Commercial & Business Law

Making sound commercial and business decisions often means enlisting the support of a professional. Our expertise in implementing tailored strategies has helped ventures like yours plan for sustainability and growth, mitigate risk, and meet the many legal challenges faced by owners and managers in an ever-changing environment.

Business structures

A business can operate through various legal structures. The structure you choose will depend on a range of matters such as the scale of your proposed operations and your plans for future growth, the industry in which you operate, your financial and personal circumstances, and the need to minimise personal liability. We can help you choose a structure that fits your needs.

Common business structures include:

• Sole traders – may be appropriate when starting a small-scale enterprise on your own using an Australian Business Number (ABN), however, a sole trader is legally and financially responsible for all aspects of the business.
• Partnerships – 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 relevant debts or losses. A formal partnership agreement is important to allocate rights and responsibilities between the partners and can set out procedures for termination, retirement, disputes, or sale of the business.
• Companies – corporate structures can provide some level of protection for directors and officers. The company has its own legal identity and can enter contracts in its own right. 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 more strategic outcomes when it comes to income tax and capital gains. Trusts are complex however and must meet compliance requirements and be properly managed to ensure they deliver the anticipated outcomes.

Sale and purchase of business

Whether your transaction is large or small or involves the sale or purchase of assets, shares or a combination of both, we can advise and guide you through the entire process from initial enquiry stage through to completion.

The agreed terms and conditions of sale should be documented in a written contract outlining each parties’ respective rights and obligations, and dealing with a range of matters, for example:

• the purchase price, apportionment of goodwill, stock, plant and equipment,
• GST and other taxation matters,
• transfer of leases, licences, service agreements, etc.,
• ownership and transfer of intellectual property such as business names, domain names, trademarks,
• employee matters – transfers, offers of employment, redundancies, leave and other entitlements,
• training periods, confidentiality and restraint of trade provisions,
• representations and warranties,
• business records,
• due diligence, inspections, investigations,
• franchise arrangements, as relevant.

These are just some of the issues to consider when buying or selling a business. It can be beneficial to work with your lawyer and financial planner or tax accountant to ensure all the boxes are ticked.

Commercial leasing

A commercial lease sets out the terms and conditions through which a tenant may occupy premises to run a business. Lease agreements should be in writing and contain all agreed terms and ensure a balance of rights between the landlord and tenant. Each party should obtain independent advice.

Typical terms of a lease include:

• Area to be leased – a legal and physical description of the leased premises including the use of facilities such as carparks, storage, amenities, and other common areas.
• Term of the lease – clearly detailed terms and renewal options that should coincide with the respective parties’ business and investment objectives.
• Rent and outgoings – including the method and time for reviewing rent and any outgoings payable by the tenant.
• Permitted use – allowing for the tenant’s intended use which may need to consider any proposed growth in business activities. Note that the tenant is responsible to ensure that any necessary approvals or licences are in place.
• Fit-out and refurbishment – the lease should describe any fit-out permitted, who is responsible for costs and installation, whether fixtures may be removed at the end of the lease and any refurbishment obligations when the lease expires.

Additionally, the Retail Leases Act 2003 (Vic) imposes certain rights and obligations on the parties to a retail lease arrangement. This includes prohibitions on recovering certain outgoings and contributions from tenants and the provision of specified disclosure material by a landlord when offering to rent retail premises. Failing to comply with these requirements can have dire consequences for a landlord.

We have been assisting local businesses with leases, acting for both landlords and tenants for over 40 years. We can prepare and advise on the lease, disclosure statement, transfer, as well as disputes between landlord and tenant.

Commercial contracts

Businesses enter into numerous commercial transactions during their lifetime. These arrangements should be governed by a written contract which captures the parties’ negotiations, sets out their rights and responsibilities and includes essential terms such as the scope of services or products to be provided, pricing, warranties and indemnities.

The subject matter of a contract can range from a single transaction for the sale of a product, to the ongoing provision of services over many months. Contracts can be relatively simple or very complex. They may be needed for a one-off transaction or for numerous transactions, such as a standard form contract for consumer use. Involving a lawyer in preparing a business contract can help keep negotiations on track, ensure that important provisions are not overlooked, and that any regulations pertaining to the contract type are complied with.

Intellectual Property

Intellectual property forms a valuable component of your business and should be protected accordingly. In Australia, trade marks, patents, plant-breeder’s rights, and designs can be registered with IP Australia to ensure protection of intellectual property rights. Legal advice should be sought so that the correct registration is selected.

We can help

Whether you are starting out, expanding, or winding down, our experienced team can assist with your commercial and business law needs. We have a genuine interest in our clients and their business operations with extensive experience across a range of industries. We can help you and your business with a number of matters including:

• buying or selling a business,
• choosing the right structure for your business,
• asset protection and business succession planning,
• partnership and shareholder agreements,
• business contracts and customer terms and conditions,
• supply, service, and distribution agreements,
• commercial disputes.

If you need assistance, contact us at [email protected] or call 03 5985 3211.