's constitution, shareholders’ agreement and share transfer documentation.

Before Signing a Deed

A deed can create significant and sometimes continuing legal obligations.

Before signing, consider:

Why is the document being structured as a deed?

What obligations am I assuming?

Am I giving a release?

Am I providing a guarantee or indemnity?

Do any obligations continue indefinitely or after the transaction ends?

Is there a restraint?

Are there confidentiality obligations?

Does the deed correctly identify the parties?

Has it been executed correctly?

When does it take effect?

The fact that no money changes hands does not mean the document is insignificant.

In some cases, that is precisely why a deed is being used.

Commercial Agreements and Deeds on the Gold Coast

KMB Legal assists businesses and business owners with commercial

agreements, deeds and business transactions across the Gold Coast

and Queensland.

We can assist with preparing and reviewing deeds of release, deeds of

accession, confidentiality arrangements, shareholder documentation,

business sale documents and other commercial agreements.

Understanding what the document actually does — and ensuring it is

executed correctly — is important before legally binding obligations are created

Free 30-minute initial telephone consultation.

Retail Shop Leases in Queensland: What Landlords and Tenants Need to Know

Fri, 18 Sep 2026 09:33:37 GMT

Commercial & Business Law

Retail Shop Leases in Queensland: What Landlords and Tenants Need to Know

Retail shop leases in Queensland are subject to specific legislation that can impose additional obligations on landlords and provide protections for tenants. Understanding whether the legislation applies — and dealing with disclosure, rent, outgoings, options and assignment correctly — is important before entering into or changing a retail

lease.

By Katie Chan

Leasing premises is often one of the largest ongoing commitments for a retail business.

While the commercial terms of a lease remain important, some Queensland retail premises are also governed by the Retail Shop Leases Act 1994 (Qld) (RSL Act).

The Act regulates matters including pre-lease disclosure, rent reviews, outgoings, assignments and certain rights and obligations during the lease.

Importantly, not every commercial lease is a retail shop lease.

What Is a Retail Shop Lease in Queensland?

Whether a lease is a retail shop lease does not simply depend on what the document is called.

Broadly, the RSL Act can apply to premises of less than 1,000 square metres used for a retail business, as well as certain non-retail businesses situated within a retail shopping centre, subject to exclusions in the legislation.

This distinction matters.

A lease that falls within the RSL Act is subject to statutory requirements that may not apply to an ordinary commercial lease.

The Queensland Small Business Commissioner notes that the Act provides retail tenants with protections relating to matters such as:

disclosure before entering or renewing a lease;
rent review provisions;
outgoings;
renewal notices; and
retail tenancy dispute resolution.

If there is uncertainty about whether premises fall within the Act, this should be determined before the lease is entered into.

A Retail Lease Can Exist Even Before the Document Is Signed

Business owners should be particularly careful about taking possession or paying rent before their lease documentation has been finalised.

Under the RSL Act, a retail shop lease can be regarded as entered into when the tenant takes possession of the shop or begins paying rent, even if the formal lease has not yet been signed.

That is one reason legal advice should ideally be obtained before the tenant moves into the premises or starts paying rent.

KMB Legal's Gold Coast commercial lawyers assist landlords and tenants with retail lease reviews, negotiations and leasing documentation.

Disclosure Before Entering a Retail Shop Lease

One of the significant features of Queensland's retail leasing legislation is the disclosure regime.

Under section 21B of the RSL Act, the landlord must generally provide the prospective tenant with:

a draft of the proposed lease; and
a lessor disclosure statement,

at leas t 7 days before t he prospective tenant enters into the retail shop lease.

The disclosure statement provides information about the premises and proposed lease arrangements.

The Retail Shop Leases Regulation specifies information to be disclosed, including matters such as the parties, premises, lease term and options.

Disclosure should not be treated as a formality.

The tenant should compare the disclosure statement carefully against the proposed lease and the commercial deal that has been negotiated.

Can the 7-Day Disclosure Period Be Waived?

In certain circumstances, yes.

The Act provides a mechanism allowing the transaction to proceed where the lessor's disclosure statement is provided after the prescribed disclosure date but before the lease is entered into.

This requires the prospective tenant to provide the appropriate waiver notice and, unless the prospective tenant is a “major lessee” within the meaning of the Act, a legal advice report confirming that legal advice has been given about the meaning and effect of the waiver.

It should therefore not simply be assumed that the parties can informally agree to ignore the statutory disclosure period.

Tenants Also Have Disclosure Obligations

Disclosure is not solely the landlord's responsibility.

A prospective tenant, other than a prospective franchisee, must generally provide a lessee disclosure statement to the landlord at least 7 days before entering into the retail shop lease.

Further requirements apply to certain tenants concerning legal and financial advice reports.

A prospective tenant who is not a “major lessee” must generally provide the landlord with both a financial advice report and a legal advice report before entering into the lease.

These requirements reinforce the importance of dealing with the lease documentation early rather than immediately before occupation.

What Happens if the Landlord Does Not Properly Disclose?

Failure to comply with the statutory disclosure requirements can have significant consequences.

Under section 21F, a tenant may have a right to terminate a retail shop lease by written notice within 6 months after entering into the lease if the landlord failed to comply with the relevant disclosure obligations or provided a materially defective disclosure statement, subject to qualifications and exceptions in the legislation.

A disclosure statement may be defective if it is materially incomplete or contains information that is materially false or misleading.

Whether a termination right actually exists depends on the particular circumstances, so legal advice should be obtained before relying on such a provision.

The Lease Term and Options

The lease should clearly specify:

the commencement date;
initial term;
any option periods;
the deadline for exercising an option; and
the procedure required to exercise it.

An option to renew gives the tenant a contractual right to extend the lease for another term if the conditions of the option are satisfied.

Options are not compulsory. If there is no option, the landlord will not ordinarily be required to grant a further lease when the existing lease expires, subject to particular statutory provisions that may apply.

For a tenant investing significantly in fit-out, equipment and goodwill associated with a location, the length of the lease and available options can be commercially important.

Disclosure When an Option Is Exercised

There are additional disclosure rules when a retail tenant exercises an option.

Where section 21E applies, the landlord must generally provide an updated disclosure statement within 7 days after receiving the tenant's notice exercising the option.

The tenant may then have 14 days after receiving that disclosure statement to withdraw its renewal notice. The Act also allows the tenant to waive the landlord's renewal disclosure obligation in the manner provided by the legislation.

This is an important difference between simply negotiating a commercial lease and dealing with a lease regulated by the RSL Act.

Ren t and Rent Reviews

The lease should clearly state:

the starting rent;
whether GST applies;
when rent is payable;
how often rent is reviewed; and
the method used for each review.

Common review methods include:

fixed percentage increases;
CPI-based increases; and
market reviews.

Queensland's retail leasing legislation places restrictions on some rent review mechanisms.

For example, the RSL Act generally prohibits ratchet provisions that prevent rent from decreasing when the applicable review mechanism would otherwise result in a decrease, subject to particular provisions concerning major lessees.

The Act also restricts certain review mechanisms involving alternative methods of calculating rent.

Market Rent Reviews

Where a retail lease provides for a market rent review, the parties may agree on the market rent.

If they cannot agree within the statutory timeframe, the RSL Act provides a process involving determination by a specialist retail valuer.

The Queensland Small Business Commissioner notes that if the landlord and tenant cannot agree on market rent within one month after the review date, a specialist retail valuer can determine the rent, with QCAT able to appoint the valuer if the parties cannot agree on the appointment.

The cost of the valuation is generally shared equally between the parties.

Outgoings

Rent is only one component of the cost of occupying commercial premises.

A retail tenant may also be required to contribute towards outgoings, which could include items such as:

council rates;
water charges;
insurance;
cleaning;
security;
common area maintenance;
management expenses; and
other operating costs,

depending on the lease and what can lawfully be recovered.

Under section 37 of the RSL Act, a tenant is not liable to pay the landlord an amount for outgoings unless the lease specifies:

the outgoings payable;
how those outgoings will be determined and apportioned; and
how the landlord may recover them.

The Act also restricts the proportion of apportionable outgoings that can be passed on to a retail tenant.

Estimates and Annual Statements of Outgoings

Retail landlords also have statutory obligations concerning information about outgoings.

The RSL Act requires estimates of apportionable outgoings and audited annual statements in circumstances prescribed by the legislation.'

The Queensland Small Business Commissioner explains that landlords must generally provide an estimate when the lease begins or at least one month before the relevant accounting period starts, and an audited annual statement is generally required following the end of the period.

For tenants, reviewing the likely outgoings before signing is important because the true cost of occupancy can be substantially higher than the advertised base rent.

Permitted Use

The permitted use clause determines what business activities the tenant can conduct from the premises.

It should be broad enough to accommodate the tenant's intended operations without creating unnecessary restrictions.

For example, a permitted use described very narrowly may cause problems if the tenant later expands its product range or modifies its business model.

The tenant should also investigate separately whether the intended use is permitted under:

planning requirements;
development approvals;
licences;
body corporate requirements, where relevant; and
other regulatory requirements.

A landlord agreeing to a permitted use under a lease does not necessarily mean every regulatory approval required for that business has been obtained.

Fit-Out

Retail businesses often invest heavily in fitting out their premises.

Before committing to the lease, the parties should clearly establish:

who is responsible for the fit-out;
whether landlord approval is required;
whether plans and specifications must be submitted;
who owns the fit-out;
whether there is a fit-out contribution;
when the tenant can access the premises;
whether rent is payable during fit-out;
who bears approval costs; and
what must happen to the fit-out when the lease ends.

These issues should ideally be resolved before substantial money is spent.

Lease Incentives

A landlord may offer an incentive to encourage a tenant to enter the lease.

Examples can include:

a rent-free period;
reduced rent for an initial period;
a fit-out contribution; or
another financial incentive.

The legal documentation should accurately record the incentive and any conditions attached to it.

Tenants should consider t he overall financial commitment across the entire lease term, rather than focusing solely on the initial incentive.

Security and Personal Guarantees

Landlords commonly require security for a tenant's obligations.

This may include:

a bank guarantee;
security deposit; or
personal guarantees from directors or other individuals.

A personal guarantee can be particularly significant.

Even where the tenant is a limited liability company, a director who personally guarantees the lease may become personally responsible for amounts owed by the company under the guarantee.

The amount, duration and circumstances in which security can be called should be reviewed carefully.

Repairs and Maintenance

The lease should clearly allocate responsibility for repairs and maintenance.

Depending on the premises and lease, issues may include:

air-conditioning;
plumbing;
electrical systems;
shopfronts;
glass;
fixtures;
equipment;
structural repairs; and
common areas.

Tenants should not assume that every major repair is automatically the landlord's responsibility.

The actual lease terms and applicable legislation need to be considered.

Make-Good Obligations

A make-good clause deals with the condition in which the tenant must leave the premises at the end of the lease.

Depending on the drafting, a tenant may be required to:

remove its fit-out;
remove signage;
repair damage;
repaint;
reinstate altered premises;
remove cabling or equipment; and
return the premises to a specified condition.

For heavily fitted retail premises, make-good costs can be substantial.

The tenant should understand the obligation at the beginning of the lease, not discover it when preparing to vacate years later.

Assigning the Lease When Selling a Business

Lease assignment becomes particularly important when a tenant sells a business operated from leased premises.

A purchaser will commonly require the ability to continue operating from the existing location.

The seller therefore needs to determine:

whether the lease can be assigned;
whether landlord consent is required;
what information the landlord requires about the purchaser;
whether guarantees or security must be replaced; and
what disclosure documents must be provided.

The RSL Act contains a specific disclosure regime for assignments.

For example, where the assignment relates to the sale of the business conducted from the premises, the outgoing tenant must generally give the prospective assignee a disclosure statement and copy of the current lease at least 7 days before the assignee enters into the business sale agreement, subject to the statutory waiver mechanism.

The landlord also has separate disclosure obligations to the prospective assignee, and the prospective assignee has disclosure obligations of its own.

This is why the lease assignment should be considered early in a business sale, rather than being left until settlement.

Relocation and Redevelopment

Retail leases, particularly within shopping centres, may contain provisions allowing a landlord to relocate a tenant or deal with the premises in connection with redevelopment.

These clauses can have significant commercial consequences.

A tenant should consider:

when relocation can occur;
notice requirements;
the proposed alternative premises;
relocation costs;
fit-out implications;
disruption to trade;
signage;
whether termination rights may arise; and
any statutory protections or compensation provisions.

The RSL Act contains provisions dealing with compensation in specified circumstances, including certain actions by landlords affecting a tenant's business.

The lease and legislation need to be considered together.

What Happens if the Business Is Disturbed?

Retail tenants may have statutory rights to compensation in certain circumstances where the landlord's actions substantially interfere with access to, or trading from, the premises.

However, entitlement to compensation is fact-specific.

The circumstances, lease terms, statutory provisions and nature of the disruption all need to be considered.

Not every inconvenience or reduction in trade automatically creates a compensation entitlement.

What Happens if the Tenant Defaults?

A retail lease will generally contain provisions dealing with default.

Examples include:

unpaid rent;
unpaid outgoings;
failure to maintain insurance;
unauthorised use;
failure to repair; or
another breach of the lease.

Queensland's Property Law Act 2023 (Qld) now also needs to be considered in relation to lease breach and termination procedures.

The Queensland Small Business Commissioner notes that where a tenant fails to pay rent, the landlord may need to issue a statutory notice to remedy breach and comply with the applicable requirements before taking further action.

Both landlords and tenants should obtain advice before taking steps to terminate a lease or withhold rent.

Retail Lease Disputes

Queensland has a specific dispute resolution pathway for retail tenancy disputes.

The Queensland Small Business Commissioner provides mediation services for retail tenancy disputes under the RSL Act.

Where an eligible retail tenancy dispute is not resolved through the statutory mediation process, it may proceed to the Queensland Civil and Administrative Tribunal (QCAT), subject to jurisdictional requirements.

This is another reason why determining whether the lease is actuall y a retail shop lease is important.

A dispute concerning an ordinary commercial lease does not automatically follow the same QCAT pathway.

Retail Shop Lease vs Commercial Lease

A retail shop lease is still a commercial lease, but not every commercial lease is governed by the Retail Shop Leases Act.

That distinction can affect:

disclosure;
rent reviews;
outgoings;
assignment;
compensation rights;
renewal procedures; and
dispute resolution.

For a broader discussion of business premises leases, see our article Commercial Leases in Queensland: What Business Owners Need to Know.

Before Signing a Retail Shop Lease

A tenant should understand the complete commercial commitment before entering the lease.

Important questions include:

Does the Retail Shop Leases Act apply?

How long is the lease and are there options?

What is the starting rent?

How will rent increase?

What outgoings are payable?

What security and guarantees are required?

Is the permitted use broad enough?

Who pays for the fit-out?

What happens to the fit-out when the lease ends?

Can the lease be assigned if the business is sold?

Are there relocation or redevelopment provisions?

What are the make-good obligations?

What is the total occupancy cost over the lease term?

The lease may affect the business for many years. Reviewing these matters before signing can be considerably easier than attempting to renegotiate them afterwards.

Retail Leasing Advice on the Gold Coast

KMB Legal assists landlords, tenants and business owners with

retail and commercial leasing across the Gold Coast and Queensland.

We can assist with reviewing and negotiating retail shop leases,

disclosure documentation, lease renewals, assignments, commercial

lease arrangements and leasing issues associated with buying or

selling a business.

If you are considering entering into a retail shop lease, it is important

to obtain advice before signing the lease, taking possession or beginning

to pay rent.

Free 30-minute initial telephone consultation.

Business Structures in Australia: Company, Trust, Partnership or Sole Trader?

Fri, 18 Sep 2026 08:19:42 GMT

COMMERCIAL & BUSINESS LAW

Business Structures in Australia: Company, Trust, Partnership or Sole Trader?

Choosing a business structure is one of the first important decisions when starting or acquiring a business. The structure you choose can affect control, personal liability, taxation, administration, bringing in new owners and eventually selling or transferring the business.

By Katie Chan

There is no si ngle business structure that is right for everyone.

A sole trader structure may be appropriate for a relatively straightforward owner-operated business, while another business may benefit from operating through a company, partnership or trust.

The Australian Government identifies sole trader, partnership, company and trust as four common business structures and notes that the choice can affect taxation, personal liability, control, ongoing costs and administration.

The appropriate structure should therefore be considered in light of both where the business is today and where its owners expect it to go.

Why Does Your Business Structure Matter?

Your structure determines the legal framework through which the business operates.

Depending on the structure, it can affect:

who legally owns business assets;
who enters contracts;
who is responsible for business debts;
how decisions are made;
taxation;
how profits are distributed;
whether additional owners or investors can be introduced;
ongoing reporting and compliance;
succession planning; and
how the business can eventually be sold or transferred.

It can be possible to change structures later, but restructuring may require new registrations, transfers of assets and licences and consideration of legal and taxation consequences.

For that reason, it is worth considering the structure carefully at the beginning.

1. Sole Trader

A sole trader is an individual operating a business in their own capacity.

It is generally the simplest of the common business structures.

The owner controls the business and is legally responsible for its operations, including its debts and losses. The Australian Government describes a sole trader as having unlimited liability, meaning personal assets can potentially be exposed if things go wrong.

Advantages of operating as a sole trader

A sole trader structure can offer:

relatively simple establishment;
lower establishment and administration costs;
fewer reporting requirements;
direct control over business decisions; and
a straightforward ownership structure.

For a person starting a relatively small business on their own, that simplicity can be attractive.

Issues to consider

The significant distinction is that there is no separate company standing between the individual and the business.

The individual is responsible for the business's liabilities.

It can also become less convenient if the business grows and the owner later wants to introduce investors or additional owners.

A sole trader may therefore eventually reconsider the structure as the business expands.

2. Pa rtnership

A partnership generally involves two or more people carrying on a business together and sharing its income or losses.

Partnership laws are state and territory based. In Queensland, partnerships are principally governed by the Partnership Act 1891 (Qld).

The Australian Government notes that in a general partnership, the partners manage the business and have unlimited liability for partnership debts and obligations.

Why use a partnership?

A partnership can be relatively straightforward to establish and may suit two or more people who want to operate a business together without establishing a company.

However, entering business with another person creates additional issues that do not arise for a sole trader.

Those issues include:

who contributes the initial capital;
how profits and losses are divided;
who can make decisions;
what each partner's role will be;
whether partners can incur liabilities on behalf of the business;
what happens if more funding is required;
what happens if a partner wants to leave;
what happens if a partner dies or becomes incapacitated; and
how the business will be valued if the relationship ends.

A Partnership Agreement Is Important

Business partners should consider documenting their arrangements in a written partnership agreement.

The Australian Government specifically recommends creating a partnership agreement when moving into a partnership structure, including documenting how the partnership will operate and dealing with relevant intellectual property and agreed terms.

Depending on the business, a partnership agreement might address:

ownership percentages;
initial contributions;
future funding;
drawings;
profit distributions;
decision-making;
responsibilities of each partner;
banking arrangements;
intellectual property;
confidentiality;
restraints;
admission of new partners;
retirement or exit;
valuation;
death or incapacity; and
dissolution of the partnership.

Relying simply on the fact that the owners know and trust one another can leave important questions unanswered.

The best time to establish those rules is usually when the relationship is working well.

3. Company

A company is fundamentally different from a sole trader structure.

Once registered, the company is a separate legal entity from its shareholders and directors. It can own property, enter contracts, incur debts and sue or be sued in its own name.

This distinction is one of the main reasons companies are commonly used for operating businesses.

Who owns and controls a company?

There are two important roles:

Shareholders own shares in the company.

Directors are responsible for managing or directing the company's business.

In a small business, the same person may be both sole shareholder and sole director.

In a larger privately owned business, there may be several shareholders and directors with different ownership percentages and responsibilities.

Limited Liability Does Not Mean No Personal Liability

One of the advantages associated with a company is that shareholders generally have limited liability in their capacity as members.

However, incorporating a company does not mean directors can never be personally liable.

ASIC warns that directors can face personal consequences in various circumstances, including breaches of their legal duties and insolvent trading.

Directors have significant statutory responsibilities and need to understand those obligations rather than regarding a company as an automatic liability shield.

Personal guarantees can also create personal exposure. For example, a bank, landlord or supplier may require a director to personally guarantee a company's obligations.

Companies Have Greater Administration and Compliance

A company is generally more complex to establish and operate than a sole trader business.

Companies have ongoing obligations under the Corporations Act 2001 (Cth) and ASIC requirements.

These can include maintaining records, keeping company information current, completing annual review requirements and paying applicable ASIC fees. Directors also have legal responsibilities concerning the company's affairs and financial position.

That additional administration needs to be weighed against the benefits of the structure.

Companies Can Make Multiple Ownership Easier to Document

One significant advantage of a company structure is the ability to divide ownership through shares.

For example, three founders might own:

Shareholder A — 50%;
Shareholder B — 30%; and
Shareholder C — 20%.

Different arrangements are possible depending on the company's constitution and share structure.

Where a company has multiple owners, it is also important to consider a shareholders’ agreement.

That agreement can establish rules concerning decision-making, funding, share transfers, new investors, exits, valuation, deadlocks and the eventual sale of the company.

4. Trust

A trust is different again.

In a trust structure, a trustee holds and manages property for the benefit of beneficiaries in accordance with the trust deed and applicable law.

The trustee can be an individual or a company.

Unlike a company, a trust is not simply another type of corporation.

The trustee is the person or company that legally conducts the business in its capacity as trustee.

What Is a Corporate Trustee?

Instead of appointing an individual as trustee, a trust may have a company acting as its trustee.

This is commonly called a corporate trustee.

For example:

ABC Holdings Pty Ltd as trustee for the ABC Family Trust

In that scenario, the company acts as trustee and conducts relevant activities in that capacity.

Using a corporate trustee can create advantages in areas such as administration, succession and liability management, depending on the circumstances.

However, the arrangement also creates additional complexity because both the company and trust need to be properly established and administered.

What Is a Discretionary or Family Trust?

A commonly encountered private-business structure is a discretionary trust, often described as a family trust where used within a family group.

Under a discretionary trust, the trustee generally has powers under the trust deed concerning distributions among eligible beneficiaries.

The precise rights and obligations depend heavily upon the terms of the trust deed.

That makes the deed an important document.

Business.gov.au notes that trust structures require a formal trust deed and are generally more complex and expensive to establish and administer than simpler structures.

A Trust Is Not Automatically the Best Structure for Asset Protection

Trusts are frequently discussed in connection with asset protection.

However, simply establishing a trust does not guarantee that every asset is protected from every potential claim.

The outcome can depend on matters including:

who the trustee is;
who owns the relevant asset;
guarantees;
financing arrangements;
how the trust has been administered;
the terms of the trust deed;
insolvency law; and
the nature of any claim.

Asset protection should therefore be considered as part of the overall legal and financial structure rather than relying on the label “family trust”.

Company vs Trust: They Are Not Necessarily Alternatives

People sometimes ask whether they should operate th rough a company or a trust as t hough only one can be chosen.

In practice, the structures can be combined.

For example:

Operating company

The business may trade through a company owned by shareholders.

Trust with corporate trustee

A company may act as trustee of a discretionary trust through which a business is conducted.

Shares held by a trust

Shares in an operating company may themselves be held by a trustee on behalf of a trust.

There are many possible structures.

The appropriate arrangement depends upon the business owners' objectives and requires legal and taxation advice tailored to their circumstances.

How Do the Four Structures Compare?

At a high level:

Sole trader

Individual operates business personally
Individual Owner personally responsible

Partnership

Two or more persons operate together
General partners generally have unlimited liability

Company

Separate legal entity;
Members generally have limited liability, subject to important exceptions

Trust

Trustee holds/operates for beneficiaries;
Trustee acts under trust deed;
Liablity depends significantly on trustee and structure

These are broad distinctions only. The legal, taxation and financial consequences need to be considered for the particular business.

Which Structure Provides the Best Asset Protection?

There is no universal answer.

A sole trader has direct personal exposure to business liabilities.

A company creates a separate legal entity and generally limits shareholder liability, but directors can still have personal exposure in particular circumstances and personal guarantees may significantly alter the position.

Trust structures introduce different considerations again.

The appropriate risk-management structure depends on matters including:

the nature of the business;
assets held;
level of commercial risk;
borrowing;
personal guarantees;
number of owners;
employment arrangements; and
future plans.

Insurance is also an important part of risk management regardless of structure.

Bringing Another Person Into the Business

The structure becomes particularly important when another owner is introduced.

If a sole trader wants to bring in another person as a co-owner, the existing structure may no longer be suitable.

Possible alternatives might include:

establishing a partnership;
establishing a company and issuing or transferring shares;
restructuring through another arrangement.

If shares are involved, a shareholders’ agreement should also be considered.

If a partnership is established, the parties should consider a partnership agreement.

The ownership structure and the agreement governing the relationship should be considered together.

Raising Capital and Bringing in Investors

Future investment is another factor.

A company structure can make it comparatively straightforward to represent ownership through shares and introduce new shareholders, although the company must comply with applicable corporate law and its governing documents.

Before accepting investment, owners should consider matters including:

valuation;
percentage ownership;
voting rights;
director appointment rights;
future funding;
dilution;
investor exit rights; and
control over significant decisions.

An injection of capital is not simply a financial transaction. It can permanently alter control of the business.

Think About the Exit at the Beginning

When establishing a business, owners naturally focus on getting started.

But structure can also affect what happens years later when the owners want to exit.

Questions worth considering include:

Can the business itself be sold?
Can ownership interests be transferred?
Can shares be sold?
What happens if one owner wants to leave but another wants to continue?
What happens if an owner dies?
Can ownership pass to the next generation?
Are important assets held in the same entity as the trading business?
What tax consequences could arise on a future sale?

Planning for an eventual exit at the beginning can provide considerably more flexibility later.

Structure Matters When Buying an Existing Business

A purchaser should also consider structure before acquiring a business.

For example, a buyer may need to decide whether the purchaser under the contract will be:

an individual;
a company;
a trustee;
a partnership; or
another entity.

That decision should generally be made before the purchase contract is signed.

Changing the purchaser or restructuring after contracts have been entered into can create additional legal, taxation, duty and financing issues.

Similarly, deciding whether to acquire the assets of a business or the shares in the company operating it is a separate but important transaction-structuring question.

Tax Should Be Considered — But Not in Isolation

Different structures have different taxation consequences.

Tax considerations are important, but they should not be the only factor determining the legal structure.

The Australian Government recommends considering taxation alongside matters such as personal liability, control, costs and administration when choosing a structure.

A structure that appears attractive from one tax perspective may create difficulties concerning:

ownership;
control;
succession;
investment;
liability;
financing; or
eventual sale.

For this reason, legal and accounting advice should ideally be coordinated before the structure is established.

Can You Change the Structure Later?

Yes, but changing structures is not necessarily just an administrative exercise.

The Australian Government notes that restructuring can affect legal and tax obligations and personal liability. A new ABN is also generally required when the business structure changes.

Depending on the change, restructuring may require consideration of:

transferring business assets;
assigning contracts;
transferring intellectual property;
licences and permits;
employee arrangements;
commercial leases;
financing;
GST;
capital gains tax;
state duties;
new registrations; and
third-party consents.

For example, changing from a sole trader to a company involves establishing a new legal entity and transferring relevant business assets and licences to it; the sole trader's ABN does not simply become the company's ABN.

Professional advice before restructuring can help identify these consequences.

What Should You Consider When Choosing a Business Structure?

Rather than asking simply “Which structure is best?” , it is more useful to ask:

Who will own the business?

Who will control it?

Will there be more than one owner?

What assets will the business hold?

What are the commercial risks?

Will employees be engaged?

Will the business borrow money?

Will personal guarantees be required?

Do you expect to bring in investors?

How will profits be dealt with?

What happens if an owner wants to leave?

What is the long-term succession or exit plan?

What are the taxation consequences?

The answers help determine which structure — or combination of structures — should be considered.

Get the Structure Right Before the Business Grows

Business structures are easiest to consider when the owners have time to plan.

Once a business has significant assets, employees, contracts, intellectual property and goodwill, restructuring can become considerably more involved.

That does not mean the original structure must remain forever.

The Australian Government expressly recognises that businesses may change structures as they grow, take on partners, seek investment or plan for succession.

It does mean that structure should be reviewed as the business evolves rather than being treated as a decision made once and forgotten.

Business Structuring Advice on the Gold Coast

KMB Legal assists business owners with business structures, companies,

trusts, partnerships and commercial agreements across the Gold Coast

and Queensland.

Whether you are establishing a new business, purchasing an existing

business, introducing another owner or reviewing an existing structure,

we can work with your accountant and other advisers to ensure the legal

arrangements reflect your commercial objectives.

Free 30-minute initial telephone consultation.

Selling a Business in Queensland: How to Prepare for a Successful Sale

Fri, 18 Sep 2026 07:20:46 GMT

COMMERCIAL & BUSINESS LAW

Selling a Business in Queensland: How to Prepare for a Successful Sale

Selling a business is rarely as simple as finding a buyer and agreeing on a price. Preparing early can make the business easier for a purchaser to investigate, reduce delays during due diligence and help the transaction proceed more smoothly from negotiation through to settlement.

By Katie Chan

For many business owners, selling represents the culmination of years of work.

However, the legal and commercial preparation for a sale should ideally begin well before the business is advertised.

A prospective purchaser will usually want to investigate the financial performance, assets, employees, contracts, lease, intellectual property and other aspects of the business before committing to the acquisition.

Business Queensland recommends allowing as much time as possible to prepare and addressing matters such as profitability, leases, customer and supplier contracts, business assets and outstanding legal, taxation and superannuation issues before going to market.

Taking the time to prepare can help identify issues before a buyer does — when the seller still has an opportunity to address them.

1. Start Preparing Before You Find a Buyer

One of the biggest advantages a seller can have is time.

If possible, preparation should begin before the business is advertised for sale.

This provides an opportunity to:

organise financial and corporate records;
review key contracts;
resolve outstanding compliance issues;
review the commercial lease;
identify employee entitlements;
confirm ownership of important assets;
address security interests;
document arrangements that have historically been informal; and
identify anything likely to concern a prospective purchaser.

Business Queensland specifically recommends formalising important customer and supplier relationships and addressing outstanding legal, taxation and superannuation matters when preparing for a sale.

It is generally preferable to identify a problem yourself rather than have it discovered for the first time during the buyer's due diligence.

2. Decide What You Are Actually Selling

Before marketing the business, determine exactly what is included in the proposed sale.

A business sale may involve assets such as:

goodwill;
plant and equipment;
stock;
vehicles;
intellectual property;
business names;
websites and domain names;
customer databases;
telephone numbers;
licences;
customer and supplier contracts; and
other assets used to operate the business.

Business Queensland distinguishes between tangible assets, such as equipment, and intangible assets such as goodwill, brand recognition and intellectual property when preparing a business for sale.

A seller should also identify anything that is not included.

For example, the owner may intend to retain a particular vehicle, property or other asset.

Clarifying this early makes it easier to market the business accurately and prepare the eventual sale contract.

3. Asset Sale or Share Sale?

The structure of the transaction matters.

In an asset or business sale, the purchaser generally acquires identified assets used to operate the business.

In a share sale, the purchaser acquires shares in the company that owns and operates the business.

A share sale means the company itself generally continues to own its assets, remain party to its contracts and retain its historical rights and liabilities, subject to the particular circumstances.

The two structures can have significantly different legal, taxation and commercial consequences.

Fa ctors to consider may include:

the nature of the assets;
existing contracts;
licences and approvals;
employee arrangements;
taxation consequences;
existing liabilities;
security interests; and
the purchaser's requirements.

Your accountant and solicitor should be involved in considering the structure before the transaction is documented.

4. Get Your Financial Records in Order

A serious purchaser will usually want detailed financial information.

Depending on the business, this may include:

profit and loss statements;
balance sheets;
tax returns;
BAS records;
payroll records;
sales reports;
accounts receivable;
accounts payable;
stock records; and
other evidence supporting the business's financial performance.

Business Queensland recommends collating financial information for prospective purchasers and notes that an independent valuation can provide a more complete assessment of a business's value.

