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BUSINESS & COMMERCIAL LAW

Our Commercial Lawyers have combined knowledge and experience across many areas of business law. We handle all aspects of business and commercial law matters. At Executive Lawyers you are in safe and experienced hands.

I want to buy/sell a business and need help with the process.

I have a contract dispute, what are my options?

I want to purchase a franchise but don’t know what I should look out for.

I have a dispute about a lease, what are my options?

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Business & Commercial Law

As a result of our extensive experience, whether you are an individual or sole proprietor requiring legal advice, or a large corporation, our Business & Commercial Lawyers are committed to helping you succeed. We offer accurate, independent, and straightforward legal advice with practical solutions and personalised service.

 

Our business and commercial legal experience allows us to offer legal services that are tailored to our clients’ requirements, expectations, and outcomes. As part of our full service of business and commercial law offered, we provide the following services:

  • Asset Protection & Trusts;
  • Business Structuring;
  • Buying & Selling Businesses;
  • Commercial Contract Disputes & Commercial Litigation;
  • Commercial Property & Leases;
  • Compliance & Corporate Governance;
  • Corporations Law;
  • Employment Law;
  • Franchise Agreements;
  • Partnership and Shareholder Agreements & Disputes; and
  • Succession Planning.

Asset Protection

The objective of asset protection is to protect assets from legal, business, and legislation changes, by safeguarding against litigation, forfeiture, or loss in value. The purpose of corporate structures such as limited liability companies and family trusts is generally to protect assets exposed to potential creditors and excessive taxation, by utilising certain mechanisms to minimise the risks and exposure to litigation.

 

As the powers of liquidators and trustees to set aside voidable transactions continues to expand, it is important to adopt appropriate mechanisms as soon as possible, prior to any risk of insolvency or bankruptcy, to attempt to protect key business assets.

 

The need for directors of companies to protect their assets is critical as they could be named in litigation proceedings along with their company. Therefore, adopting strategies and mechanisms to provide asset protection is crucial, as company directors may be assessed to determine what assets are held prior to any litigation being commenced. If the company directors have no assets, then there may be a chance that litigation may not be commenced as a result.

 

We can advise you in relation to establishing the most appropriate business structure to reduce the risks to assets, including choosing the appropriate type of entity and how to fund it, and assisting you to understand the impact on each on your personal and business assets.

 

Some of the mechanisms and structuring solutions we adopt to achieve this are:

  • Trusts;
  • Registered debentures;
  • Licence agreements;
  • Structured finance arrangements; and
  • Superannuation.

 

However, the most common mechanism used to protect assets is by utilising discretionary trusts, which provide flexibility as to income and asset distributions. The beneficiaries of the trust may include other trust, companies, individuals, family and non-family members, however, the main benefit of discretionary trusts typically is that the assets will be held by the trust, not the individual beneficiaries, providing your assets from further protections as they are owned by a separate entity.

 

Whether you personally want to protect your assets, are starting a new business, or operating an existing business, we have extensive experience in developing strategies appropriate to your individual circumstances and commercial objectives, and can advise and assist in the process of adopting the appropriate mechanisms to protect your assets.

Business Structure

Selecting the most appropriate structure for your business and the manner in which it is set up it can affect the degree of protection of assets, legal risks, and tax obligations.

 

The most common business structures to select from (when available, having regard to an individual’s circumstance) are:

  • Incorporation of company – an incorporated company is its own legal entity, with the structure typically being appropriate for those looking to expand the size and scale of the business;
  • Partnership – an association of two or more people carrying on business as a partnership, with all partners being jointly responsible for the debts of the business;
  • Sole trader – the simplest and cost effective structure to set up a business, with the business being managed and operated by the individual; and
  • Trusts – a trust which is its own entity can be utilised to operate a business, with an individual or a corporate trustee controlling the trust and distributing profits to the beneficiaries of the trust.

 

Tax implications are an important consideration in choosing the appropriate business structure, as such implications typically vary for each business structure. For example, the profits generated by a sole trader will likely be considered as personal income, and taxed accordingly. In contrast, a company will likely pay 30% tax on the income generated, and generally requires the keeping of financial records and lodgment of annual tax returns and business activity statements. A trust business structure may assist in controlling tax by streamlining distributions to beneficiaries of the trust on lower tax rates.

