Running a successful business requires commitment, resilience, and the ability to adapt to change. We can help throughout all stages of your business journey – whether you are just starting out, looking for growth, winding down, or dealing with challenging legal issues. We provide legal guidance and advice for:
- buying or selling a business
- starting a business – company registration, business names registration
- business structures – partnerships, trusts, and corporations
- partnership agreements, shareholder agreements, joint venture arrangements
- commercial and retail leasing
- guarantees and security documents
- estate and business succession planning
- business management and administration
- employment law and workplace law
- intellectual property, copyright, licence agreements, trademark registration
- advice on legislative requirements, corporate governance, and compliance
- dispute resolution, mediation, corporate and commercial litigation in court
- advice for non-profit organisations and charities
- corporate mergers, acquisitions, joint venture sales
The legal structure through which your business operates is generally chosen with regard to the initial size of the business and any growth plans, the type of business and the environment in which it operates, and your personal and financial circumstances.
If you are going into business on your own, you may choose to operate as a sole trader using an Australian Business Number (ABN). This is a very simple structure with minimal set-up costs however you should be aware that you will be solely responsible for any losses of the business.
Trading through a partnership may be appropriate when two or more people combine their resources and skills to form a business. In a partnership, each partner is personally responsible for any debts of the business, whether incurred by you or another partner. It is important to have a written partnership agreement to set out each partners’ rights and responsibilities and to deal with a range of contingencies such as termination, retirement, sale of partnership shares and business succession.
A popular choice for running a small-medium sized business is to register a limited liability company which creates a separate legal entity able to enter transactions in its own right. Registering a company provides a certain level of protection for its officers and shareholders, however, the company has specific reporting obligations and company directors have several duties.
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.
Buying or selling a business
Buying or selling a business can be an exciting time, whether you are looking forward to new opportunities, or retiring and (ideally) reaping the rewards from many years of hard work. No matter what the circumstances, your negotiations should be embodied in a written contract that clearly sets out the agreement reached and each parties’ obligations. The contract will deal with important issues, such as:
- the purchase price, apportionment of goodwill, stock, plant, and equipment
- GST and other taxation matters
- incidental agreements forming part of the transaction (for example commercial leases or service agreements)
- processes for the transfer of leases, licences, etc.
- transfer of intellectual property such as business names, domain names, trademarks
- employee transfers, redundancies, leave and other entitlements
- training periods, confidentiality, and restraint of trade provisions
- representations and warranties
Each party should be individually represented and advised throughout the transaction. Generally, we also recommend involving your accountant to advise on the financial and taxation aspects of the business sale/purchase.
Corporate structure and governance
Companies are registered and governed through the Australian Securities and Investments Commission and must comply with a number of formalities and reporting requirements. Company directors also have various duties under legislation and the general law. These include to:
- run the company with care, skill, and diligence
- act in good faith and in the best interests of the company
- avoid conflicts and not improperly use their position for personal gain
- prevent insolvent trading (trading while a company is unable to pay its debts)
- maintain proper records and prepare financial reports
Sometimes, directors face internal and external challenges placing them at risk of breaching these duties. If you are a director of a company facing cashflow or other challenging issues, we recommend you seek legal advice without delay.
Business transactions should be documented in a written agreement that sets out the scope of negotiations and protects the interests of the parties. The agreement should regulate the parties’ rights and responsibilities and include important terms such as the scope of services or products to be provided, warranties and indemnities, and dispute resolution processes.
Commercial and retail leasing
A commercial lease sets out the rights and responsibilities of a tenant and landlord regarding the lessee’s occupation of commercial premises to run its business.
Most commercial and retail leases in the Australian Capital Territory are governed by the Leases (Commercial and Retail) Act 2001 (ACT). The Act regulates leasing arrangements between landlords and tenants and aims to ‘level the playing field’ in the landlord/tenant relationship. Amongst other things, the Act stipulates minimum terms (unless waived by the tenant) and prohibits landlords from recovering their legal costs for preparing the lease documentation. Landlords leasing or offering to lease commercial or retail premises have specific disclosure obligations and must ensure that lease provisions are compliant with the Act. Tenants may have certain termination rights if the landlord fails to comply with its disclosure obligations.
Disputes can occur due to poorly drafted or non-compliant lease agreements, ambiguous provisions, or when the parties do not properly understand their obligations and rights under the lease. Disputes can also arise when a lessee experiences cashflow problems. We can assist with a range of leasing matters including:
- preparing, negotiating, and advising on commercial and retail leases
- negotiating and formalising surrenders of lease
- transfers of lease
- commercial leasing disputes
If you need assistance, contact us at or call 02 6245 6000 for expert legal advice.