The financial records should tell a coherent story.

If there are unusual expenses, significant fluctuations in revenue or one-off events affecting profitability, be prepared to explain them.

5. Consider Obtaining a Business Valuation

Owners understandably have strong views about what their business is worth.

A buyer may have a very different view.

Business value can be influenced by matters such as:

profitability;
maintainable earnings;
assets;
goodwill;
customer concentration;
recurring revenue;
market conditions;
intellectual property;
lease security;
dependence on the owner; and
future growth prospects.

Business Queensland notes that professional valuers and business brokers can provide a more complete picture of market value, particularly because buyers and sellers commonly have different expectations.

A valuation does not guarantee the ultimate sale price, but it can provide a more informed basis for negotiations.

6. Make the Business Less Dependent on You

A business that cannot function without its owner can be harder to transfer.

Consider whether important aspects of the business exist only in the owner's head.

For example:

are important procedures documented?
can employees operate the business without constant owner involvement?
are customer relationships tied personally to the owner?
are supplier arrangements documented?
are passwords and systems organised?
are operational procedures recorded?

Business Queensland recommends building a capable management team and maintaining business and succession plans so that the business can continue operating through a transition.

For a purchaser, a business with established systems can present a different risk profile from one that depends almost entirely on the departing owner.

7. Review Your Commercial Lease

If the business operates from leased premises, the lease should be reviewed early.

Consider:

how long remains on the lease;
whether there are options;
current rent and outgoings;
whether the lease can be assigned;
whether landlord consent is required;
whether the purchaser will need to provide guarantees;
whether there are outstanding breaches;
whether a new lease may be preferable; and
the process and cost of obtaining landlord approval.

The premises may be fundamental to the value of the business.

A purchaser may be unwilling to proceed if it cannot secure appropriate tenure.

Do not wait until the week before settlement to discover that landlord consent is required or that there is insufficient lease term remaining for the purchaser.

8. Review Your Customer and Supplier Contracts

Written contracts can add considerable value to a business — particularly where they generate recurring revenue or secure important supply arrangements.

Before going to market, review significant contracts and ask:

are they current?
when do they expire?
can they be assigned?
is the other party's consent required?
is there a change-of-control clause?
can the contract be terminated on short notice?
are there outstanding breaches?
is the arrangement actually documented?

Business Queensland recommends formal written customer and supplier contracts rather than relying solely on informal arrangements when preparing a business for sale.

A buyer is likely to place more confidence in a documented contractual relationship than an assurance that a major customer has “always stayed with us”.

9. Check Your Intellectual Property and Digital Assets

Intellectual property can represent a substantial part of the value of a modern business.

Before the sale, confirm ownership and control of assets such as:

business names;
trade marks;
logos;
copyright;
proprietary software;
domain names;
websites;
social media accounts;
customer databases;
marketing materials; and
other proprietary content.

Problems can arise where material was originally created by an external contractor or former business partner and ownership was never properly documented.

Digital access should also be organised.

At settlement or during handover, a purchaser may require access to websites, domains, software, online accounts and other systems.

10. Review PPSR and Financing Arrangements

Assets used in the business may be subject to finance or registered security interests.

Before sale, identify:

financed vehicles;
leased equipment;
machinery subject to security;
business loans;
security interests affecting assets being sold; and
other relevant PPSR registrations.

Where a registered security interest has ended, the PPSR states that the secured party is responsible for ending or discharging the registration in a timely manner.

The sale contract may require particular security interests to be released by settlement.

Addressing these issues early can prevent them delaying completion.

11. Review Employees and Their Entitlements

Employees can be one of the most important parts of a business — and one of the areas requiring the most careful planning during a sale.

Prepare accurate information concerning:

each employee;
employment status;
remuneration;
awards or enterprise agreements;
accrued annual leave;
long service leave;
personal leave;
superannuation;
bonuses and commissions;
employment contracts; and
any existing employment issues.

A sale of business may constitute a transfer of business under the Fair Work Act where the statutory criteria are met, including relevant circumstances where an employee starts with the new employer within three months, performs the same or substantially similar work and the required connection exists between the employers.

The treatment of accrued entitlements needs particular attention. A new employer must recognise prior service for many entitlements, but specific rules and exceptions apply to matters including annual leave, redundancy, long service leave, notice and unfair dismissal.

The business sale contract should clearly allocate responsibility between seller and purchaser.

12. Consider When Employees Should Be Told

Timing can be sensitive.

Telling employees too early can create uncertainty. Leaving communication too late can also cause problems.

The appropriate approach will depend on the business, transaction and applicable employment obligations.

Business Queensland recommends considering communication with employees and other important stakeholders as part of preparing for the transition.

The seller and purchaser should agree on how and when communications will occur.

13. Prepare for the Buyer's Due Diligence

Once a serious buyer is identified, expect them to investigate the business.

They may request documents relating to:

financial performance;
tax;
assets;
employees;
leases;
customer and supplier contracts;
intellectual property;
licences and approvals;
insurance;
litigation;
finance;
corporate records; and
compliance matters.

Business Queensland recommends reviewing due diligence material with professional advisers and being prepared to explain weaknesses or fluctuations in business performance.

Preparing an organised due diligence package can make the process more efficient and present the business professionally.

14. Protect Confidential Information

A prospective purchaser may need access to highly sensitive information before deciding whether to proceed.

This might include:

customer lists;
pricing;
supplier arrangements;
financial records;
employee information;
intellectual property; and
business strategies.

That information should not necessarily be handed to every person who expresses an interest in the business.

A confidentiality agreement or non-disclosure agreement (NDA) can establish obligations governing how the information is used and disclosed.

Business Queensland specifically recommends considering an NDA before providing sensitive due diligence material to prospective purchasers.

This can be especially important where the prospective purchaser is a competitor.

15. Review Your Shareholders’ Agreement

If the business is operated through a company with multiple shareholders, review the shareholders’ agreement before progressing too far with a proposed sale.

It may contain provisions dealing with:

approval of a sale;
transfer restrictions;
pre-emptive rights;
tag-along rights;
drag-along rights;
valuation;
director approval; or
other requirements affecting the transaction.

The company's constitution should also be reviewed where relevant.

Identifying these requirements at the beginning can avoid ownership issues emerging after commercial terms have already been negotiated.

16. Heads of Agreement

Once a buyer is identified, the parties may document the principal commercial terms in a heads of agreement, term sheet or similar document.

This might record matters such as:

purchase price;
deposit;
transaction structure;
assets included;
due diligence period;
finance;
lease arrangements;
exclusivity;
confidentiality;
restraint terms;
proposed settlement date; and
other conditions.

The legal effect of such a document depends on its wording and circumstances.

Do not assume that something titled “Heads of Agreement” is automatically non-binding.

Legal advice should ideally be obtained before signing.

17. Negotiate the Business Sale Contract Carefully

The business sale contract should accurately document the commercial deal.

Depending on the transaction, it may address:

purchase price;
deposit;
assets included and excluded;
stock;
employees;
lease assignment;
intellectual property;
contracts;
licences;
conditions precedent;
warranties;
indemnities;
restraints;
adjustments;
GST;
settlement;
training and handover; and
post-settlement obligations.

Business Queensland emphasises that selling a business can have significant legal and financial implications and recommends professional advice during the sale process.

For the seller, it is particularly important to understand any warranties and indemnities being given.

18. Be Careful With Warranties

A purchaser may seek warranties about the business.

These might concern:

ownership of assets;
accuracy of information;
financial records;
employees;
contracts;
litigation;
intellectual property;
licences;
taxation or compliance matters; and
undisclosed liabilities.

A seller should not simply accept warranties because they appear in a precedent contract.

Each warranty should be considered against the actual circumstances of the business.

If exceptions need to be disclosed, they should be appropriately documented.

The sale may be completed at settlement, but liability under some contractual warranties can continue afterwards.

19. Consider the Restraint Carefully

A purchaser acquiring the goodwill of a business will commonly seek a restraint preventing the seller from immediately establishing or becoming involved in a competing business.

A proposed restraint may deal with:

competing activities;
geographical areas;
time periods;
solicitation of customers;
solicitation of employees; and
other activities.

The seller needs to consider the restraint in light of their plans after settlement.

For example, a person intending to retire may view a restraint very differently from someone who intends to remain active in the same industry.

The enforceability of restraint provisions depends on their terms and circumstances, so they should be carefully drafted.

20. Consider GST and Tax Before Signing

Tax advice should be obtained before the transaction is finalised.

Relevant matters may include:

GST;
capital gains tax;
small business CGT concessions;
treatment of stock;
treatment of particular assets;
employee liabilities; and
whether the transaction is structured as an asset sale or share sale.

A sale of a business may potentially qualify as a GST-free supply of a going concern where the statutory requirements are satisfied.

Whether those requirements apply depends on the particular transaction.

The GST treatment should therefore be determined with the parties' accountants and reflected correctly in the sale contract rather than being left until settlement.

21. Plan for Settlement Adjustments

The purchase price is not necessarily the amount ultimately transferred at settlement.

Adjustments may be required for matters such as:

rent;
outgoings;
employee entitlements;
prepaid expenses;
stock;
customer deposits; and
other amounts attributable to periods before or after settlement.

The contract should establish how relevant items are to be calculated.

The parties should also agree on how stock will be valued and whether a stocktake is required.

22. Plan the Handover

A successful business sale often involves more than transferring money and keys.

The seller may agree to assist with a transition period.

Business Queensland identifies common handover steps including introducing the purchaser to employees,

important customers and suppliers, providing training, transferring keys and security devices, providing access details for software and databases, and notifying service providers of the ownership change.

The sale contract should clearly specify:

whether training is required;
how long the seller must assist;
required hours;
whether additional assistance is paid;
introductions to key relationships;
transfer of systems and passwords; and
other transition obligations.

Clear expectations reduce the risk of disagreement after settlement.

Common Issues That Can Delay a Business Sale

Some issues repeatedly create difficulties because they are discovered too late.

These include:

lease assignment not being addressed early;
incomplete financial records;
unresolved PPSR registrations;
undocumented employee arrangements;
uncertainty about accrued employee entitlements;
contracts that cannot be transferred;
intellectual property owned by someone other than the seller;
licences that cannot automatically transfer;
disagreements between shareholders;
outstanding taxation or compliance matters; and
parties disagreeing about stock or settlement adjustments.

Many of these issues can be identified before the business is placed on the market.

That is why preparation matters.

Selling a Business Is a Process, Not Just a Contract

The legal contract is an important part of a business sale, but it is only one part.

A well-prepared transaction usually involves coordination between the seller's:

solicitor;
accountant or tax adviser;
business broker, where applicable;
landlord or property manager;
financier; and
other professional advisers.

The earlier those issues are identified and coordinated, the easier it is to structure the transaction around the seller's objectives.

Selling a Business on the Gold Coast?

KMB Legal assists business owners with selling

businesses across the Gold Coast and Queensland,

including preparing and negotiating business sale

contracts, commercial lease assignments, due diligence,

corporate documentation and settlement.

Our commercial law experience allows us to consider

both the legal documentation and the practical issues

involved in preparing a business for sale and completing

the transaction.

Free 30-minute initial telephone consultation.

Commercial Leases in Queensland: What Business Owners Need to Know

Fri, 18 Sep 2026 05:34:14 GMT

COMMERCIAL & BUSINESS LAW

Commercial Leases in Queensland: What Business Owners Need to Know

Entering into a commercial lease can be one of the most significant financial commitments a business makes. Before signing, it is important to understand not only the rent, but the full range of obligations that may apply throughout the lease and when you eventually leave the premises.

By Katie Chan

The premises from which a business operates can be central to its success.

Whether you are leasing an office, warehouse, showroom, hospitality venue or other commercial premises, the lease can commit your business to substantial financial and legal obligations for several years.

A commercial lease may determine much more than how much rent you pay. It can regulate how the premises can be used, who pays for repairs and outgoings, whether you can sell the business and transfer the lease, what security you must provide and what you need to do to the premises when the lease ends.

Business Queensland describes a lease as a legally binding contract and recommends obtaining legal advice before signing if you do not understand its terms.

KMB Legal's Gold Coast commercial lawyers assist landlords and tenants with commercial lease reviews, negotiations, renewals and assignments.

Here are some of the key issues Queensland business owners should consider before entering into a commercial lease.

1. Start With the Heads of Agreement

Commercial lease negotiations often begin w ith a heads of agreement, letter of offer or similar document setting out the principal commercial terms.

This may address matters such as:

the premises;
lease term;
commencement date;
rent;
rent reviews;
options;
outgoings;
security;
incentives;
fit-out; and
permitted use.

It can be tempting to regard the heads of agreement as merely preliminary paperwork.

However, important commercial terms are often effectively negotiated at this stage. Once the landlord and tenant have agreed on those terms, it may be considerably more difficult to renegotiate them when the formal lease is prepared.

The legal effect of a heads of agreement also depends upon its wording and the circumstances.

For that reason, obtaining advice before agreeing to the heads of agreement can be just as important as reviewing the final lease.

2. Is It a Commercial Lease or a Retail Shop Lease?

Not every business lease in Queensland is governed by the same rules.

Some leases are subject to the Retail Shop Leases Act 1994 (Qld).

The Act applies to a lease of a “retail shop”, subject to statutory definitions and exclusions. For example, the Act excludes certain premises including retail shops with a floor area exceeding 1,000 square metres.

Whether the Act applies can be important because it imposes requirements and protections that do not necessarily apply to an ordinary commercial lease.

These include rules concerning:

disclosure;
rent reviews;
outgoings;
lease documentation;
assignment;
compensation; and
dispute resolution.

Business Queensland recommends that both retail landlords and tenants understand their obligations under the Retail Shop Leases Act before entering into a retail shop lease.

We will deal with these requirements separately in our article Retail Shop Leases in Queensland: What Landlords and Tenants Need to Know.

3. Lease Term and Options

One of the first considerations is how long you want to commit to the premises.

For example, a lease might provide for:

3 years + a 3-year option

5 years + a 5-year option.

A longer lease can provide greater certainty, particularly where location is important to the business or substantial money will be spent on fit-out.

However, it also creates a longer financial commitment.

An option gives the tenant a right to extend the lease for a further period if the requirements for exercising the option are satisfied.

The lease should be reviewed carefully to identify:

when the option must be exercised;
how notice must be given;
whether the option is conditional upon the tenant not being in default; and
how rent will be determined during the option period.

Missing an option deadline can have serious consequences, particularly where the business depends upon remaining at the premises.

4. Rent and Rent Reviews

The starting rent is only part of the financial commitment.

The lease should also explain how rent will increase during the term.

Common rent review mechanisms include:

fixed percentage increases;
CPI adjustments;
market reviews; or
a combination of these mechanisms at different stages.

For example, a lease might provide for annual fixed increases with a market review when an option is exercised.

The method of review can have a significant effect on occupancy costs over a lengthy lease.

A tenant should therefore consider the rent over t he entire proposed lease term, rather than focusing only on the first year's figure.

5. What Outgoings Will the Tenant Pay?

Many commercial leases require the tenant to pay outgoings in addition to rent.

Depending on the lease and premises, these might include:

council rates;
water charges;
body corporate levies;
building insurance;
cleaning;
air-conditioning expenses;
waste services;
security;
maintenance; and
other property-related costs.

Business Queensland specifically recommends investigating additional charges such as rates, taxes, garbage, air conditioning and marketing, as well as expenses for electricity, cleaning, repairs, maintenance and refitting.

Before signing, a tenant should understand both what outgoings are recoverable and how they are calculated.

A comparatively attractive rent may look very different once substantial outgoings are added.

6. Check the Permitted Use

The permitted-use clause specifies the type of business that can be operated from the premises.

It should be broad enough to accommodate the tenant's intended activities and, where appropriate, reasonable future development of the business.

However, the lease itself is only part of the issue.

A tenant should also investigate whether the proposed use is permitted under relevant planning, zoning and other regulatory requirements.

Business Queensland cautions tenants to check the necessary council approvals and not merely assume that a particular business use is permitted because of representations by an owner or property agent.

This can be especially important for businesses such as hospitality venues, gyms, medical or allied health practices and businesses requiring particular operational approvals.

7. Fit-Out and Alterations

Many commercial premises require a tenant to undertake a fit-out before trading.

The lease or related documentation should address matters such as:

who approves the fit-out;
who pays for it;
when works can commence;
whether landlord approval is required;
building or council approvals;
ownership of improvements;
contractor requirements;
insurance during works; and
what happens to the fit-out when the lease ends.

If the landlord is contributing to the fit-out, the terms of that contribution should also be clearly documented.

A tenant should avoid making substantial expenditure on premises without understanding what rights it has to occupy them and what happens to those improvements at the end of the lease.

8. Lease Incentives and Rent-Free Periods

Landlords may offer incentives to encourage a tenant to enter into a lease.

These might include:

a rent-free period;
reduced rent for an initial period;
a fit-out contribution; or
another financial incentive.

The headline amount of an incentive does not tell the whole story.

The documentation should explain how the incentive operates and whether the tenant may have to repay some or all of it if the lease ends early or the tenant defaults.

Any incentive arrangement should therefore be reviewed together with the lease itself.

9. Security, Bank Guarantees and Personal Guarantees

A landlord will commonly require security for the tenant's obligations.

This might take the form of:

a security deposit;
bank guarantee;
director's guarantee; or
a combination of these.

A personal guarantee is particularly important.

Where a company is the tenant, a landlord may require one or more directors to personally guarantee the company's obligations.

That can potentially expose the guarantor's personal assets if the company fails to meet its lease obligations.

The extent of any guarantee should therefore be understood before the lease is signed.

10. Repairs and Maintenance

The lease should clearly allocate responsibility for maintaining the premises.

Depending on its terms, the tenant may be responsible for matters such as:

internal repairs;
fixtures and fittings;
air-conditioning;
plumbing;
electrical systems;
glass;
doors;
equipment; and
regular servicing.

The landlord may retain responsibility for structural matters or other parts of the building.

However, this should not simply be assumed.

Business Queensland specifically recommends checking who must maintain the premises, who bears the cost and what conditions apply to alterations or improvements.

For older premises in particular, maintenance obligations can create substantial unexpected costs.

11. Insurance Requirements

Commercial leases commonly require the tenant to maintain particular insurance policies.

Depending on the business and premises, these may include:

public liability insurance;
plate glass insurance;
contents insurance;
workers' compensation insurance; and
other business-specific cover.

The lease may prescribe minimum levels of cover and require the landlord or another party to be noted on the policy.

Tenants should ensure the required insurance is commercially available and appropriate for the business before committing to the lease.

12. Make-Good Obligations

One of the most commonly overlooked provisions is the make-good clause.

This determines what the tenant must do to the premises when the lease ends.

Depending on the wording, the tenant might be required to:

remove its fit-out;
remove signage;
repair damage;
repaint;
replace floor coverings;
remove alterations;
reinstate walls or partitions; or
return the premises to a specified condition.

Business Queensland specifically recommends checking whether the lease requires the premises to be returned to their pre-lease condition.

Make-good works can be expensive.

The clause should therefore be understood at the beginning of the lease rather than first being examined when the tenant is preparing to leave.

13. Assignment — What Happens if You Sell the Business?

A commercial lease can become particularly important when a business is sold.

If the business operates from leased premises, the buyer will often need either:

an assignment of the existing lease; or
a new lease from the landlord.

The existing lease should be reviewed to determine the requirements for assignment and obtaining the landlord's consent.

Business Queensland notes that where a seller transfers a business operated from leased premises, landlord approval may be required for assignment of the remainder of the lease to the purchaser.

This is one reason lease due diligence is an important part of a business acquisition.

A valuable business can become considerably more difficult to sell if the purchaser cannot secure the premises from which it operates.

14. Subleasing and Sharing the Premises

A tenant should also consider whether it may eventually want to sublease part of the premises or allow another business to occupy part of the space.

The lease may prohibit this entirely or require landlord consent.

Business Queensland recommends checking whether subletting and transfer of the lease are permitted and what conditions or expenses may apply.

If sharing or subleasing forms part of the tenant's business plan, this should be addressed before the lease is signed.

15. Relocation and Redevelopment Clauses

Some leases give the landlord rights to relocate the tenant or terminate the lease if the property is redeveloped.

These provisions can have significant consequences where a business depends heavily upon its location or has invested substantially in fit-out.

Before signing, a tenant should understand:

whether the landlord can relocate the business;
the circumstances in which this can occur;
notice requirements;
who bears relocation costs;
whether compensation is available; and
whether redevelopment can result in early termination.

Additional statutory protections may apply where the lease is governed by the Retail Shop Leases Act.

16. Default and Termination

The lease will usually specify circumstances in which the tenant is in default.

These may include:

failing to pay rent;
failing to pay outgoings;
breaching permitted-use requirements;
failing to maintain insurance;
unauthorised alterations;
insolvency-related events; or
other breaches of the lease.

The consequences of default can be significant.

Depending on the circumstances and applicable law, the landlord may have rights relating to termination, recovery of possession or financial loss.

A tenant should therefore understand what constitutes a default and whether the lease provides appropriate mechanisms for dealing with breaches.

17. Disclosure Requirements for Retail Shop Leases

Where the Retail Shop Leases Act 1994 (Qld) applies, specific disclosure requirements arise.

As at September 2026, the Act generally requires a lessor to provide a prospective tenant with a draft lease and lessor disclosure statement at least seven days before the tenant enters into the retail shop lease, subject to statutory exceptions and waiver provisions. A prospective tenant also has disclosure obligations.

The disclosure statement includes prescribed information about matters such as the premises, lease term, options and rent.

Failure to comply with applicable disclosure requirements can have significant consequences. In certain circumstances, the Act allows a tenant to terminate within six months where the lessor has not complied with its disclosure obligation or has provided a materially defective disclosure statement, subject to the statutory qualifications.

These statutory requirements are one reason it is important to establish at the outset whether a proposed lease is governed by the Retail Shop Leases Act.

18. Don't Review the Lease in Isolation

A lease should be considered in the broader context of the business.

For example, a five-year lease might appear commercially reasonable until you discover that:

the business requires a major fit-out;
there is no option to renew;
rent increases substantially each year;
the permitted use is too narrow;
the tenant pays significant outgoings;
a director must provide an unlimited personal guarantee; or
substantial make-good works are required at the end.

Likewise, a lower-rent premises is not necessarily the better commercial option if its location, lease conditions or regulatory restrictions affect the operation of the business.

The question is not simply “How much is the rent?”

It is whether the lease, taken as a whole, supports the business's objectives.

Obtain Advice Before Signing

Commercial leases are often long-term commitments involving substantial financial obligations.

Once a lease has been signed, negotiating a more favourable provision can be difficult.

Obtaining legal advice before committing allows the tenant to understand the proposed terms, identify potential risks and, where appropriate, negotiate amendments before the lease becomes binding.

The same applies to landlords. A carefully prepared lease can help clearly document the parties' respective obligations and reduce uncertainty during the tenancy.

Commercial Leasing Lawyers on the Gold Coast

KMB Legal assists landlords, tenants and business owners with commercial

leasing across the Gold Coast and Queensland, including reviewing and

preparing leases, negotiating lease terms, assignments and lease documentation

associated with buying or selling a business.

We combine commercial legal experience with a practical understanding of the

issues that matter to business owners.

Free 30-minute initial telephone consultation.

Due Diligence When Buying a Business in Queensland: What Should You Check?

Fri, 18 Sep 2026 04:50:16 GMT

COMMERICAL & BUSINESS LAW

Due Diligence When Buying a Business in Queensland: What Should You Check?

Buying an established business can provide an opportunity to acquire an existing customer base, revenue stream and operating structure. However, before committing to the purchase, it is important to understand exactly what you are buying — and the risks that may come with it.

By Katie Chan

Due diligence is one of the most important stages of buying a business.

It involves investigating the business before completing the purchase so that you can assess its financial position, assets, contracts, employees, premises, liabilities and other commercial risks.

Business Queensland recommends conducting due diligence before making a binding decision to buy and identifies financial records, contracts, expenses, business operations, intellectual property, stock and equipment among the matters that should be investigated.

A business may appear profitable from its headline figures but have issues that are not immediately obvious. A key customer contract may be about to expire. Important equipment may be financed. The lease may have only a short term remaining. Employees may have substantial accrued entitlements. Intellectual property assumed to belong to the business may actually be owned by someone else.

Good due diligence is designed to identify these issues before you inherit the problem.

Before starting due diligence, it is also important to understand how the proposed purchase will be structured. Buying the assets of a business can have different legal implications from purchasing the shares in the company that operates it. You can read more about the differences in our guide, Buying a Business: Assets vs Shares — What’s the Difference?

What Is Due Diligence When Buying a Business?

Due diligence is the process of investigating and verifying information about a business before proceeding with the acquisition.

It generally involves both financial and legal due diligence.

Your accountant may focus on matters such as revenue, profitability, cash flow, taxation and the financial assumptions supporting the purchase price.

Your solicitor may investigate matters including:

ownership and business structure;
assets and liabilities;
contracts;
commercial leases;
employees;
intellectual property;
licences and approvals;
security interests;
disputes and litigation; and
the legal terms on which the business will be acquired.

The scope should be tailored to the particular business. Buying a small professional services business presents different risks from acquiring a hospitality venue, construction business, retail operation or company with significant employees and equipment.

1. Review the Financial Records

Financial due diligence is fundamental to determining whether the business performs as represented and whether the proposed purchase price is commercially justified.

Depending on the business, your accountant may review:

profit and loss statements;
balance sheets;
tax returns;
BAS records;
accounts receivable;
accounts payable;
bank statements;
payroll records;
superannuation obligations;
loans and finance arrangements;
cash flow;
stock records; and
historical financial performance.

Business Queensland recommends examining tax returns and profit-and-loss statements over multiple years to identify trends an d variations in performance.

It is also worth asking why the figures look the way they do.

A sudden increase in revenue may be positive — or it may result from a one-off contract that will not continue after settlement.

Similarly, apparently strong profitability may depend heavily on the owner working substantial unpaid hours or receiving favourable supplier pricing that will not be available to a new owner.

The figures should therefore be considered in the context of how the business actually operates.

2. Understand Exactly What You Are Buying

The purchaser should establish precisely which assets are included in the sale.

Depending on the business, this might include:

goodwill;
plant and equipment;
vehicles;
stock;
intellectual property;
business names;
websites and domain names;
telephone numbers;
customer databases;
social media accounts;
software;
licences;
customer contracts; and
supplier arrangements.

Do not assume that because an asset is used by the business, the seller owns it.

Equipment may be leased or financed. Software may only be licensed to the current owner. A website may have been created under an arrangement that does not clearly transfer intellectual property rights to the business.

The contract should ultimately identify what is being transferred and what, if anything, is excluded.

3. Conduct Business and Company Searches

Appropriate searches can assist in confirming the identity and structure of the seller.

Depending on the transaction, searches may help establish matters such as:

the entity operating the business;
company details;
directors;
registered business names;
ownership structure; and
other relevant registrations.

This is particularly important where several related entities are involved.

For example, one company may operate the business while another entity owns equipment or intellectual property.

Before settlement, you need to know whether the entity signing the contract actually has the ability to transfer the assets being sold.

4. Search the PPSR

The Personal Property Securities Register (PPSR) should be considered where the acquisition includes personal property such as vehicles, machinery or equipment.

A PPSR search can reveal registered security interests over property.

The Australian Government's PPSR guidance warns that purchasing personal property without conducting an appropriate search can expose a buyer to the risk that property may later be repossessed where another party has an enforceable security interest.

Depending on the transaction, searches may be undertaken against the seller as well as particular serial-numbered assets.

If security interests affect assets being purchased, the sale contract may need to require those interests to be discharged or otherwise appropriately dealt with at settlement.

5. Review Customer and Supplier Contracts

For some businesses, the real value lies less in physical assets and more in their contractual relationships.

A purchaser should identify important customer and supplier agreements and determine:

how long they have left to run;
whether they can be terminated;
whether they are assignable;
whether consent is required to transfer them;
whether a business sale triggers termination rights;
whether pricing can change;
whether there are minimum purchase commitments;
whether there are exclusivity arrangements; and
whether there are change-of-control provisions.

A business may derive a substantial proportion of its revenue from one major customer.

If that customer's contract expires shortly after settlement — or cannot be transferred — that may materially change the commercial value of the acquisition.

Due diligence should therefore consider not mere ly how much revenue the business currently earns, but how secure that revenue is after ownership changes.

6. Investigate the Commercial Lease

If the business operates from leased premises, the lease can be one of the most important documents in the transaction.

Review matters including:

current rent;
outgoings;
rent reviews;
remaining lease term;
options to renew;
permitted use;
guarantees;
make-good obligations;
assignment provisions;
landlord consent requirements;
redevelopment or relocation provisions; and
whether the premises are suitable for your intended operation.

A profitable business can become considerably less attractive if the purchaser cannot secure its premises on acceptable terms.

Where the lease is to be assigned, landlord consent may be required. Alternatively, a purchaser may negotiate a new lease as part of the acquisition.

The business purchase contract may need to be conditional upon satisfactory lease arrangements being secured.

7. Review Employees and Their Entitlements

If employees will continue with the business after settlement, employment arrangements require careful investigation.

Due diligence should identify:

employees and their roles;
salaries and wages;
employment contracts;
applicable awards or enterprise agreements;
accrued annual leave;
long service leave;
personal leave;
superannuation compliance;
bonuses or commissions;
disputes or claims;
contractors; and
whether particular employees are critical to the business.

A sale can constitute a transfer of business for Fair Work purposes where the statutory requirements are satisfied. In those circumstances, service with the previous employer must be recognised for many entitlements, although specific rules apply to matters including annual leave, redundancy, long service leave, unfair dismissal and notice.

The sale contract should clearly address responsibility for employee entitlements and any settlement adjustments.

8. Check Intellectual Property

Intellectual property can be a significant part of the value of a business.

Depending on the business, this might include:

trade marks;
logos;
copyright;
designs;
proprietary software;
websites;
domain names;
customer databases;
marketing material;
confidential information; and
other proprietary systems or content.

The buyer should establish who actually owns the intellectual property.

For example, material created by an external designer, software developer or consultant may not necessarily be owned by the business unless the contractual arrangements adequately deal with intellectual property ownership.

Registered intellectual property should also be c hecked to determine who owns it and what steps will be necessary to transfer it.

9. Check Licences, Permits and Regulatory Approvals

Some businesses depend upon licences or approvals to operate lawfully.

The purchaser should determine:

which licences and approvals are required;
whether they are current;
who holds them;
whether they can be transferred;
whether a new application is required;
how long approval is likely to take; and
whether any compliance issues exist.

Business Queensland provides a Business Launchpad service to identify licences, permits and registrations that may apply to businesses operating in Queensland.

If an essential licence cannot be transferred, the purchase contract may need to make settlement conditional upon the purchaser obtaining the necessary approval.

10. Look for Litigation, Complaints and Disputes

A buyer should investigate whether the business is involved in existing or threatened disputes.

These could involve:

customers;
suppliers;
employees;
landlords;
regulators;
competitors;
contractors; or
former business partners.

The seller should be asked to disclose current litigation, threatened claims and material disputes.

Depending on the transaction, additional searches may also be appropriate.

The significance of a dispute is not limited to its immediate legal cost. It may reveal broader operational or reputational problems within the business.

11. Review Tax and Superannuation Compliance

Tax matters should be reviewed with an appropriately qualified accountant or tax adviser.

Due diligence may include considering:

GST;
PAYG withholding;
superannuation;
payroll tax where applicable;
outstanding tax liabilities;
lodgement history; and
the taxation consequences of the proposed transaction structure.

The purchaser should understand the d istinction between acquiring business assets and acquiring shares in the company operating the business.

A share acquisition can expose the purchaser to a very different risk profile because the company itself continues to exist with its historical obligations and liabilities.

The transaction structure should therefore be considered before the purchase documentation is finalised.

12. Investigate Related-Party Arrangements

Some businesses rely heavily on arrangements with entities connected to the seller.

For example:

the premises may be owned by a related entity;
equipment may be leased from another company controlled by the seller;
intellectual property may be owned personally by a director;
management services may be provided by a related company; or
favourable supplier arrangements may depend upon a personal relationship with the seller.

