Business Law

If you have a business, it is important to be supported by an experienced team, whether you are starting out, moving on, growing, or facing a legal problem. We are an accredited Business Law Specialist and understand how challenging it can be to build a successful business in a competitive and regulated market. We can assist with a range of business and commercial law matters, including:

• Buying and selling a business / due diligence
• Partnership agreements / shareholder agreements / joint ventures
• Drafting and advising on guarantees and security documents
• Asset protection / business succession planning
• Advice for non-profit organisations and charities
• Corporate governance / regulation and compliance under the Corporations Act
• Mergers, acquisitions, and restructures
• Mortgages, bills of sale and debentures, venture capital
• Trust deeds, including discretionary trusts, unit trusts and hybrid trusts
• Commercial and retail leasing
• Employment law and workplace issues
• Commercial disputes and commercial litigation in court

Buying or selling a business

Negotiations for the sale or purchase of a business should be formalised in a written agreement, with each party independently advised. You may also wish to consult your accountant to ensure the transaction is structured for an optimum financial outcome. Considerations when buying/selling a business include:

• the structure of the purchase price and apportionment of goodwill, stock, plant and equipment; and how inventory will be valued
• Goods and Services Tax (GST) and other taxation implications
• the provisions of incidental agreements needed to run the business (commercial leases, service agreements) and the requirements for transferring these to the buyer
• provisions for the transfer of intellectual property (business names, trademarks, domain names)
• employees – transfers, offers, redundancies, and calculation of leave and other entitlements
• restraint of trade provisions, confidentiality concerns, training periods
• representations and warranties

Choosing a business structure

When choosing an appropriate legal structure for your business, you might consider the size of the business and any growth plans, the industry in which it will operate, and your personal and financial circumstances. For a small enterprise it may be appropriate to operate as a sole trader using an Australian Business Number (ABN). If, however you anticipate growth, there are a number of other options.

Partnerships

If you are starting a business with another person or people, you may wish to go into partnership. A written partnership agreement can formalise your arrangements so that all partners are aware of their responsibilities. The agreement can also set out processes for termination, retirement, or sale of the business as well as methods to value the business or resolve disputes should they arise in the future.

With a partnership, it is important to note that each partner is jointly and severally liable for the partnership debts. However, if you find somebody that you trust, a partnership structure has low set up costs and minimal ongoing costs.

Joint ventures

If you are looking to complete a specific project or task with another party or parties, you might prefer to enter into a joint venture. A joint venture may be ideal for a temporary arrangement and offer people the opportunity to pool resources and expertise to collaborate on a project. If a joint venture is the right vehicle for your new endeavour, setting out your agreement, roles and responsibilities in writing can avoid headaches, and costly litigation down the track.

Companies, corporate governance and directors’ duties

A business may operate through a corporate structure by registering a limited liability company which provides a certain level of protection for its officers and shareholders. Companies are registered through and governed by the Australian Securities and Investments Commission (ASIC).

Whether you are a sole director or part of a large board, good corporate governance is essential to operate effectively in a regulated environment. Corporate governance refers to the direction and control of an entity through a set of rules, practices, and processes. Company directors have several duties. These include acting in good faith and in the best interests of the company; running the corporation with care, skill, and diligence; preventing insolvent trading; and maintaining proper records.

In a competitive market, company directors may need guidance to ensure they are fulfilling their statutory and common law duties, and to minimise exposure to personal liability.

We can assist with:

• compliance and regulation under the Corporations Act 2001
• appointment and removal of directors and executives
• interpretation of the company constitution
• directors’ duties / conflict of interest issues / shareholder disputes

Trusts and trust law

Where a person or company holds property or rights on behalf of and for the benefit of another, that person is holding the property ‘on trust’. The effect of a trust is the separation of the beneficial, from the legal ownership of property.

A trust structure can provide asset protection and may be beneficial when it comes to determining tax liabilities. Trusts, however, are complex and must be properly set up and administered to ensure the benefits outweigh the costs and ongoing fees. We offer expert advice on the creation, management, and compliance requirements for all types of trusts.

Corporate restructures

Whether due to crisis or opportunity, a company restructure may be imminent. You may be looking to raise equity, change ownership arrangements, or refinance your business. The restructure of an organisation triggers a range of considerations, for example, the transfer, termination, or possible redundancy of employees. It is important to flag and effectively deal with these matters.

We provide strategic advice to help owners and executives navigate complex and sensitive commercial issues to achieve focused outcomes.

If your business is involved in a dispute, it is important to understand your legal position and deal with the matter promptly and professionally.

Rather than going to court, it is often beneficial to try resolving your matter using an alternative dispute resolution process such as negotiation and mediation. These processes generally provide lower-cost solutions and more flexible ways to resolve a legal problem. We can review your situation and provide guidance on managing and resolving your commercial dispute in a way that is cost-effective and delivers the best possible outcome.

If you need any assistance, contact one of our lawyers at [email protected] or call (02) 4369 6975 for expert legal advice.