Commercial Law

Commercial law is an umbrella term used to describe the various laws governing the rights, obligations and relations of business entities engaged in trade and commerce, either with the general public or with other businesses.

Whether you are a sole trader, a start-up or an established business, this broad area of law will have a significant impact on your operations. As such, it is essential to be guided by professionals as you start, conduct, grow or wind up your business operations.

We provide support and guidance across the many legal aspects and issues arising during the course of conducting a business enterprise, including:

  • business structures and formation
  • business sales and purchases
  • commercial and business contracts
  • property and leasing transactions
  • partnership and shareholder agreements
  • directors’ duties and corporate governance
  • intellectual property, copyright and trademarks
  • employment matters
  • alternative dispute resolution, mediation and negotiation
  • commercial disputes and litigation

Business structures

The legal structure through which you run your business is an important consideration, and we can help you make the right choice when getting your venture off the ground.

If you choose to enter a partnership, a formal partnership agreement will help govern the parties’ relationship and set out agreed processes for matters such as business management, termination, retirement, sale of shares and business succession.

A corporate structure such as a limited liability company will provide shareholders and directors a certain level of protection and is a popular choice for many businesses in Australia. The company is a separate legal entity and as such can enter contracts in its own right. Shares between owners can also be transferred without upsetting the external structure of the company, providing continuity of trading despite a change in shareholdings.

Setting up a family trust or unit trust can also be a viable business structure. Trusts can help to protect assets, provide flexibility and, if correctly set up and managed, deliver tax-effective outcomes. Trusts, however, are complex and must be properly created and administered to ensure the benefits outweigh the costs and ongoing administration fees.

Partnership and shareholder agreements

Partnership and shareholder agreements are essential to manage the relationship between business partners or the shareholders of a company.

These agreements help regulate the rights and responsibilities between the respective parties and provide terms to deal with a range of contingencies that might otherwise threaten the ongoing operations of a business.

Shareholder and/or partnership agreements include provisions such as alternative dispute resolution clauses, deadlock breakers (where shareholders or partners have intractable differences regarding the management of the business), pre-emptive rights, drag-along, tag-along rights, mandatory sale events, share valuation methods and conflict and non-compete clauses.

Company law and directors’ duties

Directors and company officers have an overriding duty to act in the best interests of the organisation they represent. They must act honestly, in good faith, avoid conflicts of interest and exercise care, skill and diligence. Directors must be careful to avoid insolvent trading and may risk being personally liable to third parties if they incur debts while a company is insolvent or facing insolvency.

Company directors have many internal and external challenges and may face situations where clarity is needed regarding their duties and responsibilities, so that informed decisions may be made.

We can assist with:

  • potential conflict and disclosure issues
  • insolvent trading and directors’ liability for debts
  • utilisation of safe harbour provisions
  • related party transactions
  • the proper conduct of board, general and shareholder meetings
  • the appointment and removal of directors and executives
  • interpretation of the company constitution.

Commercial disputes, mediation and litigation

As a business owner or director, it is not uncommon for your organisation to be involved in a legal dispute. In such cases you will need to consider the most viable option to resolve the matter with minimal disruption and financial loss.

Many commercial disputes can be resolved without going to court. Alternative dispute resolution processes such as negotiation and mediation can provide practical and commercial outcomes that can save organisations time and resources. Mediation is generally confidential and has several benefits. In addition to providing a quicker and cheaper outcome, mediation can also provide more flexible solutions and can help preserve the relationship between businesses, which is important if they have continuing contractual obligations.

We understand the impact that a commercial dispute can have on your business operations and your personal wellbeing and will always consider the most effective, expedient way to resolve your case. We are experienced negotiators and will review your matter to propose the most appropriate solution

Despite best intentions, it is sometimes not possible to resolve or defend a matter without using the court system. In such cases, we will assess your matter carefully to advise you on the prospects of success so you can make an informed decision to bring or defend the matter in court.

We have significant expertise across a broad range of commercial law matters and can advise and guide you throughout the many opportunities and legal challenges your business may face. We are also experienced litigators and advocates with a thorough understanding of the court process.

If you or someone you know wants more information or needs help or advice, please contact Wendye Vince (02) 9550 9767 or email [email protected]