These arrangements may not continue after settlement.

Due diligence should identify them and determine what needs to be replaced, transferred or formally documented.

13. Examine the Business's Key Customers

Customer concentration can create substantial commercial risk.

If one customer represents 40% of the business's revenue, losing that customer after settlement may dramatically affect profitability.

A purchaser may therefore want to understand:

the largest customers;
revenue concentration;
length of customer relationships;
written versus informal arrangements;
contract expiry dates;
termination rights;
recent customer losses; and
whether customer relationships depend heavily on the seller personally.

The same analysis can apply to key suppliers.

A business that appears diversified at first glance may in reality depend heavily on one or two relationships.

14. Verify Rather Than Rely Solely on Representations

A seller may provide information about the business during negotiations.

That information is important, but due diligence should involve independent verification where reasonably possible.

For example, rather than simply being told that:

“The business owns all of its equipment,”

appropriate searches and documents may be used to investigate ownership and security interests.

Rather than accepting:

“The lease has another five years,”

the lease itself should be reviewed.

Rather than relying on:

“All employees will stay,”

their contractual arrangements and the proposed transfer process should be considered.

Warranties in the eventual sale agreement can provide important contractual protections, but they are not a substitute for appropriate investigation before the purchase.

15. Make Sure the Purchase Price Is Supported by the Business You Investigated

Due diligence may identify information that affects the price a purchaser is prepared to pay.

For example, you may discover:

equipment requires replacement;
stock is obsolete;
an important contract is expiring;
employee liabilities are greater than anticipated;
substantial capital expenditure is required;
a lease has limited tenure;
a licence needs to be obtained;
revenue is heavily dependent on the seller; or
the financial results contain significant one-off items.

Business Queensland specifically recognises that information uncovered during due diligence can affect both the purchaser's decision and the price or terms negotiated.

Due diligence is therefore not simply a process for deciding yes or no.

It may also provide a basis for renegotiating the purchase price, altering the transaction structure, requiring additional warranties or imposing conditions before settlement.

Should the Contract Be Subject to Due Diligence?

Ideally, significant due diligence should occur before a purchaser becomes unconditionally bound.

However, commercial circumstances sometimes mean a contract is signed before the investigation has been completed.

In those circumstances, the purchaser may seek an appropriately drafted due diligence condition.

Business Queensland notes that a sale contract can include a due diligence period allowing the purchaser to investigate the business and potentially terminate where relevant issues are identified, depending on the contractual terms.

The wording of the condition matters.

A clause should not simply be assumed to give the purchaser an unrestricted right to withdraw from the transaction.

It should clearly address matters such as:

the due diligence period;
what investigations can be undertaken;
the purchaser's rights if it is dissatisfied;
any notification requirements; and
what happens to the deposit if the contract is terminated.

A purchaser should obtain advice about the clause before signing the contract.

Confidentiality During Due Diligence

Due diligence often requires the seller to disclose commercially sensitive information.

This can include:

customer lists;
pricing information;
financial records;
supplier arrangements;
intellectual property;
employee information; and
business strategies.

A seller may therefore require the purchaser to enter into a confidentiality or non-disclosure agreement before access is provided.

Business Queensland recommends considering an NDA because of the sensitive information commonly disclosed during a business-sale due diligence process.

This can be particularly important where the potential purchaser is a competitor.

What Happens When Due Diligence Identifies a Problem?

Discovering a problem does not necessarily mean the transaction must end.

Depending on the issue and the contractual position, the parties might:

renegotiate the price;
exclude an asset from the sale;
require a liability to be discharged;
obtain additional warranties;
negotiate an indemnity;
make settlement conditional upon the issue being resolved;
change the transaction structure; or
decide not to proceed.

The appropriate response depends on the significance of the issue and the terms of the transaction.

The purpose of due diligence is ultimately to enable the purchaser to make that decision with the relevant information available.

A Due Diligence Checklist Is Only the Starting Point

There is no single checklist suitable for every business acquisition.

A café, professional services firm, online business, construction company and manufacturing operation each present different risks.

A good due diligence process should therefore ask:

What makes this particular business valuable?

What does it depend upon to continue operating successfully?

What liabilities could the purchaser inherit or become responsible for?

Are the important assets and relationships capable of being transferred?

Does the information provided support the price being paid?

Those questions help determine where the investigation should focus.

Buying a Business on the Gold Coast?

KMB Legal assists purchasers with business acquisitions

and due diligence in Queensland, including reviewing business

sale contracts, commercial leases, corporate structures, contracts,

employees and other legal issues associated with the acquisition.

Working with your accountant and other professional advisers, we

can help identify legal risks before you commit to the transaction.

Free 30-minute initial telephone consultation

Buying or Selling a Business in Queensland: Key Legal Considerations

Fri, 18 Sep 2026 04:12:15 GMT

COMMERICAL & BUSINESS LAW

Buying or Selling a Business in Queensland: Key Legal Considerations

Buying or selling a business is a significant commercial transaction. Careful due diligence, a properly prepared contract and a clear understanding of the assets, liabilities and obligations being transferred can help reduce risk and avoid problems after settlement.

By Katie Chan

Whether you are purchasing your first business, expanding an existing operation or preparing to sell a business you have built over many years, the transaction involves considerably more than agreeing on a price.

A business sale may involve goodwill, equipment, intellectual property, employees, leases, licences, customer and supplier contracts, stock, security interests and taxation considerations.

The terms agreed before settlement can have significant consequences afterwards.

This article explains some of the key legal issues buyers and sellers should consider when buying or selling a business in Queensland.

Is the Transaction a Business Sale or a Share Sale?

One of the first issues is determining exac tly what is being bought and sold.

In a conventional business sale, the purchaser generally acquires specified assets of the business rather than acquiring the entity that owns them.

Depending on the transaction, those assets might include:

goodwill;
plant and equipment;
stock;
intellectual property;
business names;
domain names and websites;
telephone numbers;
customer or supplier contracts;
licences or permits; and
the benefit of a lease.

A share sale is different. Instead of purchasing individual business assets, the buyer acquires shares in the company that operates the business.

That distinction is important because acquiring the company can also mean acquiring the company's existing history, contractual obligations and potential liabilities.

The appropriate structure should therefore be considered carefully before the transaction is documented.

Due Diligence Before Buying a Business

A buyer should generally investigate the business before becoming unconditionally committed to the purchase.

The scope of due diligence will depend on the size and nature of the business, but may include reviewing:

financial statements and tax records;
business assets;
existing contracts;
customer and supplier arrangements;
employees and employment obligations;
intellectual property;
licences and approvals;
litigation or potential claims;
financing arrangements;
security interests;
the business premises and lease;
equipment and stock; and
corporate records where relevant.

Due diligence is not simply about confirming the seller's financial figures. It is also an opportunity to identify legal or commercial issues that could affect the value or operation of the business after settlement.

For a buyer, discovering a significant issue before signing an unconditional contract provides considerably more options than discovering it after settlement.

Related article: Due Diligence When Buying a Business in Queensland .

The Business Sale Contract

The contract is one of the most important documents in the transaction.

It should clearly identify what is being sold and the obligations of each party.

Depending on the transaction, the contract may deal with:

purchase price;
deposit;
assets included and excluded from the sale;
stock;
employees;
business premises;
intellectual property;
licences and permits;
contracts being transferred;
warranties;
restraints of trade;
adjustments;
conditions precedent;
GST;
settlement arrangements; and
obligations before and after settlement.

A buyer or seller should ideally obtain advice before signing the contract, rather than treating legal review as something that occurs afterwards.

Once a binding contract has been entered into, the ability to renegotiate its terms may be limited.

What Exactly Is Included in the Sale?

The contract should clearly identify the assets included in the transaction.

This can be particularly important for equipment, vehicles, stock and intellectual property.

Questions may arise such as:

Who owns the equipment?

Some equipment may be leased or financed rather than owned outright.

Is the business name included?

The transaction may require appropriate steps to transfer or register business names.

Who owns the website and domain name?

The seller should ensure it actually controls the digital assets being transferred.

What about social media accounts?

Where these form part of the business's goodwill or marketing presence, arrangements for access and control should be addressed.

Is intellectual property owned by the business?

Logos, trademarks, software, designs, copyright material and other intellectual property should be identified and appropriately transferred where they form part of the transaction.

The buyer should not assume that everything used in operating the business is automatically owned by the seller or included in the sale.

The Business Premises and Lease

For many businesses, the premises are critical to the value of the business.

Where the seller leases the premises, the transaction may require the existing lease to be assigned to the buyer or a new lease to be negotiated.

Business Queensland notes that where a buyer acquires a business operated from leased premises, the seller as assignor generally requires the landlord's approval to assign the remainder of the lease to the purchaser.

The parties should consider matters such as:

remaining lease term;
options to renew;
rent and rent reviews;
outgoings;
permitted use;
guarantees;
make-good obligations;
landlord consent to assignment;
whether a new lease is required; and
whether the premises have the approvals required for the business.

If the premises constitute a retail shop, Queensland's Retail Shop Leases Act 1994 may also apply.

A business can be commercially successful but considerably less attractive to a purchaser if its premises cannot be secured on acceptable terms.

Employees When a Business Is Sold

Employees require careful consideration in a business sale.

A sale of business can potentially constitute a transfer of business under the Fair Work Act where the relevant requirements are satisfied.

The Fair Work Ombudsman explains that a transfer of business can occur where an employee begins working for the new employer within three months of ending employment with the previous employer, performs the same or substantially similar work, and the required connection exists between the employers.

Depending on the circumstances, the purchaser may be required to recognise an employee's previous service for certain entitlements. Different rules can apply to matters including annual leave, redundancy, long service leave, notice and unfair dismissal.

The contract should therefore clearly address issues such as:

which employees will be offered employment;
accrued employee entitlements;
responsibility for those entitlements;
adjustments at settlement;
continuity of service; and
any employees who will not transfer.

Employee liabilities should be investigated as part of due diligence rather than dealt with only immediately before settlement.

Contracts With Customers and Suppliers

A business may depend heavily on contracts with customers, suppliers, distributors or service providers.

A purchaser should determine whether those contracts:

can be assigned;
require the other party's consent;
contain change-of-control provisions;
can be terminated on short notice; or
contain obligations that may affect the purchaser.

A significant customer contract may contribute substantially to the value of a business, but that value can change considerably if the contract cannot be transferred to the purchaser.

The same applies to important supplier and distribution arrangements.

Licences, Permits and Approvals

Some businesses cannot lawfully operate without particular licences, registrations, permits or government approvals.

A purchaser should establish whether the required approvals:

transfer automatically;
require consent;
require a new application; or
cannot be transferred at all.

The contract may need to make settlement conditional upon the purchaser obtaining particular approvals.

This should be investigated early, particularly where the licence or approval is fundamental to operating the business.

PPSR Searches and Security Interests

A purchaser should also consider whether assets being acquired are subject to registered security interests.

The Personal Property Securities Register (PPSR) is the national register of security interests in personal property.

Depending on the transaction, searches can assist in identifying whether another party may have a security interest affecting assets included in the sale.

This can be particularly relevant to:

vehicles;
equipment;
machinery;
inventory; and
other business assets.

The contract may require relevant security interests to be released at or before settlement.

Warranties

Business sale contracts commonly contain warranties.

A seller may, for example, give warranties concerning matters such as:

ownership of assets;
accuracy of information provided;
litigation;
contracts;
employees;
compliance matters; or
the absence of undisclosed liabilities.

From the purchaser's perspective, warranties can provide contractual protection where important representations prove incorrect.

From the seller's perspective, warranties should be reviewed carefully to ensure they are accurate and that the seller understands the potential consequences of giving them.

A seller should not give broad warranties simply because they appear in a standard-form contract.

Restraints of Trade

A purchaser is usually paying for the goodwill of the business and may therefore seek restrictions preventing the seller from immediately establishing or joining a competing business.

A restraint clause might seek to restrict competition by reference to:

geographical area;
period of time;
type of business; and
particular activities.

Whether a restraint will ultimately be enforceable depends on its terms and circumstances.

For the purchaser, an appropriately drafted restraint may be important in protecting the goodwill being acquired.

For the seller, the restraint needs to be understood carefully because it may affect future business or employment opportunities.

GST and the Sale of a Going Concern

GST should be considered before the contract is signed.

In some circumstances, a business sale can qualify as the GST-free supply of a going concern.

The ATO states that the requirements include that consideration is paid, the purchaser is registered or required to be registered for GST, the parties agree in writing that the sale is of a going concern, the seller supplies all things necessary for the continued operation of the business, and the business continues to be carried on until the day of supply.

Whether those requirements are satisfied depends on the transaction.

The GST treatment should therefore be considered with the parties' accountants and legal advisers before the contract is finalised.

Stock and Settlement Adjustments

Where stock is included in the sale, the parties need to determine how it will be valued.

The contract may provide for a stocktake shortly before or at settlement.

Other adjustments may be required for matters such as:

rent;
outgoings;
prepaid expenses;
employee entitlements;
customer payments;
deposits; and
other amounts relating to periods before and after settlement.

Clear contractual provisions can reduce disagreements about settlement calculations.

Conditions Precedent

Some transactions cannot proceed until particular matters have occurred.

The contract might therefore be conditional upon matters such as:

finance approval;
satisfactory due diligence;
landlord consent;
assignment or grant of a lease;
transfer of an important contract;
obtaining a licence or approval; or
obtaining necessary third-party consents.

The contract should specify what must occur, who is responsible for achieving it and what happens if the condition is not satisfied by the required date.

Confidentiality During a Business Sale

Confidentiality can be particularly important before a sale becomes public.

A prospective purchaser may require access to sensitive information about the business, including:

financial information;
customer lists;
supplier arrangements;
pricing;
intellectual property; and
commercial strategies.

A confidentiality agreement or non-disclosure agreement may therefore be appropriate before detailed due diligence material is provided.

For sellers, this is particularly important where the prospective purchaser is an existing or potential competitor.

Preparing a Business for Sale

A seller can often improve the efficiency of the transaction by preparing well before the business is placed on the market.

Business Queensland recommends addressing matters such as formalising important customer and supplier contracts, reviewing leases and resolving outstanding legal, taxation and superannuation matters when preparing a business for sale.

From a legal perspective, preparation might include:

reviewing the business structure;
ensuring key contracts are documented;
checking ownership of intellectual property;
reviewing the lease;
identifying employee entitlements;
checking licences and approvals;
addressing security interests;
resolving outstanding disputes where possible; and
organising important corporate and commercial records.

A well-organised business is generally easier for a purchaser to investigate and can reduce delays during due diligence.

What Happens at Settlement?

Settlement is the point at which the transaction is completed in accordance with the contract.

Depending on the sale, settlement may involve:

payment of the balance purchase price;
adjustments;
transfer of business assets;
release of security interests;
transfer of keys and access credentials;
transfer of intellectual property;
assignment of contracts;
delivery of business records; and
changes to control of the business.

However, settlement may not be the end of the parties' obligations.

There may also be post-settlement requirements involving employee matters, training or handover periods, transfer of licences, debtors, customer communications or other transitional arrangements.

Why Early Legal Advice Matters

Some of the most important decisions in a business transaction are made before the final contract reaches a solicitor.

The structure of the transaction, heads of agreement, due diligence conditions, lease arrangements, employee treatment, GST provisions and restraint terms can all materially affect the parties' positions.

Obtaining legal advice early can help ensure that the transaction is structured appropriately and that the contract reflects what the parties actually intend.

Buying or Selling a Business on the Gold Coast?

KMB Legal assists business owners, purchasers and investors with buying

and selling businesses in Queensland, including contract preparation and

review, due diligence, commercial leases and settlement.

Our commercial law experience allows us to consider both the legal

documentation and the broader commercial issues involved in the

transaction.

Free 30-minute initial telephone consultation.

Psychological Injury Claims in Queensland: What You Need to Know

Thu, 17 Sep 2026 23:36:17 GMT

PERSONAL INJURY

Psychological Injury Claims in Queensland:

What You Need to Know

Psychological injuries can have a significant

effect on a person's ability to work and participate

in everyday life. Depending on how the injury arose, compensation may be available under Queensland's workers' compensation, motor vehicle accident or other personal injury schemes.

By Katie Chan

A personal injury is not always physical.

An accident, traumatic event or workplace experience can result in a psychological or psychiatric injury that affects a person's health, employment, relationships and everyday functioning.

Psychological injury claims can arise in several contexts in Queensland, including workplace incidents and motor vehicle accidents. However, the legal requirements depend on how the injury occurred and the compensation scheme that applies.

WorkSafe Queensland also emphasises the importance of early psychological support and treatment for workers experiencing psychological injury.

What Is a Psychological Injury?

The te rms psychological injury, psychiatric injury and sometimes mental injury are used in different legal and compensation contexts.

Conditions involved in a claim may include, depending on the medical evidence:

post-traumatic stress disorder (PTSD);
anxiety disorders;
depressive disorders;
adjustment disorders; and
other recognised psychiatric or psychological conditions.

Experiencing stress, anxiety or distress following a difficult event does not necessarily establish a compensable psychological injury.

Medical evidence concerning the person's condition, diagnosis, cause and resulting impairment will usually be important.

Psychological Injuries in the Workplace

A psychological injury can arise from a person's employment in many different circumstances.

Examples might involve:

exposure to a traumatic event;
repeated exposure to distressing material or incidents;
workplace bullying or harassment;
workplace conflict;
excessive or unreasonable work demands;
violence or threats of violence;
a traumatic workplace accident; or
psychological consequences developing after a serious physical workplace injury.

Whether an injury is compensable depends on the facts and the requirements of Queensland's workers' compensation legislation.

Making a Workers' Compensation Claim for Psychological Injury

Queensland workers can apply for workers' compensation for psychiatric or psychological injuries arising out of, or in the course of, their emplo yment.

Importantly, the legislation now provides for early support while a psychological injury claim is being determined. An insurer must take reasonable steps to provide reasonable support services during the period between the application being made and the insurer deciding whether to accept or reject it. Examples under the legislation include counselling and mediation.

WorkSafe Queensland states that treatment available while a claim is being assessed may include GP mental-health appointments, psychology or counselling, psychiatry appointments, medication and reasonable travel expenses associated with treatment.

This means a worker should not necessarily assume that they must wait for a final decision on liability before accessing support.

What Is the Reasonable Management Action Exclusion?

One of the most important issues in Queensland workplace psychological injury claims is reasonable management action taken in a reasonable way.

A psychological injury caused by reasonable manage ment action, where that action was taken reasonably, is generally excluded from workers' compensation.

Management action can include matters such as:

performance management;
providing feedback;
investigating complaints or misconduct;
changing a worker's role;
disciplinary action;
decisions concerning promotion or transfer; and
termination of employment.

However, the fact that something can be described as “management action” does not automatically determine the issue.

Consideration must also be given to whether the management action itself was reasonable and whether it was carried out in a reasonable way.

WorkSafe notes that the circumstances of the p articular workplace and the manner in which the action was undertaken are relevant.

Does the Exclusion Apply to Every Workplace Psychological Injury?

No.

The reasonable management action exclusion is relevant where the psychological injury was caused by management action.

It does not mean that psychological injuries arising from other workplace circumstances are automatically excluded.

WorkSafe also identifies particular treatment under the legislation for certain first responders and other eligible workers diagnosed with PTSD by a psychiatrist.

Each claim therefore needs to be considered according to its particular cause and circumstances.

Psychological Injury Following a Physical Workplace Injury

Sometimes the initial workplace injury is physical, but psychological difficulties develop during the person's recovery.

For example, a worker dealing with significant pain, loss of independence, prolonged absence from employment or uncertainty about their future may subsequently develop a psychological condition.

Queensland's current workers' compensation legislation specifically requires insurers that have accepted a physical injury claim to take reasonable steps to minimise the risk of a secondary psychiatric or psychological injury. This can include providing reasonable services such as medical treatment, counselling and support.

This has become an increased regulatory focus in Queensland during 2026–27.

Psychological Injuries After a Motor Vehicle Accident

Psychological injuries can also arise following a motor vehicle accident.

A person may experience psychological consequences associated with the accident itself, serious physical injuries or the aftermath of the collision.

Queensland's CTP scheme provides compensation and access to reasonable and appropriate treatment and rehabilitation for people injured in motor vehicle accidents caused wholly or partly by another driver.

MAIC's current rehabilitation framework specifically provides for mental-health treatment plans for people receiving treatment through the CTP scheme.

A CTP claim involving psychological injury will ordinarily req uire appropriate medical evidence establishing the condition and its relationship to the accident.

What if You Had a Pre-Existing Psychological Condition?

A history of anxiety, depression or another psychological condition does not necessarily prevent a person from making a personal injury claim.

The important question may instead be what effect the accident or workplace event had on the person's condition.

For example, medical evidence may need to address whether the event:

caused a new condition;
aggravated an existing condition;
accelerated an existing condition; or
produced symptoms that would probably have occurred irrespective of the event.

Pre-existing medical records can therefore become relevant when causation and damages are assessed.

A pre-existing condition should not simply be concealed. Accurate medical evidence about the person's condition before and after the relevant event is usually important.

What Evidence Is Important?

Psychological injury claims often depend heavily on medical and factual evidence.

Relevant material can include:

GP records;
psychologist records;
psychiatric assessments;
hospital records;
medication history;
employment records;
workplace correspondence;
incident reports;
witness evidence;
performance-management records;
complaints or grievance documents;
records of time away from work; and
evidence of past and current income.

In workplace matters, contemporaneous emails, messages and records can be particularly important where there is a dispute about what occurred.

Do You Need to See a Psychiatrist?

Not every person experiencing psychological symptoms will initially see a psychiatrist.

A GP is often the first point of contact and may recommend counselling, psychology or psychiatric assessment depending on the circumstances.

However, psychiatric evidence can become particularly important where there is a dispute about diagnosis, causation, prognosis or permanent impairment.

The appropriate medical evidence will depend on the particular claim.

What Compensation May Be Available?

The compensation available depends on the scheme under which the claim is made.

Depending on the circumstances, compensation may relate to:

treatment and rehabilitation;
loss of income;
future loss of earning capacity;
pain and suffering or general damages;
medication and medical expenses; and
future treatment requirements.

A psychological injury can have substantial economic consequences where it prevents a person from returning to their former occupation or limits their capacity to remain in employment.

The value of the claim therefore cannot be determined merely from the diagnosis.

What About a Common Law Claim Against an Employer?

A statutory workers' compensation claim and a common law damages claim are different.

Statutory compensation does not generally require the worker to prove employer negligence.

A common law claim does.

For a common law damages claim, it is necessary to consider whether the employer breached its duty of care and whether that breach caused the worker's injury and resulting loss.

This may involve questions about matters such as:

workplace systems;
known psychological risks;
complaints made by the worker;
workload;
supervision;
exposure to traumatic events;
bullying or harassment allegations; and
what the employer knew or ought reasonably to have known.

The fact that a worker develops a psychological injury does not, by itself, establish employer negligence.

Psychological Injury and Capacity for Work

One of the most significant consequences of a psychological injury can be its effect on employment.

Some people return to their former role relatively quickly.

Others may be able to return only gradually, work reduced hours, change duties or move to another workplace or occupation.

For more significant injuries, medical evidence may need to consider the person's longer-term capacity for employment.

This can be particularly important when assessing future economic loss in a common law claim.

How Long Do You Have to Make a Claim?

Time limits depend on the type of psychological injury claim being pursued.

A workplace psychological injury claim is subject to Queensland workers' compensation requirements, while a psychological injury arising from a motor vehicle accident is subject to the CTP claims process.

Different notification requirements and limitation periods can therefore apply.

It is important not to assume that the general three-year personal injury limitation period is the only deadline that matters.

What if a Workers' Compensation Psychological Injury Claim Is Rejected?

A rejected workers' compensation claim is not necessarily the end of the process.

Queensland's workers' compensation system provides mechanisms for review of certain insurer decisions.

A claim may be rejected for various reasons, including a dispute about whether employment sufficiently contributed to the injury or whether the reasonable management action exclusion applies.

Because review periods can be strict, advice should be obtained promptly after receiving an adverse decision.

Early Treatment Is Important

A compensation claim should not become a substitute for treatment.

WorkSafe Queensland expressly encourages workers with psychological injuries to access support early, noting that early treatment may assist recovery and help prevent symptoms worsening.

Similarly, Queensland's CTP framework provides mechanisms for mental-health rehabilitation following motor vehicle accidents.

The legal claim and the person's recovery should therefore be approached as related but distinct issues.

Every Psychological Injury Claim Is Different

Psychological injury claims can be complex because the injury may have developed over time and there may be several contributing factors.

A proper assessment may require consideration of:

What happened?

What condition has been diagnosed?

What caused or contributed to that condition?

How has the condition affected the person's ability to work and function?

Which compensation scheme applies?

Are any statutory exclusions relevant?

Those questions cannot reliably be answered from the diagnosis alone.

Speak With a Gold Coast Personal Injury Lawyer

If you have sustained a psychological injury following a workplace incident,

motor vehicle accident or other compensable event, KMB Legal can advise

you about the Queensland claims process and the options that may be

available in your circumstances.

We assist clients with personal injury claims across the Gold Coast and

Queensland.

Free 30-minute initial telephone consultation.

How Much Personal Injury Compensation Can You Claim in QLD? | KMB Legal

Thu, 17 Sep 2026 13:05:45 GMT

PERSONAL INJURY

How Much Compensation Can You Claim for a Personal Injury in Queensland?

There is no standard payout for a personal injury claim. Compensation is assessed according to the particular injury, its consequences and the financial loss suffered by the individual.

By Katie Chan

One of the first questions people often ask after an accident is: “How much compensation could I receive?”

There is no fixed amount for a particular injury in Queensland.

Two people can suffer apparently similar injuries but have significantly different claims because the impact on their lives, employment, future earning capacity and treatment needs may be very different.

For example, an injury that prevents a tradesperson from returning to physical work may have very different financial consequences from the same injury sustained by someone who can continue working without any reduction in income.

The value of a personal injury claim therefore depends on the individual circumstances rather than simply the diagnosis.

What Does Personal Injury Compensation Cover?

Depending on the type of claim and the circumstances, compensation may include several different categories of loss, commonly referred to as heads of damage.

These can include:

pain and suffering;
past loss of income;
future economic loss or reduced earning capacity;
medical and rehabilitation expenses;
future treatment expenses; and
in appropriate cases, care and assistance.

The rules applying to each category can differ depending on whether the claim involves a motor vehicle accident, public liability accident or workplace injury.

Pain and Suffering

Compensation for pain and suffering is generally referred to as general damages.

It recognises the non-financial consequences of an injury, which can include pain, suffering and loss of quality or enjoyment of life.

In Queensland, general damages for many personal injury claims are assessed using an Injury Scale Value (ISV) system.

An injury is assigned an ISV within the applicable range according to matters including its nature and severity. The ISV is then used to determine the amount of general damages under the applicable legislation and regulations.

For Queensland CTP claims, MAIC confirms that the ISV scale runs from 0 to 100 and that not every injury is sufficiently serious to attract an award of general damages.

The amount for pain and suffering therefore cannot reliably be determined simply by looking up the name of an injury.

Past Loss of Income

If an injury prevents you from working, causes you to reduce your hours or affects the work you are able to perform, compensation may potentially include income you have already lost.

Evidence may include:

payslips;
tax returns;
PAYG records;
employer records;
records of overtime;
business financial records for self-employed people; and
medical evidence concerning your capacity to work.

MAIC confirms that CTP compensation can include wages lost because a person has been unable to work as a result of their injuries.

The assessment becomes more complicated for people whose income fluctuates, business owners, self-employed people or those whose career trajectory was expected to change.

Future Economic Loss

For significant injuries, future economic loss can be one of the largest components of a personal injury claim.

The question is not simply whether you are currently working.

An injury may leave someone capable of returning to employment but nevertheless reduce their ability to:

work the same hours;
perform overtime;
undertake physically demanding duties;
obtain promotions;
continue in their existing occupation;
compete for other employment; or
remain in the workforce for as long as otherwise expected.

Queensland legislation specifically permits consideration of matters including a person's age, work history, actual loss of earnings and permanent impairment when future earnings cannot be precisely calculated.

This is why a person who has returned to work may still potentially have a claim for future economic loss.

Medical and Rehabilitation Expenses

A personal injury claim may also include reasonable expenses caused by the injury.

Depending upon the circumstances, these might include:

GP and specialist appointments;
physiotherapy;
psychological treatment;
medication;
surgery;
rehabilitation;
occupational therapy;
medical equipment; and
travel associated with treatment.

Future treatment can also be relevant where medical evidence establishes that further treatment will probably be required.

For CTP claims, MAIC expressly identifies both past and future treatment and rehabilitation as matters that can form part of a claim.

Care and Assistance

A serious injury may affect a person's ability to perform ordinary activities such as cleaning, cooking, gardening, personal care or looking after children.

Depending upon the applicable legislation and whether statutory thresholds are satisfied, compensation may potentially be available for necessary care or assistance.

The precise requirements are technical and vary according to the type of claim, so the fact that family or friends have provided assistance does not automatically mean that compensation will be payable for that care.

It is nevertheless useful to keep a record of significant assistance required because of an injury.

Why Can Two People With the Same Injury Receive Different Compensation?

Consider two people who each sustain a significant knee injury.

One works primarily at a desk, returns to full-time employment and has relatively limited future treatment requirements.

The other works in a physically demanding occupation and can no longer perform the duties required for that work.

Although the medical diagnosis may be similar, the second person's injury may produce considerably greater economic loss.

Other factors that can affect compensation include:

age;
occupation;
pre-injury income;
employment history;
severity of the injury;
permanent impairment;
prognosis;
future treatment requirements;
capacity to return to work;
pre-existing medical conditions;
need for care and assistance; and
whether the injured person contributed to the accident.

This is why meaningful assessment requires considerably more information than the name of the injury.

Does Permanent Impairment Determine How Much Your Claim Is Worth?

Permanent impair ment can be important, but it is not necessarily the same thing as the overall value of a common law claim.

An impairment assessment measures the permanent medical effect of an injury according to prescribed criteria.

A damages claim considers broader consequences, particularly the person's financial loss and future circumstances.

This distinction is particularly important in workers’ compensation matters.

WorkSafe Queensland explains that common law damages can include pain and suffering, past and future economic loss and past and future medical costs. The assessment can take account of factors including the worker's age, remaining working years, impairment, income and employment prospects.

Does Being Partly at Fault Reduce Compensation?

It can.

If an injured person contributed to the accident through their own negligence, compensation may be reduced to reflect their share of responsibility.

For example, MAIC confirms that a person who was partly responsible for a motor vehicle accident may still make a CTP claim, but their compensation may be reduced.

Similar principles concerning contributory negligence can arise in other common law personal injury claims.

The effect depends on the circumstances of the particular accident.

Are Motor Vehicle Accident Claims Calculated Differently?

Motor vehicle accident claims in Queensland are made through the CTP scheme where another driver was wholly or partly responsible.

Compensation may potentially include:

treatment and rehabilitation;
past and future loss of income;
general damages for qualifying injuries; and
certain legal costs and disbursements.

Each claim is individually assessed according to the injury and the claimant's circumstances.

If your injuries resulted from a car or motorcycle accident, you may be entitled to compensation under Queensland's CTP insurance scheme. Our Gold Coast motor vehicle accident lawyers can advise you about your potential entitlements, including lost income, medical expenses and other recoverable losses.

What About Public Liability Claims?

Public liability claims can arise where an injury was caused by another party's negligence in a place such as a shopping centre, restaurant, business premises, private property or public area.

The value of the claim depends not only on the injuries and resulting loss but also on liability.

If liability is disputed or the claimant is found partly responsible for the accident, this can affect the amount ultimately recovered.

What About Workplace Injuries?

Workers’ compensati on requires an important distinction between statutory compensation and common law damages.

Statutory benefits can i nclude weekly compensation, medical and rehabilitation expenses and, where applicable, lump-sum compensation for permanent impairment.

