BUSINESS & COMMERCIAL LAW
WHAT WE DO
- Preparation of contracts for agency, distribution, purchase and sale of businesses, franchising, licensing, and provision of goods or services
- Competition law, unfair trade practices
- Supervision and enforcement of contracts, including debt recovery and insolvency issues
- Business structuring
- Advice on business names and business licences
- Partnership agreements
- Shareholder agreements
- Advice on advertising and marketing campaigns, conduct of competitions, representation, codes and standards compliance
- Product liability
These are areas where clients need to anticipate business development and potential problems. The services we provide to our clients go to ensure the success of business arrangements and avoiding future problems.
Areas covered include establishment of companies, shareholder agreements, joint venture agreements, partnership agreements and registration of business name.
We will provide advice on obligations under the Corporations Act, consumer legislation, and preparation and review of business agreements such as agency, distribution and franchise agreements, as well as contracts for sale / purchase of business.
Clients are reminded of particular issues to watch for in establishment of business and agreements.
Shareholders need agreement on buy out arrangements between themselves in the event of shareholders wanting to sell their shares to third parties or on their death.
Issues also arise on duration of joint ventures and their termination.
Clients need to address the obligation of one partner being fully responsible for the business debts of the other(s), and presenting a one-off and more attractive target to a creditor of the business.
And, of course, unlike a company, unincorporated partners have no limitation of their personal liability for debts of the business.
The first element is to ensure availability and registration of business name. If you trade under anything other than your full name then you need to register a business name.
Sole traders also have no limitation of their personal liability for debts of the business.
An agent is taken, at law, to be held out as authorised to do all things reasonably understood to relate to the business as the principal, and so bind the principal with third parties.
Agency agreements need to define the capacity of the agent, and address questions of duration, exclusivity, territory, commission, ownership of goods, payment for goods and services, and provisions for termination.
Distribution agreements also need to define capacity of the distributor, duration, exclusivity, territory, ownership of goods, payment for goods and services, and provisions for termination, as well as insurance when the risk in the goods passes to the distributor.
Franchise agreements also need attention to these issues, as well as complying with the Code of Conduct of the Australian Competition and Consumer Commission (ACCC).
All of these commercial agreements need to set out clearly methods of dispute resolution, hopefully delaying costly litigation without exhausting mediation and arbitration, and when dealing on the international level that the agreement is governed by the most appropriate and accessible jurisdiction.
Contracts for sale / purchase of business:
These agreements need careful drafting and scrutiny to ensure that the sale or purchase of the business as contracted is effected as negotiated.
Attention needs to be paid to matters such as:
- Accompanying assignment of lease of premises
- Sale of equipment and fittings or assignment of leases
- Warranties as to turnover
- Restraint of trade of the vendor after sale, fixing time and territory,
- Provision for transfer or dismissal of employees, including notice or payment in lieu
- Provision for payment of statutory entitlements for employees
- Employment agreements.
All agreements need to clearly reflect the intentions of the parties by stand alone documents. This is the “hit by a bus theory” – if one or all of the parties are hit by a bus, then an independent, objective party – mechanism chosen for dispute resolution or a court, can interpret the agreement and provide accordingly.