Most of the commercial problems we are asked to fix were created by a document somebody signed without reading, or by a structure chosen because it was cheap to set up.
Choosing a structure
Sole trader, partnership, company or trust. The structure you start with is difficult and expensive to change later, because changing it usually means transferring assets — which can trigger capital gains tax and transfer duty. It is worth an hour of advice before you register anything.
The questions that actually decide it: what is the real liability risk, who else is involved, what do you expect to do with the business in five years, and which structure can you realistically administer. A structure nobody maintains properly gives no protection at all.
Directors need a director identification number and can be personally liable for unpaid PAYG withholding and superannuation, and for trading while insolvent. Limited liability is real, but a bank asking for a personal guarantee removes much of it.
Buying and selling a business
We act on both sides. The work that matters is done before the contract is signed: what exactly is being bought, whether the lease can be assigned, what happens to employees and their accrued entitlements, how the price is apportioned, and whether the seller is restrained from opening again down the road. A restraint that is drafted too widely is unenforceable — which helps nobody.
Commercial and retail leases
There is no such thing as a standard commercial lease. The clauses that cost the most are rarely the ones a tenant thinks to ask about:
- Rent review mechanism — is there a cap, and what happens at market review
- Make good — are you returning the premises in better condition than you received them
- Personal guarantee — does it end when the lease does, or never
- Outgoings — what exactly are you contributing to
- Option to renew — and the notice window you must not miss
Retail leases carry additional statutory obligations, including a disclosure statement that must be given before the lease is entered into.
Agreements between owners
Shareholders agreements, partnership agreements and trust deeds. The clause that earns its fee is always the exit clause: what happens when one owner wants out, dies, becomes incapacitated, or simply stops contributing. Most of the partnership disputes we see involve no written agreement at all.
Trading documents and tax
Written terms of trade accepted before work starts, supplier and contractor agreements, and where you supply goods on credit, registration of a security interest on the PPSR before delivery. We also assist with ATO correspondence and disputes; where a matter requires specialist tax advice we will say so and work alongside your accountant rather than guess.
General information only. This page describes the law in general terms and is not legal advice for your situation. Time limits are strict and the law changes. Call BNE Lawyers on 0423 007 888 to discuss your own circumstances in English or Vietnamese.