A common law claim is different. It requires the worker to establish that the employer breached its duty of care and that the breach caused the injury and loss.

Where a common law claim succeeds, damages may include past and future economic loss, pain and suffering and medical expenses.

Can an Online Compensation Calculator Tell You What Your Claim Is Worth?

Online compensation calculators should be treated cautiously.

A calculator cannot properly assess matters such as:

whether another party is legally liable;
competing medical evidence;
the likelihood of future surgery;
whether you will return to your previous occupation;
your future career progression;
the effect of an injury on a business owner's income;
pre-existing conditions;
contributory negligence; or
the strength of the available evidence.

At best, an online calculator may illustrate certain components of a claim. It should not be treated as a reliable valuation of an individual personal injury matter.

When Can the Value of a Claim Be Properly Assessed?

It is often difficult to accurately assess a personal injury claim immediately after an accident.

The medical position may still be developing.

Further treatment or surgery may be required. It may not yet be known whether the person will return to their previous employment or whether the injury will cause permanent restrictions.

MAIC advises CTP claimants that they do not need to rush to settle and should consider how their injuries may affect them in the future.

This is important because a settlement ordinarily represents the final resolution of the claim.

Once the longer-term medical and financial consequences are reasonably clear, the claim can generally be assessed more meaningfully.

Evidence Is Important When Assessing Compensation

The value of a personal injury claim needs to be supported by evidence.

Depending upon the claim, this may include:

medical records;
specialist reports;
independent medical assessments;
tax returns;
payslips;
employment records;
business financial statements;
receipts for expenses;
treatment records; and
evidence concerning future employment capacity.

Keeping appropriate records from an early stage can therefore be important.

There Is No “Average” Personal Injury Payout

It can be tempting to compare a claim with another person's settlement or an amount reported online.

Those comparisons can be misleading.

A settlement involving a particular injury does not establish what another person with the same diagnosis should receive.

The proper question is not simply:

“What is this injury worth?”

It is:

“What losses has this injury caused this particular person, and what losses is it likely to cause in the future?”

That distinction is central to understanding personal injury compensation.

Our Gold Coast personal injury lawyers assist clients with understanding their compensation entitlements and pursuing eligible claims.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured and would like to understand how compensation

may be assessed in your circumstances, KMB Legal can advise you about

the applicable Queensland claims process and the factors relevant to your claim.

We assist clients with motor vehicle accident, public liability and workplace
injury claims across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation.

Workers’ Compensation Claims in Queensland: What Injured Workers Need to Know

Thu, 17 Sep 2026 12:39:04 GMT

PERSONAL INJURY

Workers’ Compensation Claims in Queensland:

What Injured Workers Need to Know

If you are injured at work in Queensland, you may be entitled to workers’ compensation. Understanding the difference between a statutory workers’ compensation claim and a common law damages claim is particularly important.

By Katie Chan

A workplace injury can affect much more than your ability to perform your usual job. It may result in time away from work, medical treatment, rehabilitation and uncertainty about your future earning capacity.

Queensland's workers’ compensation scheme provides benefits to eligible workers who sustain work-related injuries or illnesses. Most Queensland employers are insured through WorkCover Queensland, although some larger employers are licensed as self-insurers.

There are two distinct types of claims that injured workers should understand: statutory workers’ compensation claims and common law damages claims.

They have different purposes and requirements.

What Is a Statutory Workers’ Compensation Claim?

A statutory claim provides eligible injured workers with compensation and support without requiring them to establish that their employer was negligent.

Depending on the circumstances, statutory compensation may include:

weekly compensation for lost wages;
medical and hospital expenses;
rehabilitation expenses;
certain travel and other costs; and
lump-sum compensation where an injury results in permanent impairment.

This means that an injury can potentially qualify for statutory workers’ compensation even where the employer did nothing wrong.

That is different from a common law damages claim, where employer negligence must generally be established.

What Types of Workplace Injuries May Be Covered?

Workers’ compensation is not limited to sudden physical accidents.

Depending on the circumstances, work-related injuries or illnesses can include:

Physical injuries

These may arise from falls, lifting, machinery, repetitive work, vehicle accidents or other workplace incidents.

Aggravation of existing conditions

An existing medical condition does not necessarily prevent a claim if employment significantly contributes to an aggravation or worsening of the condition.

Psychological or psychiatric injuries

Workers’ compensation can also extend to certain work-related psychological or psychiatric injuries, subject to the requirements of the legislation.

Diseases and illnesses

Some diseases or illnesses caused or contributed to by employment may also fall within the workers’ compensation scheme.

Eligibility depends upon the particular circumstances and the statutory requirements applying to the injury.

What Should You Do After a Workplace Injury?

If you are injured at work, appropriate medical treatment should be the immediate priority.

You should also report the injury to your employer as soon as reasonably possible.

When making a workers’ compensation claim, you will generally nee d a work capacity certificate from an appropriate medical practitioner. WorkSafe Queensland states that a claim application is not valid without a completed work capacity certificate.

The certificate records matters including your diagnosis, treatment needs and capacity for work.

It is important that the certificate identifies all injuries you want the insurer to assess as part of the claim.

How Do You Make a Workers’ Compensation Claim?

For most Queensland employees, a statutory claim is lodged with WorkCover Queensland.

If your employer is a licensed self-insurer, the claim is instead dealt with through that employer's workers’ compensation insurer or unit.

A valid claim generally requires both:

an application for compensation; and
a work capacity certificate.

The insurer will then assess matters such as your employment status, how and where the injury occurred and whether employment was a significant contributing factor to the injury.

How Long Do You Have to Lodge a Workers’ Compensation Claim?

Time limits apply.

WorkSafe Queensland currently states that a statutory claim will usually need to be lodged within six months of the date you were first seen by a doctor for the injury, although an insurer may accept a reasonable excuse for delay in appropriate circumstances.

It is generally preferable not to wait.

Early notification can also make it easier to obtain workplace records, witness evidence and other information about how an injury occurred.

Different time limits can apply to statutory workers’ compensation claims and common law damages claims. Read more in How Long Do You Have to Make a Personal Injury Claim in Queensland?.

What Happens if Your Claim Is Accepted?

If your statutory claim is accepted, the benefits available will depend on your circumstances.

Weekly compensation

If your injury prevents you from working or reduces your ability to work, you may be entitled to weekly compensation for lost wages.

The amount and duration of those payments depend upon the applicable workers’ compensation legislation and your individual circumstances.

Medical and rehabilitation expenses

The insurer may meet reasonable expenses associated with treatment and rehabilitation for the accepted workplace injury.

This can include appropriate medical treatment and rehabilitation directed towards recovery and return to work.

Return to work

Rehabilitation and return to work are important components of the Queensland scheme.

Depending on your medical capacity, this might involve returning to your normal duties, temporarily working reduced hours or undertaking suitable alternative duties while recovering.

What if Your Injury Causes Permanent Impairment?

Where an injury results in permanent impairment, you may be assessed for a degree of permanent impairment (DPI) .

Permanent impairment generally refers to an impairment that has stabilised and is unlikely to improve further with treatment or rehabilitation.

The DPI assessment is used to calculate any statutory lump-sum compensation that may be offered.

This stage can be particularly important because the decision you make about a lump-sum offer may affect your ability to pursue a common law claim.

Be Careful Before Accepting a Lump-Sum Offer

One of the most important distinctions in Queensland workers’ compensation law concerns the worker's assessed DPI.

If your DPI is less than 20% , WorkSafe Queensland states that you generally need to choose between:

accepting the statutory lump-sum offer; or
rejecting the offer and pursuing a common law damages claim.

If a worker with a DPI below 20% accepts the lump-sum offer, they generally cannot subsequently pursue common law damages for that injury.

If the DPI is 20% or more , a worker can generally accept the statutory lump-sum payment and still pursue a common law claim.

Different impairments cannot simply be added together to reach the 20% threshold.

For that reason, obtaining advice before accepting or rejecting a Notice of Assessment and lump-sum offer can be particularly important.

What Is a Common Law Workers’ Compensation Claim?

A common law claim is different from the statutory compensation process.

In a common law claim, the worker seeks damages on the basis that the employer failed to take reasonable care for the worker's safety and that this negligence caused or contributed to the injury.

The worker must establish fault.

WorkSafe Queensland describes this as proving that the employer breached its duty to provide a safe work environment and that the breach caused the worker's injury and resulting loss.

When Might an Employer Be Negligent?

Whether an employer has been negligent depends upon the circumstances.

Issues may include allegations concerning:

unsafe systems of work;
inadequate training or supervision;
unsafe equipment or machinery;
failure to identify or address workplace hazards;
inadequate staffing;
unreasonable workloads;
failure to respond appropriately to known risks; or
failure to provide appropriate equipment or assistance.

The fact that an accident occurred at work does not automatically mean the employer was negligent.

The particular circumstances and available evidence need to be considered.

What Can Be Claimed in a Common Law Claim?

Where negligence and loss are established, damages may potentially include compensation for:

Pain and suffering

Compensation may be available for the impact of the injury.

Past economic loss

This can include income lost because of the injury.

Future economic loss

Where an injury reduces a worker's ability to earn income in the future, damages may potentially reflect that reduced earning capacity.

Medical and treatment expenses

Past and future medical expenses associated with the injury may also form part of a damages claim.

The amount of compensation depends on the individual worker's injuries, employment history, income, age, prognosis and future capacity.

What if You Were Partly Responsible for the Accident?

A worker's own actions can be relevant to a common law claim.

If the employer establishes that the worker failed to take reasonable care for their own safety and this contributed to the injury, the worker's damages may be reduced for contributory negligence .

This does not necessarily mean the claim fails entirely.

What Is the Time Limit for a Common Law Claim?

Different time limits apply to statutory and common law claims.

WorkSafe Queensland states that a Notice of Claim for Damages generally needs to be submitted within three years of the injury .

However, workers should not assume they can simply wait until close to the three-year deadline.

There are procedural steps that may need to occur before proceedings, and delay can make evidence more difficult to obtain.

What if Your Workers’ Compensation Claim Is Rejected?

If an insurer rejects a statutory claim, that is not necessarily the end of the matter.

There are review processes available under Queensland's workers’ compensation scheme, but strict time limits can apply.

The appropriate next step will depend upon the insurer's decision and reasons.

If you disagree with a decision, it is sensible to obtain advice promptly rather than allowing a review period to expire.

Do You Need a Lawyer for a Workers’ Compensation Claim?

A lawyer is not required simply to lodge a statutory workers’ compensation claim.

Many straightforward statutory claims are managed directly between the injured worker, their medical practitioners and the insurer.

However, legal advice may become particularly important where:

the statutory claim has been rejected;
there is a dispute about whether an injury is work-related;
the worker has suffered a significant or permanent injury;
a Notice of Assessment and lump-sum offer has been received;
there is a potential common law negligence claim;
the injury affects the worker's long-term earning capacity; or
an important time limit is approaching.

The distinction between statutory compensation and common law damages is particularly important because decisions made during the statutory process can affect later rights.

Statutory Compensation and Common Law Damages Are Different

The simplest way to understand the distinction is:

Statutory claim: focuses primarily on whether you have sustained a compensable work-related injury.

Common law claim: requires you to establish that your employer was negligent and that the negligence caused your injury and loss.

An injured worker may therefore be entitled to statutory workers’ compensation without necessarily having a viable common law damages claim.

Conversely, where employer negligence has caused a significant injury and financial loss, common law damages can become an important consideration.

Workers’ compensation may also be available for certain work-related psychological or psychiatric injuries. Read more in Psychological Injury Claims in Queensland: What You Need to Know.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured at work and are unsure about your workers’

compensation rights, KMB Legal can advise you about your circumstances

and the options that may be available.

We assist clients with workplace injury and other personal injury claims

across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation.

Public Liability Claims in Queensland: What You Need to Know

Thu, 17 Sep 2026 12:08:58 GMT

PERSONAL INJURY

Public Liability Claims in Queensland:

What You Need to Know

If you are injured in a public place, business

premises or on someone else’s property, you

may be entitled to compensation. However,

the fact that an accident occurred does not automatically mean someone else is legally responsible.

By Katie Chan

Accidents can occur almost anywhere — in a shopping centre, restaurant, hotel, park, footpath, sporting facility or another person's property.

Where an injury is caused by the negligence of a nother person, business, organisation or public authority, it may give rise to what is commonly referred to as a public liability claim.

Public liability claims in Queensland are generally governed by the Personal Injuries Proceedings Act 2002 (Qld) and principles contained in the Civil Liability Act 2003 (Qld).

Importantly, suffering an injury on someone else's premises does not, by itself, establish a right to compensation. The circumstances of the accident and whether anothe r party failed to take reasonable precautions against a foreseeable risk are important considerations.

What Is a Public Liability Claim?

A public liability claim is a claim for compensation arising from an injury allegedly caused by another party's negligence in circumstances other than, for example, a motor vehicle accident or workplace injury governed by their own statutory schemes.

Claims can arise in many different circumstances, including:

slips, trips and falls;
unsafe or defective flooring;
wet or slippery surfaces;
poorly maintained stairs or walkways;
inadequate lighting;
accidents in shopping centres or retail premises;
injuries at restaurants, cafés or hotels;
accidents at sporting or recreational facilities;
injuries in parks or public areas;
accidents on private property; and
injuries associated with defective or poorly maintained premises.

Each claim depends on its particular facts.

Does an Accident Automatically Mean Someone Was Negligent?

No.

This is one of the most important points to understand about public liability claims.

An occupier or property owner is not necessarily liable simply because somebody was injured on their premises.

Broadly, a negligence claim requires consideration of whether there was a relevant duty of care, whether that duty was breached and whether the breach caused the injury and resulting loss.

Under Queensland's civil liability legislation, whether reasonable precautions should have been taken against a risk involves consideration of matters including the probability of the harm occurring, the likely seriousness of the harm, the burden of taking precautions and the social utility of the activity creating the risk.

The circumstances therefore need to be examined carefully.

Examples of Public Liability Claims

Slips and Falls

A person may slip on liquid, food, grease or another substance on the floor of a supermarket, shopping centre, restaurant or other premises.

The important question is not simply whether the floor was slippery.

Issues may include how long the hazard had been present, what inspection and cleaning procedures were in place, whether those procedures were followed and whether reasonable precautions could have prevented the accident.

Trips and Uneven Surfaces

Claims can also arise from uneven pavement, damaged flooring, unexpected changes in surface level or other trip hazards.

Again, the existence of a defect does not automatically establish liability. Its nature, visibility, location and the circumstances surrounding the accident may all be relevant.

Accidents in Public Places

Injuries may occur in parks, playgrounds, pathways and other public spaces.

Where a council or another public authority is involved, additional statutory principles may affect the assessment of liability.

These claims can therefore require consideration beyond the ordinary occupiers' liability principles.

Accidents at Commercial Premises

Businesses that invite customers or visitors onto their premises may have obligations to take reasonable care for their safety.

Depending upon the circumstances, relevant evidence could include inspection procedures, maintenance records, incident reports, CCTV footage and previous complaints or incidents.

What Do You Need to Prove?

Public liability cases are highly fact-specific, but a claimant will generally need to establish that another party was negligent and that the negligence caused the injury.

In practical terms, questions may include:

Was there a foreseeable risk of injury?

A risk generally needs to be more than merely theoretical or insignificant.

Should reasonable precautions have been taken?

This requires consideration of what a reasonable person in the circumstances would have done.

Did the failure to take reasonable precautions cause the injury?

There must be a sufficient causal connection between the alleged breach and the injury suffered.

Queensland's Civil Liability Act 2003 contains statutory principles concerning breach of duty and causation that apply to many negligence claims.

What Should You Do After an Accident?

The evidence available immediately after an accident can become extremely important later.

Where possible, consider:

reporting the accident to the owner, occupier or manager;
obtaining a copy or reference number for any incident report;
taking photographs and video of the exact location;
photographing the hazard or condition that caused the accident;
obtaining names and contact details of witnesses;
seeking appropriate medical treatment; and
keeping records of expenses and time away from work.

If the accident occurred at commercial premises, it may also be important to request that relevant CCTV footage be preserved.

CCTV can be overwritten or deleted in the ordinary course of business, so this should be addressed promptly.

What if the Accident Occurred on Council Property?

An injury on council-owned or controlled land does not automatically mean the council is liable.

Claims involving councils and other public authorities can involve additional considerations under Queensland legislation.

For example, issues can arise concerning the authority's functions, resources, knowledge of the alleged hazard and the reasonableness of requiring particular precautions.

Evidence may include maintenance and inspection records, previous complaints, work orders, photographs and records relating to the condition of the location.

This is one reason early investigation can be particularly valuable in claims involving public land.

What if You Were Partly Responsible?

A claimant does not necessarily need to be entirely free from responsibility for an accident.

However, if the injured person failed to take reasonable care for their own safety and that contributed to the injury, contributory negligence may arise.

Queensland law allows damages to be reduced to reflect the claimant's share of responsibility.

For example, depending on the circumstances, questions may arise about whether a hazard was obvious, whether warnings were present or whether the claimant was reasonably attentive to their surroundings.

This does not automatically defeat a claim. It may instead affect the amount of compensation recoverable.

What Compensation Can Be Claimed?

The compensation available depends on the circumstances and consequences of the injury.

A claim may potentially include compensation for matters such as:

pain and suffering;
past and future loss of income or earning capacity;
medical and rehabilitation expenses;
future treatment expenses;
care and assistance; and
other losses caused by the injury.

The value of a claim cannot reliably be determined simply from the diagnosis.

For example, the same physical injury may have very different financial consequences for two people depending upon their occupations, recovery, age and ongoing capacity to work.

How Long Do You Have to Make a Public Liability Claim?

Strict time limits apply.

Under the Personal Injuries Proceedings Act 2002 (Qld), Part 1 of the Notice of Claim generally needs to be given by the earlier of:

nine months after the incident giving rise to the injury, or nine months after symptoms first appear if they were not immediately apparent; or
one month after the claimant first instructs a law practice to seek damages and the proposed respondent has been identified.

The Act also contains further procedural requirements after Part 1 is given.

A late notice does not necessarily mean a claim is automatically lost, but additional requirements can arise and a claimant should not assume that delay is inconsequential.

Separately, the Limitation of Actions Act 1974 (Qld) generally provides a three-year limitation period for commencing proceedings for damages for personal injury.

The distinction between these deadlines is important: the three-year limitation period does not mean you should wait three years before taking action.

How Does a Public Liability Claim Work?

Before court proceedings are commenced, Queensland's PIPA legislation establishes a pre-court claims process.

This generally involves giving the proposed respondent a formal Notice of Claim containing information about the accident, injuries and claimed loss.

The respondent then has obligations to respond to the notice. The legislation provides processes for exchanging information, investigating the claim and attempting to resolve the dispute before court proceedings.

Many claims are resolved without proceeding to trial.

However, whether a claim settles and the appropriate amount of any settlement depend upon issues including liability, medical evidence, economic loss and the longer-term consequences of the injury.

Why Early Evidence Matters

Public liability claims can be particularly dependent upon evidence concerning the condition of a location at the time the accident occurred .

A spill may be cleaned.

A broken tile may be repaired.

A pathway may be resurfaced.

CCTV footage may be overwritten.

Staff may leave a business and witnesses may become difficult to locate.

Obtaining photographs, witness details and other evidence early can therefore make a significant difference when the circumstances of an accident are later investigated.

Do You Need a Lawyer to Make a Public Liability Claim?

Whether you obtain legal representation is a personal decision.

However, public liability matters can involve complex questions concerning negligence, causation, contributory negligence, identification of the correct respondent, medical evidence and assessment of damages.

Obtaining advice early can also help identify applicable notice requirements and limitation dates and determine what evidence should be preserved .

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured in a public place or on someone else's property,

KMB Legal can advise you about your circumstances, the applicable

Queensland claims process and the steps involved in pursuing a

personal injury claim.

We assist clients with public liability and other personal injury claims

across the Gold Coast and Queensland.

Free 30-minute initial telephone consultation .

How Long Do You Have to Make a Personal Injury Claim in Queensland?

Thu, 17 Sep 2026 11:33:39 GMT

PERSONAL INJURY

How Long Do You Have to Make a Personal Injury Claim in Queensland?

Personal injury claims in Queensland are subject to strict time limits. Importantly, the deadline for commencing court proceedings is not necessarily

the same as the deadline for notifying an insurer or respondent of your claim.

By Katie Chan

If you have been injured in an accident, it can be easy to assume that you have three years to decide whether to make a personal injury claim.

While Queensland law generally im poses a three-year limitation period for commencing court proceedings for personal injury, this is only part of the picture.

Depending on how your injury occurred, you may be required to notify an insurer or another pa rty much earlier.

Different requirements apply to motor vehicle accidents, public liability claims and workplace injuries. Missing a deadline can significantly affect your rights, so it is important to identify the applicable time limits early.

Is There a Three-Year Time Limit for Personal Injury Claims in Queensland?

As a general rule, section 11 of the Limitation of Actions Act 1974 (Qld) provides that an action for damages involving personal injury must be commenced wit hin three years from the date the cause of action arose.

However, the three-year limitation period should not be treated as a three-year period in which nothing needs to be done.

Most personal injury claims involve pre-court procedures that must be commenced considerably earlier.

The applicable process depends on the circumstances in which you were injured.

Motor Vehicle Accident Claims

If you are injured in a motor vehicle accident in Queensland and another driver was wholly or partly at fault, you may be entitled to make a claim under Queensland's compulsory third party (CTP) insurance scheme.

A Notice of Accident Claim Form generally needs to be lodged by the earlier of:

nine months after the accident ;
if the injury was not immediately apparent, nine months after symptoms first appeared; or
one month after first consulting a lawyer if you engage the lawyer to handle the claim.

These notice requirements operate in addition to the limitation period for commencing court proceedings.

If you have been injured in a road accident, there are also important steps to take when commencing a CTP claim. See What to Do After a Motor Vehicle Accident in Queensland.

Our Gold Coast motor vehicle accident lawyers can assist you with understanding the CTP claims process and the deadlines that may apply to your circumstances.

What if the vehicle cannot be identified?

A much shorter period applies where the at-fault vehicle cannot be identified, such as in some hit-and-run accidents.

In that situation, a Notice of Accident Claim F orm to the Nominal Defendant generally must be lodged within three months of the accident. MAIC also warns that strict deadlines apply and a claim may be rejected if they are missed.

Because of these shorter deadlines, it is particularly important to obtain advice promptly following an accident involving an unidentified vehicle.

Public Liability Claims

Public liability claims can arise where someone is injured because of the alleged negligence of another person, business, organisation or public authority.

Examples can include:

slips and falls;
accidents in shopping centres or retail premises;
injuries at restaurants, hotels or other venues;
accidents in parks or other public places;
injuries occurring on private property; and
accidents arising from allegedly unsafe premises.

Many Queensland public liability claims are governed by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Under PIPA, Part 1 of a Notice of Claim generally must be given by the earlier of:

nine months after the incident or, if symptoms were not immediately apparent, nine months after symptoms first appeared; or
one month after the claimant first instructs a law practice to act in seeking damages, once the proposed respondent has been identified.

If notice is given outside the prescribed period, the obligation to give notice continues and the claimant generally needs to provide a reasonable excuse for the delay.

This is separate from the general limitation period for commencing proceedings.

Public liability claims also involve specific pre-court procedures and notification requirements. Read more in Public Liability Claims in Queensland: What You Need to Know.

Workers' Compensation Claims

Work-related injuries involve another set of time requirements.

For a statutory workers' compens ation claim, WorkSafe Queensland states that there is usually a time limit for lodging the claim, often within six months of when the worker was first seen by a doctor for the injury, unless a reasonable excuse for delay is accepted by the insurer.

A statutory workers' compensation claim is also different from a common law damages claim against an employer.

Different procedural requirements apply to common law claims, and the general personal injury limitation period remains relevant. Queensland's workers' compensation legislation ex pressly preserves the operation of the limitation period under section 11 of the Limitation of Actions Act .

For that reason, it is important to distinguish between:

a statutory workers' compensation claim, which may provide benefits such as weekly compensation, medical expenses and rehabilitation; and

a common law damages claim, which may potentially arise where an employer's negligence caused or contributed to the injury.

Different requirements apply to injuries sustained at work. See Workers’ Compensation Claims in Queensland: What Injured Workers Need to Know.

What if You Miss a Personal Injury Claim Deadline?

Missing a notice deadline does not necessarily have the same consequence in every type of claim.

For example, under PIPA, a late Notice of Claim may still be given, but a reasonable excuse for the delay will generally need to accompany it.

Other deadlines can have much more serious consequences.

Whether a late claim can proceed depends on the legislation governing the particular claim, the deadline that has been missed and the individual circumstances.

For this reason, you should not assume either that:

“I have three years, so there is no urgency,”

“I have missed a notice deadline, so I no longer have a claim.”

Legal advice should be obtained about the particular circumstances.

Can the Three-Year Limitation Period Ever Be Extended?

There are circumstances in which Queensland law permits limitation periods to be extended or where different rules apply.

Whether an extension is available is highly dependent upon the facts and the applicable legislation.

Special considerations can also arise in claims involving children and people under a legal disability. For example, MAIC states that for children the usual limitation period generally does not begin until the child turns 18, meaning court proceedings can generally be commenced up to the child's 21st birthday if required. Notice requirements should nevertheless be addressed as soon as possible.

There are also particular categories of claims for which ordinary limitation rules have been modified or removed by legislation.

If a limitation date is approaching or may already have expired, specific legal advice should be obtained rather than relying on a general time-limit calculation.

Why You Should Not Wait Until the Deadline

There are practical reasons to investigate a personal injury claim early even where the ultimate limitation date is some time away.

Evidence can become more difficult to obtain as time passes.

CCTV footage may be deleted. Witnesses may become difficult to locate. Accident scenes can change. Records may become harder to obtain and memories of an incident can fade.

Obtaining advice early can also help identify:

who may be legally responsible;
which legislation applies;
the correct insurer or respondent;
the applicable notification requirements;
what evidence should be preserved;
whether further investigations are required; and
the relevant limitation date.

Early advice does not mean that a claim needs to be settled quickly. In many cases, it is important to understand the longer-term consequences of an injury before the value of a claim can properly be assessed.

Every Personal Injury Claim Is Different

There is no single deadline that safely applies to every personal injury matter.

The relevant time limits depend on factors including how the injury occurred, who may be responsible, the type of claim being pursued and the legislation that applies.

A motor vehicle accident, workplace injury and public liability accident may therefore involve very different procedural requirements even though each is broadly described as a personal injury claim.

Because different notification requirements and limitation periods can apply depending on how an injury occurred, obtaining advice early can help protect your rights. KMB Legal assists with personal injury claims in Queensland , including CTP, public liability and workplace injury claims.

Speak With a Gold Coast Personal Injury Lawyer

If you have been injured and are unsure about the time limit applying

to your claim, obtaining advice early can help ensure important deadlines

are identified and your rights are protected.

KMB Legal assists clients with personal injury claims across the Gold Coast

and Queensland, including motor vehicle accident, public liability and workplace

injury matters.

Free 30-minute initial telephone consultation.

Property Settlements After Separation: What You Need to Know

Thu, 17 Sep 2026 02:59:17 GMT

FAMILY LAW

Property Settlements After Separation:

What You Need to Know

Separating does not automatically divide your property. Understanding what forms part of a property settlement, how contributions are

assessed and what happens next can help

you make informed decisions about your

financial future.

By Katie Chan

When a marriage or de facto relationship ends, separating finances can be one of the most important—and sometimes most complicated—parts of the process.

A family law property settlement can deal with much more than the family home. Depending on the circumstances, it may involve savings, investments, superannuation, businesses, companies, trusts, vehicles, debts and other financial interests.

There is also no automatic rule that property is divided 50/50.

Australian family law requires consideration of the particular financial circumstances of the parties before determining whether property interests should be altered and, if so, what outcome is just and equitable.

What is a property settlement?

A property settlement is the process of resolving the financial relationship between parties following the breakdown of a marriage or de facto relationship.

It can involve determining what happens to property, liabilities and other financial interests.

Many separating couples reach an agreement without asking the Court to decide their property settlement. Where agreement cannot be reached, the Federal Circuit and Family Court of Australia has broad powers to make property orders.

Importantly, simply separating does not automatically change legal ownership of assets or finalise financial claims between former partners.

What property is considered?

The first stage involves identifying the parties' property and liabilities.

Depending on the circumstances, this may include:

the family home and other real estate;
bank accounts and savings;
shares and investments;
motor vehicles;
superannuation;
businesses and company interests;
interests involving trusts;
valuable personal property;
mortgages;
personal loans;
credit cards; and
other debts and financial interests.

Property may be relevant even if it is held in only one person's name.

Similarly, an asset is not necessarily excluded simply because one person acquired it before the relationship or after separation. The timing and circumstances of acquisition may instead be relevant when considering the parties' contributions and the overall outcome.

Property settlements can become more complex where the asset pool includes businesses, companies or trusts. Read more in Complex Property Settlements: Businesses, Companies and Trusts in Family Law.

Is everything divided 50/50?

No.

There is no automatic 50/50 rule for family law property settlements.

The Court must consider the individual circumstances of the relationship and can only make an order altering property interests if it is satisfied that doing so is just and equitable .

Two couples with property pools of the same value may therefore have different outcomes because their contributions, responsibilities and future circumstances are different.

How does the Court determine a property settlement?

Following reforms that commence d on 10 June 2025 , the Family Law Act 1975 expressly sets out the framework for determining property settlements.

Broadly, the process involves:

identifying the parties' property and liabilities;
considering the contributions made by each party;
considering each party's current and future circumstances; and
determining whether the proposed outcome is just and equitable.

These principles are also relevant when parties negotiate a property settlement outside Court.

What contributions are considered?

Property settlements are not determined solely by asking who earned the most money.

The Court can consider different forms of contribution made during the relationship.

These may include financial contributions such as income, savings or property brought into the relationship, as well as contributions to acquiring, conserving or improving property.

The law also recognises contributions to the welfare of the family, including contributions as a homemaker and parent.

The significance of particular contributions depends upon the circumstances of the relationship as a whole.

What about property owned before the relationship?

Property owned before a marriage or de facto relationship can be relevant.

However, it is not necessarily quarantined from consideration simply because one person owned it first.

Its significance may depend upon factors such as:

its value when the relationship commenced;
the length of the relationship;
what happened to the property during the relationship;
contributions made by each party;
whether it was sold or combined with other assets; and
the parties' overall financial circumstances.

The treatment of substantial initial contributions can therefore be more nuanced than simply removing their original value from the property pool.

What happens to superannuation?

Superannuation can be dealt with as part of a family law property settlement.

The Family Law Act permits superannuation interests to be the subject of splitting orders in accordance with the statutory superannuation regime.

A superannuation split does not generally mean the recipient receives cash immediately. The split usually creates or transfers a superannuation entitlement that remains subject to superannuation rules.

Superannuation can be particularly important where there is a significant difference between the parties' retirement savings.

What happens if one party owns a business?

Business interests can make a property settlement considerably more complex.

It may be necessary to identify the relevant company, trust, partnership or other structure and determine the nature and value of the party's interest.

A business may also require independent valuation.

Company accounts, tax records, trust documents, shareholder and director loan accounts and other financial information may need to be considered.

Do both parties have to disclose their finances?

Yes.

Financial disclosure is fundamental to resolving a property settlement.

The duty requires parties to provide relevant financial information and documents and is ongoing while the property dispute is being resolved. From 10 June 2025, the financial disclosure duty was expressly incorporated into the Family Law Act.

This can be especially important where one party has greater knowledge or control of the family's finances or business structures.

Does family violence affect a property settlement?

It can.

Since 10 June 2025 , the Family Law Act expressly requires the economic effect of family violence to be considered where relevant when determining a property settlement.

For example, family violence may have affected a person's ability to make contributions or may continue to affect their financial circumstances after separation.

The reforms also make clear that economic or financial abuse can constitute family violence.

This does not mean that every allegation of family violence automatically produces a particular percentage adjustment. Its relevance depends upon the circumstances and economic effect in the particular case.

What about debts?

Liabilities also need to be identified.