 

With our extensive experience, we can assist you with identifying and setting up the most appropriate tax effective business structure for your current and future business needs, and which also provides appropriate asset protection for the business.

Buying & Selling Businesses

Purchasing an existing business without the assistance of a lawyer may result in important matters not receiving adequate consideration prior to the purchase. We assist in all aspects of the due diligence process. This includes considering all legal aspects of the purchase of the business to advise you on the associated risks.

 

Through our extensive experience, we can guide you through the purchase of the business to ensure that the business is as presented in the documents, negotiate with the vendor, highlight issues to ensure that you do not pay more than necessary, and advise you on all aspects of the purchase including:

  • Preliminary exclusivity agreements;
  • The inclusion of appropriate conditions in the Business Sale Agreement;
  • The novation of continuing contracts and key person employment;
  • Legal due diligence;
  • Negotiation of appropriate vendor warranties, and
  • Special conditions.

 

In undertaking the due diligence, clients are typically informed that they should always obtain independent financial advice from an accountant, or business advisor. This is to confirm that the financial situation of the business is accurately reflected. This is even more important during the COVID-19 pandemic, to ensure that the information provided is accurate, to give the business a better opportunity to survive the economic and social disruption of the pandemic.
 

When acting for vendors/sellers, our priority concerns are to:

  • assist with the preparation of a ‘Heads of Agreement’;
  • identify and manage issues that will likely be raised by the purchaser in the due diligence;
  • ensure an accurate non-disclosure agreement is in place;
  • ensure that an accurate, clear, and comprehensive business sale agreement is drafted; and
  • ensuring the vendor/seller is able to perform and enforce the signed business sale agreement.

 

Once the sale has been completed, we will continue assisting our clients by seeing the matter through to settlement in the most efficient and effective way, to avoid any disruption to operations.

Commercial and Contract Disputes & Commercial Litigation

Legal disputes can be a costly and time consuming exercise. Contractual and commercial disputes are amongst the most common business issues that result in litigation.

 

A contractual dispute most commonly arises when one party of a contract:

  • Does not perform in the prescribed time in the contract;
  • Does not perform their duties as stated in terms of the contract;
  • Disagreement over interpretation of a term in the contract; or
  • Fails to perform their duties.

 

In contrast, commercial law disputes most commonly involve a disagreement over a property as part of a commercial transaction, a lease dispute, or a building dispute.

 

It is best practice for parties to attempt to negotiate a resolution for the breach of contract or commercial disputes, that is agreeable by the parties without proceeding to Court. For example, in breach of contract matters, the parties may seek resolutions in the form of terminating the contract, renegotiating the terms of the contract, or requesting the payment of damages.

 

However, if the parties are unable to agree on a resolution, then the dispute may often lead to Court proceedings, initiated by the party seeking a remedy. For the purported breach of contract, such remedies can include seeking specific performance to force the party in breach to complete or perform their obligations under the contract, or seeking damages for loss which the other party has refused to provide.

 

As contractual and commercial disputes can often be complex, our Commercial Lawyers are experienced in advising and assisting clients in reaching a resolution of their matter, whether it be outside of Court or in. Our lawyers are experienced in all aspects of litigation, including gathering evidence, interviewing witnesses, and obtaining expert reports when required, to assist the Court in their determination.

Commercial Property & Leases

Whether you own, manage, or sell a commercial property, or are buying a business with an existing commercial lease of the premises, there may be complex legal matters and concerns which require adequate consideration and legal advice.

 

We have extensive experience to offer a range of commercial property legal services such as:

  • Acquisition and sale of commercial and residential property;
  • Retail and commercial leasing;
  • Assignment, variation, novation or surrendering of leases;
  • Disputes;
  • Lock-outs & Re-entry;
  • Off the plan developments;
  • Investment property development;
  • Compulsory Acquisition;
  • Subdivisions and body corporate;
  • Infrastructure and project funding;
  • Planning;
  • Building contracts and projects;
  • Risk assessment; and
  • GST advice.

 

The law surrounding leases is complex and obtaining legal advice is recommended prior to entering into a lease, including in situations where you may wish to vary certain terms of the lease, such as those concerning rent review processes, termination rights, indemnities, lease terms and options. We can advise you of your rights and obligations under the lease, and can also negotiate with the owner of the property to either vary the lease, or agree to a new lease, to suit your requirements.

