The Limited Protection Your Contract Gives

HOW AUSTRALIAN CONSUMER LAW CAN OVERRIDE YOUR CONTRACT

Most business owners think their contract is their safety net — but in reality, its protection is limited.

In this episode of The Travelling Lawyer, Fiona Henderson, commercial lawyer and founder of Argyll Law, explains the limited protection your contract actually gives under Australian Consumer Law.

Even with strong clauses like “entire agreement” or “no reliance,” courts can still look beyond the document — considering conversations, emails, and implied promises made before signing. Fiona shares a real client case that highlights why contracts alone can’t always protect you and how to avoid the same risk.

You’ll learn:

• What “entire agreement” and “no reliance” clauses really mean
• When courts can look outside your contract
• How early-stage conversations can create unintended obligations
• Practical steps to ensure your contract reflects what was actually agreed

 

VIDEO SCRIPT

This video is part three in our six-part series, across the Nullarbor, where we’re sharing practical tips to help you get your contracts right — and protect your business from unexpected legal risks.

We’re in the town of Eucla, right on the easternmost edge of Western Australia, about ten kilometres from the South Australian border.

You’ll be pleased to know that Peter and I are still speaking — only because my husband is a saint and has the patience of Job. One of us is having a lovely time.

Today, I want to talk about something I hear a lot:

“It’s fine. Our contract says it’s the entire agreement — that protects us, doesn’t it?”

And my answer is… sort of.

A good contract absolutely matters. It’s your baseline protection.

If you don’t have one, or worse, if you’ve pulled something from an overseas template, you’re setting yourself up for trouble.

A solid Australian contract gives you the ability to say, “Yes, we had early stage discussions, but if it’s not in this document, it wasn’t part of the deal.”

And that matters in court.

But here’s the truth.

Even with the right clauses — a whole agreement clause, a no reliance clause, governing law, and Australian Consumer Law carve-outs — you can still be exposed.

Under Australian Consumer Law, courts aren’t restricted to what’s in the document. They can, and often do, look at what was said, what was implied, what was demonstrated, and what was assumed — or even just understood — by the other party.

So your contract gives you a position to argue from, but it won’t override everything.

Here’s what happened in the case I mentioned in the last video.

Our client did have a strong contract. He was my client, of course he did.

It said the deal was limited to what was written.

But the other side brought a claim anyway, arguing that they relied on earlier conversations.

The court considered sales chats, emails, comments made during a site visit, and impressions that were formed before anything was signed.

The other side said, “We relied on those things and we suffered loss.”

So the contract helped, but it didn’t stop the fight.

So, what should you take from this?

First, get your contract right. It’s your foundation. Without a contract, you’re exposed from day one.

Second, pay attention to what’s being said before signing — because that’s where the risk creeps in.

If your contract doesn’t reflect your sales conversations, or if your sales team is making promises the contract doesn’t back up, you’ve got a disconnect that can come back to bite you.

At Argyll Law, we help businesses with both sides of the equation:

Solid Australian contracts that hold up in court, and practical tips to manage what happens before those contracts are signed.

If you’d like to check whether your contracts are fit for purpose, or whether your early-stage processes are creating unnecessary risk, send me a message on LinkedIn or head over to www.argylllaw.com.