These can include mortgages, credit cards, personal loans, tax debts and business-related liabilities.

The existence of a debt does not necessarily determine how it will ultimately be treated. Its purpose, when it was incurred and the surrounding circumstances may be relevant.

Complex property settlements may also involve director loans, shareholder loans or liabilities between related entities.

Can we agree on our own property settlement?

Yes.

Many couples resolve their property matters through negotiation or dispute resolution rather than having a judge determine the outcome.

However, reaching an informal agreement and legally finalising the financial relationship are different things.

Depending on the circumstances, an agreed settlement may be formalised through consent orders or a binding financial agreement .

The appropriate option depends upon the circumstances, and legal advice should be obtained before finalising the arrangement.

Do I need to wait until I am divorced?

No.

For married couples, a property settlement can be dealt with before a divorce is finalised . Divorce and property settlement are separate legal processes.

However, divorce can affect the time available to commence property proceedings, so it is important not to overlook the applicable limitation period.

Are there time limits?

Yes.

For married couples, an application for property orders generally needs to be commenced within 12 months after the divorce order takes effect .

For de facto relationships, the general time limit is two years after the relationship breaks down .

Applications can sometimes proceed outside those periods, but additional legal requirements apply and permission should not be assumed.

Obtaining advice well before a limitation period expires is therefore important.

Should property be divided immediately after separation?

There is no single answer that applies to every couple.

Some matters can be resolved relatively quickly. Others require disclosure, property valuations, business valuations or investigation of more complicated financial structures before sensible negotiations can occur.

What is important is understanding the financial position before agreeing to a final settlement.

Once a settlement is legally finalised, changing it later can be difficult.

Getting advice early

Early legal advice does not necessarily mean commencing Court proceedings.

It can help you understand:

what property and liabilities need to be identified;
what financial disclosure should be obtained;
how different contributions may be relevant;
whether valuations are required;
the implications of businesses or trusts;
your options for negotiating a settlement; and
how an agreement can ultimately be formalised.

Understanding these issues before making significant financial decisions can help avoid problems later.

For a more detailed explanation of how assets, liabilities, contributions and future circumstances are considered, read How Is a Property Settlement Calculated After Separation in Australia?

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with property settlements following

marriage and de facto relationship breakdowns, from straightforward

property matters to settlements involving businesses, companies, trusts

and more complex financial structures.

Our experience across Family Law and Commercial & Business Law

provides an additional commercial perspective where business interests

form part of the property settlement.

Free 30-minute initial telephone consultation.

Complex Property Settlements: Businesses, Companies and Trusts in Family Law

Thu, 17 Sep 2026 01:02:01 GMT

FAMILY LAW

Complex Property Settlements: Businesses, Companies and Trusts in Family Law

When a family law property settlement involves a business, company or trust, identifying and valuing the parties’ true financial interests can be considerably more complex.

By Katie Chan

For many separating couples, the property pool consists primarily of the family home, savings, superannuation and personal liabilities. For an overview of how property settlements are approached following separation, see Property Settlements After Separation: What You Need to Know .

For business owners and families with more complex financial structures, the position can be very different.

A property settlement may involve private companies, family trusts, business interests, investment entities, shareholder or director loans, retained earnings and assets held across several structures.

The fact that an asset is held by a company or trust rather than personally does not necessarily mean it can simply be disregarded. Equally, not every asset owned by a company or trust automatically becomes property available for division between the parties.

Und erstanding the ownership, control, value and financial significance of these structures is therefore an important part of resolving a complex property settlement.

How does the Court approach a property settlement?

The property settle ment framework was clarified by amendments to the Family Law Act 1975 that commenced on 10 June 2025.

Broadly, the Court identifies the parties' property and liabilities, considers their contributions, considers their current and future circumstances, and determines whether the proposed alteration of property interests is just and equitable.

Where companies, businesses or trusts are involved, simply identifying the property and financial resources of the parties can require considerable investigation.

What happens to a business in a family law property settlement?

A business interest can be highly significant to a property settlement.

Depending on how the business is structured, a party may hold:

shares in a company;
an interest in a partnership;
units in a unit trust;
interests or powers associated with a discretionary trust;
business assets as a sole trader; or
interests through several interconnected entities.

The first step is usually to understa nd what the party actually owns or controls and how the business structure operates.

The business may then need to be valued.

Importantly, the value of a business is not necessarily the amount shown for its assets in the accounts. Its value may also reflect matters such as profitability, maintainable earnings, goodwill, liabilities and the commercial circumstances of the business.

How are companies dealt with?

A company is a separate legal entity, so assets owned by a company are not automatically the personal assets of its shareholders.

However, a person's shares in the company may themselves have substantial value.

The financial relationship between the person and the company may also need to be examined. Relevant issues can include:

Shareholdings · Director and shareholder loans · Dividends · Retained profits · Related-party transactions · Company liabilities · Business assets

The Family Law Act gives the Court broad powers in property proceedings and, subject to statutory safeguards, can also permit certain orders affecting third parties, including orders relating to the transfer of company shares.

The precise treatment of a company will depend on the particular structure and circumstances.

What about family trusts?

Trusts can require even closer examination.

It is not enough simply to say that an asset is “owned by the family trust”.

The legal and practical operation of the trust may need to be considered, including:

who is the trustee;
who appoints or can remove the trustee;
who are the beneficiaries;
who makes decisions about distributions;
the terms of the trust deed;
how the trust has historically operated; and
the extent of a party's control over the trust and its assets.

Depending on those circumstances, an interest associated with a trust may be relevant as property or as a financial resource, among other possibilities.

The outcome is highly fact-specific, which is why the trust deed and the way the trust actually operates can be important.

“It's in the trust, so it isn't part of the property settlement” — is that correct?

Not necessarily.

This is one of the misconceptions that can arise in complex property matters.

Putting assets into a company or trust does not, by itself, determine how those interests will be treated in family law.

Conversely, the existence of a family connection to a trust does not mean that every trust asset automatically belongs to the parties.

The Court considers the actual legal and financial circumstances. That can include the nature of a party's interest, their degree of control and the practical operation of the structure.

This is an area where obtaining advice about the particular entity structure is especially important.

Why does control matter?

Legal ownership tells only part of the story in some structures.

For example, a person may not personally hold title to the assets of a discretionary trust but may occupy positions that give them significant influence over how the trust operates.

The Court's own case-management material recognises that family-law property cases may involve family trusts, companies or partnerships that are owned or in the effective control of a party and require expert valuation or investigation.

The particular rights and powers created by the relevant documents must therefore be examined rather than assuming control merely from a person's relationship to an entity.

What financial documents may need to be disclosed?

Complex structures usually make financial disclosure parti cularly important. Full and frank financial disclosure is particularly important where a property pool includes businesses, companies or trusts. Read more about the disclosure obligations in Duty of Disclosure in Family Law Property Settlements .

The Court states that full and frank disclosure extends to a party's total direct and indirect financial circumstances, including interests and financial resources held through corporations, trusts, companies and other structures.

Depending on the matter, relevant documents may include company financial statements, tax returns, BAS records, trust deeds and amendments, trust financial statements, distribution records, share registers, loan accounts, bank statements and business sale or acquisition documents.

Documents concerning certain transfers or disposals of property can also be relevant.

What are director and shareholder loan accounts?

Loan accounts are frequently encountered in privately owned businesses.

For example, money may have been advanced:

by a director to a company;
by a company to a director or shareholder;
between related companies;
between a trust and a beneficiary; or
between family members and associated entities.

These balances should not simply be ignored.

It may be necessary to establish whether a genuine liability or receivable exists, whether it is recoverable and how it should be treated when determining the financial position.

The treatment of inter-entity and party loans can be significant in complex cases; recent Federal Circuit and Family Court judgments illustrate disputes involving company and trust valuations, inter-company loans, party/entity loan balances and associated tax liabilities.

How is a business valued?

Sometimes the parties can agree on the value of a business. In more complex matters, an independent expert valuation may be required.

A valuation may involve examining matters such as historical financial performance, maintainable earnings, business assets and liabilities, goodwill, industry conditions and other factors relevant to the particular business.

The appropriate valuation methodology will depend upon the business.

The Court's procedures specifically contemplate expert investigation and valuation where companies, trusts or other entities are involved and their values are contested.

Is the money in a company bank account simply divided between the parties?

Usually the analysis is not that simple.

A company's cash belongs to the company. It may be required for working capital, taxation, employee entitlements, creditors or other business obligations.

At the same time, the company's financial position may affect the value of a party's shares or other interests.

Care needs to be ta ken to avoid double counting. For example, an amount reflected in the value of a business should not necessarily also be treated separately as another asset available for division.

This is one reason expert accounting evidence can become important in higher-value matters.

What about tax consequences?

Tax can materially affect the practical outcome of a proposed settlement.

A transfer or restructuring involving a business, company, trust or investment may have taxation implications that differ considerably from simply transferring cash.

Potential taxation consequences should therefore be identified before settlement terms are finalised.

Family lawyers will often work with the client's accountant or specialist tax adviser where necessary. Legal advice about a family law settlement should not be treated as a substitute for specialist taxation advice.

Can assets be transferred before or after separation?

Transactions involving assets or business interests around the time of separation may require careful examination.

The disclosure requirements specifically extend to certain disposals of property by sale, transfer, assignment or gift made in the year immediately before separation or since final separation where they may affect, defeat or deplete a claim.

A transaction is not necessarily improper simply because it occurred near separation. Businesses continue to operate and legitimate transactions continue to occur.

The purpose, value and circumstances of a transaction may nevertheless be relevant.

Why can complex property matters require other professionals?

A family lawyer does not necessarily work alone in a complex property settlement.

Depending on the circumstances, the matter may involve:

Accountants · Forensic accountants · Business valuers · Property valuers · Tax advisers · Financial advisers

The lawyer's role includes identifying the legal issues, determining what disclosure is required and coordinating the evidence needed to understand the property pool and negotiate or litigate the matter.

The advantage of understanding both family law and business structures

Where a property settlement involves businesses, companies and trusts, understanding the commercial structure behind the assets can be just as important as understanding the family law framework.

Questions about ownership, company structures, trust deeds, shareholder arrangements, loan accounts and business valuations can materially affect the outcome.

At KMB Legal, our work across Family Law and Commercial & Business Law gives us a commercial perspective when assisting clients with property settlements involving business interests and more complex financial structures.

Getting advice early

Complex structures can take time to investigate.

Obtaining advice early can help identify the documents required, determine whether specialist valuation or accounting evidence may be necessary, and reduce the risk of negotiating a settlement before the financial position is properly understood.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with family law property settlements,

including matters involving businesses, companies, trusts and

complex financial interests.

We combine family law experience with a commercial understanding

of business structures and transactions.

Free 30-minute initial telephone consultation.

Equal Shared Parental Responsibility Is No Longer Presumed: What Parents Need to Know

Wed, 16 Sep 2026 23:27:46 GMT

FAMILY LAW

Equal Shared Parental Responsibility Is No Longer Presumed:

What Parents Need to Know

Changes to Australian family law have removed the

presumption of equal shared parental responsibility.

Here’s what that means for parents making parenting arrangements after separation.

By Katie Chan

Australian family law changed significantly on 6 May 2024, including changes to the way courts approach parental responsibility and parenting arrangements.

One of the most important changes was the removal of the presumption of equal shared parental responsibility.

The change has caused some confusion. In particular, it does not mean that parents can no longer share responsibility for important decisions about their children. Nor does it mean that one parent will automatically have sole decision-making responsibility.

Instead, the legislation is intended to keep the focus on the individual child and the parenting arrangements that are in that child's best interests.

What was the presumption of equal shared parental responsibility?

Before 6 May 2024, section 61DA of the Family Law Act 1975 required a court, when making a parenting order, to apply a presumption that it was in the child's best interests for the parents to have equal shared parental responsibility.

Parental responsibility concerns the duties, powers, responsibilities and authority that parents have in relation to their children.

Importantly, even under the former law, equal shared parental responsibility did not mean that a child was automatically required to spend equal time with each parent. The former legislation expressly distinguished parental responsibility from the amount of time a child spent with each parent.

This distinction was not always well understood.

What changed on 6 May 2024?

The Family Law Amendment Act 2023 removed the presumption of equal shared parental responsibility.

It also remove d the former provisions that, in certain circumstances, required the Court to consider whether a child spending equal time, or substantial and significant time, with each parent would be in the child's best interests and reasonably practicable.

The Court now determines parenting arrangements by applying the current parenting framework in the Family Law Act , with the best interests of the child as the paramount consideration.

The amendments were intended, among other things, to simplify the parenting framework and address misunderstanding that parents had an entitlement to equal time with their children.

Does this mean parents no longer share parental responsibility?

No.

The removal of the presumption does not prevent parents from sharing parental responsibility or making important decisions together.

Under section 61C, each parent of a child under 18 generally has parental responsibility for the child, subject to any applicable court order.

The important change is that this does not create a presumption that the Court must apply when deciding what parenting order to make.

A parenting order can provide for joint or sole decision-making abo ut all or particular major long-term issues concerning a child.

What are “major long-term issues”?

Major long-term issues are decisions of a long-term nature concerning a child's care, welfare and development.

They can include matters relating to:

education;
religious and cultural upbringing;
health;
the child's name; and
changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

These are different from ordinary day-to-day decisions made while a child is spending time with a parent.

The current Act specifically provides that a person spending time with a child will generally not need to consult another person about decisions that are not major long-term issues, such as ordinary decisions about what the child eats or wears.

Can the Court still order joint decision-making?

Yes.

The Court can make a parentin g order providing for joint decision-making about all or specified major long-term issues.

Where such an order is made, the people given joint decision-making responsibility are generally required to:

consult each other about the relevant decision; and
make a genuine effort to reach a joint decision.

Alternatively, depending on the circumstances and the child's best interests, the Court can order that one person have sole decision-making responsibility for all or particular major long-ter m issues.

There is no longer a statutory presumption requiring the Court to start from one particular arrangement.

Are parents expected to consult each other if there is no Court order?

The current Act encourages parent s, where it is safe to do so and subject to any court orders, to consult each other about major long-term issues affecting their child.

When doing so, parents are encouraged to have regard to the best interests of the child as the paramount consideration.

The words “if it is safe to do so” are important. Family violence, abuse and other safety concerns may significantly affect what arrangements are appropriate.

Is there a presumption of 50/50 time?

No.

There is no presumption that children should spend equal time with each parent.

In fact, there was not an automatic presumption of 50/50 time under the former legislation either.

The former law created a presumption concerning parental responsibility, not equal time. However, where the former presumption applied, additional provisions required the Court t o consider equal time and then substantial and significant time in particular circumstances.

Those associated provisions were repealed as part of the 2024 reforms.

The amount of time a child spends with each parent is therefore determined according to the circumstances of the particular child and what arrangements are in their best interests.

How does the Court decide what is in a child's best interests?

The 2024 reforms also simplified the factors the Court considers when determining a child's best interests.

Under the current section 60CC, the Court considers matters including:

what arrangements would promote the safety of the child and each person who has care of the child;
any views expressed by the child;
the child's developmental, psychological, emotional and cultural needs;
the capacity of each proposed carer to meet those needs;
the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
anything else relevant to the child's particular circumstances.

There are additional consid erations concerning an Aboriginal or Torres Strait Islander child's right to enjoy their culture. The child's best interests remain the paramount consideration.

What role does family violence and safety play?

Safety is an important part of the current parenting framework.

When considering arrangements that would promote the safety of a child and their carers, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with relevant family violence orders.

Accordingly, joint decision-making will not necessarily be appropriate simply because both people are the child's parents.

The circumstances of each family must be considered individually.

What happened to existing parenting orders?

The reforms did not automatically cancel parenting orders that were already in place.

The transitional provisions applied the new parenting framework to proceedings commenced on or after commencement and generally to proceedings commenced earlier but not finally determined, subject to an exception where a final hearing had already commenced by 6 May 2024.

Parents with existing final parenting orders should continue to comply with those orders unless they are varied, discharged or otherwise cease to operate.

If circumstances have changed and you are considering seeking different parenting arrangements, legal advice should be obtained about the existing orders and the requirements for seeking to change them.

What do the changes mean for separated parents?

The practical effect of the reforms is that parents should avoid approaching parenting arrangements on the basis that either parent has an automatic entitlement to 50/50 time, equal time or a particular allocation of decision-making responsibility.

Instead, the focus should be on the individual child, including their needs, safety, circumstances and the arrangements that will best promote their welfare and development.

Parents can still reach agreements that involve substantial or equal time and joint decision-making where those arrangements are appropriate.

The important point is that there is no statutory presumption requiring that outcome .

Do parents still need to try Family Dispute Resolution?

Generally, par ents who want to apply to the Court for parenting orders must first make a genuine effort to resolve their dispute through Family Dispute Resolution, unless an exemption applies.

Exceptions can include circumstances involv ing family violence, child abuse, risk or urgency.

Parents who are able to reach agreement may document their arrangements in a parenting plan or, where appropriate, apply for consent orders.

Getting advice about parenting arrangements

The removal of the presumption of equal shared parental responsibility has changed an important part of the legal framework, but it has not removed the ability of parents to share responsibility or for children to spend significant time with both parents.

What matters is whether the proposed arrangements are appropriate for the particular child and are in their best interests.

Obtaining legal advice early can help separated parents understand how the current law applies to their circumstances and avoid relying on outdated assumptions about parental responsibility or equal time.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with parenting arrangements, parenting orders

and other family law matters across the Gold Coast and Queensland.

We provide considered legal advice and direct access to an experienced

solicitor throughout your matter.

Free 30-minute initial telephone consultation.

Family Report in Australia: What to Expect and How to Prepare

katie@kmblegal.com.au (Katie Chan) — Thu, 01 Jan 2026 08:37:14 GMT

FAMILY LAW

Family Report in Australia: What to Expect and How to Prepare

If a Family Report has been ordered in your parenting matter, understanding the process can help you approach the assessment feeling informed and prepared.

By Katie Chan

When parents are unable to agree about parenting arrangements, the Court may require independent expert information to better understand the circumstances of the family and the needs of the children.

One way the Court can obtain this information is through a Family Report.

Family Reports are commonly used where the Court is being asked to determine parenting arrangements for children. For an overview of how parenting arrangements are determined, see Parenting Arrangements After Separation: How Does the Court Decide?

A Family Report can become an important piece of evidence in parenting proceedings. It may address the children's circumstances, relationships with significant people, any identified risks and possible future parenting arrangements.

Understanding what a Family Report is—and what it is not—can help parents prepare appropriately for the assessment.

What is a Family Report?

A Family Report is an independent family assessment prepared by a family consultant to assist the Federal Circuit and Family Court of Australia in parenting proceedings.

Under section 62G of the Family Law Act 1975 (Cth), the Court may d irect a family consultant to provide a report about matters relevant to the care, welfare and development of a child under 18.

Family Reports are generally ordered where a parenting matter is progressing towards a final hearing and the Court would benefit from an independent assessment of the family circumstances.

The report does not determine the case. It provides evidence and recommendations that may assist the Court when considering what parenting arrangements are in the child's best interests.

Who prepares a Family Report?

A C ourt-ordered Family Report is prepared by a family consultant.

This may be:

a Court Child Expert, who is employed by the Court; or
a Panel Family Consultant, who is a suitably qualified private practitioner appointed as a family consultant and engaged by the Court.

The Court Children’s Service oversees the work of both. Family consultants have relevant professional qualifications and expertise in working with children and families following separation.

You may see older information referring to a “Regulation 7 Family Consultant”. T hat terminology is no longer current. These practitioners are now referred to as Panel Family Consultants following changes to the Family Law Regulations and terminology adopted by the Court in 2025.

What happens during a Family Report assessment?

The precise assessment process will depend on the circumstances of the family.

The family consultant may:

interview each parent or other significant adults;
meet with the child or children;
observe interactions between a child and a parent;
consider relevant Court documents and other information;
explore the child's relationships and family circumstances; and
consider issues concerning the child's development, wellbeing and safety.

The family consultant considers the children's experiences and development, the circumstances of the family and the issues relevant to the particular proceedings.

The process is an assessment , rather than counselling or mediation. The family consultant's role is to provide independent information to the Court, not to act for either parent.

Will my child be interviewed?

Depending on factors such as the child's age, maturity and circumstances, the family consultant may speak with the child as part of the assessment.

Section 62G generally requires a family consultant preparing a report to ascertain the child's views about the relevant matters and include those views in the report. There are exceptions where doing so would be inappropriate because of the child's age, maturity or another special circumstance. A child cannot be required to express a view.

Importantly, a child's views are not the same as the child being asked to choose between their parents.

The weight ultimately given to a child's views will depend on the circumstances of the individual case.

What does the Family Consultant consider?

A Family Report is not simply an assessment of which parent presents better during an interview.

The family consultant may consider matters including:

the child's developmental, psychological and emotional needs;
the child's relationships with each parent and other significant people;
the capacity of each proposed carer to meet the child's needs;
the child's views, where appropriate;
the history of the parenting arrangements;
allegations or concerns relating to family violence, abuse, neglect or other risks;
the practical circumstances of the family; and
the likely effect of proposed parenting arrangements on the child.

The particular issues considered will depend on the circumstances of the case and the matters the Court has asked the family consultant to address.

The law relating to parental responsibility has also changed in recent years. You can read more about these changes in our article, Equal Shared Parental Responsibility Is No Longer Presumed: What Parents Need to Know.

Is what I say to the Family Consultant confidential?

No.

This is an important distinction between a Family Report assessment and counselling.

Information provided to a family consultant when they are undertaking their Court-appointed role is not confidential. Information gathered may be admissible in Court, may be included in the Family Rep ort and may be referred to if the family consultant later gives evidence.

Parents should therefore approach the assessment openly and honestly, while remembering that the family consultant is performing an independent forensic role for the Court.

How should I prepare for a Family Report?

There is no script for a successful Family Report interview, and attempting to rehearse answers or present a carefully manufactured version of events is unlikely to be helpful.

A better approach is to be prepared to discuss:

your child's current routine and circumstances;
your child's individual needs;
the parenting arrangements to date;
what arrangements you propose for the future;
any concerns you have about the child;
how you propose to support the child's relationship with other important people, where it is safe to do so; and
any safety concerns relevant to the proposed parenting arrangements.

Try to remain focused on the child rather than the conflict between the adults.

Where concerns about the other parent are relevant, explain them clearly and factually. Avoid using the assessment simply as an opportunity to criticise your former partner.

You should also read any instructions provided by the Court Children’s Service carefully and comply with the arrangements for the assessment. If the Court has ordered attendance, parties are required to attend and follow the relevant directions.

What if there are family violence or safety concerns?

Tell your solicitor about any family violence, child abuse, neglect or other safety concerns well before the assessment.

Family consultants have specialist knowledge relevant to separated families and family violence. They may also have obligations to notify child welfare authorities where they reasonably suspect that a child has been abused, is at risk of abuse or is experiencing or at risk of certain forms of harm.

If you have concerns about attending the assessment safely, those concerns should be raised before the appointment so that appropriate arrangements can be considered.

How much does a Family Report cost?

A Family Report ordered under section 62G and prepared by a Court Child Expert or Panel Family Consultant through the Court Children’s Service is funded by the Court. There is no cost to the parties for the report.

This is different from a private family report or other expert report.

Parties may, in appropriate circumstances, engage a private professional to conduct an assessment and prepare expert evidence. Private reports are generally paid for by the parties and are not organised by the Court Children’s Service.

What happens after the Family Report is released?

The Family Report will generally set out the family consultant's assessment and may make recommendations concerning future parenting arrangements.

Those recommendations can be influential, but they do not become Court orders simply because they appear in the report.

The report forms part of the evidence available to the Court and should be considered alongside the other evidence in the proceedings.

Receiving a report can also sometimes provide an opportunity for the parties to reconsider their positions and explore whether agreement can be reached without a final hearing.

Does the Court have to follow the recommendations?

No.

The Court expressly states that a Family Report is only one source of evidence a nd that the Court is not bound by the family consultant's recommendations.

Ultimately, it is the judicial officer who determines what parenting orders should be made, applying the Family Law Act to all of the evidence before the Court.

What if I disagree with the Family Report?

A recommendation you disagree with does not necessarily mean that the assessment was unfair or that the report should simply be disregarded.

Your solicitor can consider the report with you, identify any factual issues or matters requiring clarification and advise you about how it affects your case.

Where the contents or conclusions of the report nee d to be challenged, the appropriate process may include cross-examination of the family consultant at Court.

If the family consultant is required for cross-examination, they must generally be given at lea st 14 days' written notice.

Parties should not ordinarily attempt to contact the family consultant after the report has been completed to debate the findings or provide additional information.

Family Reports and your parenting matter

A Family Report can be an important stage in parenting proceedings, particularly where significant issues remain in dispute and a matter is moving towards a final hearing.

Preparing appropriately means understanding the purpose of the assessment, complying with the Court's directions, being honest and keeping the focus on the child's needs and circumstances.

If a Family Report has been ordered in your matter, obtaining legal advice before the assessment can help you understand the process, the issues likely to be relevant and how the report may fit within the broader parenting proceedings.

If you are involved in parenting proceedings or have been advised that a Family Report will be prepared, our Family Law team can advise you about the process and how it may affect your matter.

Speak with a Gold Coast Family Lawyer

KMB Legal assists clients with parenting matters and other

family law issues across the Gold Coast and Queensland.

We provide considered legal advice and direct access to

an experienced solicitor throughout your matter.

Free 30-minute initial telephone consultation.

Confidentiality Agreements and NDAs: What Australian Businesses Need to Know

katie@kmblegal.com.au (Katie Chan) — Wed, 08 Jun 2022 13:14:47 GMT

COMMERCIAL & BUSINESS LAW

Confidentiality Agreements and NDAs: What Australian Businesses Need to Know

Businesses regularly need to share sensitive information with potential purchasers, investors, contractors, employees and commercial partners. A properly drafted confidentiality agreement can help control how that information is used, who can access it and what happens when the commercial discussions end.

By Katie Chan

Confidential information can be one of a business's most valuable assets.

Customer lists, pricing structures, financial results, supplier terms, business processes, intellectual property, growth plans and proposed transactions can all provide a commercial advantage.

Yet businesses often need to disclose that information to other people.

A business owner considering a sale may need to provide financial information to a prospective purchaser. A company seeking investment may n eed to disclose its business model and projections. A business engaging a contractor may need to provide access to customer information or proprietary systems.

A non-disclosure agreement (NDA) — also commonly called a confidentiality agreement — is a legal contract designed to protect sensitive information when it needs to be shared.

IP Australia recommends having an NDA in place before disclosing sensitive information to people such as potential business partners, employees, contractors, advisers, investors or potential purchasers.

What Is a Confidentiality Agreement?

A confidentiality agreement establishes contractual obligations concerning information disclosed between parties.

It can specify:

what information is confidential;
why the information is being disclosed;
what the recipient may do with it;
who else may receive it;
how it must be protected;
what information is excluded;
how long confidentiality obligations continue;
what happens when discussions end; and
what remedies may be available if the obligations are breached.

An NDA does not prevent information from physically being disclosed.

Instead, it establishes legally enforceable obligations governing how the recipient may use and disclose that information.

Is an NDA the Same as a Confidentiality Agreement?

Generally, the terms NDA, non-disclosure agreement and confidentiality agreement are used to describe the same type of commercial arrangement.

The title is less important than the actual terms.

A two-page document called an NDA may impose very broad obligations.

A detailed document called a confidentiality agreement may deal with exactly the same subject matter.

What matters is understanding:

What information is protected?

Who is bound?

What can they do with the information?

How long do the obligations last?

When Should a Business Use an NDA?

Confidentiality agreements can be useful whenever commercially sensitive information needs to be provided to someone outside the business.

Common situations include:

selling a business;
purchasing a business;
due diligence;
approaching potential investors;
negotiating a joint venture;
discussing a new business opportunity;
engaging contractors or consultants;
working with manufacturers or suppliers;
developing technology;
sharing intellectual property;
engaging key employees; and
exploring a potential commercial collaboration.

IP Australia specifically identifies potential business partners, employees, contractors, manufacturers, distributors, advisers, investors and potential new owners as situations where an NDA may be appropriate.

Put the NDA in Place Before Disclosing the Information

Timing matters.

Ideally, the confidentiality agreement should be signed before sensitive information is provided.

Once commercially sensitive information has been disclosed without appropriate protections, it may be considerably harder to control what happens to it.

For example, imagine a business owner sends a prospective purchaser:

three years of financial results;
its complete customer list;
supplier pricing;
profit margins;
staff information; and
details of a planned expansion,

and only afterwards asks the purchaser to sign an NDA.

The information has already been disclosed.

IP Australia recommends securing a signed NDA before telling or showing another party sensitive information.

This is particularly important in business sale transactions.

What Information Can an NDA Protect?

The definition of Confidential Information is one of the most important parts of the document.

Depending on the business, it might include:

financial statements;
budgets and forecasts;
customer lists;
customer data;
supplier information;
pricing;
profit margins;
business plans;
marketing strategies;
trade secrets;
formulas and recipes;
business processes;
software;
source code;
designs;
inventions;
research;
intellectual property;
contracts;
employee information;
acquisition opportunities;
proposed transactions; and
other information not generally available to the public.

Australian Government guidance identifies client lists, pricing information and trade secrets as examples of information that businesses may protect through confidentiality provisions.

The definition needs to be broad enough to protect the business without becoming so vague that the recipient cannot reasonably determine what information is subject to the obligation.

Should Everything Be Confidential?

Not necessarily.

A well-drafted NDA commonly excludes information that:

is already publicly available through no breach of the agreement;
was lawfully known to the recipient before disclosure;
is lawfully received from another person without confidentiality restrictions;
is independently developed without using the confidential information; or
must be disclosed by law.

The precise exclusions depend on the transaction.

Without appropriate exclusions, an NDA can purport to restrict information that is not genuinely confidential.

What Is the “Permitted Purpose”?

An NDA should usually explain why the confidential information is being provided.

This is sometimes called the Permitted Purpose.

For example:

To evaluate the proposed acquisition of the business.

Or:

To assess a potential investment in the company.

Or:

To evaluate a proposed commercial collaboration between the parties.

The recipient can then be restricted from using the information for purposes unrelated to that transaction.

IP Australia recommends describing the reason information is being shared rather than unnecessarily setting out the actual secrets within the NDA itself.

That distinction is important.

The agreement protects the confidential information — it should not itself unnecessarily reveal it.

One-Way vs Mutual NDAs

Confidentiality agreements can be one-way or mutual.

One-way NDA

A one-way NDA is appropriate where only one party is expected to disclose confidential information.

For example, a business owner may provide information to a potential purchaser who is primarily receiving rather than contributing confidential material.

Mutual NDA

A mutual NDA may be appropriate where both parties expect to disclose sensitive information.

For example, two businesses exploring a joint venture may each disclose:

financial information;
technology;
customer information;
intellectual property; and
business plans.

IP Australia's NDA resources expressly distinguish between one-way agreements, where one party provides confidential information, and mutual agreements, where both parties do so.

The agreement should reflect the actual flow of information.

Who Can the Recipient Share the Information With?

A prospective purchaser or investor may legitimately need to share information with advisers.

For example:

solicitors;
accountants;
financial advisers;
financiers;
employees involved in the transaction; or
consultants conducting due diligence.

The NDA should specify who may receive the information and on what basis.

It may require the recipient to ensure those people:

need the information for the permitted purpose;
understand its confidential nature; and
are subject to appropriate confidentiality obligations.

This prevents the NDA from becoming commercially unworkable while still controlling further disclosure.

NDAs When Selling a Business

Confidentiality is particularly important when a business is being sold.

A potential purchaser may request access to highly sensitive information before deciding whether to proceed.

This can include:

profit and loss statements;
tax information;
customer information;
employee details;
lease documents;
supplier agreements;
pricing;
margins;
intellectual property;
business plans; and
operational information.

The risk can be greater if the prospective purchaser is an existing competitor.

An NDA can restrict the purchaser from using the information for purposes other than evaluating the proposed acquisition.

It may also prohibit disclosure of the fact that the business is for sale.

