Contracting with Film victoria
If your application is successful, you will be required to enter into a written funding agreement with Film Victoria. That funding agreement will set out all of the terms upon which the Film Victoria funds will be provided to you.
Here, we have set out some information and answers to frequently asked questions, which might be helpful to you when you are contracting with Film Victoria.
This information is intended as a general guide only. If you have any specific questions about the contracting for your project, you should feel free to contact us (the details for the relevant contacts at Film Victoria are set out in the I Have More Questions section below.
YOUR FUNDING AGREEMENT WITH FILM VICTORIA
MY APPLICATION WAS SUCCESSFUL - DO I NEED TO DO ANYTHING NOW?
So that our legal team can prepare your funding agreement, you will need to provide the following details (where applicable):
- your personal details (name, address, ABN, bank account) - if you are entering into the funding agreement with Film Victoria personally;
- your company details - if your company will be entering into the funding agreement with Film Victoria, you will need to provide all relevant details for that company (name, ACN, address, ABN, bank account, names of company directors);
- partnership details - if you wish to contract with Film Victoria as a partnership, you will need to provide all relevant details for that partnership (name and address details for each partner, ABN, bank account);
- association details - if your association will be entering into the funding agreement with Film Victoria, you will need to provide all relevant details for that association which must be incorporated (name, registration number, address, ABN, bank account). Film Victoria cannot enter into a funding agreement with an unincorporated association.
Film Victoria will not be able to prepare your funding agreement until we have received this information.
I HAVE A BUSINESS NAME - CAN I ENTER INTO AN AGREEMENT WITH FILM VICTORIA USING MY BUSINESS NAME?
Yes - if you have a registered business name, you can enter into a contract using that name. But, a business name is not a separate legal entity (like an individual person or an incorporated company). For that reason, the contract will be prepared between Film Victoria and you, trading as your business name (for example, A Jones trading as A Jones Films).
I HAVE RECEIVED THE FILM VICTORIA FUNDING AGREEMENT - DO I NEED A LAWYER?
Your funding agreement will set out all of your obligations to Film Victoria in relation to your project, and the expenditure of the funds Film Victoria provides to you. It is very important that you understand those obligations and appreciate what is required.
For that reason, you may wish to obtain independent legal advice in relation to the funding agreement, from an appropriately qualified lawyer. You might like to browse our Industry Directory or the Encore Directory for a list of lawyers who have experience in film and television law. You may also be able to obtain legal advice from the Arts Law Centre of Australia.
You will need to make your own determination about the solicitor that is right for you. Film Victoria does not make any representation or warranty about the legal service providers listed in the Industry Directory or in the Encore Directory.
Where necessary, we encourage you to budget for legal services by including a line item in your budget.
MY PROJECT DETAILS HAVE CHANGED - WHAT DO I DO?
If any of the details of your project change (for example, the key personnel, the production schedule, the amount of the budget, the finance structure, delivery dates), you will need to inform the relevant Film Victoria Project/Investment Manager in writing immediately.
Film Victoria will then consider these changes, and determine if they are approved. Any approved changes may need to be reflected in your funding agreement with Film Victoria.
If you make substantial changes to your project after it has been approved for funding by Film Victoria (so that the project is substantially different from that reflected in your funding application), it may impact upon Film Victoria's funding.
ABN AND GST
WHAT IS AN ABN?
An ABN, or Australian Business Number (ABN), is a number given to legal entities registered with the Australian Tax Office (ATO) which are carrying on business in Australia.
An ABN is used by the ATO to track a business's ongoing tax obligations, specifically with respect to the Goods and Services Tax (GST), and provides a mechanism for businesses doing business with one another to handle incoming and outgoing GST.
I DON'T HAVE AN ABN - DO I NEED ONE BEFORE I ENTER INTO AN AGREEMENT WITH FILM VICTORIA?
Film Victoria generally prefers applicants to have ABNs. There are two reasons for this:
- businesses with a certain annual turnover (which, as at November 2009, is $75,000) must register for GST, and they need an ABN to do this; and
- if a business does not have an ABN, Film Victoria is required by law to withhold tax from any payment to that business at the top marginal tax rate (45% as at November 2009).
The process for registering for an ABN is relatively straightforward. If you do not have an ABN, you may wish to seek independent financial or accounting advice before registering for one, to ensure that your business affairs are appropriately structured.
I HAVE AN ABN BUT I AM NOT REGISTERED FOR GST - CAN I STILL ENTER INTO AN AGREEMENT WITH FILM VICTORIA?
Yes. If we have your ABN details, Film Victoria can pay you the full amount of funds granted to you. However, if you are not registered for GST, Film Victoria is not required to pay any GST to you in respect of the funds, and you are not entitled to invoice Film Victoria for GST.
I HAVE AN ABN AND I AM REGISTERED FOR GST - DOES FILM VICTORIA HAVE TO PAY GST TO ME, ON TOP OF THE APPROVED FUNDS?