 

We aim to ensure that your legal interests are protected and assist you in avoiding being bound by unfavourable terms that may put you or your business at a disadvantage.

Compliance & Corporate Governance

We have extensive experience in compliance matters, and our Commercial Lawyers advise clients on effective corporate governance and compliance systems, to assist with their requirements whilst clarifying their company’s policies and procedures, thereby avoiding severe penalties.

 

We focus on diagnosing legal compliance and risk management issues for our clients. We advise companies on directors’ duties, corporate governance, Australian Securities and Investments Commission regulatory guides, and various matters pursuant to the Corporations Act 2001, including:

  • Workplace health and safety;
  • Board member duties and responsibilities;
  • Protocols and governance policies;
  • Trade practices and competition law;
  • Privacy; and
  • Anti-money laundering.

 

Corporate Governance is the framework that guides the operations and performance of a company. An effective corporate governance is integral in meeting a company’s objectives and performance targets.

 

We advise and train directors and other company officers of their duties and liabilities, preparing corporate governance policies, board and general meeting notices and minutes, preparing constitutions, advising on indemnities and insurance, reviewing annual directors’ reports and liaising with regulators such as ASIC and ASX.

 

Our experienced Commercial Lawyers at Executive Lawyers help our clients by directing them through the difficulties of managing and operating their company, whilst advising them in relation to their company’s rights and responsibilities.

Corporations Law

We have extensive experience in providing Corporations Law advice and drafting a broad range of corporate and commercial documents and agreements across a wide range of industries.

 

We advise on all aspects of business and investment, from mergers and acquisitions, to start-ups and divestments. We can assist clients every step of the process to minimise their legal risks and providing them with the opportunity to focus on running their business.

 

Our Corporate Lawyers have a comprehensive knowledge of all aspects of Corporations Act law matters, and provide the following services:

  • Corporate Advisory;
  • Corporate Crime;
  • Debt and Equity Raises;
  • Regulatory Governance and Compliance;
  • Mergers and Acquisitions;
  • Negotiating Mergers and Acquisitions;
  • Share Buy Backs; and
  • Related Party Transactions.

 

We can assist clients to structure of their business, their financial transactions, draft documents, negotiate deals, and attend legal meetings on their behalf.

Employment Law

If you are an employer and you wish to engage the services of an individual, or to terminate their services, you will want to avoid any disputes in relation to non-compliance of your obligations as an employer.

 

If you are an employee who has lost their job, you may need legal representation to enforce any and all of your rights against your employer.

 

In most circumstances, disputes arise from an employment contract, which typically sets out the rights and responsibilities of both the employer and the employee. These rights include:

  • Remuneration or wages;
  • Duration of employment;
  • Duties;
  • Tasks;
  • Entitlements and benefits;
  • Confidentiality; and
  • Non-compete clauses.

 

An employment contract plays an important role in defining the job and the role offered by an employer or prospective employer. Such a contract must not provide less than the legal minimum set out in the National Employment Standards.

 

Carefully considering and drafting the employment contract is crucial for both the employee and the employer to understand their obligations and responsibilities, and avoids the risk of any uncertainties or ambiguities.

 

Our team can assist you in drafting or reviewing employment contracts, or resolving any disputes that arise from those contracts. It is important to seek legal advice before signing a contract to ensure that you are entering into an arrangement that is fair and which you understand.

 

With our extensive experience, we provide the following services in relation to employment law:

  • Advise on employment contracts for employees and employers;
  • Act in pay disputes;
  • Act in entitlement disputes;
  • Act in unfair dismissal claims;
  • Act in general protections claims;
  • Act in bullying and sexual harassment claims; and
  • Assist in structuring and advising on exit and redundancy packages.

 

We understand that it can be a traumatic experience to leave a workplace after many years of service, particularly if you have been forced to resign, or unfairly dismissed. If you experience this, you may be eligible to make an unfair dismissal application to the Fair Work Commission. Our team can discuss your circumstances and advise of the claims likely to be available to you.

 

Call us today on (03) 8376 6209 to have a confidential discussion about your circumstances, or complete the enquiry form on this page and one of our Employment Lawyers will contact you.

Franchise Agreements

We have extensive experience acting on behalf of clients that are franchisors or franchisees, which require legal advice relating to the Franchising Code, contract law, lease law and the Australian Consumer Law.

