Whether you are involved with a start-up, an established business or looking to grow your enterprise, a lawyer can help you to navigate the many legal challenges and opportunities you will likely face. We are experienced business and commercial lawyers and have worked with many owners and managers across a range of industries.

Buying or selling a business

If you are looking at selling or buying a business, there are many matters to consider. We recommend that each party obtain independent legal and accounting advice to ensure that their negotiations are properly documented in a written agreement that balances their rights and responsibilities, deals with taxation and other financial considerations, and provides clarity regarding timeframes and what is and is not included in the transaction.

Business structures

Before setting up your business, it is important to choose a structure that will best suit your new venture. This depends on your financial situation, as well as your plans and goals for the business.

If you are starting your business alone and it will be a small enterprise, 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 ABN.

If you are starting a business with another person or people, you may wish enter into partnership. A formal partnership agreement can set out your arrangement so that you and your partner are aware of all your responsibilities.

You might wish to operate your business using a company, by setting up a registered corporate entity. Corporate structures can provide some level of protection for directors and officers, as they have their own legal status. However, there are ongoing costs associated with this structure and annual reporting obligations.

Some people also like to set up their business using a trust as it can offer taxation benefits. It is important that a trust is set up properly to ensure that you can obtain the benefits you expect. You should speak to your accountant in relation to all matters pertaining to tax.

Business contracts

A written contract is essential for managing a range of business transactions, whether between different enterprises or the business and its customers.

We can prepare or review all types of legal contracts including franchise agreements, supply agreements, service and distribution agreements, licence agreements and employment contracts. We will make sure that the terms and conditions are suitable for your business and help with the interpretation of ambiguous provisions or advice regarding your obligations under an existing contract.

Partnerships and partnership agreements

A partnership is a relationship between people carrying on a business with a common view to making a profit, and may also include incorporated limited partnerships.

The relationship between new business partners can soon deteriorate if they do not understand their duties, roles, and obligations. A partnership agreement is a contract between business partners that helps regulate their relationship and deals with various contingencies. Typical provisions of a partnership agreement include:

• the mission or objective (operations) of the partnership;
• the contributions each partner will make to the business (financial and other resources);
• each partner’sduties and responsibilities;
• processes for making business decisions and how to resolve disputes;
• succession provisions including procedures for termination, retirement, or sale of the business;
• insurance requirements.

Franchises

A franchise is a type of business model where a ‘franchisor’ controls the name, brand and business system that the ‘franchisee’ is going to use. The franchisor grants the franchisee the right to operate a business in line with the franchisor’s business system, usually for a specified period. Parties to a franchise should be aware of their obligations under the Franchising Code of Conduct when entering into a franchise agreement.

Commercial and retail leases

Commercial and retail leases set out legal terms and conditions through which a business may occupy premises to run an enterprise. Many potential lease disputes can be avoided when all terms and conditions are clear and complete.

A lease should include a physical and legal description of the property, its permitted use, including opening hours, parking rules and use of amenities, as relevant. The term (duration) of the lease must also be included together with any options for renewal and the process the lessee must follow if exercising the option.

The rent, outgoings and requirement for any deposit bonds / guarantees are also necessary terms along with details of who is responsible for repairs and maintenance. The lease should also set out subletting or assigning rights, and any fit-out provisions.

These are just a few of the terms typical in a lease agreement which should be in writing and reviewed by an experienced lawyer.

Debt recovery

The best approach to chasing debts will likely depend on the identity of the debtor and the sum owed. When dealing with companies, it might be best to serve a statutory demand. In contrast, if the debtor is a sole trader or partnership, you might wish to pursue payment through the court. You might also want to enter into a deed with a debtor for the payment of the debt. No matter what is owed and by who, our experienced lawyers can assist you to navigate the process.

Business and commercial disputes

If you have a dispute about your business that you are unable to resolve through negotiation, you can try the following;

• Mediation – which involves an impartial person (a mediator) assisting parties to negotiate a settlement to their dispute.
• Conciliation – a process in which the parties to a dispute try to reach an agreement with the help and advice of an impartial person, referred to as a conciliator.
• Arbitration – this involves parties to a dispute presenting their case to an independent third person (the arbitrator). The parties are generally bound by the arbitrator’s decision.
• Commercial litigation – if parties are unable to resolve their commercial matters through alternative dispute resolution, they can lodge an application for their matter to be heard in the Commercial Court of the Supreme Court of Victoria. The Court manages a diverse range of complex commercial disputes, such as those arising from commercial transactions, commercial dealings, contract law and misleading or deceptive conduct under the Australian Consumer Law.

If commercial disputes are managed effectively from the start, parties have a better chance of resolving their dispute, quickly, efficiently and cost effectively. It is always recommended that an experienced lawyer review your situation to explain the most appropriate and cost-effective way to resolve a commercial dispute.

If you need assistance, contact one of our lawyers at [email protected] or call (03) 9432 3131 for expert legal advice.