Yes. If you are registered for GST, you must advise Film Victoria and provide your ABN details.
Then, if GST applies to the approved funds, you will be required to invoice Film Victoria for any payments due under the funding agreement, plus GST. As part of your own financial management arrangements, any amounts paid by Film Victoria to you on account of GST will need to be remitted to the ATO.
It is important to note that GST does not apply to all funds granted by Film Victoria (that is, some programs are not subject to GST).
I WILL PAY SOME OF THE FUNDS I RECEIVE FROM FILM VICTORIA TO ANOTHER PERSON INVOLVED IN MY PROJECT (FOR EXAMPLE, A WRITER OR SCRIPT EDITOR). THAT PERSON HAS INVOICED ME FOR GST - DO I HAVE TO PAY THE GST AMOUNT?
Yes. You will need to pay any GST that applies to the services you receive from another person, regardless of whether or not you are registered for GST.
WHAT IS REQUIRED FOR A VALID TAX INVOICE?
For further information on what constitutes a valid tax invoice, please refer to the ATO website.
Generally, a valid tax invoice must state:
- the words "tax invoice";
- the name and ABN of the supplier (in this case, Film Victoria);
- the name, address and ABN of the recipient;
- the date of issue of the invoice;
- a brief description of the goods and/or services;
- the total price of the goods and/or services (inclusive of GST); and
- the GST amount.
MY APPLICATION TO FILM VICTORIA WAS SUCCESSFUL - WHEN WILL I BE PAID?
Before any funds are paid, you will be required to enter into and sign a written funding agreement with Film Victoria. Film Victoria will generally be in a position to forward your funding agreement to you for signing around 20 days from the date of approval of your application. That timing will depend, in part, on how quickly you provide the information required by Film Victoria to prepare that funding agreement (as outlined in the Your Funding Agreement with Film Victoria section of this page).
Please note that these time estimates do not generally apply to production investment, where the timing of the contracting process will depend on a number of factors including the finalisation of the finance structure.
The funding agreement will set out how the approved funds will be paid to you - those funds will usually be paid in at least 2 instalments, with conditions to be satisfied by you prior to the payment of each instalment.
For example, and depending on the relevant program, you may be required to provide some or all of the following prior to payment of the first instalment:
- the signed funding agreement (which will also need to be signed by Film Victoria);
- your bank details;
- a valid tax invoice for the instalment amount;
- chain of title documents;
- solicitor's opinion letter; and
- any outstanding reports or other deliverables due to Film Victoria in relation to previous funds received by you (or related entities).
UNDER MY FUNDING AGREEMENT, I AM REQUIRED TO PROVIDE CHAIN OF TITLE DOCUMENTS - WHAT IS CHAIN OF TITLE?
Chain of title is a term commonly used to refer to a series of documents which establish that you own all the necessary rights (including copyright) to allow you to develop, produce and market your project.
For some funding agreements, you may be required to submit a Chain of Title confirmation form which can be downloaded here (34KB).
Documents which might typically form the chain of title for a project include:
- Writer's Agreements;
- Script Editor's Agreements;
- Option and Assignment Agreements (if you are basing the script for your project on someone else's work, such as a novel);
- Producer's Agreements; and
- Director's Agreements.
You will need to establish for Film Victoria, at each relevant stage of your project, that you own all necessary rights and have the appropriate chain of title documents. If you are required to provide chain of title documents under your agreement, Film Victoria will be entitled to approve those documents.
For your reference, click on the link to download examples of:Script Consultant's Agreement (39KB).
UNDER MY FUNDING AGREEMENT, I NEED TO PROVIDE A SOLICITOR'S OPINION LETTER - WHAT IS AN OPINION LETTER?
The requirement for you to provide a solicitor's opinion letter applies to some (but not all) of Film Victoria's funding programs. The solicitor's opinion letter needs to be from an independent solicitor, certifying that you have acquired all the necessary rights to enable you to develop, market and produce your project.
Generally, Film Victoria will require a solicitor's opinion letter prior to payment of the first instalment of funds. In some instances Film Victoria may also require a second solicitor's opinion letter prior to the payment of the final instalment of the funds.
In order to provide these opinion letters, your lawyer will need to review all relevant Chain of Title and other documents and confirm that you have acquired all necessary rights to make and exploit your project. Pro forma opinion letters are available from Film Victoria.
I HAVE MORE QUESTIONS - WHO CAN I ASK?
Applicants are advised to contact the relevant Film Victoria Project/Investment Manager (refer to the Guidelines for the relevant Program for contact details).
For specific queries regarding the contracting or payment processes, please contact:
FOR GRANTS AND DEVELOPMENT INVESTMENT:
Daniel Reid, Acting Contracts Officer - Development and Grants on 9660 3200
FOR PRODUCTION INVESTMENT:
Sam Lloyd, Acting Contracts Officer - Production and Recoupment on 9660 3200