 

A franchise agreement is a specific contract which formalises the legal relationship between a franchisor and franchisee. The franchise agreement typically sets out the rights and obligations of each party, including obligations relating to performance criteria, payment of fees (royalties, marketing fees, training fees, transfer fees, termination fees, utility levies etc.), marketing, reporting, training, approved equipment, supply of products and services, and territory. A franchise agreement is required to be accompanied by the franchisor’s disclosure document which provides further details of the business and other franchisee obligations.

 

Whether you are franchising your own business or buying into a franchise, it is crucial that you understand your obligations within the franchise structure.

 

Our Commercial Lawyers assist clients to navigate the complex legal issues and matters involved with franchises, and can assist with all aspects of the franchise operations to assisting in making the process as smooth as possible, whilst ensuring our clients are best placed to fulfill their obligations under the agreement and the Franchising Code of Conduct.

Partnership and Shareholder Agreements & Disputes

With our extensive commercial and corporation law experience, we offer our clients a selection of shareholder, unit holder, and partnership agreements.

 

It is important to formalise business arrangements such as partnerships in an agreement. This ensures that the parties are on the same agree on the management and operation of their business, and what would occur where parties do not agree.

 

A partnership is between two or more individuals (partners), engaging in business together with a vision to make a profit. While partnerships do not legally have to be equal for the individual partners involved, all partners share the responsibilities, benefits, and risks associated with the operation and management of the business. Additionally, partnerships require a Deed that states clearly the obligations and rights of each partner which is governed by the Partnership Act 1958.

 

In contrast, shareholder agreements are commonly entered into by shareholders of a private company, which lays out the operation and management of the business, the roles of partners, and also the core issues relating to the issue of new shares, rights, and obligations, that must be complied with in the sale of shares.

 

The appropriate time to prepare the appropriate agreement is typically at the beginning, around the time of the creation of the partnership or shareholder arrangement.

 

We regularly provide legal advice to shareholders, particularly in relation to dealing with the resolution of disputes, and where necessary, representing shareholders in commercial litigation.

 

In our experience, shareholder and partnership disputes commonly resolve by a partner buying out the other partner, or the business winding up, but these are each options (amongst others) to be carefully considered. As the partners are all jointly and severally liable in partnerships, it is generally important that disputes and issues are sorted out quickly and carefully.

 

Dispute can commonly be resolved with open communication and negotiation between the parties, and or, their representatives to negotiate a settlement. We can assist in negotiations of this nature, and also advising you of your position to ensure that you have a clear understanding of your legal rights and obligations.

Succession Planning

The transfer of wealth through generations often becomes complicated by tax considerations, assets held in trust, further marriages, and assets held by private companies.

 

Therefore, a succession plan is imperative for families who own businesses that they intend to pass on, or for other businesses owners who seek to think strategically about who will replace them or carry on the business when they retire or leave. Proper succession planning ensures that your company is ready when this happens.

 

We work with our clients to map out succession plans that cover business transition arrangements, superannuation, wills and estate planning.

Contact us today

Our commercial law team has knowledge and experience across many areas of business, commercial and corporations law.

 

We want to partner with you for the life of your business by delivering innovative legal solutions to assist you to achieve your business goals faster.

 

Our Commercial Lawyers will take the time to understand your business in depth, its goals and objectives to determine the appropriate strategies and mechanisms to protect you and your business dealings both immediately and in the future.

Frequently Asked Questions

There are typical mistakes people make such as improper use of trusts and lack of sound tax or estate planning advice which can result in the loss of personal assets. To ensure the best possible outcome, always consult a legal professional to ensure you are receiving the right advice for your individual and business circumstances.

If the business purchase price is less the $450,000, then the first document you should typically request is the vendors statement or Section 52 statement. A Section 52 statement is important as it provides essential financial information of the business.

Other important documents to request include:

• Lease;
• Customer list;
• Supplier list;
• Business Asset Register;
• Inventory Register; and
• Contracts such as distribution or supply agreements.

If the purchase price is over $450,000, then, in addition to the documents above, you will likely want to request a full set of financials documents for the last three (3) years trading history.

There are different types of trusts available for both businesses and individuals ranging from unit trusts (assets held on trust for the beneficiaries/unit holders), testamentary trusts (associated with wills), and discretionary trusts (most commonly used by families).

We make things easy, efficient, and worry-free. Talk to us today.