(08) 8232 8446
Business Banner

Business & Commercial Law

Business & Commercial Transactions

If you are buying or selling a business or commercial property, you will understand the many challenges faced in a regulated and competitive market. Effectively navigating these issues sometimes requires the help of a professional who can explain your legal position, help mitigate risk and protect your interests.

At Asset Conveyancing we have brought together a team of professionals with a wealth of experience, enabling us to handle a range of property and commercial matters. We operate nationally and deliver personalised, tailored legal services for our clients. We can assist with:

  • Buying and selling a business
  • Franchise agreements
  • Business contracts and commercial sale or purchase agreements
  • Commercial and retail leasing

Buying or selling a business

Buying or selling a business requires careful planning to ensure that terms and conditions are properly negotiated and documented in a written contract. Each party should be legally represented. In many cases, we recommend also consulting your accountant. Your professional team can help structure the transaction to provide an optimum outcome and to protect your interests. You may need to consider:

  • The structure and apportionment of the purchase price, including goodwill, stock, plant, equipment, and inventory
  • Goods and Services Tax (GST) and other taxes such as Capital Gains Tax (CGT)
  • The suitability of and transfer arrangements for ancillary agreements such as commercial leases and service contracts
  • Intellectual property such as business names, trademarks, and domain names and provisions for transferring these assets to a new owner
  • Employment arrangements – transfers, offers, redundancies, and calculation of leave and other entitlements
  • Restraint of trade and confidentiality provisions
  • Agreed training periods, representations, and warranties

Franchise arrangements

A franchise is an arrangement whereby the owner of a branded product or service (the franchisor) assigns to an independent third party (the franchisee) the right to sell that product or service using the franchisor’s brand, marketing, and systems.

The franchisee buys a licence to run the franchise business through its own business entity but operates using the franchisor’s existing structure. Typically, the licence entitles the franchisee to access the franchisor’s processes, administrative and marketing systems, and training.

Franchises in Australia are regulated by the Franchising Code of Conduct which sets out mandatory requirements for the sale, purchase, and operation of franchises.

Choosing a business structure

Choosing a business structure usually requires consideration of your financial and personal circumstances as well as any plans for future growth. In association with your accountant and/or financial advisor, 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 go into partnership however you should be aware that partners are generally jointly and severally liable for the partnership debts. A formal partnership agreement can set out your arrangement so that you and your partners are aware of all their responsibilities. The agreement can also include procedures for termination, retirement, or sale of the business as well as processes to value the business or to resolve disputes, if necessary.

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. Company directors also have a range of duties in carrying out their role.

A trust structure may be useful for protecting assets and it may also offer taxation benefits. Trusts however are complex and need to be set up and administered properly to ensure that they achieve the expected benefits.

Commercial leasing

If your business occupies premises, chances are you will need to enter a commercial or retail lease. Similarly, if you own commercial or retail premises that you rent to somebody running a business, you will want a carefully drafted lease agreement. To avoid disputes in the future and ensure a balance of rights between the parties, our experienced property team can assist.

If you are leasing premises defined as “retail” under the relevant retail leasing legislation in your jurisdiction, certain aspects of your arrangements will be regulated. Typically, premises located in a shopping centre that are predominantly used for selling goods or services will be classified as retail. We can check if your proposed arrangements fall under retail leasing legislation. In such cases, certain lease provisions will be governed by the legislation and the lessor will be required to comply with specific disclosure requirements.

If you need assistance, contact [email protected] or call (08) 8232 8446 for professional Australia wide conveyancing and property services.