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Commercial and Company Law – Adelaide

Business Structures & Transfers

Contracts, Leases & Agreements

Commercial Litigation

Liquor Licences

Notary Public

Commercial Property Contracts & Conveyancing

Providing the South Australian business community with efficient, reliable and cost-effective legal services.

Sourcing practical legal advice in the early stages of any commercial transaction or business dealing will save time, money and avoid potential problems in the future, which ultimately ensures a successful outcome for any business.

Scammell & Co. Commercial and Company lawyers have the knowledge and practical experience to assist both public and private enterprises, from sole traders, small and medium enterprises (SMEs), to large corporations – on a wide range of business matters.

Whether you are a start-up or well-established business, you will benefit from Scammell & Co.’s commercial acumen and legal expertise. Our priority is to ensure your commercial law and company law needs are efficiently and effectively met so you can concentrate on the all-important aspects of running a successful business.

Scammell & Co.’s extensive commercial law and company law services include:

 

Business Purchases and Sales

Buying and selling a business is a significant transaction with no margin for error. It is important to seek legal advice to ensure your interests are protected. If you are selling a business your aim is to get the best return in the shortest timeframe. If you are buying a business your aim is to get value for money, ensure the business structure meets your needs and minimise risk to debt and any liabilities.

A Scammell & Co. commercial lawyer will review the business sale agreement, conduct due diligence, advise you on liabilities and intellectual property considerations, and review and make recommendations to any contract clauses.

 

Company Law

Australian corporations law is governed by the Commonwealth’s Corporations Act 2001. It is administered by the Australian Securities and Investment Commission (ASIC) which regulates matters such as the formation and operation of companies, the duties of officers, and requirements concerning takeovers and capital-raising.

Australian companies incorporated by registration with ASIC include proprietary companies and public companies with the type of liability of shareholders of the company including:

  • unlimited with share capital;
  • limited by shares;
  • limited by guarantee; or
  • no liability (if the company’s sole objects are mining or mining-related objects).

The most common form of incorporated entity in Australia is a company limited by shares.

Proprietary companies are not allowed to raise capital on public equity markets and are limited to 50 shareholders. Only public companies may engage in public fund-raising activities and be listed on the Australian Securities Exchange. Proprietary companies are often used for private ventures or as subsidiaries of public companies, including foreign companies, and some are nominees for other business structures such as trusts or partnerships, to limit the owners’ liabilities.

The setting up of and day-to-day running of a company is an important undertaking and the many managerial duties, regulatory requirements and legislative obligations are the responsibility of appointed officeholders. Australian Directors are duty-bound to act in the best interests of the company and its shareholders. Whilst no particular qualifications or experience are prescribed for the role of a company director, other legislation may impose restrictions and qualification requirements on particular types of companies, such as those holding a banking licence or operating a gambling licence. An undischarged bankrupt cannot be a director.

Scammell & Co. can provide independent advice on legal issues which may arise in relation to company structures and business activities; officeholder responsibilities, liabilities, and disputes; and assist in the drafting of company documents from a compliance and legal perspective.

     

    Taxation and Revenue Law

    Australia has a complex and ever-changing taxation and revenue system. As any individual or business can appreciate, it is important to source trusted and up-to-date legal advice on tax issues including tax structuring, tax risk management, ATO audits, tax litigation/dispute resolution and due diligence on the tax implications for business transactions.

    Scammell & Co has expertise in taxation and revenue law.  In particular our Consultant Malcolm Daws worked for many years with the Australian Taxation Office as well as in private practice as an accountant and lawyer.  He is also a chartered secretary and has valuable experience as a company director.

    Specifically, Scammell & Co. can provide legal advice on matters pertaining to:

    Direct tax:

    • income and capital gains tax
    • mergers and acquisitions
    • corporate reorganisations and distributions
    • business sales and transfers
    • demergers
    • capital raising
    • joint ventures
    • partnerships and trusts
    • product and private rulings
    • business succession and retirement planning

    Indirect tax:

    • stamp duty and land tax
    • goods and services tax (GST)

     

    FAQs Click on the questions below to reveal the answer.

