Commercial law refers to the many legal matters affecting businesses. It concerns the rules regarding the formation and conduct of companies, compliance and regulation, and a range of everyday transactions that a business encounters such as leasing commercial premises, supplying goods and services, and protecting intellectual property. Our knowledgeable team will discuss your individual circumstances to tailor solutions for the many planned and unplanned events that occur throughout the life of your business.
We can assist with:
- Buying and selling a business
- Business structures and restructures
- Commercial and business contracts
- Intellectual property
- Commercial and business disputes
- Shareholder and partnership agreements
- Employment law
- Commercial and retail leasing
- Licence agreements
Business Structures
It is important to operate your business through the most effective legal structure, which typically involves consideration of your personal and financial circumstances, the size and type of business, the regulatory environment within which it operates, and your plans and strategies for future growth.
You may be able to operate successfully as a sole trader under an Australian Business Number (ABN). Under this structure, you can offer services or sell goods, employ staff, and perform most business functions. As a sole trader, however, you are personally responsible for all decisions and any losses of the business.
If you want more legal and financial protection, you can register a company through the Australian Securities and Investments Commission (ASIC). A company is a separate legal entity which can help insulate its owners and members from losses incurred by the business and protect personal assets. However, a company is a more complex structure to run, with additional reporting, regulatory and compliance obligations for the directors.
There are other business structures, such as partnerships and trusts, that may be suitable for different business types.
Our commercial team can help you to identify the business structure most suitable for your current circumstances and ambitions for the future.
Buying or Selling a Business
The process of buying and selling a business generally involves drafting an agreement that outlines the terms and conditions negotiated, and transferring the business and all associated assets and legal arrangements to the new owner. The agreement will typically include the purchase price, assets and inventory, the liabilities assumed, and any restrictive covenants.
Often, there are existing legal arrangements needed to run the business that must be considered and transferred to the new owner. These might include the assignment of a commercial lease, and the transfer of service agreements and intellectual property such as trading names, domains, and brands. If the business has existing employees, specific arrangements will need to be made depending on whether they are transferring to the new business or being made redundant.
Each party should be independently advised – sellers will want to ensure an optimum outcome and smooth transaction as they exit, and buyers will need to perform due diligence to assess the financial, legal, and operational aspects of the deal. Our business solicitors can work with your financial advisor to ensure that the transaction provides an optimum outcome.
Commercial and Retail Leases
If you need premises to run your business, you may need to enter a commercial or retail lease. A well-drafted lease agreement with clear terms puts the parties on the same page at the beginning of the relationship and helps avoid leasing disputes.
Tenants should ensure that:
- the premises is suitable for your business operations
- relevant approvals/licences are in place or can be obtained
- the commercial provisions (the term, rent and rent increases, renewal options, fit-out provisions, etc.) are suitable for your plans
- the lease is compliant with any relevant retail leasing legislation
- your legal rights are protected and there are provisions to address a range of contingencies or unforeseen events
Similarly, if you are renting commercial premises that you own, you will need a carefully drafted agreement with terms and conditions to ensure your investment is protected. If the premises are retail, the Retail Leases Act 1994 applies, which provides certain protections for tenants and governs specific terms of the arrangements. Landlords of retail premises must also provide prescribed disclosure information to tenants.
We can assist with drafting, reviewing, and negotiating the terms of a proposed lease agreement as well as lease renewals, transfers, assignments, and sub-letting.
Debt Recovery
In a perfect world, you would never have to chase outstanding debts. However, most businesses at some stage will encounter customers who are slow payers or refuse to pay their invoices at all. The most appropriate course of action will depend on the circumstances, the identity of the debtor, and amount owed.
When dealing with companies, it might be best to serve a statutory demand which creates a presumption of insolvency unless the company pays up or successfully has the demand set aside.
If the debtor is an individual, sole trader or partnership, you might start with a letter of demand or pursue payment in a local or district court. Depending on the circumstances, there may be room for negotiation, and you could enter into a deed with the debtor for repayment of the debt by instalments.
No matter what is owed and by whom, it is important to avoid throwing good money after bad. Our experienced solicitors will help you navigate the most viable debt recovery option.
If you need assistance, contact one of our solicitors at [email protected] or call 02 6885 0025 for expert legal advice.