Confidentiality During Due Diligence

Once a purchaser progresses to due diligence, considerably more information may need to be disclosed.

An NDA can provide the contractual framework under which that information is provided.

However, the seller should still control the due diligence process.

Information may be released progressively rather than providing unrestricted access to everything immediately.

Particularly sensitive material might only be disclosed:

after the purchaser demonstrates genuine interest;
after commercial terms are agreed;
through a controlled data room;
to nominated advisers; or
at a later stage of due diligence.

An NDA is one layer of protection. Sensible information management remains important.

NDAs and Prospective Investors

A company seeking investment may need to disclose significant information to potential investors.

This can include:

revenue;
profitability;
forecasts;
intellectual property;
product development;
customer metrics;
growth strategies; and
future commercial opportunities.

Whether an NDA is appropriate can depend on the circumstances and stage of the investment process.

Where confidential information is disclosed, the business should consider what genuinely needs to be provided and when.

Confidentiality should form part of the broader investment process rather than assuming every person expressing interest should immediately receive unrestricted access to sensitive business information.

Employees and Contractors

Employees and contractors can also gain access to important confidential information.

This may include:

customer databases;
internal systems;
pricing;
trade secrets;
marketing plans;
financial information; and
proprietary processes.

Confidentiality obligations may be included within an employment or contractor agreement rather than requiring a separate NDA.

Australian Government contract guidance recommends identifying the confidential information that needs protection so the parties understand what is subject to the obligation.

The appropriate structure depends on the relationship and nature of the information.

Protecting Trade Secrets

Some business information derives its value precisely because it remains secret.

Examples might include:

formulas;
recipes;
manufacturing processes;
algorithms;
business methodologies;
proprietary datasets; and
confidential technical know-how.

IP Australia identi fies trade secrets as an u nregistered form of intellectual property protection and notes that confidentiality agreements can be used as part of maintaining secrecy.

This differs from registered intellectual property rights such as patents and trade marks.

Maintaining confidentiality can therefore be fundamental to the commercial value of certain information.

Confidentiality and Intellectual Property Are Different

An NDA does not necessarily determine who owns intellectual property.

This distinction is important.

Suppose Company A provides confidential technology to Company B so they can collaborate on a new product.

The NDA may prohibit Company B from disclosing Company A's technology.

But what happens if the parties jointly develop new technology during the project?

Who owns it?

Who can commercialise it?

Can either party licence it to someone else?

Those issues require appropriate intellectual property provisions.

IP Australia recommends considering both existing or “background” IP and any new IP created through a commercial collaboration.

Confidentiality and ownership should therefore be addressed separately.

Customer Lists and Business Information

Customer information can be particularly valuable.

An NDA may restrict a recipient from using customer information except for the permitted purpose.

But businesses should remember that confidentiality obligations are only one part of the legal framework.

Depending on the information involved, privacy laws, contractual obligations owed to customers and other legal requirements may also affect whether and how information can be disclosed.

A confidentiality agreement does not override those obligations.

How Long Should Confidentiality Last?

There is no universal period that suits every NDA.

The appropriate duration depends on the nature of the information.

Some information may lose commercial sensitivity relatively quickly.

For example, a proposed transaction may become public once completed.

Other information — such as a proprietary formula or genuine trade secret — may retain commercial value for many years.

IP Australia notes that NDAs can potentially operate indefinitely and recommends monitoring any expiry dates included in agreements.

The duration should therefore be considered in relation to the actual information being protected.

What Happens When Discussions End?

Not every proposed transaction proceeds.

A prospective purchaser may withdraw.

An investor may decide not to invest.

A proposed joint venture may never be established.

The NDA should address what happens to confidential information in those circumstances.

Depending on the arrangement, the recipient may be required to:

return documents;
destroy information;
delete electronic copies;
cease using the information;
confirm destruction; or
continue protecting information retained for legitimate legal or compliance purposes.

These provisions are particularly important where substantial due diligence material has been provided.

Can an NDA Prevent All Disclosure?

No.

An NDA should usually recognise circumstances where disclosure may be legally required.

For example, a recipient might be compelled to disclose information:

under legislation;
pursuant to a court order;
to a regulator; or
through another legally binding process.

The agreement may require the recipient, where legally permitted, to notify the disclosing party before making the disclosure.

An NDA cannot simply contract out of every statutory disclosure obligation.

What Happens if an NDA Is Breached?

A breach can potentially result in contractual remedies.

The appropriate remedy will depend on the circumstances, the terms of the agreement and the loss or threatened harm.

In some cases, financial compensation may be relevant.

In others, preventing further disclosure may be considerably more important than recovering money after the information has already spread.

That is why confidentiality agreements commonly contemplate the possibility of urgent relief where appropriate.

The practical difficulty is obvious: once genuinely secret information has become public, it may be impossible to make it secret again.

Prevention and careful information control are therefore important.

Is an NDA an Agreement or a Deed?

It can potentially be structured as either, depending on the circumstances.

Many NDAs are ordinary contracts.

In some situations, the parties may choose to document confidentiality obligations by deed.

The appropriate form depends on matters including the obligations being created, consideration and the broader transaction.

The choice should be deliberate rather than assuming a document is stronger merely because it is called a deed.

What Does “Commercial in Confidence” Mean?

Businesses often place words such as:

CONFIDENTIAL

COMMERCIAL IN CONFIDENCE

on documents, emails and presentations.

Doing so can be useful.

IP Australia recommends marking confidential materials shared with third parties as confidential even where an NDA is already in place.

However, putting “Commercial in Confidence” on a document is not the same thing as entering into a confidentiality agreement.

The label can help demonstrate how the business treats the information, but it does not itself set out:

who is contractually bound;
what they may do with the information;
permitted recipients;
duration;
return or destruction obligations; or
contractual consequences of misuse.

This is an important distinction for businesses relying solely on confidentiality labels.

An NDA Is Not a Substitute for Sensible Information Security

Signing an NDA does not mean a business should then provide unrestricted access to every confidential document it holds.

Practical protections remain important.

These may include:

limiting information to what is genuinely necessary;
restricting access to nominated people;
using secure data rooms;
watermarking documents;
disabling downloads where appropriate;
keeping records of information disclosed;
releasing particularly sensitive information later in the process; and
revoking access when discussions end.

IP Australia recommends storing and monitoring NDAs and continuing to identify confidential materials appropriately.

Contractual protection and practical information security work together.

Common Problems With Confidentiality Agreements

Problems can arise where an NDA:

defines confidential information too vaguely;
defines everything as confidential regardless of its nature;
fails to identify the permitted purpose;
allows disclosure to too many people;
does not deal with advisers or employees;
has an inappropriate confidentiality period;
does not address return or destruction;
fails to deal with intellectual property separately;
identifies the wrong legal entity;
is signed after the information has already been disclosed; or
has been copied from another transaction without considering the actual circumstances.

A short NDA is not necessarily inadequate, and a long NDA is not necessarily better.

The document needs to fit the transaction.

Confidentiality in Shareholder Arrangements

Shareholders commonly have access to sensitive company information.

A shareholders’ agreement may therefore contain confidentiality provisions dealing with:

financial information;
customer information;
intellectual property;
business plans;
board information; and
proprietary systems.

Those obligations may continue after a shareholder exits the company.

Where a prospective new shareholder is given confidential information before investing, a separate NDA may also be appropriate before they formally join the company.

Before Signing an NDA

Whether you are providing or receiving confidential information, consider:

What information is actually confidential?

Why is it being disclosed?

Is the NDA one-way or mutual?

Who can receive the information?

Can advisers access it?

What information is excluded?

How long do the obligations continue?

What happens when negotiations end?

Must information be returned or destroyed?

Are intellectual property rights dealt with separately?

Is disclosure required by law appropriately addressed?

Is the agreement being signed before the information is released?

The answers should reflect the actual commercial transaction rather than relying on a generic template.

Protect the Information That Gives Your Business Value

Confidential information can represent years of work.

Customer relationships, pricing models, intellectual property, business systems and strategic plans can all contribute to the value of a business.

There will be times when that information needs to be shared to pursue an opportunity.

The objective of a confidentiality agreement is not to prevent commercial discussions. It is to allow those discussions to occur within an agreed framework for protecting sensitive information.

Confidentiality Agreements and NDAs on the Gold Coast

KMB Legal assists businesses and business owners with confidentiality

agreements, NDAs and commercial contracts across the Gold Coast

and Queensland.

We can assist with preparing and reviewing confidentiality agreements for

business sales, due diligence, commercial negotiations, shareholders,

contractors, investors and other business arrangements.

The agreement can be tailored to the information being disclosed

and the particular commercial transaction rather than relying on a

generic document.

Free 30-minute initial telephone consultation.

Parenting Arrangements After Separation: How Does the Court Decide?

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 10:16:49 GMT

FAMILY LAW

Equal Shared Parental Responsibility Is No Longer Presumed:

What Parents Need to Know

The law on parental responsibility

changed in May 2024. Learn what the changes mean for decision-making, parenting arrangements and time

with children.

By Katie Chan

Separation can bring significant changes to a child's everyday life.

Parents may need to decide where their child will live, how much time they will spend with each parent, arrangements for school holidays and special occasions, and how important long-term decisions will be made.

Many parents are able to reach these arrangements themselves. Where they cannot agree, Australian family law does not begin with a fixed formula for how a child's time should be divided.

The central consideration is the best interests of the child.

Is there a presumption that children spend equal time with each parent?

No.

There is no presumption that children should spend 50/50 or equal time with their parents.

The parenting laws changed on 6 May 2024, including the removal of the former presumption of equal shared parental responsibility and the associated provisions that required consideration of equal or substantial and significant time in particular circumstances.

This does not prevent parents from agreeing—or the Court from ordering—that a child spend equal time with each parent where appropriate. It simply means there is no statutory starting point requiring that arrangement.

What does the Court consider when deciding a child's best interests?

Section 60CC of the Family Law Act 1975 sets out the matters the Court must consider.

They include:

arrangements that promote the safety of the child and each person caring for the child, including safety from family violence, abuse, neglect or other harm;
any views expressed by the child;
the child's developmental, psychological, emotional and cultural needs;
each proposed carer's capacity to meet those needs;
the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so; and
anything else relevant to the child's particular circumstances.

Additional considerations apply for an Aboriginal or Torres Strait Islander child concerning the child's right to enjoy their culture.

There is therefore no universal parenting arrangement that the Court simply applies to every family.

Does the child get to choose where they live?

A child's views can be relevant, but there is no particular age at which a child simply decides the outcome.

The Court must consider any views expressed by the child, but the significance given to those views will depend upon the circumstances.

The Act directs the Court to consider matters relevant to the weight given to a child's views, including the child's age and maturity.

Children are also not required to express a view.

In Court proceedings, their views may be obtained through processes such as a Family Report , rather than placing the child in the position of having to choose between their parents.

What role does safety and family violence play?

Safety is expressly included in the current best-interests framework.

The Court considers what arrangements would promote the safety of the child and of each person caring for the child.

When considering safety, it must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, as well as relevant family violence orders.

Depending on the circumstances, safety concerns may affect where a child lives, how and when they spend time with another person, changeovers, communication and decision-making arrangements.

What can parenting arrangements cover?

Parenting arrangements can extend well beyond deciding where children sleep.

Parenting orders can address matters including:

who a child lives with;
the time a child spends with each parent or other significant people;
how a child communicates with a parent or another person;
allocation of parental responsibility and decision-making;
holidays and special occasions; and
other aspects of the child's care, welfare and development.

Good parenting arrangements also need to be sufficiently practical for the particular family.

The child's age, schooling, activities, parents' work commitments, distance between households and other circumstances may all affect what arrangements are workable.

Who makes important decisions about the child?

Parents generally have parental responsibility for a child under 18, subject to any parenting order.

If the Court makes an order for joint decision-making about a major long-term issue , the people covered by the order must consult each other and make a genuine effort to reach a joint decision.

Major long-term issues can include matters concerning education, health, religious and cultural upbringing, the child's name and significant changes to living arrangements.

The Court can also make orders providing for one person to have sole decision-making responsibility for particular issues where appropriate.

What if we agree on the parenting arrangements?

Parents who reach agreement do not necessarily need a contested Court case.

An agreement can commonly be documented through either a parenting plan or consent orders.

A parenting plan is a written, signed and dated agreement concerning parenting arrangements. It is not itself legally enforceable.

Consent orders are orders made by the Court by agreement. Once made, they are legally binding and enforceable. Even where both parents agree, the Court must be satisfied that proposed parenting orders are in the child's best interests.

The appropriate option depends upon the family's circumstances.

What if we cannot agree?

Parents are generally required to make a genuine effort to resolve parenting disputes th rough Family Dispute Resolution (FDR) before applying to the Court.

FDR involves an independent registered practitioner assisting parents to try to resolve their disagreement.

There are exceptions to the pre-filing requirement, including in certain circumstances involving family violence, child abuse, risk and urgency.

If agreement still cannot be reached, a parent may apply to the Federal Circuit and Family Court of Australia for parenting orders.

What happens once Court proceedings begin?

The Court may make interim orders while the proceedings are underway and ultimately final parenting orders if the matter does not resolve beforehand.

Depending on the issues, the Court may also have evidence from affidavits, subpoenaed material, expert evidence or a Family Report.

The precise process varies considerably depending upon the complexity and circumstances of the family.

Can grandparents or other significant people be included?

Yes.

Parenting orders are not limited to arrangements between two parents.

The legislation expressly allows applications by grandparents and other people concerned with the child's care, welfare or development, and parenting orders can address time and communication with other significant people.

The child's best interests remain the paramount consideration.

Can parenting arrangements be changed later?

Sometimes .

Informal arrangements and parenting plans can generally be changed by further agreement.

Final parenting orders are different. If one par ent seeks to change final orders and the other does not agree, the Court must first consider whether there has been a significant change of circumstances and whether reconsidering the final parenting order would be in the child's best interests.

This is one reason it is important to think carefully about proposed final orders rather than treating them as temporary arrangements.

What should parents focus on after separation?

Parenting disputes can easily become focused on what each parent believes is fair to them.

The legal framework takes a different approach.

The focus is on the particular child—their safety, needs, circumstances, relationships and the arrangements that are in their best interests.

For some families, that may involve substantial or equal time with both parents. For others, a different arrangement may better meet the child's needs.

There is no automatic formula.

Getting legal advice about parenting arrangements

Obtaining legal advice early can help parents understand how the current law applies to their family, what options are available for resolving disagreements and how any agreement should be documented.

It can also help identify issues that should be addressed before arrangements are finalised, particularly where there are safety concerns, significant disagreement about decision-making or existing parenting orders.

Speak with a Gold Coast Family Lawyer

KMB Legal assists parents with parenting arrangements, consent orders, parenting

proceedings and other family law matters across the Gold Coast and Queensland.

We provide considered legal advice and direct access to an experienced solicitor

throughout your matter.

Free 30-minute initial telephone consultation.

Binding Financial Agreement: Everything you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 20 Apr 2022 09:18:01 GMT

Binding Financial Agreement: Everything you need to know

In Australia, a financial agreement is a written document that sets out the terms and conditions of how two people share their financial resources. Popularly known as a prenup, a BFA can be used to:

split property and assets between two or more people
set out who pays for what (e.g. who pays the mortgage, who pays for groceries, etc.)
manage and divide money and assets between two or more people
set out what will happen to money and assets if someone dies.

Financial agreements can be made before, during or after a relationship has ended. They can be made by married or de facto couples, or by any two people who are not married or in de facto.

What are the benefits of a financial agreement?

Financial Agreements are important because they can help couples avoid costly and time-consuming legal disputes about money matters and abide by family law. They can also help ensure that each person’s financial interests are taken into account when a relationship ends. Financial Agreements can be tailored to meet the specific needs of each couple and can be amended or cancelled at any time if both parties agree.

There are many benefits to having a BFA, including:

providing clarity and certainty about who owns what and who is responsible for what
avoiding conflict about money and possessions
saving time, stress and legal costs if a relationship breaks down.
maintenance of the family law system

Who can qualify for a Financial Agreement?

Financial Agreements, very similar to prenuptial agreements, are legal agreements between couples that can be used to set out how they will handle their finances during and after their relationship. Financial Agreements can be made before, during, or after a relationship has ended, and can cover issues such as property ownership, asset division, spousal maintenance, and superannuation. Financial Agreements can be entered into by couples who are:

Married
intending to marry
living in a de facto relationship
have separated from a marriage or de facto relationship.

If you and your partner have already entered a BFA, it is important to seek legal advice from a qualified solicitor. This will help ensure that the existing financial agreement is legally binding and will protect your rights and interests.

When is a BFA recommended?

Couples often look at financial agreements in the following situations:

When one party has considerably more assets than the other, an inheritance or a family business they have come into)
When one party has significant obligations from which they wish to protect their spouse
When stakeholders want to protect the business from marital disputes if one of the spouses are a significant part of this business
When one of the spouses needs to provide for others and cannot risk tampering with a situation like that in case of a separation.

Steps to make a Financial Agreement in Australia

If you and your partner are considering entering into a BFA, there are a few things you need to do first.

1. Get legal advice

You must each get independent legal advice from a lawyer before you sign a BFA. This is so you understand what the agreement means and the consequences of signing it. This is also a legal requirement for the BFA to be legally binding under the Family Law Act .

2. Make a financial disclosure

Both parties must make full and frank financial disclosure. This means you must disclose all assets, liabilities, and resources. You must also disclose income, expenses, and debts. This is required so the parties are fully informed about the matrimonial property pool in the event of separation.

3. Draft the agreement

Your lawyer will help you draft the financial agreement. The agreement must include the following:

The names and addresses of the parties involved
The date the agreement was made
Details of each party's assets and liabilities
How the assets and liabilities will be divided
Any other terms and conditions that need to be included

4. Sign the agreement

Once you have both agreed to the terms of the financial agreement, your lawyer will help you to sign it.

5. Independent Legal Advice

As stated above, each party to the financial agreement must have legal advice. The legal advice must be independent by two separate lawyers. Each lawyer must sign a certificate of independent legal advice contained in the BFA.

If you follow these steps, this will help ensure that your BFA will be binding and enforceable in court.

Conclusion

No matter where in the world you are, it is important to have some kind of written agreement in place should you have a relationship breakdown. This will help to ensure that both parties are treated fairly and equitably during and after a divorce. While financial agreements may not be romantic, they can provide peace of mind during what can be a difficult time in the family court.

While prenuptial agreements are not legally required in Australia, they can be very helpful in safeguarding both parties during the marriage. If you are considering getting married, it is important to discuss financial agreements with your partner and seek someone to provide legal advice to ensure that you are protected in the event of a divorce.

FAQs

What should a binding Financial agreement in Australia include?

A binding financial agreement (BFA) is a written agreement under the Family Law Act, 1975 between two or more people that sets out how they will divide their property and finances if they separate. BFAs are commonly used in Australia to help couples avoid the cost and stress of going to court if they decide to break up.

There are a few things that every BFA must include in order to be legally binding:

The names of all the parties involved in the agreement
A statement that each party has received legal advice before signing the agreement
A full disclosure of each party's financial circumstances, including income, assets and debts to make the process of income and property settlement easier.
The terms of how the property and finances will be divided between the parties
The signatures of all the parties involved in the agreement

If you want your BFA to be legally binding, it's important to get independent legal advice before signing it. This means that each party has their own lawyer who can advise them on the implications of signing the agreement.

Can you write your own financial agreement in Australia?

Yes, you can write your own BFA in Australia. However, it is important to seek legal advice to ensure that the agreement is enforceable and meets your specific needs and those of the Family Law Act. A BFA can be a very effective way of ensuring that both parties are fairly compensated in the event of a breakup. It can also help to avoid costly legal disputes.

Since this is not an informal agreement, it is important to be aware of the following:

The agreement must be in writing and signed by both parties
The agreement must be fair and reasonable, and not unduly favour one party over another
The agreement must be made without coercion or duress

Who signs a binding financial agreement in Australia?

Both parties to a marriage or de facto relationship can sign a binding financial agreement in Australia. However, it is important to note that the agreement must be signed by both parties before any property can be divided between them. If one party does not sign the agreement, then the other party will not be able to receive any of the benefits that were outlined in the agreement.

Do binding financial agreements expire in Australia?

No, binding financial agreements do not expire in Australia. They will continue to be binding until they are terminated or amended. This means that both parties must comply with the terms of the agreement, or they may face legal penalties. If you have any questions about your binding financial agreement, it is best to speak with a lawyer.

How does a binding financial agreement work in Australia?

When two people decide to get divorced, they will need to come to an agreement about how they will divide their assets. This can be a difficult process, and often requires the help of a lawyer. In some cases, the couple may choose to enter into a binding financial agreement.

A binding financial agreement is a legally binding contract that sets out how the couple will divide their assets. This can include property, money, investments and superannuation. The agreement can also cover issues such as child support and spousal maintenance.

The agreement must be fair to both parties and must be signed by both parties and their lawyers. Once it is signed, it is legally binding and can only be changed if both parties agree to it.

How do you get legally separated in QLD?

If you are considering a binding financial agreement Qld, it is important to understand the process and what is involved. In most cases, you will need to obtain a separation order from the Court.

The first step is to speak to a family lawyer who can advise you on your options and help you prepare the necessary paperwork. They can also help you to negotiate any financial or property settlements that need to be made.

If you and your spouse are able to come to an agreement about the terms of your separation, you can make a joint application to the Court. If there is disagreement, the Court will need to make a decision on the matter.

Can a binding financial agreement be challenged?

Yes, a binding financial agreement in Australia can be challenged. However, there are certain grounds on which an agreement can be challenged, such as if the agreement was entered into under duress or if it is unfair. If an agreement is successfully challenged, it may be set aside by the court.

What is a separation declaration?

A separation declaration is a document that is filed with the court by one or both spouses in order to begin the process of legally separating. This document outlines the grounds for separation, as well as any other relevant information pertaining to the couple's marriage. It is important to note that a separate declaration is different from a divorce decree, which is the final legal document that dissolves a marriage. A separation declaration is simply the first step in a longer process.

What Is a Deed and When Is It Helpful to Have One in Australia?

katie@kmblegal.com.au (Katie Chan) — Tue, 19 Apr 2022 19:39:22 GMT

What Is a Deed and When Is It Helpful to Have One in Australia?

When dealing with contracts it is important to know what a deed is. A deed is a binding promise to do something that requires no consideration. This is one of the key differences that makes a deed different from an agreement and/or contract.

A deed shows that someone has a serious intent to do what they said they would do with another party. They are most commonly used to pass legal or equitable interests in property, to confirm an agreement between parties, or to create a binding obligation on another party.

Our team at KMB Legal has decades’ worth of collective experience in commercial and family law that allows us to personalise services for the Gold Coast community.

Whether you need assistance for a small business or large enterprise, or you are simply making a deed for a personal situation, we are here to help make it a fast and simple process. We can assist from drafting documents to negotiations, and settling disputes.

If you are preparing to execute a deed there are formalities you will need to adhere to. This article will cover important information you will want to know. Here is what to expect:

What is a deed?
How are deeds and agreements different?
Different types of deeds
Key components of a deed
Are deeds legally binding?
How to execute a deed
Final thoughts
FAQ
What type of deed is commonly used?
What is a deed in a mortgage?
Where are property deeds kept?
What is a deed in property law?
Does a deed need two parties?
What is a settlement deed?
Is there a limitation period for deeds?
Key takeaways
Get your questions answered

What Is a Deed?

A deed is a particular form of legal document which indicates a party’s promise to do something. There are many different types of deeds, and they are specific to their local state or territory.

The common law requirements for executing a deed are for it to be written, sealed and delivered to the other party. People usually create a deed as a solemn indication that they intend to transfer an interest in property or create an obligation they must act on.

A deed becomes contractually binding even without consideration. However, if you fail to follow the guidelines set forth by your local laws you may create a deed that is unenforceable.

How Are Deeds and Agreements Different?

Although they may seem similar, there are two key differences between deeds and agreements.

There are three specifications for making an agreement:

There needs to be a party that makes an offer and a party that accepts that offer
The parties need to have the intention of being legally bound
There needs to be an exchange of consideration (something of value)

The first important difference is there are only two necessary specifications to form a deed. They are that an offer is made and there is an intent to be legally bound. There is no consideration provided when making a deed.

To give a simple example, if you sell something for the money you may need an agreement . But if you are giving something away that does not require consideration you might need a deed.

A second key difference between deeds and agreements is that you only need the deed signed, sealed, and delivered by one party to become a binding agreement. Whereas with an agreement you must have the signature of both parties for it to be legally binding.

Different Types of Deeds

Confidentiality deed
Deed poll
Deed of termination
Escrow deed
Financial guarantee or letter of credit
Indemnity deed
Deed of forbearance
Deed of settlement
Deed of novation
Deed of release

Key Components of a Deed

There are 45 formalities of deeds as outlined by the Property Law Act 2023 . It states that you do not need to use any formal words to form a deed. But, it must be signed, sealed and delivered by the executing party, with at least one witness.

Other key components are to include the names of involved parties, the date, and any clauses or covenants.

Are Deeds Legally Binding?

Deeds are not just fancy words. Executing a deed does create a binding obligation that becomes legally enforceable.

If there is a breach of a deed you can pursue remedies against the breaching party. The most common is specific performance or damages for breach.

A breach occurring for a deed is more simple to take to court than one concerning an agreement, as it does not require proof that consideration was given.

How To Execute a Deed?

Deeds created for companies require two directors, or one director and the company secretary, to provide their signatures. No witnesses are required. As soon as one party signs the deed it becomes binding. It does not matter if the other party has signed the document or not.

The person signing the deed must write it down and deliver it to the other party.

If you are creating a deed outside of business reasons, then you should have at least one witness to the signature. The witness should be over the age of 18 years old, and must have known you for at least one year. They must include their full name and residential address, and they cannot be a party to the transaction.

You may also wish to seek advice from a legal professional to make sure you execute the deed correctly. The legislation will be specific to each state and if you make a mistake the deed can be unenforceable in court.

Final Thoughts

Deeds can seem easy to create, however, to form a deed that is valid and enforceable, it may be wise to seek legal assistance. A deed executed for a business may be more complicated than one created for personal reasons. The right legal services can help you understand and follow all of the professional standards legislation requirements.

FAQ

What Type of Deed Is Commonly Used?

Deeds of confidentiality are an example of a type of deed commonly used. They are helpful when a party wishes to receive confidential information without providing any consideration.

This piece of contract law protects any confidential information shared between companies, like intellectual property. It includes many clauses that detail the consequences of disclosing information from your confidential discussion.

But there are many other reasons someone might want to use a deed. Here are some of the reasons they are commonly used:

To pass a legal or equitable interest in property or other rights
To confirm an agreement that passes legal interest in property or rights
To bind another party by an obligation
To share intellectual property between two companies
To evidence an agreement that is made after a dispute between two parties
To provide a bank guarantee
To ensure another party does not share confidential information with a non-disclosure deed
To transfer property

What Is a Deed in a Mortgage?

A deed in a mortgage is referred to as a Certificate of Title, or a title deed. It is a document prepared to transfer the property into the name of the buyer. It is a legal document showing who owns the property.

Each Australian state and territory manage their land registries. For example, Titles Queensland manages the digital copies for Queensland. Check with your local agency for specific details.

Where Are Property Deeds Kept?

The government used to hold paper title deeds for every property in Queensland. In 1994 they went digital, and now the Queensland Land Titles Registrar manages them.

Property owners can have a certificate of title if they would like one. But, you must first apply to get one. If you have a mortgage on the property you will need your mortgagee to consent to its issuance as well.

What Is a Deed in Property Law?

A deed in property law comes from the Old System, or general law title passed down from the crown. Most of the land in Australia is now held under the Torrens title system. This includes all of the lands in the Australian capital territory.

However, much of the Northern territory is still under general law. This means it still verifies the validity of the deed of conveyance for the property and ensures proper title for the deed of transfer to be clear.

Does a Deed Need Two Parties?

You do not need two parties to become legally bound by a deed. It becomes immediately binding when the executing party signs it.

What Is a Settlement Deed?

You can use a deed of settlement when you are in a commercial dispute and have reached an agreement for a resolution that you are ready to formalise. A deed of settlement will make sure that the agreement is satisfied. If it is not, the breaching party can be taken to court.

Is There a Limitation Period for Deeds?

There is a limitation period for bringing a deed to court. It can vary by state so check for current time frames in your specific location. The limitation periods start at the point when the breach, or dispute, first occurred.

At the time of this article, the limitation periods are:

New South Wales limitation period - 12 years
Queensland limitation period - 12 years
Australian Capital Territory limitation period - 12 years
Western Australia limitation period - 12 years
Tasmania limitation period - 12 years
South Australia limitation period - 15 years
Victoria limitation period - 15 years

Key Takeaways

Remember, the major difference between a deed and an agreement is that there is no consideration required for the creation of a deed, and only the person executing the deed needs to sign it to be legally binding.

They are commonly used to show that someone has the most serious indication to do something. They often serve as evidence that property interest or something similar is being exchanged.

You should check with the legislation specific to your state, region, or territory to find out the specifics when entering into any agreements, as modern contract law can change frequently.

It is always a good idea to seek out legal guidance when you plan to create legal relations. A professional legal team can provide advice and assistance. This can save time and cost that might arise from mistakes when trying to do it yourself.

Get Your Questions Answered

Let our team at KMB Legal help you with your deed creation. We can assist in drafting fully enforceable deeds you can rely on should you experience a breach down the road.

If you seek specific advice about a deed that has already been executed we can help you sort any questions. Please contact us for a free consultation .

What is a Memorandum of Understanding (MOU) & Why Use One?

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 11:27:31 GMT

What is a Memorandum of Understanding (MOU) And Why Use One?

A memorandum of understanding (MOU) is a legal document that sets forth the agreement between two parties. This is usually a commercial relationship.

It spells out the terms and conditions of the relationship, and establishes the responsibilities of each party.

A MOU can be used to establish a business partnership, outline the terms of a contract, or govern any other type of relationship. Whether in Australia or overseas, the MOU always serves as an outline for a formal contract, and is rarely considered a legally binding document.

Here's what makes a MOU different.

A Memorandum of Understanding is not a contract, though it sounds like one. It is not legally binding, and does not create any legal rights or obligations. However, it can be used as the basis for a future contract. A MOU can also be helpful in resolving disputes, since it provides a written record of the agreement between the parties.

Despite the fact that the Memorandum of Understanding is not a legally enforceable document, it still serves a very important purpose.

The terms of a MOU are often less detailed than those in a contract. This is because a MOU is not a legally binding agreement. It is also shorter and less formal than a contract.

What is the purpose of MOU?

MOUs are used to establish mutual goals between two or more parties. By setting out specific objectives and working together, both sides can benefit from the agreement and eventually create legally binding obligations. MOUs can be used for a variety of purposes, such as developing a business relationship, sharing knowledge, or co-operating on a project.

The Memorandum of Understanding can be useful for both businesses and individuals. For example, if you're starting a new business, you can use a MOU to outline the terms of your working relationship with suppliers and customers. This will help to avoid any misunderstandings when entering a formal contract further down the line.

Individuals can also use MOUs to formalise a binding contract between friends or family members. For example, if two people want to share a car, they could draw up a MOU to set out the terms of their agreement.

MOUs are generally not legally binding, but they can be helpful in setting out the expectations of both parties involved. If one party breaches the agreement, the other party may have grounds for taking legal action.

When drafting an MOU, it's important to make sure that all parties involved are aware of what's included. The document should be clear and concise, and it should spell out the consequences of breaking the agreement. It's also a good idea to have a lawyer from a commercial law firm review the MOU before signing it.

Types of MOU

There are two types of Memorandum of Understanding: bilateral, and multilateral.

A bilateral memorandum of understanding is an agreement between two parties, while a multilateral memorandum of understanding is an agreement between more than two parties.

What is a Bilateral MOU?

A bilateral memorandum of understanding is a type of preliminary written agreement that two parties make. This type of agreement is usually used to outline the responsibilities of each party, and can be used for a number of different reasons.

What is a Multilateral MOU?

