If you are buying or selling a business or commercial property, you understand the challenges of a regulated and competitive market. To deal with these issues effectively, you sometimes need the help of a professional who can explain your legal situation, help you mitigate risk and protect your interests.
We have assembled a team of professionals with a wealth of experience that enables us to handle a wide range of property and commercial matters. We operate nationwide and provide tailored legal services tailored to our client’s needs.
Buying or selling a business requires careful planning to ensure that the terms and conditions are properly negotiated and documented in a written agreement. Each party must be legally represented. In many cases, we also recommend consulting an accountant. Your team of professionals can help structure the transaction to ensure an optimal outcome and protect your interests. You may need to consider:
The structure and allocation of the purchase price, including goodwill, inventory, machinery, equipment and inventory.
Goods and Services Tax (GST) and other taxes such as Capital Gains Tax (CGT)
the appropriateness and transferability of ancillary contracts such as commercial leases and service contracts.
intellectual property, such as business names, trademarks and domain names, and the rules for transferring these assets to a new owner
Employment contracts – transfers, offers, dismissals and calculation of holiday and other entitlements.
Rules on restriction and confidentiality of business activities
Agreed training periods, certifications and guarantees
A franchise is an agreement whereby the owner of a branded product or service (the franchisor) grants an independent third party (the franchisee) the right to sell that product or service using the franchisor’s brand, marketing and systems.
The franchisee acquires a license to operate the franchise business through its own business unit but operates through the franchisor’s existing structure. Typically, the license gives the franchisee access to the franchisor’s processes, administrative and marketing systems and training.
Franchises in Australia are governed by the Franchise Code of Conduct, which sets minimum requirements for the sale, acquisition and operation of franchises.
When choosing a business structure, you will usually need to consider your financial and personal circumstances, as well as any plans for future growth. In conjunction with your accountant and/or financial adviser, we can help you determine which structure is best for you.
If you are starting a small business on your own, you may wish to operate as a sole trader. A sole trader is legally responsible for all aspects of the business and operates using an Australian Business Number (ABN).
If you are starting a business with one or more others, you may wish to enter into a partnership, but you should be aware that partners are usually jointly and severally liable for partnership debts. A formal partnership agreement can set out your arrangement so that you and your partners are aware of all your responsibilities. The agreement may also include procedures for dissolving, winding up or selling the business, as well as procedures for valuing the business or resolving disputes if necessary.
You may want to run your business through a company, creating a registered legal entity. Company structures can provide a degree of protection for directors and managers as they have their own legal status. However, there are ongoing costs and annual reporting obligations associated with this structure. Company directors also have a number of responsibilities associated with the performance of their duties.
A trust structure can be useful for asset protection and can also provide tax advantages. However, trusts are complex and need to be set up and managed properly to ensure that they deliver the expected benefits.
If your business occupies premises, you may need to take out a commercial or retail lease. Similarly, if you own commercial or retail premises that you lease to someone running a business, you will need a carefully drafted lease agreement. To avoid disputes in the future and to ensure a balance of rights between the parties, our experienced real estate team can help.
If you are leasing premises that are defined as “retail” premises under the relevant retail legislation in your jurisdiction, some aspects of your agreement will be regulated. Generally, premises located in a shopping Centre and used primarily for the sale of goods or services will be classified as retail premises. We can check whether your proposed arrangements comply with retail lease legislation. In such cases, the legislation will regulate the specific terms of the lease and the landlord will have to comply with specific disclosure requirements.