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At Jameson Law, we understand business. Our commercial law team’s perspective and strategy for business, corporate and commercial matters are based on years of experience establishing and being in business across multiple industries and sectors. We understand the struggles involved, and what constitutes a win for the business, and research and apply the law to this end, achieving real and tangible outcomes for our clients.
Assisting Small to Medium Businesses, Startups and Corporates
Our business and commercial law team provides a full array of commercial services to Australian companies from start-ups to corporates. We provide a range of legal assistance with free fixed fees. This gives more transparency in fees than typical law firms charging hourly.
Areas of Commercial Law we cover:
Our expert commercial lawyers specialise in a range of commercial law matters, including:
- Business Transactions including Buying a business and Selling a business
- Intellectual property (contracts and disputes)
- Corporate law, including corporate governance
- Sale of goods and consumer law/trade practices
- Business law
- Contract law
- Commercial litigation and dispute resolution
- Employment law
- Property law
- Personal Property Securities
Intellectual Property (IP)
Protecting your intangible property and assets is becoming more important than ever. Advances in technology mean more IP is created, and more IP infringements and disputes occur. Our Sydney based commercial law firm covers disputes, infringement, contracts, and of course protection for the following intellectual property:
- trade secrets
- domain names
- brand names
- confidential and scientific information
If you require further information on domestic and international IP laws you may find the following links useful:
Buying and Selling a Business
Sale of Shares or Sale of Business?
When selling or purchasing a business, it is imperative to understand exactly what it is that you are purchasing/selling. Before you think of tangible and non-tangible asset inclusions, it is critical to look at the ownership structure. In fact, some tightly regulated industries/business types such as NDIS providers cannot be sold as a “sale of business”, but rather a sale of shares – passing the liabilities and obligations of the previous owner on to the new owner. So what’s the difference?
The law recognises a company as a separate legal entity from its shareholders. Therefore a sale of shares transaction involves taking over the company in its entirety, including all associated risks, liabilities, obligations, and claims. Therefore a sale of share transaction should involve a much more exhaustive due diligence, and a seller can expect to be requested to provide robust warranties and indemnities by the buyer.
A sale of business on the other hand usually includes the sale of selected tangible and intangible including material, equipment, plants, know-how, client lists, business name, goodwill, and other intellectual property. Further, unlike share sale transactions, the buyer does not take on the liabilities of the business.
Sale of Business Contract
Our expert business lawyers have experience acting for both the seller of a business and buyer of a business. If you are a buyer our solicitors will review and advise on the sale of business contract, and provide a thorough listing of the assets both intangible and tangible as well as the obligations and liabilities that are being passed on to you through the sale. Often, key contracts (such as supplier contracts governing critical supply arrangements and agency agreements), key staff, and imperative intellectual property (such as the website, copyright on documentation, and client database) are missed.
If you are a seller, our team will assist with the compilation of a sale of business contract and ensure your liabilities and warranties are at a minimum.
Contract Law and Business Agreements
Our contract lawyers can assist you in the compilation or review of key contracts including:
Employee share allocation schemes
Subcontracting and contractor agreements
Trade restrictions and non-complete clauses
Compliance, and Corporate Governance
The Corporations Act 2001 (Cth) can be a minefield to navigate let alone understanding the obligations and duties of your organisation towards stakeholders, employees, suppliers, customers, clients, and regulators such as the Australian Securities and Investments Commission (ASIC). Ensuring your company is complying with its obligations under the Corporations Act and regulators such as ASIC can be a difficult and exhaustive task.
Company Directors are responsible for ensuring their company whether private or public-listed complies with its obligations under the Corporations Act, and adheres to best practice corporate governance. This includes key responsibilities such as:
making decisions for a proper purpose and in the best interests of the company
assessing how decisions will affect the company’s business performance, especially where the company’s money is involved and/or there is a material impact on the company’s reputation
staying informed about the financial position of the company to ensure it can pay its debts on time
seeking professional advice when assistance is required to make informed decisions
making full and frank disclosure about any material personal interests
ensuring the company is not trading while insolvent. This is actually illegal and may be in breach of civil and criminal provisions of the Corporations Act 2001.
A director’s duties and obligations may continue even after a company has ceased trading and has been deregistered. In certain events, you can be held personally liable where:
you have breached your duties, causing the company to suffer some loss
outstanding tax obligations of the company under the ATO’s Director Penalty Regime, particularly in circumstances where the company has employees. As a director, you have a legal responsibility to ensure your company meets its Pay As You Go (PAYG) withholding and Superannuation Guarantee Charge (SGC) obligations.
running illegal phoenix activity where an existing company has been deliberately wound up or closed down to avoid paying outstanding debts, including taxes, creditors, and employee entitlements.