A multilateral memorandum of understanding is an agreement between more than two parties. This type of agreement is often used when multiple parties want to work together on a project or goal. This can also help to outline the responsibilities of each party.

Key Components of MOU

The key components of an MOU typically include the following:

The names and contact information of the parties involved
The roles of the parties involved
The purpose of the agreement
The governing law
The effective date of the agreement
The shared goal
Important dates and commitments
Dispute resolution measures
The names and contact information of the parties involved

Every MOU is unique, and the content depends on the nature of the partnership. Seek legal advice before you enter further negotiations for understanding legally binding agreements.

MOU vs Contracts: What are the differences?

A MOU is more like a gentlemen’s agreement – it is an agreement that is generally not legally enforceable.. A contract, on the other hand, is a legally binding agreement between two parties. Both parties, however, are focused on a mutually beneficial goal. The difference lies in this– a legal contract is a serious declaration that binds the parties in law, while an MOU just outlines the preferred outcome.

A MOU usually outlines the broad strokes of an agreement, while a contract goes into more specific details. A MOU is typically used as a stepping stone towards a more formal agreement, such as a contract.

In detail, here are the differences between the two.

FAQS

Does MOU need to be notarised?

No, an MOU does not need to be notarised. However, both parties may wish to have the document witnessed and/or signed by a third party as a show of good faith. If either party plans to enforce the terms of the MOU in court, they may want to consider having the document notarised as additional evidence.

How long is a MOU valid?

An MOU is typically valid for a period of two to three years. After that, the agreement may be renewed or renegotiated as needed.

Is MOU valid in court?

There is no definitive answer to this question, as the validity of an MOU may vary depending on wide variety of factors such as the specifics of the agreement, the jurisdiction in which it is being enforced, the intentions of the parties and the circumstances surrounding the agreement itself.

However, in general, a MOU is more likely to be upheld in court if it is clear, concise, and includes all relevant information regarding the parties' obligations and rights. Additionally, both parties must sign the MOU for it to be legally binding. If one party refuses to sign, a court may not enforce the agreement.

What is the difference between an MOU and a MOA?

In Australia, a MOU, or memorandum of understanding, is a less formal agreement between two parties, whereas a MOA, or memorandum of agreement, is a more formal and binding agreement. A MOU typically outlines the terms of an agreement in less detail than a MOA, and is not legally binding. A MOA is more detailed and specific, and is legally binding.

A MOU is also less likely to be litigated than a MOA.

Can a MOU be cancelled in Australia?

Yes, a MOU can be canceled. However, the process for canceling a MOU varies depending on the terms of the agreement. In some cases, either party may cancel the MOU by providing written notice to the other party. In other cases, cancellation may only be allowed if both parties agree to it. If there is a dispute over whether or not an MOU can be canceled, the dispute may need to be resolved in court.

How do I terminate a MOU?

The steps for terminating an MOU are relatively simple. The parties simply need to agree on the termination and notify the other party in writing.

Once the termination is agreed upon, each party needs to provide written notification of the termination to the other party. This can be done through email, a formal letter, or even a phone call. It is important to make sure that the notification is clear and concise, so that there is no confusion about the end of the MOU.

Once the other party has been notified, the MOU is considered terminated. Both parties are then free to pursue other agreements or relationships. It is important to note that, depending on the terms of the MOU, there may be certain conditions or requirements that must be met before the MOU can be terminated. For example, some MOUs may require a certain notice period before termination can occur. Be sure to check the terms of your MOU before taking any action to terminate it.

What happens when a MOU expires?

When an MOU expires, the terms and conditions of the agreement are no longer in effect. The parties are free to renegotiate the terms of the agreement, or terminate the agreement entirely. If the MOU is renewed, the new agreement will contain updated terms and conditions that reflect any changes in the parties' circumstances.

Is a MOU an enforceable contract?

An MOU itself is generally not a legally binding contract, but it can be used as evidence of an agreement between two or more parties. An MOU may also include provisions that are legally binding, such as provisions related to confidentiality or non-compete agreements. Generally, a MOU will be less formal than a contract and may be easier to negotiate and execute.

How much detail does my Memorandum of Understanding need?

The amount of detail you need in a Memorandum of Understanding (MOU) depends on the complexity of the project and the level of detail you want to cover. An MOU can be as simple or as detailed as you need it to be. You may want to consult with a lawyer to help you draft an MOU that is specific to your project.

Some key items to consider when drafting an MOU include:

The purpose of the MOU
The parties involved
The project scope and timeline

Online Contracts: A Helpful Guide Before Signing

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 10:20:43 GMT

Online Contracts: A Helpful Guide Before Signing

This guide to online contracts should help demystify the legal ins and outs of online contracts and determine if your contract is enforceable in Australia.

What is an online contract?

An online contract is a legal agreement that is created and executed electronically. It can be used for a variety of transactions, including the purchase of goods or services, the lease of property, or the establishment of a business relationship. This can include, but is not limited to, emails, text messages, and chat applications.

Online contracts are becoming increasingly popular due to their convenience and flexibility. They can be accessed from anywhere with an internet connection, and they can be signed electronically, which makes them faster and easier to execute than traditional paper contracts.

Types of online contracts

There are different types of online contracts. Some common types are:

Clickwrap agreement

A clickwrap agreement is a legally binding contract between two parties that is formed when one party clicks a button or checks a box on a website to signify their acceptance of the terms and conditions of the agreement. The other party is usually the owner of the website.

Clickwrap agreements are commonly used when a person wants to buy something online, sign up for a subscription service, or download software. By clicking the button or checking the box, the person is agreeing to the terms and conditions set forth in the agreement. These terms and conditions can include things like the price of the product or service, the length of the subscription, and the refund policy.

If a person does not agree to the terms and conditions of a clickwrap agreement, they usually cannot proceed with the transaction. This is because clicking the button or checking the box is often considered to be an acceptance of the agreement.

Clickwrap agreements can be enforced in court if there is a dispute between the two parties. This is because they are considered to be legally binding contracts. A party that does not adhere to the terms of a clickwrap agreement may be sued for breach of contract.

Browse wrap agreement

A browse wrap agreement, also known as an "I agree" agreement, is created when a user activates a hyperlink or button to indicate their consent to the terms of service. This type of agreement is generally less formal than a traditional contract, and typically includes fewer protections for the user. Because there is no signature or other form of authentication, a browse wrap agreement can be difficult to enforce in court.

Scroll wrap agreement

A scroll wrap agreement is when the terms and conditions are presented to the user in a scrollable window. The user is required to scroll through the entire agreement before being able to proceed. This type of agreement is often used for lengthy or complex agreements.

Scroll wrap agreements are generally considered to be binding contracts. However, there are some circumstances in which a scroll wrap agreement may not be enforceable. For example, if the terms and conditions are unfair or if the user was not given a reasonable opportunity to read and understand the agreement, a court may find that the agreement is not valid.

Adhesion contract

An adhesion contract is presented on a "take it or leave it" basis. This means that the user does not have an opportunity to negotiate the terms and conditions of the agreement. Adhesion contracts are commonly used for standard forms, such as terms of service agreements and end user license agreements.

Adhesion contracts can be enforceable in court if the terms and conditions are not unfair or unconscionable. However, if a court finds that the terms and conditions of an adhesion contract are unfair or one-sided, they may refuse to enforce the agreement.

Making an online contract

Electronic contracts are not as simple as many people think. In fact, there are different types of online contracts, and each has its own set of rules and regulations. These are the basic steps to be followed when creating an online contract:

Determine the type of contract you need.
Understand the terms and conditions of the contract.
Fill out the necessary information on the contract.
Review the contract before you sign it.
Sign the contract electronically or print it out and sign it physically.
Keep a copy of the signed contract for your records.

Online Contract Features

Electronic contracts are popular because of the convenience they offer. They can be completed quickly and easily online, without the need for paperwork with the help of digital signatures. They are also protected by encryption technology, which makes them more secure than traditional contracts.

There are a few key features that you to know to create online contracts stand out from the crowd:

Ease of use - Online contracts can be completed quickly and easily, without the need for paperwork or signatures. Consult the Electronic Transactions Act in your jurisdiction for more information.
Security - Online business contracts are protected by encryption technology, which makes them more secure than traditional contracts. The Australian Consumer Law is a great guide to follow when making electronic agreements.
Convenience - An electronic contract can be completed from anywhere, at any time.
Flexibility - Online contracts can be adapted to meet the specific needs of the parties involved.
Cost-effective - Online contracts are often cheaper to create and maintain than traditional contracts.

E-contract checklist

Use this checklist to make sure that your e-contract is legally binding. You should consult with a lawyer to ensure that your specific contract meets all legal requirements.

All Parties Must Be Legally Eligible to Contract: This means that they must be of legal age (18 years old in most jurisdictions) and have the mental capacity to understand the terms of the contract. If any party is not legally eligible to contract, contract law states the agreement will not be valid.
There Must Be an Offer and an Acceptance: The contract must contain a clear offer from one party and an acceptance of that offer by the other party. The acceptance must be unequivocal and made in the same form as the offer.
The Contract Must Be Certain: The terms of the contract must be clearly specified and agreed upon by both parties. If there is any ambiguity in the contract, it will likely be interpreted against the party that created the ambiguity.
The Contract Must Not Breach Any Laws: This means that the contract cannot violate any laws or regulations, including local, state, and federal laws. It must also be in compliance with Australian Consumer Laws.
The Contract Must be Signed: In order for a contract to be legally binding, both parties must sign it. If the contract is electronic, then an electronic signature will be acceptable.
The Contract Must be Delivered: The contract must be delivered to the other party in order for it to be legally binding. This can be done through physical delivery or electronically.
There Must Be Consideration: This is the legal term for something of value that is given in exchange for a promise. The consideration must be something that is legally recognised, such as money, goods, or services.
The Contract Must be Enforceable: This means that the parties must have the legal ability to enforce the terms of the contract if it is not honoured. This typically requires that the contract be written in a specific way and that either the parties reside in or the subject matter occurs in a jurisdiction where the contract can be enforced.

FAQs

Can contracts be signed online?

Yes, contracts can be signed online as long as both parties have agreed to the terms. In some cases, an electronic signature may be required in order to validate the contract. It's important to make sure that you have a secure connection when signing any type of contract online.

What are the features of an E-contract?

An E-contract is an online agreement between two or more parties that is formed electronically. It can be in the form of a document, an email, or even a chat message.

Some features of an E-contract include:

The ability to create and sign contracts electronically. This means that you don't need to print out and sign a contract, then scan and email it back. You can simply create the contract online and send it to the other party for signing.
The ability to store contracts electronically. This means that you don't need to keep a physical copy of the contract in a file cabinet. You can store it in the cloud, or even on your computer.
The ability to send contracts electronically. This means that you don't need to mail a contract to the other party. You can simply email it, or even chat with them online.
The ability to access contracts electronically. This means that you don't need to go to a physical location to get a copy of the contract. You can access it online, from anywhere in the world.
The ability to keep track of contract changes electronically. This means that you don't need to make a handwritten note of the changes and hope that you will remember them later.

What is a cross offer?

A cross offer is an offer made by one party to the other party that contradicts the first party's original offer. For example, if Party A offers to sell a product to Party B for $10, and Party B counteroffers to buy the same product from Party A for $5, then this would be considered a cross offer. Sometimes, a cross offer can be used as a way to confuse or mislead the other party into thinking that they are getting a better deal than they actually are.

What is a unilateral contract?

A unilateral contract is when only one party makes a promise. This party is known as the offeror, and the other party is the offeree. The offeror makes an offer, which the offeree can either accept or decline. If the offeree accepts, the contract is formed. If the offeror attempts to withdraw the offer, the offeree can hold them to the contract.

Unilateral contracts are often used in advertising, as they allow businesses to make offers that consumers can either accept or decline. For example, a business may offer a free trial of their product in exchange for the consumer's contact information. If the consumer provides their information and does not cancel the trial within the specified time frame, they are deemed to have accepted the offer and a contract is formed.

Are wagering agreements illegal in Australia?

Wagering agreements are not illegal in Australia, but there are a few things to consider before entering into one. First, make sure that all parties to the agreement are over 18 years of age and that everyone understands the terms of the agreement. Second, be aware that wagering agreements are not enforceable in court unless they meet certain requirements, including being in writing and signed by all parties. Finally, make sure that you understand the risks involved in entering into a wagering agreement, as well as the potential rewards.

If you are considering entering into a wagering agreement, it is important to seek professional advice from a law firm to ensure that the agreement is legal and enforceable.

How can contracts be discharged?

There are several ways in which a contract can be discharged. The most common way is by performance. This means that both parties fulfill their obligations as set out in the contract. If one party fails to perform, the other party may be able to sue for breach of contract.

What is a counteroffer?

A counteroffer is a new offer made by one party in response to an offer from the other party. A counteroffer voids the original offer, creating a new negotiation. When making a counteroffer, it is important to consider the other party's initial offer, their goals and objectives, and your own goals and objectives.

What are the legal issues in a cyber contract?

A cyber contract is a legally binding agreement that is made between two or more parties online. The main advantage of a cyber contract is that it can be easily negotiated and agreed upon by the parties involved. However, there are a few legal issues to consider when entering into a cyber contract.

What are voided contracts?

A voided contract is a formal agreement that is no longer in effect.

If a contract is voided, it is as if the contract never existed in the first place. This means that none of the parties to the contract are legally obligated to fulfill their duties under the agreement.

Everything you need to know about Trusts

Wed, 23 Mar 2022 17:08:53 GMT

Everything you need to know about Trusts

Trusts are an invaluable tool you must consider for running a business and estate planning. They aim to provide financial protection, tax benefits, and long-term support to your loved ones.

However, Trusts have a complex legal structure that makes them difficult to understand. Learning about Trust entities and what they offer can be a little intimidating, but it is the first step in protecting personal assets and estate planning and this guide will help you understand the concept in depth.

Please continue to read to learn about the basis of a Trust, its advantages and disadvantages, and the procedure to set up a Trust.

A Trust is simply an agreement in which one party (known as the trustee) chooses a second party (the trustee) for the job of handling money or assets for a third party (the beneficiary). For example, your grandparents could give their property or money to your father, who passes it to you. A trust allows you to bind this agreement legally, so it complies with the vision of your grandparents.

Trusts make it easier for you to manage your assets by placing them in the hands of a trustee, to pass it onto a specified beneficiary. People use also use trusts to minimise the tax on their assets or income and allow their loved ones to access the assets when they pass away.

So basically, a trust is a legal entity capable of holding assets on behalf of someone. A trust consists of three main parties. These three parties are described below.

The Settlor: The person behind creating the trust is the settlor, grantor, or trust maker. A Settlor donates their property, money, or anything of value as collateral. The Settlor’s job is also to decide the distribution of the assets and create the terms and conditions for the contract.

The Beneficiary: The person who you want to inherit your assets is your beneficiary. The beneficiary gets access to the trust’s assets but not outright ownership because, generally, there are rules attached to a trust. For example, a beneficiary might get to live in a home owned by the trust but not have the right to put it on lease or sell it. Beneficiaries are given the assets of the trust according to the contract and certain triggers set by the settlor. A common trigger is age- for instance, assets get inherited when the beneficiary turns 21.

The Trustee: The entity that looks over the money and fulfils the responsibilities set by the settlor is the trustee. The trustee does not get to own the trust’s property but rather be in charge of the distribution to the beneficiaries. Their job is to make sure that demands set by the settlor are being followed.

A Settlor can also choose to act as a trustee. This usually happens when parents set up trust funds for their children. There can also be multiple trustees or a financial institution (companies dedicated to overseeing the distribution of a trust). The settlor also compensates a Trustee for managing the minor child.

How does a Trust Work?

Estate planning involves determining how an individual's assets will be controlled and distributed among the beneficiaries after they die. This can include bank accounts, real estate, life insurance, artwork, and other valuable assets and even a single debt. Trusts are a popular entity that can make all this planning easier for you. Unlike a company, a Trust is a relationship and not a legal entity.

A trust is established whenever there is a separation of legal ownership from the beneficial or real ownership of an asset. An obligation is imposed upon a person (the trustee) to hold trust property or income for a particular person, or for the benefit of others (beneficiaries).

Placing money or any other assets in a trust allows you to pass it to someone in a systemized way, where you get to set the rules. For example, you can include a “spendthrift clause” in a trust fund so that the assets stay away from any creditors if they want to pursue either the grantor or beneficiary for any unpaid debts.

This means that even if the beneficiary gambles all their personal money and incurs a huge debt, their creditors will not use the trust fund assets. This way, your beneficiary will still have some backup funds to recover from any loss.

Advantages of a Trust

We will be looking at some of the common reasons people choose to create trust funds.

Trusts allow you to create a contract that stays private between you and the beneficiary. The difference between a will and a trust fund is that the will becomes public after the grantor’s death.

You can designate your assets directly to the person you want to inherit your property. If you have gotten remarried, then a trust can help you make sure your children will get access to your assets and not your spouse's children.

Protect your Beneficiaries: if your children are minors and lack the financial situation and skills to manage their property, then you can create a trust so that someone else gets the responsibility to look after the assets on their behalf.

Asset Protection: Many people use trusts to protect their assets. Once you put money into a trust, it becomes difficult for any third party other than the beneficiary to access your assets.

It allows you to limit how old your beneficiary needs to be to receive the assets. In most cases, the legal age for any beneficiary to acquire the trust’s assets is 18. However, you can also choose not to grant the access until your beneficiary reaches the age of 21, 27, or whatever.

It also lets you specify how you want the assets to be used. You will get the option to stipulate that money can only be used for education purposes.

The trust’s payouts can be set to be released in intervals. This will prevent your beneficiary from blowing all the funds assets at once.

Trust funds also let you minimise the real estate taxes so you can offer all your cash to your future generations.

Disadvantages of a Trust

Let us now discuss some of the disadvantages of a Trust.

Once created, trusts tend to favour your heirs inheriting your assets.

Handling the administration of a trust can be a little more complicated than just transferring funds to the beneficiary after the grantor passes away. For example, the trustee may be required to make regular distributions to the beneficiary and record some milestones.

The cost of setting up a trust is also a reason why people choose not to create them.

A trust is not a substitute for estate planning but rather it is an estate planning tool that helps you in the distribution of your assets.

Another disadvantage of a trust is that you must pay taxes on any income generated through its investments.

Different Types of Trust

There are many different types of Trust; depending upon your aim or the kind of assets you are trying to protect, some of them will specifically suit your needs better than the others. Let us now understand each one of these types in detail.

- Discretionary trust

In a Discretionary trust, one or more beneficiaries can be added. Still, the grantor is given complete discretion as to when and how many funds go to the beneficiaries.

The amount of assets that beneficiaries of a Discretionary trust receive is not fixed; even the beneficiaries are also not fixed. The Grantor has the power to set up the terms and time frames as broad or as limited as needed. For example, the settlor can set the distributions of income only for health care needs once the beneficiary turns 21, or the distributions for health care and educational needs can be made at any age.

It is a type of trust that aims to provide the settlor with the best flexibility and controls. This means protecting assets from the beneficiary's poor money-management skills, extravagant spending issues, or divorcing spouse.

Another good thing about incorporating discretionary trust into your estate plan is that it can help you to minimise the estate tax as the trust assets can be passed down to multiple generations, from your children to your grandchildren. (This is called “generation-skipping planning”). Additionally, it allows the trustee to dictate who will inherit the money left in the beneficiary’s trust when the beneficiary passes away; the trust assets can be kept in the family.

- Unit Trust

A Unit investment trust (UIT) is an older form of investment that has become quite unpopular over the last few decades. However, it still has some features that might appeal to investors. UITs share many similarities to mutual funds and exchange-traded funds as they are a tree of investments that pool multiple branches (investors) together.

In simple words, UITs are a type of legal trust that is not set up to transfer assets to a person or a cause but instead act as an investment tool. For example, in a UTI d, many investors open a single trust to purchase stock shares, bonds, and other securities.

There is a fund manager in every unit trust that overlooks the investment and divides the trust into different asset classes to reduce the risk. The unit trust is then divided into parts in accordance with the investors’ respective units held in the trust. Investors then hope to make more money as the unit’s value increases over time.

Investors can exit the fund by selling their units at the bid price to profit. The bid price needs to be higher than they initially paid for the unit(s). The main advantage of Unit trusts is that they help you to spread your money across different investments; Diversifying investments reduces the risk of loss.

- Hybrid Trusts

As the name suggests, a hybrid trust is generally a hybrid form of a discretionary and unit trust. Hybrid is a generic term used for a trust that shares similar elements from the previously mentioned trust types. This type of trust is quite appealing as it includes both advantages of both and offers a useful structure.

Hybrid trusts allow the rights and requirements of both the beneficiaries and grantor to be respected while still providing a flexible income and capital distribution between all the parties.

People choose to open this trust because of the income tax, asset protection, and capital gains tax attached to a hybrid trust. All this becomes relevant when there are more than two parties involved. For example, two separate families plan to buy a commercial property together.

The cost of creating a Hybrid trust is usually higher than setting up a unit or discretionary trust. Still, they offer more flexibility with tax planning and benefits that can be passed down to beneficiaries without any change in the ownership of the investment.

There are also revocable trusts whereby provisions and rules can be altered by the grantor. Similarly, the grantor cannot modify assets or terms without the beneficiary’s permission in an irrevocable truss.

Setting up a Trust

To set up a Trust, the logical first step is to identify the type of trust that suits your requirements the best. Of course, each of the mentioned types of trust has different set-up procedures and requirements. However, some of the common elements of a trust are discussed below.

1. Declaring assets

You will first have to create a list of the assets with their value that you want to include within your trust.

2. Appointing trustee

The next step is to hire an individual or multiple people you trust to overlook your assets. You can also choose to hire a management company with the legal process and authority to look over the distribution of your assets. We at KMB Legal provide you with skilled professionals that can help through effective solutions on your personal or business matters while shrinking the costs.

3. Determine the beneficiaries

The settlor will now have to create a list of beneficiaries who will receive the access and benefits of the trust. At this step, the settlor also decides the percentage of each beneficiary's assets.

4. Outline Terms

Lastly, the settlor has to focus on the trust deed composition. It is the legal document that helps the trustees set up and manage the rules and conditions of the trust.

How to Operate a Trust

Trusts are managed by individual trustees, trust departments of banks, and other financial institutions. Their responsibilities include disposition of funds, collection of income, distribution to beneficiaries, and replacement of assets.

The management of a trust includes record-keeping, reporting, and tax compliance. The individual or bank that manages all this for the trust’s grantor usually charges some fee. In addition to this fee, they can also charge expenses for financial and investment advisors, accountants, lawyers, brokers, property managers, and other professionals required in the trust.

Some firms allow individuals to establish trust fund accounts online with low-cost trust services. However, if you need a substantial trust with varied assets, you will have to incur significant costs for its formation and operations. This is why it is essential to consider the costs and find the best arrangements to save you on maintenance fees.

FAQ

Lastly, let us answer some of the most frequently asked questions about Trusts.

How do Trusts payout?

The grantor decides the payout of trusts while setting up the trust fund. The trust can pay a lump sum when the time period ends, or incremental payments can be made throughout the years. The grantor gets to choose distributions and payout terms of the trust however they want it to be.

How Trusts Get Taxed?

Different types of trusts are taxed differently, depending upon various factors. For example, the beneficiaries are charged a tax deduction from their income distributed to them. So, in this case, the beneficiary has to pay income tax rather than the grantor.

There is also a capital gains tax that is either paid through by the trust or the beneficiary. The complete amount distributed for the beneficiary's benefit is taxable. You should contact your trustee to find out the exact details of taxes in your case.

How do I start a Trust fund?

To start a trust fund, firstly, you will have to choose the type of trust you want to create. Then you will have to decide the trust details such as beneficiaries, trustees, etc. After that, you should hire an estate planning attorney to create a declaration of trust to formalise everything.

Who would set up a trust?

A trustee is an individual or institution with the financial responsibility to set up and manage your trust assets. In some cases, the grantor can also act as a trustee, and even trusted relatives or friends can also act as a trustee. However, you should prefer a corporate trustee if you want to serve for many future generations to come because a corporate trustee does not come with an expiry date and its legal liability is also limited.

Can I withdraw money from my trust?

When you set up a trust and name someone else as your trustee, it can be an excellent decision to mention in your trust that you are allowed to request cash withdrawals at any time. This is because to withdraw cash from your trustee, you will have to get the trustee's permission. There also may be some fees on transferring or removing assets from the fund, so be aware of those charges.

Can a trustee go to Jail for stealing from a trust?

Yes, a trustee can be jailed for theft if they ever steal from a trust.

How many trustees can a trust have?

There can be more than one trustee and more than one beneficiary in a Trust.

Can you use trust money to buy a house?

A trust can get a mortgage or home loan from any traditional lender, but the trust's grantor needs to be alive to request a home loan.

Does a trust need a bank account?

Trusts need to have a trust checking account which is a bank account held by the trust. The trustees can also access this bank account to facilitate transactions, as decided by the trust deed.

What assets cannot be placed in a trust?

Retirement accounts, Medical Savings accounts, Active financial accounts, and vehicles are some of the assets you cannot place in a trust.

Is it better to leave a will or a trust?

It is very common for people to get confused between a will and a trust since they have a lot of overlap. Both of them are to decide who will receive your assets, but they do it in different ways.

One significant difference is that a will doesn’t go into effect until you pass away. On the other hand, a trust is active and functioning immediately after its funding. As a result, creating a trust is a bit more complicated but offers some great benefits, such as total control over the distribution of assets and tax minimisation.

Why should you put your home in a trust?

You can avoid probate by putting your home in a trust fund. Additionally, it also helps you keep the details of your real estate private. This is because the probate process will make all the records public while passing down your property from a grantor to a beneficiary will keep everything confidential.

What happens to a trust when somebody dies?

When the grantor passes away, the trustee takes over to look after the funds and distribute them in the manner the grantor decided to.

What happens when you inherit money from a trust?

When you inherit money from a trust, you should contact the trustee or a lawyer to help you file tax returns on the received assets. Every region has different taxing rules, so you must report and pay the appropriate taxes.

Conclusion

By now, you must have got the answer to “what is a trust.” It is a way to provide financial support to your loved ones after you are no longer there. It is an essential part of estate planning and can help you control your assets' distribution.

While you do need to bear some costs to maintain a trust fund, they can provide you great peace of mind and tax benefits. You can choose to go with KMB legal to help setup your trust.

Unlike other trust services, our skilled professionals exclusively deal with daily trust inquiries. Furthermore, we make sure that the solutions provided by our trust experts are individually tailored to fit your personal needs the best!

Joint Tenants VS Tenants In Common: Which is Best For You?

katie@kmblegal.com.au (Katie Chan) — Wed, 24 Nov 2021 03:03:46 GMT

Joint Tenants VS Tenants In Common: Which is Best For You?

So you're finally ready to make that move. Yes, buying a house is a major accomplishment. Since it's one of the most significant investments an individual can make, many people decide to jump into homeownership with a partner.

After all, property costs have skyrocketed in the last few years. Did you know that the average asking price in Australia is $852,940?

Whether you've decided to purchase a house with a spouse, a friend, or a business partner, it's important to know exactly what type of agreement you're entering.

Types Of Joint Property Ownership

In property law, there are two main types of joint ownership:

Tenants in common
Joint tenancy

No doubt, at a quick glance, these terms may appear to be similar. Yet, there are vast legal and financial differences between these two. It is crucial to understand the legal implications of joint tenancy and tenants in common should one of the owners pass away or decide to sell their share of the property.

In this article, we'll explore the differences between joint tenancy, tenants in common, and how to determine which option is best for your situation.

Understanding Tenants In Common

When you decide to purchase property with one or more individuals, you have the option of entering into a tenants in common agreement. In this type of legal arrangement, the individuals involved can share equal ownership, or they may all own varying percentages of the property. For instance, one co-owner may have 75% interest vested in the house while the other owns 25% of the property.

Tenants in common agreements are flexible, and it clearly defines each owner's share of the property. In addition, it allows each owner to manage their interests independently and can be beneficial for tax purposes.

Joint Tenancy Explained

In a joint tenancy arrangement, both buyers have equal ownership and interest in the real estate property. Typically, married couples, family members, or longtime friends tend to enter joint tenancy arrangements.

If two or more individuals have a joint tenancy, they don't have an individual interest in the property. In this type of co-ownership agreement, it doesn't matter how much money each individual contributed to purchasing the property. Everyone shares equal interests and rights.

What Is The Difference Between Joint Tenancy and Tenants In Common

So, what's the main difference between the two proprietorships? The biggest distinction between joint tenancy and tenants in common is what happens to the property when one of the owners passes away.

In a joint tenancy, the rights of survivorship exist. This means that if one of the tenants in the joint tenancy passes away, by law, their portion of the real estate property automatically passes to the surviving tenant in that agreement.

The right of survivorship laws is rigid. The living tenant becomes the sole owner of the property regardless of contrary wishes expressed in a will.

Unfortunately, in tenants in common agreements, there are no rights of survivorship. Therefore, in the event of one of the tenants' death, their interest in the property becomes part of their deceased estate, and it doesn't pass on to the surviving tenants. In most cases, the deceased tenant's beneficiary will inherit their share in the property.

What Is The Advantage of Being Tenants In Common?

Purchasing a property as tenants in common offers several benefits. Most people dream of being free from the shackles of renting and relish in the idea of being able to own a house of their own where they can decorate as they wish. However, due to financial constraints, sole ownership isn't possible for everyone.

Tenants in common is a joint ownership option that allows a group of individuals such as blended families to pull together their resources to purchase a home. Whether the property is equally or disproportionately owned, all of the tenants in a tenants in common agreement have equal rights of access to the home.

Here are additional advantages of entering tenants in common agreement:

Every tenant in the agreement owns the asset
Each tenant has the legal right to sell their shares in the property
Tenants in the agreement can pass on their interest in the property to their beneficiary in their will

What Are The Disadvantages Of Tenants In Common?

Although tenants in common agreements can be appealing because of their flexibility, this arrangement can be very complex. They become even more complicated when the relationship between the property owners starts to change.

Having a Declaration of Trust can be beneficial for tenants in common agreements because it clearly specifies each tenant or owner's financial obligations and interests in the agreement.

It should also include an exit clause to govern how the property is sold even when all parties aren't in agreement. The Declaration of Trust serves as a protection for each party involved should conflict arise.

The main disadvantages of tenants in common agreements are:

All of the co-owners have to sign the transfer deed to sell the whole property
There are no rules that dictate how each owner sells their share of the property

What Happens To Tenants In Common When One Dies

When one of the owners in tenants in common agreement dies, their share of the property is subject to succession laws. This means that their interest in the home is transferred to the deceased estate and dealt with in accordance with the will. The interest in the real estate property wouldn't pass to the surviving owners in the tenants in common agreement.

Can A Married Couple Be Tenants In Common

Joint tenancy arrangements are quite common between married couples interested in purchasing a home together. However, some married couples might decide to hold a title to an investment property as tenants in common.

Like any other tenants in a common agreement, each party has the right to sell their interest in the property as they desire, and they'll both need to sign the transfer deed if they decide to put the property back on the market.

When a married couple decides to enter a tenants in common agreement, if one partner passes away, the surviving spouse doesn’t automatically inherit their interest in the property. The deceased spouse’s fractional shares are passed on to whoever they specify in their will. If there is no will in place, their fractional share in the home will be subject to intestate laws.

Do Tenants In Common Pay Inheritance Tax?

In Australia, there are no inheritance taxes or estate taxes . Therefore, if an individual inherits interests in a tenants in common property previously owned by their deceased kin, they don't have to worry about paying inheritance taxes.

Can A Sale Be Forced In Tenants In Common?

What happens when one of the co-owners in a tenants in common agreement wants to sell the whole property? Things can get tricky if one or more parties in the agreement refuse to sign off on the transfer deed.

You might be wondering if one of the co-owners can force the sale of the property. That largely depends on the state and territory. Every state in Australia has differing property laws.

Do Tenants In Common Own Equal Shares?

As previously mentioned, in a tenants in common arrangement, owners can have eitherequal ownership in the real estate property or different shares in the property. One party may have 65% interest in the house while the other owner only has 35% interest in the property.

