Corporate & Commercial
Contracts, structures and governance for businesses that need the paperwork to hold when something goes wrong.
Mergers & Acquisitions
Buying or selling a business, from the term sheet and due diligence through to completion and the restraints that follow.
Litigation & Dispute Resolution
Commercial disputes in the NSW, ACT and Federal courts, resolved early where that is possible and run properly where it is not.
Technology and Software
Your product scales digitally. Your contracts have to scale with it.
The track record
Judgments and tribunal outcomes, transactions completed, appointments taken, and the conversations we are part of in Australia and in Germany.
Germany
A German desk for businesses moving between Australia and the German-speaking market.
Singapore
Singapore law where it governs the contract, and the arbitral seat that carries much of the region’s work.
Real Estate and Construction
Sites, leases and buildings, from acquisition to completion.
We act for owners, developers, investors, landlords, tenants and builders across New South Wales and the Australian Capital Territory.
2007
Practising in Australia since
3
Offices: Sydney, Canberra, Frankfurt
2
Legal systems, one team
1
Principal on every matter
How the work runs in this sector
A site from acquisition to completion, and where the money moves
01
Before you sign for the site
Due diligence decides the price far more often than negotiation does. Title, easements and covenants, the planning overlay, contamination, heritage, and in the ACT the terms of the crown lease itself. The contract usually allocates most of these before anyone reads them, so the question is not what the searches show but which party the contract has already made responsible for what they show.
02
The revenue position, which is fixed at signing
Transfer duty, land tax and the foreign purchaser and foreign owner surcharges turn on who buys, in what capacity and sometimes on the day. Withholding at settlement is a separate question again, and no longer a question only for foreign sellers or expensive land: essentially every sale now has a withholding position to establish, and it falls to the purchaser as much as the seller. Duty and the settlement adjustments are our work and we do them here. Where the answer depends on the group’s tax position, that is an accountant’s call and we bring one in, because the structure has to be right before the contract is signed rather than after. Where the buyer is foreign, approval under the foreign investment regime is a gate of its own, and it belongs on the timetable before exchange.
03
The ACT crown lease, which is not freehold
In the ACT you are buying a lease from the Territory, with a purpose clause that limits what the land may be used for and a building and development provision that can require work to be completed by a date. Changing the purpose means a lease variation and a charge that is often the largest single number in a feasibility. Loose fill asbestos affected land carries its own disclosure and surrender regime. New South Wales has its own loose fill asbestos register and disclosure rules, but it has nothing like the crown lease, and a contract drawn for one jurisdiction does not work in the other.
04
Approval, and the tenant who signs before the building exists
Development approval strategy is a commercial question before it is a planning one: what to apply for, what to concede, and what a condition will cost to comply with. An agreement for lease then commits a tenant to premises that do not yet exist, so it has to say what happens if the approval lands differently, if practical completion slips, and who carries the fitout. Those three questions are where agreements for lease come apart.
05
The building contract, and where it puts the risk
Variations, extensions of time, liquidated damages, the defects liability period and the security held against it. An amended standard form is the norm rather than the exception, and the amendments are usually where the risk has been moved. We read the contract for what it does when the programme slips, because that is the state it will be read in.
06
Security of payment, which runs on its own clock
Progress payment disputes are not resolved on the merits first. A payment claim starts a statutory clock, a payment schedule has to answer it within a short fixed window, and a respondent who does not serve one in time can become liable for the full amount claimed without ever reaching the argument about whether the work was done. New South Wales and the ACT run the same clock, and the contract can shorten it but never stretch it. In the ACT, work on a home for an owner who lives or will live in it sits outside the regime altogether; in New South Wales it no longer does. Diarise the dates the moment a claim arrives.
In this sector
What we do for real estate and construction clients
The work
We act for owners, developers, investors, landlords, tenants and builders across New South Wales and the Australian Capital Territory, on acquisitions and sales, due diligence on title and contract, crown lease issues, the revenue position, leasing, development approval strategy and agreements for lease, and on building contracts and the disputes that follow them.
Where it usually goes wrong
Three failures account for most of it. A contract signed before the structure was settled, which can rarely be cured afterwards without unwinding the contract or paying duty twice. An agreement for lease that does not say what happens if the approval lands differently from the application. And a payment schedule that was late, which turns a solid defence on the merits into a liability for the full amount claimed.
The lease, from heads of agreement to make good
Retail and commercial leasing is governed separately in each jurisdiction and the statutes do not even cover the same leases: the ACT Act reaches smaller commercial premises as well as retail shops, it keeps a statutory minimum term that New South Wales gave up, and the disclosure obligations and the machinery for rent review differ in the detail. We act from the heads of agreement through the rent reviews and any assignment, and then on make good at the end, which is where the argument usually is because it is the one obligation nobody prices at the start.
Adjudication decides who holds the money
A security of payment determination is quick and it moves cash, but it does not finally decide the parties’ rights. The amount can be recovered back in proceedings that work through the contract properly. That cuts both ways, and it is worth knowing which fight you are in before spending on the wrong one.
Who does the work
The person you meet is the person who runs it
Fabian Hoffmann
Principal · Sydney, Canberra and Frankfurt
Juris Doctor (ANU) and the First State Examination in Law (Bielefeld), admitted in the Australian Capital Territory, Notary Public of the Society of Notaries of New South Wales, member of the Singapore Institute of Arbitrators, and Vertrauensanwalt for both the Federal Republic of Germany and the Republic of Austria. Works in German and English, and tutored contract law at the ANU College of Law for four years.
Mason Keene-McCann
Principal · Canberra
Admitted to practice in the Supreme Court of Victoria and holds a practising certificate in the Australian Capital Territory. Joined Boettcher Law in 2022 and works with barristers and experts on contested commercial matters.
Australia and Germany
One team, both legal systems
Where a matter runs across both jurisdictions, the German side is handled by our Frankfurt office under German law, not passed to correspondent counsel and marked up. That is the practical difference: one team, one set of documents, and nobody translating between two firms at your cost.
Tax on either side sits with an accountant. We work with Accru Felsers through the German Professional Services Alliance and bring them in at the point the numbers start to matter, which on a restructure or a share transfer is usually before we draft.
Related
The areas of law that carry this sector
Send us the contract before you sign it
Most of what a site costs is decided in the contract and the approval, not in the build. Send us the contract, the title searches and the plans, and we will tell you what you are taking on, what it is worth changing, and what it will cost to find out.
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