Commercial & Business Law

Making good commercial and business decisions to support and grow your business often requires enlisting the support of professionals. We can help implement legal strategies to plan for the sustainability and growth of your venture, minimise personal risk, and meet the many challenges that business owners and managers face in an ever-changing environment.

Business structures

A business can operate through various legal structures. The structure you choose will depend on a range of matters such as the scale of your proposed operations and your plans for future growth, the industry in which you operate, your financial and personal circumstances, and the need to minimise personal liability. We can help you choose a structure that fits your needs.

Common business structures include:

• Sole traders – may be appropriate when starting a small-scale enterprise on your own using an Australian Business Number (ABN), however, a sole trader is legally and financially responsible for all aspects of the business.
• Partnerships – 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 relevant debts or losses. A formal partnership agreement is important to allocate rights and responsibilities between the partners and can set out procedures for termination, retirement, disputes, or sale of the business.
• Companies – corporate structures can provide some level of protection for directors and officers. The company has its own legal identity and can enter contracts in its own right. 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 strategic outcomes when it comes to income tax and capital gains. Trusts are complex however and must meet compliance requirements and be properly managed to ensure they deliver the anticipated outcomes.

Buying or selling a business

Whether a transaction is large or small, involves the sale or purchase of assets, shares or a combination of both, it is important that each party to a business sale and purchase be independently advised by a lawyer and, in most cases, an accountant.

We can guide you through the legal process of your business sale or purchase, from contract review and preparation, through to completion. We can help with:

• Drafting, reviewing, negotiating and explaining contract terms
• Drafting confidentiality agreements and restraint of trade provisions
• Reviewing incidental agreements such as commercial leases and service contracts
• Valuation and apportionment of goodwill, inventory, stock, plant and equipment
• Taxation and stamp duty considerations
• Advising on employee transfers or entitlements
• Advising on loan documentation and liaising with lenders
• Transfer of intellectual property such as business names and trademarks
• Transfer of liquor licences and equipment licences
• Due diligence, inspections and investigations

Business contracts

It is virtually impossible to do business today without being a party to a commercial contract. The types of business contracts that you may come across will vary according to the scope and scale of your business and the industry in which you operate. Over time your business needs are likely to grow and, while it may be tempting to take a ‘do-it-yourself’ approach to preparing your business contracts, the reality is that a poorly drafted or ambiguous contract can put you and your business at risk.

All commercial transactions should be governed by a written contract that contains the agreed negotiations, sets out the parties’ respective rights and responsibilities, the scope of services or products to be provided, as well as pricing, warranties and indemnities. The contract should cover liability and the apportionment of risk between the parties, as relevant, and provide mechanisms for minimising potential disputes.

A business contract may be required for a one-off transaction or for ongoing purposes, such as a standard form contract for consumer use. Involving a lawyer in preparing and reviewing your business contracts from the outset can help keep negotiations on track, ensure that important provisions are not overlooked, and that any industry regulations or terms pertaining to the contract type are complied with.

Debt recovery

Debt recovery is a common problem experienced by many business entities. If you are owed money, it is important to choose the most cost-effective and viable method of pursuing the debt to avoid costly mistakes. Generally, you can take legal action to recover the sum owed, as well as the legal costs related to recovery proceedings. We can assist with:

• Preparing a Statement of Claim
• Preparing and serving a statutory demand under the Corporations Act 2001
• Entering Judgment against the debtor
• Writs
• Examination Summons
• Garnishees Orders

Business owners and managers will encounter both anticipated and unforeseen legal challenges as they operate in a competitive and evolving market. We have developed trusted relationships with clients of varying sizes operating across a range of industries. We are experienced commercial lawyers and look forward to helping with your business needs.

If you need assistance, contact one of our lawyers at lawyers@elliottstafford.com.au or call 03 9486 7555 for a no-obligation discussion and for expert legal advice.