Commercial & Corporate Law
Commercial law concerns a range of legal transactions and issues affecting an enterprise. Whether you are a start-up or an established business, it is important to be guided by professionals to ensure sustainability and growth, and to manage risk and liability. We support owners and directors involved in businesses of all sizes across a range of industries. We can help with:
- Buying and selling a business
- Commercial lease agreements
- Guarantees and security documents
- Bankruptcy and debt collection
- Estate and business succession planning
- Employment law
- Copyright and intellectual property law
- Advice on corporate structure, governance, and compliance
- Corporate and commercial litigation in court
- Advice regarding tax law including capital gains tax
- Advice for non-profit organisations and charities
- Lending agreements
Buying or selling a business
Negotiations for the sale or purchase of a business should be formalised in a written agreement, and each party independently advised. In most cases, we also recommend getting financial advice from your accountant before buying or selling a business. Your professional team can help structure the transaction to provide an optimum outcome and to protect your interests. Considerations when buying or selling a business include:
- the structure and apportionment of the purchase price, taking into account goodwill, stock, plant, equipment, and inventory
- Goods and Services Tax (GST) and other taxes such as Capital Gains Tax (CGT)
- the suitability of any incidental agreements that form part of the business operations such as commercial leases and service contracts, and how they will be transferred to a new owner
- provisions for the transfer of intellectual property such as business names, trademarks, and domain names
- employment relations – arrangements for existing employees, transfers, offers, redundancies, and calculation of leave and other entitlements
- restraint of trade and confidentiality provisions
- agreed training periods, representations, and warranties
When starting a new venture or buying a business, it is important to operate using an appropriate legal structure. This generally requires consideration of the parties’ personal and financial circumstances, the size and nature of the business, the regulatory environment within which it operates, and any plans for future growth.
Common business structures include sole proprietorships, partnerships, trusts, and incorporated companies. Each structure has its unique characteristics and pros and cons. Each will also vary in the complexity, reporting requirements, treatment of income tax and level of asset and personal protection for the owners.
We can help you choose and implement a business structure that will suit your needs.
Corporate governance and directors’ duties
A company is an incorporated entity registered through the Australian Securities and Investments Commission and can enter transactions in its own right. Given their separate legal identity, companies can provide some level of protection for directors and shareholders, making them a popular choice for small-medium sized businesses. Companies must comply with specific reporting obligations and company directors should also be mindful of their duties under the general law and the Corporations Act 2001. These include to:
- run the company with care, skill, and diligence
- prevent insolvent trading (i.e., not allow the company to operate when it is no longer able to meet its debts)
- act in good faith and in the best interests of the company
- maintain proper records and prepare financial reports
- not improperly use their position for personal gain
In a challenging market, directors face various challenges that may put them at risk of breaching their duties. If you are uncertain about your position, we can provide advice. There are certain defences we may be able to provide for a director who has breached their duty to avoid insolvent trading, however we urge that the directors of companies facing financial difficulties seek professional assistance early.
Commercial contract advice
A business will typically enter many transactions whether they are for B2B or B2C products or services. Arrangements should be governed by a written contract setting out the parties’ rights and responsibilities. Contracts should include terms such as the scope of services or products to be provided, warranties and indemnities, default provisions and dispute resolution processes.
Some contracts will be governed by consumer provisions and must comply with specific laws. Getting legal advice when negotiating, preparing, or reviewing a business contract can help to ensure that important provisions are not overlooked, and that your personal and business interests are protected.
As technology continues to evolve it has become increasingly important to protect a business’s intellectual property. Intellectual property comprises a range of valuable assets such as brands, trademarks, designs, patents, trade secrets and confidential information.
There are various ways to protect your intellectual property, whether by registering a trademark or patent or through carefully prepared licence and confidentiality agreements. We can help with a range of solutions to help protect and enforce your intellectual property rights.
Regular cashflow is essential for all businesses, but chasing unpaid debts is a major time and money waster for owners and managers.
There are various ways we can assist you in pursuit of an unpaid debt, which will usually 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 issuing a letter of demand as your lawyer will be sufficient to encourage a debtor to pay up. If the debtor is a company, serving a statutory demand under the Corporations Act 2001 may be a viable option. Alternatively, we might proceed in a relevant court or through legislation specific to a certain industry in order to reclaim the money owed.
Throwing good money after bad is not a strategy for chasing debts. We can help you determine the most appropriate and cost-effective solution to recover your outstanding debts. 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.