Commercial & Business Law
We can help with a range of commercial and business law matters including:
- Buying and selling a business
- Choosing a business structure
- Business and commercial contracts
- Intellectual property
- Commercial and business disputes
- Shareholder and partnership agreements
- Commercial and retail leasing
Choosing a business structure
It is important to choose a suitable business structure to support your business goals and personal circumstances. When choosing a business structure, considerations include the proposed size of your business and whether you are planning for future growth, the industry in which your business operates, and an assessment of the associated personal risks. We can help you choose a structure that fits your needs.
Typical business structures include:
- Sole trader – may be appropriate when starting a small-scale enterprise on your own using an Australian Business Number (ABN). A sole trader is legally and financially responsible for all aspects of the business.
- Partnership – may be ideal when another person or people are involved in, and contributing to, the business. In such cases debts and losses incurred are shared by the partners regardless of which partner ‘incurs’ the liability.
- Registered company – corporate structures can provide some level of protection for directors and officers. The company is a separate legal entity and may enter contracts in its own name. Companies are registered with the Australian Securities and Investment Commission (ASIC) and have ongoing costs and annual reporting obligations.
- Trusts – can assist with asset protection and may provide tailored solutions when it comes to income tax and capital gains. Trusts are complex however and must be compliant and properly managed to ensure they deliver the anticipated outcomes.
Buying or selling a business
If you are looking to buy or sell a business, shares, or a company, it is important to get advice from an experienced lawyer. We can draft, review, and negotiate the sale conditions, recommend due diligence, and ensure that your legal rights are protected. We often recommend that clients also obtain input from their accountant who we can work with to structure the transaction to provide an optimum outcome that considers the legal, financial and taxation implications.
The sale and purchase of a business may include incidental agreements. For example, the business sale may include a commercial lease for the use of premises from which to run the business. Buyers will need to consider the provisions of the lease and how it will be transferred. The transfer of intellectual property, domain names and trading names may also be relevant.
Commercial and retail leases
A commercial lease sets out the legal terms and conditions through which a business may occupy premises to run an enterprise. Whether you are a landlord or tenant, a lease agreement should be prepared and reviewed by an experienced lawyer to ensure a balance of rights between the parties. Disputes can usually be minimised with careful drafting to ensure the terms and conditions of the lease are clear and that the parties understand their legal rights and responsibilities.
If the premises is ‘retail’ the arrangements will be regulated by the Retail Leases Act 2003 (Vic) which was introduced to promote certainty and fairness between landlords and tenants for retail leasing transactions. A landlord leasing or offering to lease retail premises has specific disclosure obligations and some of the leasing terms will be governed by prescribed provisions. It is important to understand the applicable laws and to ensure the negotiations, lease and additional information complies with the legislation.
Recovering unpaid debts
Regular cashflow is essential for your business, but chasing unpaid debts is a major time and money waster for owners and managers.
There are different strategies to use to recover an unpaid debt and the type of legal action taken may depend on the debtor entity (whether an individual or company), the amount owed, the capacity for the debtor to pay, and whether the debt is disputed.
Sometimes a well-drafted letter of demand issued from a lawyer will be enough to encourage the debtor to pay the outstanding amount. Alternatively, you may need to start proceedings in Court to recover the debt. If the debtor is a company, serving a statutory demand under the Corporations Act 2001 may be a viable option.
We can help you determine the most appropriate and cost-effective solution to recover your outstanding debts and, in many cases, reimbursement of your legal costs. We can also help draft your terms of trade and to implement credit control practices to help your business minimise bad debt and improve cashflow.