Commercial & Corporate Law
Business owners and managers should be guided by competent professionals whether they are involved in a start-up, an established venture looking for growth, or ready to transition to retirement. We support businesses of varying sizes across various industries. We can help with:
- buying and selling a business
- general legal and business advice
- advice regarding business structures – partnerships, trusts and corporations
- advice regarding business management and administration
- business name registration
- partnership and joint venture agreements
- commercial lease agreements
- asset protection and succession planning
- corporate governance and compliance
- bankruptcy and debt collection
- commercial disputes and litigation
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 obtaining advice from your accountant before buying or selling a business. Your professional team can help structure the transaction to provide an optimum outcome, protect your interests, and ensure that important matters are not overlooked.
Considerations when buying/selling a business include:
- the structure of the purchase price and the apportionment of goodwill, stock, plant and equipment, and how inventory will be valued
- how GST is to be treated and the impact the transaction may have on other taxation matters
- whether incidental agreements necessary to conduct the business (for example, commercial leases and service agreements) will be suitable and the requirements for transferring these agreements into the buyer’s name
- provisions for the transfer of intellectual property (business names, trademarks, domain names)
- dealing with any existing employees of the business – transfers, offers, redundancies, and calculation of leave and other entitlements
- restraint of trade provisions, confidentiality concerns, training periods
- representations and warranties
It is important to choose a suitable business structure to support your business goals and personal circumstances. When choosing a business structure, considerations include the proposed size of your business and whether you are planning for future growth, the industry in which your business operates and an assessment of the associated personal risks. We can help you choose a structure that fits your needs.
Typical business structures include:
- Sole trader – may be appropriate when starting a small-scale enterprise on your own using an Australian Business Number (ABN). A sole trader is legally and financially responsible for all aspects of the business.
- Partnership – 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 liability.
- Registered company – corporate structures can provide some level of protection for directors and officers. The company is a separate legal entity and may enter contracts in its own name. 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 tailored solutions when it comes to income tax and capital gains. Trusts are complex however and must be compliant and properly managed to ensure they deliver the anticipated outcomes.
Corporate governance and directors’ duties
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. It balances the interests of a company’s internal and external stakeholders and requires an understanding of the regulations and policies impacting corporate behaviour, and the role and function of a board of directors.
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 to seek legal guidance to ensure they are operating within the boundaries of 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
- annual reports and directors’ reports
- directors’ duties / conflict of interest issues / shareholder disputes
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 to pursue an unpaid debt, which will usually depend on matters such as 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 from 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, you might proceed in a relevant court or through legislation specific to a certain industry.
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.
Credit control strategies
Good credit control practices are essential to minimise bad debt. Credit applications and terms of trade should provide businesses with security over goods sold to customers. Certain securities can now be registered on the Personal Property Securities Register. If a customer is a corporate entity, personal guarantees should be sought from company directors. We can recommend strategies and implement processes to help control creditors and minimise bad debts in your organisation.
We are experienced commercial and corporate lawyers. We provide businesses of all sizes with strategic and tailored solutions to deal with a range of legal issues, challenges, and opportunities in a constantly changing environment.