Commercial Law

The field of Commercial (or Business) Law can be a complex and daunting field. Regulation is heavy and constantly changing, meaning that good advice in the establishment and running of your business or investment structures is paramount. Toowoomba and South East Queensland.

Regardless of whether your business is small or big, simple or complex, our team has a strong track record and a commitment to personalised service, assisting with:

Conveyancing

  • Residential Sales and Purchases

  • Vacant Land

  • Units

  • Off the Plan Contracts

  • Guarantor Advice

  • Family Transfers

Business

  • Business Sales and Acquisitions

  • Franchising

  • Business Start Up

  • Leases

  • Debt Recovery

Rural

  • Rural Sales and Purchases

  • Share Farming Agreements

  • Leases

Corporate

  • Establishment and administration of companies

  • Structuring and re-structuring

  • Buy/Sell Agreements

Partnership

  • Negotiation and drafting of Partnership Agreements or variations

  • Representation, advice and negotiation on partnership dissolutions

Trusts

Establishment, administration or re-structuring of:

  • Family Discretionary Trusts

  • Unit Trusts

Leasing

Our professional and caring Commercial Team can assist in all areas of Commercial and Retail Leasing in Queensland.

You should never sign a letter of offer, intention or lease without understanding all of the terms and conditions. We recommend that you have a solicitor go over the documents in order to protect and secure your interests and minimise any potential litigation or disputes that could arise should you not understand what you are agreeing to.

Retail Shop Leases Act 1994

Special types of leases are governed by the Retail Shop Leases Act 1994 (Qld). Broadly, a Retail Shop Lease is a lease of premises by a business that is classified as a Retail Shop or those which are within a retail shopping centre.

If you intend to lease a retail shop it is important that you are aware of the provisions of this Act as it specifically deals with issues such as timing requirements, turnover rent, rent reviews and promotional levies.

Terms of the Lease

Your lease should contain all essential terms of the agreement including the property, landlord and tenant, lease period, options to renew, mechanics of payment, obligation to pay outgoings and much more. The terms of a lease are negotiable so it is important that you have your solicitor check the lease before you sign to ensure that the terms included are suitable to your needs.

At Briese Lawyers we can offer legal advice regarding Commercial, Residential and Retail Shop Leases, assist you with your disclosure requirements under the Retail Shop Leases Act including provision of the Legal Advice Certificate and assist you with the requirements for registration of your lease with the Titles Office.

Buy / Sell Agreement

Nobody likes to think about it, but it’s inevitable that one day you will leave your business. Whether you decide to sell up, retire or have to get out of business due to health reasons, it’s important that you plan for that day. A succession, or exit, plan outlines who will take over your business when you leave.

A good succession plan enables a smooth transition with less likelihood of disruption to operations. By planning your exit well in advance you can maximise the value of your business and enable it to meet future needs.

A buy/sell agreement is a contract entered into between business partners to allow for the buy out the other partner's interest in the business should a specific event occur. Events which may trigger a buy/sell agreement include death, trauma, long-term disability, retirement or bankruptcy.

These agreements are often linked to an insurance policy to provide necessary funding to be able to buy out the deceased/disabled/departing partner's interest.

Generally the agreement is structured in such a way that it does not matter what business structure has been used to own the business i.e. family trust, company, partnership.|

Succesion Options

A business may be transferred on the death of an owner either by:

  • gifting the business via a will; or

  • selling the business via a buy/sell agreement

The buy/sell agreement will take precedence over the will because the business will be transferred pursuant to the contract. In this way, the business will not be the subject of any claim against the estate nor, be delayed by Probate or estate administration issues.

The buy/sell agreement will need to state either the value of the business or how the value is to be determined when the agreement is triggered. The agreement will state whether the value to be applied shall be:

  • the book value;

  • the agreed value;

  • the appraised value at the time of the specific event;

  • capitalisation of earnings at the time of the specific event.

Funding the Agreement

The buy/sell agreement is normally funded through an insurance policy. Depending on the parties and circumstances, the policies can be held under any of the following arrangements:

  • cross ownership, where the owners of the business hold policies on each other;

  • principal ownership, where the owner holds the policy on himself/herself;

  • discretionary trust, where the trustee holds the policies on behalf of all of the owners;

  • company ownership, where the business holds the policies on behalf of all of the owners.

Clients will need legal and tax advice on what is the most suitable arrangement for them.

Capital Gains Tax Implications

If a buy/sell agreement triggers payment of a life insurance policy, it will be exempt from CGT provided the gain or loss is made by:

  • the original beneficial owner of the policy;

  • an entity that acquired the policy for no consideration;

  • the trustee of a complying superannuation fund.

A trauma or total and permanent disability insurance policy is subject to CGT if it is owned by the business. Only a trauma or total and permanent disability insurance policy owned by the insured is exempt. Consideration should therefore be given to the business owner holding the policy on himself/herself. 

As the buy/sell agreement results in the sale of the business once exercised, a CGT liability will arise to the vendor. The small business CGT concessions may operate to reduce this CGT liability.

Deductibility of Premiums

The essential characteristic of a deductible insurance premium is that it be intended to provide an income.

A self-employed business owner can claim a deduction for premiums on a policy which will pay income during a period they are disabled. Normally, if a policy includes a component to pay a sum on death or disability, the component relating to death cover will not be deductible. However, it may be deductible if the following four criteria are met:

  • the premium is paid for a revenue purpose;

  • the policy’s purpose is to advance the business;

  • the policy is owned by the employer;

  • the employer is the beneficiary of the policy.

The negotiation and preparation of a buy/sell Agreement or other business succession documents does require legal and financial information specific to your unique circumstances. 

At Briese Lawyers, we look forward to working closely with you and your accountant/financial advisor to ensure that your personal and business succession needs are met.