Do You Need To Go Through Probate For Tenants In Common?

When one of the owners in a tenants in common agreement dies, their fractional share in the property passes to their deceaed estate. As a result, a grant of probate issued by the Supreme Court is necessary to transfer the ownership of the property to their next of kin or their beneficiary.

In a joint tenancy agreement, the deceased co-owner's interest in the property instantly passes to the surviving tenant, so there is no need for probate.

Can I Sell My Shares Of Tenants In Common

Each tenant or owner in a tenants in common arrangement has complete control of their portion of the property. This means that they can sell their interest in a property to whoever they want without seeking permission or informing the other owners.

Joint Tenancy or Tenants In Common Which Proprietorship Is Right For You?

As you can see, joint tenancy and tenants in common agreements have both their advantages and disadvantages. Yet, the key feature between these two types of ownership is the right to survivorship.

Everyone has different needs and preferences. It's best to consult an experienced lawyer to help you determine which option is best for you based on your unique situation and how you can protect yourself when making such an investment.

What to look out for in a franchise agreement

Sun, 14 Mar 2021 22:15:01 GMT

What to look out for in a franchise agreement

The franchise route can be a safe start to your entrepreneurial journey or the expansion of your business interests. With an established and proven track record, add commitment and hard work and you could be on your way to entrepreneurial success. Indeed, it has been argued that buying into a franchise is likely to yield the results one would expect compared to starting out completely on your own (1).

While the picture appears rosy, like in many relationships, there will be challenges from time to time, be they opportunities or problems. When they surface, there needs to be a mechanism to address them in a manner of mutual benefit to all parties. In this regard, a franchise agreement plays a vital role.

What is a franchise agreement?

Essentially, it is a written document that spells out the terms and conditions of the business relationship, or franchise arrangement entered between the franchisor (the business/person issuing the franchise licence) and the franchisee (the business/person buying the franchise licence).

A typical franchise agreement has 4 parts to it:

1. Terms governing the operations of the business

2. Franchisors' roles and responsibilities as well as obligations

3. Franchisees' roles and responsibilities as well as obligations

4. Steps and procedures applicable to the prospective franchisee prior to issuance of the franchise licence

In addition, there are two important facts to note:

1. A franchise agreement is not a business sales agreement

2. Franchise agreements will differ from business to business

Apart from the franchise agreement, there are laws and rules governing the conduct of franchised businesses as well as a Franchising Code of Conduct. Some of the details in them may be written into or referred to in the franchise agreement.

Franchise agreement and what you should look for in one.

1. The right to use the franchisor’s brand

This is imperative. It needs to be explicit in the franchising agreement that the use of the franchisor’s brand is permissible. The strength of the small business owners is embedded in the brand name.

2. Details pertaining to operating under the franchise brand

As prospective franchisees, it’s important you are aware of the franchising code, franchise agreement grants, and terms and conditions governing the use of the brand. Inappropriate or not permissible use of the brand may result in a breach of the franchise agreement.

3. Territories

Every franchisee is typically given an exclusive territory in which it can operate to avoid intra-franchisee competition. You may be granted more than one territory depending on the competing business. Whatever the number is, it’s important they are spelt out in the franchise agreement.

4. Initial franchise fee and costs associated with the purchase of the franchise

This is an area of the franchise agreement that must be sorted out early in the relationship. The figures vary across different types of businesses as well as operating models.

5. Advertising and branding obligations

This is often referred to as the marketing fee or ongoing fees. In a franchised business model, the cost of advertising and branding may be split into local and state or nationwide marketing fees. For the latter, there’s usually a common fund you’ll need to contribute towards. With the former, the franchisor may stipulate a sum relevant to your territory.

6. Intellectual property

From the brand name and logo to the actual product or service, the franchisor would have invested time and money into developing them and ensuring they work. It is their intellectual property. You will need to be aware of them to ensure you're using them correctly.

7. Terms and conditions pertaining to the renewal of the franchisee

The franchise agreement will spell out the terms and conditions pertaining to renewal as it is never for life. Again, they may vary across franchise agreements.

8. Services provided by the franchisor

A franchise agreement isn’t a hi-and-bye document. You should expect the franchisor to render services to help you get started and operate the business over a period of time. The franchise agreement will detail these services.

9. Training

You or your staff will need to be equipped with the relevant skills and knowledge to give the business a chance to succeed. The franchise agreement should detail the type of training to be provided, the length of time it will be provided and the frequency of training or retraining. It will also detail the party responsible for the training of new staff.

10. Quality control

The quality of products and services impacts directly the success of the business. You will need to know how quality control will be measured by the franchisor as it impacts the day-to-day conduct of the business.

11. Transfer of franchise business

You might choose to transfer your interest in the franchise to another party. This is allowed. However, there will be rules in the business system, or franchise agreement governing it.

12. Expiration of franchise agreements

As a franchise business, there are obligations you will have to fulfil upon the expiration of the franchise system. For example, you may not be allowed to work in the trade for a period of time, either as an independent or competitor franchise.

13. Legal relationship between franchisor and franchisee

Like in any business franchise relationship, its conduct must be governed by rules and regulations. Both parties’ roles and responsibilities, as well as obligations, are detailed in this section.

14. Provision for indemnity and liability

There are parts that are shared and those undertaken by the franchisor or franchisee alone. For example, as a franchisee, you are likely liable for public indemnity insurance of your store as well as workmen compensation for your staff.

15. Non-compete clauses and trade restrictions

You may have multiple business interests or intend to. If they compete against the franchisor’s own business, you may be disqualified or penalised if it was not on the disclosure document.

16. Dispute resolution clauses

Disputes will arise from time to time. When they do, it’s important they are resolved amicably and fairly. A franchise agreement will explain the mechanism to resolve disputes. It is usually the first resort.

To learn more about franchise agreements prior to entering into one, seek legal advice or book a consultation session with one of our legal experts.

1. https://www.smartcompany.com.au/business-advice/franchising/boost-juice-janine-allis-franchises-more-successful-other-small-businesses/

CTP Insurance: Are you covered?

Sun, 07 Mar 2021 22:13:03 GMT

CTP Insurance: Are you covered?

What is Third Party Car Insurance?

Compulsory Third Party Insurance covers compensation payments made to an individual who has suffered injuries arising from a motor vehicle accident.

Compulsory Third Party (CTP) insurance also covers payments made to individuals (often by-way-of Estate representation) who are killed in a car accident.

However, it doesn’t cover the cost of damaged vehicles or property. There are a set of circumstances and general policies worth considering when evaluating your ability to make a claim using compulsory third-party insurance.

1. Who is protected under CTP insurance?

In Australia, every owner of a motor vehicle must hold compulsory third-party CTP insurance. In Queensland and New South Wales, you must acquire compulsory third-party insurance prior to registering your car.

In contrast, CTP insurance is included in the price of registration in Western Australia, Tasmania, Australian Capital Territory, South Australia, and Victoria.

The compulsory third-party car insurance is attached to the vehicle, as opposed to a driver. Therefore, if the injury of driver B was caused by a car accident that occurred due to the fault, or primary fault, of driver A, then driver B can make a claim to the CTP car insurance company of driver A.

In other words, insurance extends to any driver of the motor vehicle and protects any individual who may be injured following the motor vehicle accident caused primarily by the driver of this vehicle.

CTP insurance also covers any member of the community who may be injured or killed in an accident, such as pedestrians or cyclists.

2. What does CTP insurance cover?

Notably, CTP insurance does not protect any damage caused to your vehicles or property, nor will it cover any issues surrounding the theft of the vehicle.

CTP insurance will also not protect you from liability surrounding damage caused to other people's vehicles or property.

CTP insurance will, however, cover the injured person's damages which can include but are not exclusive of, loss of earnings, medical expenses, and future loss of earnings. CTP insurance can also cover emotional loss such as pain and suffering.

3. Can I claim CTP insurance?

Subject to the accident being of no fault, or minimal fault, to the injured driver or victim, the injured party may be able to procure compensation.

The correct procedure which needs to be carried out in order to facilitate whether a claim can be successful is as follows:

A. Police

Ensure to report the accident to the police and complete any relevant documentation within your State or Territory.

B. Fault

Identifying the vehicle at fault is imperative. If the injured party was the vehicle at fault, claims will become limited. However, if the injured party was not the vehicle at fault, then the procedure is relatively easy from this point onwards.

C. Discover CTP insurer

It is important that you receive the details of the driver at fault CTP insurer so that you can make a claim. In Queensland, the CTP insurer can be identified by completing a registration search of the vehicle at fault.

In other States and Territories, this process may differ. In NSW, for example, you can find the CTP insurer of the vehicle at fault via Service NSW Check registration.

D. Follow the insurer's guidelines

Each insurer will have a separate set (however similar) of guidelines that must be followed accurately and effectively. You may wish to contact our firm in order to ensure this process is completed easily.

E. Lodge the claim.

4. Common circumstances where CTP insurance can be claimed

There are many different circumstances in which CTP insurance claims can be made. The primary element to remember is that the injured or killed claimer must not be at fault, or primary fault, for the incident.

For example, if a driver fails to give way and drives through a pedestrian crossing, injuring a person, then the driver is at fault. The pedestrian can therefore make a claim.

Another common set of instances that allow for CTP insurance claims to be made involves cyclists and motor vehicle accidents. If a cyclist is hit by a vehicle, they may lodge a claim.

Motor vehicle accident

Also, if a cyclist uses evasive maneuvers for the purpose of navigating around other vehicles that have made a sudden turn and consequently become injured, they may make a claim.

It is also important to remember that passengers traveling in a vehicle that is at fault in an accident are also able to make a claim if they suffer a personal injury caused during the accident.

5. When will I receive payment?

Every CTP claim will be processed at a different rate, however, on average, claims will be resolved within 12-18 months depending on the circumstances of the case.

Significantly, the CTP claim can be prolonged if the driver of the vehicle you have claimed to be at fault denies responsibility for the accident

The insurer denies liability or your injuries are complicated.

6. Why do I need a lawyer?

You will often hear that CTP insurance claims do not require the employment of a solicitor. However, there are many reasons why hiring a solicitor will greatly, and positively, impact your CTP insurance claim process and successful outcome.

For example, at KMB Legal, our lawyers can help you ensure that the forms are completed accurately and within the relevant time period. The investigation process is often taxing, and therefore a solicitor is an ideal person you can hire to help guide you through this process.

Due to our lawyers' expansive experience with CTP insurance claims, they will be able to provide you with estimates that broadly outline how much the CTP insurance and car insurance claim should be worth.

The time limits surrounding CTP insurance claims, car insurance claims, investigation processes, and other administrative work are extensive, and therefore adhering to such time frames can be stressful for an individual.

Here, at KBL Legal, we seek to aid you in this process and reduce the stress as well as time management issues that arise prior to and following the submission of CTP insurance claims.

CTP insurance claims are an integral element of road safety, protection, and allocation of liability in Australia. It is important to feel confident during the process of making a claim.

Lease disputes – When can I change the locks?

Thu, 14 Jan 2021 03:59:03 GMT

Lease disputes – When can I change the locks?

Being a landlord has many advantages, but it also comes with a high degree of stress and responsibility. Dealing with tenants, and especially tenants in default can be a difficult and time-consuming task. And it’s made worse by laws which, on the face of it, often seem to be on the side of tenants at the expense of landlords.

Such laws were put in place to protect tenants from rogue landlords, but if the other party decides to make life difficult the process of removing them from the property can be challenging. It’s not as simple as changing the locks. Proper legal advice and processes have to be followed to prevent legal issues and retaliatory court action from certain circumstances by the tenant.

So in this blog, we are going to cover the proper legal advice and process for dealing with lease disputes. We’ll discuss how to manage lease disputes, the early termination of leases, and how and when to issue a Notice to Remedy Breach. This should help keep landlords on the right side of the law when dealing with tenants in default.

What does the law say about lease disputes?

In the state of Queensland, before a landlord can terminate the lease and retake premises they must first serve the tenant with an appropriate form, " Notice to Remedy Breach ".

This obligation is set out in the Property Law Act 2023 (Qld) which stipulates that the notice must provide details of why the leases are in default and what steps the tenant must take to remedy the situation.

Furthermore, the tenant must be afforded a “reasonable amount of time” after being served the notice to bring the premises lease back into good standing.

If a landlord attempts to gain access to the property without following these steps they are in default of the Property Law Act 2023 . In such a scenario the tenant could then apply to the court for compensation.

The type of compensation tenants can claim includes:

1. Reclaiming court costs

2. The return of any other expenses incurred

3. Damages and compensation for breach of contract

The tenant can also apply for an injunction to restrain any such breach of contract in the future. Which will make it even more difficult to gain legal access to the property.

What is considered a “reasonable amount of time” within which to respond to a statutory notice?

The law is deliberately ambiguous in this area because each case should be considered on its own merits. But for guidance, we can look at how the courts have ruled on previous cases to get an idea of what is considered a “reasonable amount of time”.

Primary RE Limited v Great Southern Property Holdings Limited.

The case between Primary RE Limited v Great Southern Property Holdings Limited. [2011] VSC 242 . This complicated case involved a managed investment scheme that included forestry assets in various states across Australia and Tasmania. The tenant commercial leasing land for forestry management activities before subleasing it to several growers.

During the financial crisis of 2008, several of the tenants' growers went into liquidation which left the tenant unable to fulfil its obligations under the lease. The landlord Great Southern Property Holdings Limited was then forced to serve a breach notice to the tenant across several states.

The breach notice stipulated that the tenant had failed to resolve disputes and manage the plantation crop by following sound silvicultural and environmental practices; fertilise and harvest the plantation crop; spray herbicide and insecticide where appropriate; conduct weed control and remediate land erosion.

The breach notices were then followed approximately one month later by termination notices.

The tenant challenged the validity of the termination notices claiming that they failed to allow a “reasonable amount of time” for them to remedy the issues raised in the breach notice. They claimed that to remedy the issues raised and bring the plantations back into good standing would take more than a year.

How did the court rule?

The court ruled that one month was more than enough time for the tenant to respond to the breach notice. The purpose of the breach notice is to give time for the small business tenant to consider its position and provide a meaningful response. It did not require the tenant to rectify the issues raised.

The court deemed that a sufficient response to the breach notice would have been:

For the tenant to recommence management of the plantations in compliance with the lease terms.

Offer a proposal to pay compensation for any damage caused to the plantation.

Communicate a genuine intention to complete the above proposals.

The court also noted that the time required to remediate the breach is not the critical point. The following guidance was put forward as to what factors should be considered to determine reasonable time:

The purpose for which the notice is given

The nature of the breach

What is required to be done to avoid forfeiture?

To clear up any further confusion, the court also said that the breach notice should not leave the tenant speculating about what action it should take and (by when) to prevent the lease from being terminated.

Lessons for landlords about leases and dispute resolution

What is considered a reasonable amount of time to respond to a breach notice, and what is considered a reasonable response, will depend on the circumstances of each case?

In the above case, the court ruled that one month was more than enough time for the tenants to respond to issues brought up in the notice. The time needed to rectify the issues raised was not relevant in this case. Instead, the commercial tenants should have communicated what they intended to do to bring the lease back into good standing.

So when issuing breach notches landlords should be clear about:

Why the breach notice is being issued.
The precise nature of the issues involved.
What the tenant must do to avoid forfeiture
What is considered an adequate response to the issues raised in the breach notice and when it is reasonable to expect it.

Seek legal advice

Failure to provide any of the above may result in your breach or subsequent termination notice being challenged in court. While the challenge of legal rights may not prove to be successful, the other party defending such a case could prove to be expensive. If you would like more information about managing leasing dispute resolution, seek legal advice talk with our commercial lawyers today.

[Landlords] Lease incentive clawbacks deemed unlawful in Australia

Thu, 17 Dec 2020 01:03:26 GMT

Back in October 2019, the Victorian Civil & Administrative Tribunal (VCAT) made a decision which casts doubt about the validity of lease clawback clauses. The Tribunal which seeks to resolve disputes between parties cited an earlier decision by the Queensland Supreme Court in its reasoning.

The earlier Queensland Supreme Court ruling was at the time thought to be an anomaly since the case contained many unique features which would not apply to other cases. But the latest VCAT ruling sets a precedent which questions the validity of landlord lease clawbacks. Especially those which punitively impact tenants.

What are incentive clawback clauses?

Incentive Clawbacks are incentive clauses where the initial "incentive" is paid to a tenant to lease a premises and are re-payed to the landlord in the case of early termination.

Where incentive clawbacks are usually found within commercial lease agreements. But other examples can be found in insurance companies, large organisations and even within the federal government.

Landlord’s often use lease incentive clawback provisions in the lease agreement in an attempt to ‘clawback’ fit-out costs and other incentives used to sign-up new tenants. Such incentives vary but examples include contributions to fit-out costs, a rent-free period during fit-out (rental abatement) or a reduction in rental costs until space has been fully utilised.

Clawback incentive are offered on the condition that tenants are required to repay the incentive (or a proportion of the incentive) should the lease be terminated early. The rationale behind such contracts is that the incentive was offered in exchange for the tenant covenant to occupy the property during the lease term.

By failing to complete the lease term the tenant has failed to fulfil his part of the contract. They should therefore be forced to repay all or part of the incentive as compensation. However, the recent VCAT decision now casts doubt on such contracts making it very difficult for landlords to claim back lease incentives in the future.

Queensland Supreme Court says clawbacks amount to a penalty

The original judgement was set during a 2014 case between GWC Property Group Pty Ltd and Higginson & Ors .

GWC Property Group Pty Ltd V Higginson & Ors: Key Takeaways

The case centred around an incentive clawback clause which was written into the lease agreement which stated that the tenant (Higginson & Ors) would have to repay all or part of the landlord's fit-out contribution. This clause would be enacted if lease is terminated for any reason other than the landlord's default.

Such a case should have been straight forward. However, in its judgement, The Queensland Supreme Court deemed this particular clawback clause to be excessive, effectively amounting to a penalty. Such a clause was therefore not enforceable and the court ruled in the tenants’ favour.

In summary of the case, the court stated that it had applied a relevant test to ascertain whether the incentive clawback clause was deemed to be “extravagant and unconscionable” in amount and out of all proportion compared to the loss suffered by the landlord (GWC Property Group Pty Ltd).

Following the judgement, the court stressed that granting such incentives to the landlord would have put them at a great advantage. The impugned clauses would have in effect allowed them to profit from the deal and put them in a stronger position than if the lease had run its course.

The court did acknowledge, however, that the landlord could claim for the cost of reinstating the premises back to their original condition. And for the loss of rental income until the property had been re-let to a new tenant. But the rent-free period negotiated with the tenant was deemed to be the price the landlord paid to secure the deal.

Victoria refuses landlords rights to clawback incentives

Fast forward to October 2019 and the validity of a similar clawback clause was considered by senior members of VCAT.

The case was brought between Finetea Pty Ltd and Block Arcade Melbourne Pty Ltd. As part of an incentive to secure the lease, the landlord (Finetea Pty Ltd) had agreed to a rent-free period and a cash contribution to the tenant's fit out costs (Block Arcade Melbourne Pty Ltd).

A clawback clause was subsequently written into the lease contract which required the tenant to repay a proportion of the incentive in the case of early termination of the lease. After the venture failed the landlord claimed for a rent credit of $335,000 and contribution to the fit-out costs of $200,000.

During its assessment of the case, VCAT members utilised the same “extravagant and unconscionable” test used in Queensland. After the test was applied the tribunal ruled in favour of the tenant and refused to allow the landlord to claim back any incentives used to secure the lease.

In summary, VCAT Member R Walker said; “The Landlord now seeks an order that, in addition to those damages, it should receive back the value of these incentives. That is “extravagant and unconscionable in amount” and out of all proportion to the damage it has suffered. To allow such a claim would be to enforce a penalty.”

In applying the ruling the VCAT Tribunal members further stressed that allowing the landlord to claim back incentives would result in a double recovery thereby unfairly punishing the tenant.

What does this mean for landlords?

While the above cases do not constitute a change in the law, they do create uncertainty about the validity of such clawback clauses. In future, it would suggest that such clauses will be very difficult to endure through the courts and be unenforceable.

While the original GWC Property Group Pty Ltd vs Higginson & Ors case was initially seen as an anomaly. The VCAT ruling sets a precedent which waters down that argument. At the very least courts will seek to use the same test to ascertain whether the level of damages sought is extravagant and unconscionable.

Such rulings also make it more likely that tenants will challenge the validity of clawback clauses in future. This is especially pertinent at the moment as retailers across the country struggle to recover from the economic turmoil caused by the Coronavirus (COVID-19).

Landlords should therefore carefully consider the commercial implications of any incentives offered to tenants in an effort to secure a lease. Because, the recovery of any payments or incentives which were otherwise not payable if the lease took its term are unlikely to be viewed favourably by the courts.

In other words, by adding lease incentive provisions to a commercial lease agreement, the landlord would not guarantee the financial reimbursement of the provided incentive in the case where the tenant needs early termination.

How to add safely add clawback provisions to your commercial lease agreement?

Since incentive clawback are likely unenforceable in court it's even more important to seek professional advice on the provisions you would like to add in case the tenant does breach the lease agreement.

Contact KMB Legal to ensure your clawback provisions are within the law's definition of fair and not excessive, but still doesn't leave you in a less than favourable financial situation.

To learn more about lease incentive clawbacks, please book a free consultation with KMB Legal so you know what your legal rights are as a commercial property owner.

Your entitlements in a motor vehicle accident travelling to work

Sun, 13 Dec 2020 23:53:58 GMT

Your entitlements in a motor vehicle accident travelling to work

Have you sustained injuries in a motor vehicle accident, or a car accident on the way to work? If so, you may be eligible to receive through your employer’s Workers’ Compensation insurer. For most Queensland employers, this workers' compensation insurer is WorkCover Queensland. If you are not at fault in the car accident, you may also be entitled to a compensation claim through the at-fault vehicle driver’s Compulsory Third Party (CTP) insurer.

What’s Involved in Making a Compensation Claim with WorkCover Queensland?

Unlike other insurers, WorkCover Queensland does not operate under an at-fault-based system. So, when you lodge a statutory claim, you do not have to show that you were at fault.

If you can show that you are employed in Queensland, and you had a car accident on the way to work, you may be entitled to a workers' compensation claim including:

• Replaced normal gross wages or weekly benefits (commensurate to your lost wages if injuries sustained)

• Covering of medical and rehabilitation treatment

• Travel expenses covered

• Pharmaceutical expenses covered

• Vocational assistance, and;

• A statutory lump sum payment

You must lodge your workers' compensation claim with WorkCover Queensland no later than six months after the injury sustained or has occurred. If you fail to meet this deadline, you must provide a reasonable excuse for the delay. Having said that, workers compensation insurer WorkCover Queensland is generally quite strict in regard to the six-month limitation period.

What Constitutes a Workers Compensation Journey Claim?

A journey claim comes under quite a wide umbrella. The reason being, a journey claim is not limited to motor vehicle accidents. You may receive an injury while you are walking or riding to work, for instance. Under Queensland law, the journey claim would also be considered.

The workers' compensation legislation also covers any work-related travel you are required to take. That is journeys to other destinations you are expected or required to attend, according to the terms of your employment.

Can the Journey Claim for Workers` Compensation be Denied?

Under certain circumstances, yes. Journey claims may be rejected in the following cases:

• There is a significant delay in receiving the claim workers compensation, without reasonable cause, or;

• A deviation or interruption to your regular journey (i.e. traveling to a restaurant on the way home from work, etc.)

Is There a Possibility of Appealing?

If you should be dissatisfied with the decision, it can possibly go up for appeal. However, this is not always the case. Your prospects of appealing a decision in which a claim is rejected due to journey interruption or deviation, or substantial delay in submitting the application, is left up the WorkCover Queensland.

The likelihood of a successful appeal depends greatly on individual circumstances. These include factors such as the reason, distance, and length of time of the application delay, journey deviation, or interruption.

Can I Make a Common Law Claim?

Under certain circumstances, lodging a Common Law claim may be advised. Have you been injured in a road accident as a direct result of another road user’s negligence? If so, you are also entitled to pursue a common law damages claim compensation against the at-fault driver’s CTP insurer. Common law damages include the following:

• Claim Compensation for pain and suffering (how much compensation?)

• Covering of medical expenses for the injured worker

• Covering of pharmaceutical expenses

• Relevant travel expenses

• Rehabilitation treatment (funded by the CTP insurer upon claims process)

• Losses in past and future income

• Past and future superannuation benefits

• Domestic assistance and care, given by family members and friends

• Paid domestic assistance and care, delivered by service providers

• Covering relevant future medical treatment, and;

• Retaining costs

Is There a Lodgement Date?

Yes, there is. Your common law claim must be submitted to the at-fault driver’s CTP insurer no later than nine months of the date of the accident, or no more than one month of your first consultation with a personal injury lawyer regarding the claim.

What if the Driver Didn’t Have Insurance and we had a car accident on the way to work?

If the motor vehicle accident travelling to work was caused by an unidentified or uninsured driver, you have to lodge a claim against the Nominal Defendant no later than three months or one month following your consultation with a personal injury lawyer.

What Happens if a Workers Compensation Claims is Late?

As the time limits are strict, there are consequences for failing to lodge the claim on time. If your claim is lodged outside of the aforementioned time limits, you have to provide a reasonable excuse for the delay.

Please be advised, there is also a non-negotiable time limit of three years to commence any court proceedings.

Which Entitlements Should I Pursue If I get into a motor vehicle accident?

In some cases, you may be able to claim both statutory entitlements through WorkCover Queensland, as well as common law damages against the other driver’s CTP insurer. In order to be eligible for this, you have to meet certain criteria. To claim, you must have been injured in a motor vehicle accident that occurs between your home and your place of employment.

Should I Pursue Both Entitlements?

Yes. Provided you meet the eligibility criteria, you certainly should. That said, navigating your way through the insurance schemes relevant to your situation can be complicated. Unsurprisingly, there is no blanket approach to ascertaining the correct approach to follow.

Furthermore, the two insurance schemes can often conflict. Medical evidence gathered for one claim can have an adverse effect on the other claim. Therefore, it is essential to seek expert legal advice in regard to your rights and options when considering which compensation entitlements are appropriate for you. At KMB Legal, our team specialises in compensation claims for car accidents, or motor vehicle accidents. If the accident occurs between your home and your place of employment, we will help you through the entire claim process.

Can You Assist me in Making the Claim?

Yes, we certainly can. At KMB Legal, we believe you should not have to navigate a complex insurance claim on your own. That’s why our professional team is ready to guide you through the entire process. We will advise you and walk you through every step of the way.

Have you sustained injuries in a motor vehicle accident between your home and workplace? If so, look no further than KMB Legal. We are your motor vehicle, claim experts. Get In Touch Today

How social media affects compensation claims

Thu, 19 Nov 2020 23:20:51 GMT

How social media affects compensation claims

Facebook posts or any social media posts are just as much a normal part of the average person’s day as a cup of coffee in the morning, with thousands of people's everyday life logging into social media account or social media pages, and apps before they’ve even gotten out of bed in the morning.

In fact, social media posts are such a widespread phenomenon that it’s also become a staple within the law firm and courtroom too. Social media compensation claim contents and posts have been directly used by the personal injury lawyer to hire surveillance evidence of a legal matter, legal advice, legal cases, legal rights, including Super/TBD and workers compensation claims.

So, when it comes to social media posts, and other social media content, how much is too much? Or when do you have to avoid posting a work accident? When it comes to advising clients on what they should or shouldn’t be posting about on their feeds, it’s always better to err on the side of caution.

That potentially damage, social media usage can have a direct impact or can cast doubt on the outcome of a slip or fall, workers compensation claim payout, CTP, and even Super / TPD claim. Even posts that seem completely innocent to the untrained eye can potentially affect, or have a knock-on effect that you wouldn’t expect.

Why do social media compensation claims matter?

One of the best example of why social media matters are the case of Digby v The Compass Institute Inc & Anor [2015] QSC 308 . In this relatively recent case, it was established that insurers don’t need to inform the plaintiff when it comes to the use of all social media data.That includes just about anything you post on Facebook records, Instagram, or TikTok, as well as countless other social platforms. This means that evidence could be being gathered without your knowledge, and without the knowledge of your client.

Because of this precedent, the recommendation for any client who is active in the social media world is to step back and take a break or avoid posting anything at the moment. But if your client can’t or won’t go cold turkey – whether for work or personal reasons – there are still some steps you can take to safeguard their online presence and ensure they aren’t undermining how much compensation claimed they get. Some of which may be perfectly obvious, and others that are far less pronounced than you’d expect.

What should clients not post on social media about personal injury claims?

For clients that can’t part with social media permanently, or simply want to still be active online, certain considerations must be made during the time their compensation claim is active.

Social media can be a powerful form of evidence in many modern claims, and this should be stressed alongside providing guidance on what clients should and shouldn’t post about themselves online.

While this is not an exhaustive list, here are some of the major areas to consider when it comes to what your clients should not be posting online:

Evidence of strenuous activity that is out of line with their personal injury claim

Whether it’s doing the backstroke at the local pool, skiing down a mountain, lifting their kids, or certain activities with any photographic evidence of strenuous activity – both visual and verbal evidence– even a single photo on social media that goes against your client’s claim is valuable evidence and can cause damage that can’t be fixed. If your client’s pending compensation payout claim relates to a personal injury compensation claim or pain that prevents activities, it’s vitally important that compensation law and personal injury compensation claim, or compensation payout doesn’t contradict that statement in the public eye.

Contradictory to medical negligence information

Compensation claim relating to medical conditions and pain, or any online contradictions claim depends on a serious problem. Think of someone that needs their arm in a sling for a proven track record of eight weeks appearing at a family law or family member party without one, or someone who needs a neck brace taking pictures without it soon after a motor vehicle accident, or other accident.

Admitting fault or liability to personal injury law

Whether you’re sending content on Instagram Stories or posting to Snapchat, social media is never 100% private. That means a compensation lawyer or personal injury lawyer and client should not make any statements regarding blame and contradictions in possible liability, and in everything they say. If possible, personal injury lawyers should not refer to the incident at all in any way, shape, or form.

Narratives or information on the compensation claim legal processes

Taking to social media friends post about – or complaint about – your lose legal professional privilege, or seeking compensation claim. As with admitting liability, not talking about legal representation processes at all is the best course of action on social media when going through an active claim.

The client's current location or locations where they will be

Professional standards legislation advice is twofold. Not only can location makes information allow insurers to track down your client location thru later date on social media accounts, but where they feel natural at that current moment, it can contradict their personal injury claim. Especially if they have said to their compensation lawyer, or compensation lawyers that they cannot travel for long periods of time, or they cannot leave their home as a result of permanent disability, less disability, or other psychological hardship.

Frequency and quality of content

Hundreds of Stories a day or professional-grade content can suggest that a client claim is perhaps less severe than they are suggesting. This is especially true where social media is a full-time job or part-time line of work for the client if they have claimed an inability to work. Existing pre-created footage or campaigns should be stated as such, and you may want to warn your client they may be used as evidence.

Content and posting that differs from their emotional state

It can be tempting to put on a positive face on social media, but this can be risky for a client who just had an accident, it may have scheme-approved claims based on emotional content, psychological harm, especially surrounding anxiety or depression. Own posts, where they appear carefree or happy post, may appear to contradict their claims, no matter how fake a smile is.

What is the best thing to do when it comes to social media posts?

Without evidence, insurers don’t have anything to use against you. Our advice would always be to tell the client to abstain from social media friends where it is possible, or avoid social media damaging – and warn them of what can happen if they continue to post or make content that contradicts their compensation claim. Unfortunately, posts your clients may think of as innocent can easily be twisted or looked at in different ways to pick apart an otherwise strong claim to the other party.

In addition, request permission to client to stay off social media (though of course they can scroll and view others’ content if they like), you may want to consider extending that ban to friends and family members. The less your client is on social media in any form, the less that can be said. It can be tempting to gossip or talk about accidents or psychological injuries, but keeping all those details offline can help to strengthen your case – and prevent any social-media-related cracks from appearing.

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