Commercial law concerns a range of transactions and issues affecting an enterprise. Businesses should be supported by appropriate professional advice for sustainability and growth, to mitigate loss, and to protect owners and directors from personal liability.
With sound professional advice, the potential for commercial disputes or corporate legal concerns can be minimised, enabling you to get on with managing and growing your business. We have developed trusted relationships with many business clients of varying sizes across a range of industries.
Our commercial lawyers will discuss your individual circumstances and tailor solutions for the many planned and unplanned events that occur throughout the life of a business.
Buying or selling a business
Buying or selling a business requires careful planning to ensure that agreed terms and conditions are properly negotiated and documented in a written contract. The contract should detail the parties’ rights and obligations, deal with GST and other taxation matters and set out processes to manage various contingencies.
The business contract and incidental agreements (for example, commercial leases or hire agreements) should be reviewed, and due diligence conducted prior to entering a legally binding transaction.
When commencing a new venture, or buying a business, it is important to operate using the most effective legal structure. Determining what’s best for your business requires consideration of the operator’s personal and financial circumstances, the size and type of business, the regulatory environment in which it operates, and strategies for future growth.
Common business structures include sole proprietorships, partnerships, trusts and incorporated companies. Each have their pros and cons and vary in complexity, reporting requirements, treatment of income tax and level of asset and personal protection for the owners.
Commercial and retail leasing
Commercial and retail leases set out the legal terms and conditions through which a business may occupy premises to run an enterprise.
Whether you are a lessor or lessee, your lease arrangements should be contained in a formal, complying lease agreement and reviewed by a legal professional. In our experience, many lease disputes arise when the terms of the lease are unclear or ambiguous, or the parties have not obtained independent legal advice about their rights and obligations under the lease.
Leasing disputes can have serious implications on the cashflow of your business or the performance of your commercial investment. We can assist with:
- drafting and reviewing retail and commercial leases
- negotiating the terms of a lease (including rent, transfer options, duration, exit and renewal options)
- subletting of premises
- identifying different types of business insurance that should be considered
- commercial and retail leasing disputes.
Companies and directors’ liability
A company is an incorporated legal entity, separate from its officers, and able to enter legally binding transactions. Directors are generally protected from being personally liable for company debts, provided they do not breach certain laws and duties. Company directors have a duty to act in the best interests of the organisation they represent. They must act honestly, in good faith, and not use their position for personal gain. A duty to avoid a conflict of interest prohibits directors from gaining a personal benefit from an arrangement with the company without full disclosure to its members. Directors must exercise a duty of care, skill, and diligence in performing their duties.
Directors may be personally liable to third parties if they incur debts while the company is insolvent or in danger of becoming insolvent. Insolvency arises when a company cannot pay its debts when they are due. Certain defences may be available for directors who breach their duty to avoid insolvent trading. In such circumstances it is important to obtain urgent legal advice.
Company directors can face a range of challenging situations in a turbulent environment. If you are unsure of your duties as a company director, or your company is facing financial difficulties, you should obtain legal advice immediately.
Businesses enter numerous commercial transactions during their lifetime. These arrangements should be governed by a written contract which captures the parties’ negotiations, sets out their rights and responsibilities and includes essential terms such as the scope of services or products to be provided, warranties and indemnities, and dispute resolution processes.
The subject matter of a contract varies considerably, whether that be a single transaction for the sale of a product, or the ongoing provision of services over many months. The breadth of a contract will depend on the subject matter, its duration, and the complexity of the transaction.
Most business transactions can be documented to create enforceable obligations that balance and protect the interests of the parties. Involving a lawyer in preparing a business contract can help keep negotiations on track and ensure that important provisions are not overlooked, and personal and business interests are protected.
Debt recovery is an unfortunate but common situation experienced by many businesses. There are various ways to pursue an unpaid debt including sending a letter of demand, commencing court proceedings or by serving a statutory demand under the Corporations Act 2001. Choosing the most effective and appropriate method is important to avoid costly mistakes.