Business Start-Up & The Law

Starting a small business is not an easy task, as there are many initial decisions that you must make. The establishment phase of any business is a critical time for establishing a strong basis upon which you can build a successful business.

There are all kinds of factors to consider when starting up a business and a number of legal requirements that must be complied with. While the process can seem quite daunting, consultation with key support professionals, such as your solicitor, accountant and financial planner, can assist you in ensuring your business is appropriately structured and complies with all legislative requirements.

Some of the factors that must be considered when starting a new business include:

  • Type of Business Structure, including risk minimisation; tax; buy/sell agreements;

  • Application for Business Name;

  • Registrations and compliance;

  • Tax and Superannuation;

  • Insurance ;

  • Employment Law;

  • Privacy Law;

  • Leasing arrangements for premises.


Which Business Structure?

There are four basic types of business structures: sole trader, partnership, company and trust, which have different benefits and drawbacks, and suit different business purposes. In selecting which structure best suits the needs of you and your business, a number of considerations must be taken into account, such as the objectives of the business, the tax structure you want, protection from personal liability, the legal obligations of the different structures, how long you intend to run the business, whether you will have employees, whether you will bring in a partner or whether you have one already, and whether the business will need equity investors.

Risk Minimisation

When deciding on the right structure, your solicitor will assist you in identifying the needs of the business and its risk factors. It is important to consider whether you will need protection for your personal assets when deciding which structure is best for your business. For example, if your business will employ people who might be at risk because of their work (construction workers, for example) a company structure may be suitable because of the insurances and indemnities that a company can take out.

Your solicitor may recommend a combination of trusts and companies. A company gives you limited liabilities and favourable tax rate. Trusts give you flexibility over how income is distributed. You may use a company and a trust together to create a business vehicle that provides for the separation of assets.

For example, you might put land and buildings of the business into a trust and the operations of the business into a company or different trust structure. Separating the assets allows the business owner to spread the business’s risk across two structures, offering a level of legal protection in the event of litigation.

Your Business Name Application

The type of business structure you have selected affects the way your business name is registered.

A recent survey revealed that 80 per cent of small businesses surveyed incorrectly believed registering a business name also provides trade mark protection. Registering a business name does not give any proprietary or ownership rights. Ownership of a name in Australia is only possible through trade mark registration. 

If you choose to operate your business as a company, you will need to register your business as a company with ASIC, however if you are not operating your business as a company, you will need to register the business name with your State’s consumer affairs body. By law, anyone trading under a business name in Queensland must register their business name with the Office of Fair Trading.

Initial Registrations & Compliance

Your solicitor and accountant will assist you in obtaining what you need of the following:

  • Australian Company Number (ACN);

  • Australian Business Number (ABN);

  • Tax File Number (TFN);

  • Goods and Services Tax Registration Number;

  • Australian Registered Business Number (ARBN);

  • Workcover requirements and relevant permits/licences.

Tax & Superannuation

We recommend that you seek advice from an accountant in regards to your taxation obligations, be it GST, PAYG, FBT etc and also in regards to employee superannuation.

Premises

Your solicitor can assist you with advice on your rights and obligations in the Landlord/Tenant relationship and assist in negotiating the terms on the lease, as well as providing advice on assignment of a lease, subletting, periodic tenancy etc.

Insurance

Insurance requirements will vary from one business to another. We recommend that you consult with your insurance broker/financial planner to ensure that you are not exposed to risk due to insufficient cover.

Other Legislative Requirements

By working with your solicitor when starting your business, you will also be provided with advice on areas that you may not have necessarily considered such as compliance with legislation in the following areas:

  • Employment Law – particularly relevant in relation to terminating an individual's employment.

  • Anti-Discrimination Law – relevant when dealing with staff and clients. It is important for business owner's to be aware that they may be liable for the actions of an employee to another employee or to a client.

  • Privacy Law – relevant not only in regards to employee's personal details, but in the event your business keeps records containing customers' details.

Here at Briese Lawyers, we are happy to cooperate and consult with your accountant and financial planner to ensure that all your requirements and all aspects of your new business have been considered and appropriately dealt with. Further details with respect to starting a business may be obtained by contacting one of our lawyers, who can offer practical legal advice and guidance.

Franchise Agreements

Franchising is a business relationship between you, the franchisee and owner of the business the franchisor. Buying a franchise involves paying the owner of the business for the right to market and sell their stock and or services for a specified period.

There are two main types of Franchises:

  1. a product and trade name franchise where the franchisee is:

    • licensed to sell products manufactured by the franchisor;

    • licensed to manufacture and sell the franchisor´s products ; or

  2. a business format franchise in which the whole business is licensed and standardised, including such elements as business planning, management system, quality of goods, location and appearance.

Entering any small business can carry with it a degree of risk and every situation will be different. It is therefore important prior to purchasing a franchise that you consider the following factors: 

  • The public image of the franchise;

  • The demand for its stock;

  • The associated fess and outgoing costs;

  • The duration of the franchise; and

  • The operational procedures.

Buying a franchise is a serious decision, if successful it could secure your future financially, if not, you could suffer significant financial loss.

At Briese Lawyers, we can assist in providing legal advice regarding Franchise Agreements, including negotiations on the terms of the Agreement, Disclosure requirements and associated lease advice for the premises out of which the business will be conducted. 

Meet Our Commercial Law Specialists

Explore the expertise and strategic insight of our Commercial Law Team at Briese Lawyers. Our specialists are dedicated to helping businesses navigate the complexities of commercial law. From contract negotiations to compliance and dispute resolution, our team is equipped to handle all aspects of commercial legal matters. Discover the professionalism and business acumen that define our Commercial Law Team and find out how they can assist in safeguarding and advancing your business interests.