Industry-specific legal expertise:
Our commercial law team has extensive experience dealing with the following industry-specific areas:
Home Building including building contracts, Fair Trading licensing appeals, Fair Trading disputes, Fair Trading internal reviews, and Complaints Resolution.
Registered Training Organisations including CRICOS and domestic compliance, Non-compliance, and de-registration litigation
NDIS provider deregistration and non-compliance litigation
Australian businesses are regulated by the Australian Securities and Investment Commission which in turn is governed by the Corporate Law Act (Cth) 2001 (simplified through the Corporate Law Economic Reform Program Act 2004). The act also sets out the laws governing the form and function of a company. Further regulations for certain industries also apply to businesses and codes of practice and in some cases specific licensing, memberships, registrations, and accreditations must be upheld and implemented in such businesses. Examples of these are the Financial Sector regulated by APRA, Registered Training Organisations (RTOs) regulated by the Australian Skills Quality Authority (ASQA), and NDIS Quality and Safeguards Commission regulating NDIS providers.
The above is general legal information and should not be considered legal advice. You should speak with one of our commercial lawyers for legal advice tailored to your specific legal matter. The courts and tribunals deal with matters on a case by case basis. It should also be noted that there may be delays due to COVID-19.
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Frequently Asked Questions.
Commercial law governs all aspects of commercial transactions and disputes. It is a broad subject area in which many people specialise in specific areas such as corporate law, commercial litigation, employment law, consumer law or intellectual property.
Commercial law governs all aspects of commercial transactions. Commerce is a broad area and so commercial lawyers are involved in a range of areas aimed at managing risks to business and individuals who are involved in or dealing with trade and commerce.
Commercial law is related to both business law and corporate law, however, it is broader than both. Commercial law involves lawyers who understand laws and provide legal advice on all aspects of commercial transactions (such as contract law, property law, tax law, employment law, corporate governance and consumer law), as well as represent individuals and businesses in dispute resolution and commercial litigation.
In Australia, commercial law is an area that is highly regulated, so often also involves dealing with State and Federal government agencies. This means that often, commercial law involves aspects of public law such as administrative law, regulation (whether securities and investments, competition, prudential regulation, or foreign investment).
Like many areas of law, commercial law can be complex and confusing. Law students must study a range of subjects to gain knowledge of how commercial law operates in practice. This study equips those students with the basic knowledge to then understand further, more complex aspects of commercial legal practice
Commercial lawyers can be paid well. Average salaries depend on the size of the legal practice, the experience of the lawyer, and the city in which you work.
Commercial law includes corporate law, intellectual property law, tax law, contract law, commercial litigation, property law (such as property transactions including sale and bailments), consumer law and trade practices, private law, personal property securities, sale of goods, employment law, banking, investment and finance.
Commercial lawyers advise on a range of commercial dealings and transactions, including draft and negotiate contracts and other legal documents, and advise and represent clients in commercial dispute resolution.
A commercial lawyer will carry out a range of tasks, but will generally practice in one of two main areas:
Corporate law and advice/transactions work; or
Commercial litigation and dispute resolution.
Transactional lawyers advise clients on a range of matters such as tax, sale of goods or consumer law, employment law contracts, and intellectual property protection, as well as aspects of corporate law. Often, a commercial lawyer will specialise in one or a few of these areas, as each can be complex.
Litigation lawyers, on the other hand, focus on disputes which arise in a commercial setting. These lawyers will generally advise clients on dispute resolution, and represent those clients in negotiations, mediation or arbitration, or in Court. Given these lawyers generally specialise in skills such as negotiation and in Court procedures, commercial litigation lawyers can often practice more broadly than those who focus on transactions.
To make a career as a commercial lawyer, you must first complete a law degree at university – law school (either an undergraduate course Bachelor of Laws, or a postgraduate course Juris Doctor), both of which require a certain number of credit points. Enrolment at law schools in Australian cities such as Sydney and Melbourne is extremely competitive, often requiring a strong UAC ranking to allow admission.
Many students who enrol in a university law school will choose coursework subjects in their degree which focus on commercial law, with a view to learning about various types of commercial law and how they operate in practice.
Many students will also complete internships (or clerkships) at a legal practice during their student enrolment in order to gain practical experience, as the study of law can be quite different to practice and law firms typically value this kind of initiative and experience when hiring junior lawyers.
Once a person is qualified as a lawyer, they might choose to undertake further study options with a greater focus on an area of commercial law of interest, such as a postgraduate master of law in commercial law.
Once a person is qualified as a lawyer and has a demonstrated interest in commercial law, this will generally qualify them to seek employment as a commercial lawyer.
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