    What are some of the traps people should look for when buying or selling a business?

    A thorough assessment and audit of a business’ operations including financials, human resources, logistics, regulatory environment, compliance and competitor analysis should be a priority. Particular attention should be made to:

    • Unnecessary tax liabilities created.
    • Onerous lease terms which can make it difficult to resell the business.
    • When buying a business – possibly more so in the case of smaller family businesses – checking that the wages costs shown for the business are not understated. For example, sometimes in a family business, run by a husband and wife, the wife may be attending each day, and putting in a full day, but no wages are paid and thus the cost of that person’s input is not showing as a cost in the Profit & Loss Statement.
    • Danger of being sued through inadvertently failing to comply with regulations.
    • Dangers arising from purchasing a non-performing business because of a failure to make adequate investigation.

    What are the dos and don'ts of extending credit to customers?

    As business owners, we strive to make it as easy as possible for our customers to purchase our products or services. Most of us accept credit cards and many of us also extend credit terms as a way to increase sales and build loyalty.

    While extending a credit term by as little as 30 or 60 days is just like offering an unsecured loan, it’s a risk most of us are willing to take. We’re simply providing goods or services in return for a promise to pay.

    But as many business owners have learned during tough economic times, promises can easily be broken.

    What You Should Do

    • Do establish a credit policy that will determine who you’ll extend credit to, how much credit you’ll extend, and how you’ll monitor that credit once it’s been extended.
    • Do develop a thorough credit application that includes trade references, banking information, credit-check authorization, terms and conditions, and disclaimers.
    • Do pull a consumer credit report from one of the major credit reporting agencies to determine the creditworthiness of your customer.
    • Do exchange payment data with consumer and business credit bureaus so you can reduce customer late payments and defaults and improve collections.
    • Do offer several options in your customer payment methods, such as online bill pay, payment by mail, and payment by phone.
    • In addition, be sure to look at the amount of business a particular customer gives you. Offering a customer a credit limit because it brings in a lot of revenue for your business is a smart move. If it also has a long history of supporting your business, then that customer will be more likely to pay your invoices.

    What You Shouldn’t Do

    • Don’t extend credit without putting your credit terms in writing.
    • Don’t extend credit if your business doesn’t have significant cash flow.
    • Don’t extend credit until you become fully aware of the laws governing consumer credit.
    • Don’t extend credit limits that are greater than the risk your business can afford to take.
    • Don’t extend credit to every customer that your business acquires.
    • Don’t extend credit unless you have a collection policy in place that can manage and protect your accounts receivable.

     

    What type of business structure is best when setting up a new business or changing an existing business?

    The type of business structure suitable to a particular situation will depend on a number of factors relevant to each set of circumstances.

    For example, in certain situations a partnership may be preferable to a company, or vice versa.

    Often tax and risk considerations apply when choosing which business structure is suitable for you.

    How should business owners protect their business and personal assets?

    The type of business structure you put in place will play a crucial role in protecting your business assets as well as putting your personal assets beyond the reach of creditors.

    There cannot be absolute protection of assets in every situation but there are measures that can be taken to minimize your exposure.

    When selling a business, should I provide Vendor finance?

    Providing Vendor finance is often a way to get a higher price for a business, however, there are risks involved. For example, if the new owner is not an effective operator of the business and loses money, they may not be able to repay the debt.

    Another example of potential risk associated with Vendor finance is if the new owner decides, after occupying the business for a period of time, that they were misled about the value of the business and believes they paid more than its worth. The new owner may refuse to pay the balance of the purchase price.

    A Vendor who provides finance to a Purchaser is always taking a risk – even if he has good security.

    I am setting up a new business. Do I need a lawyer to advise on my commercial lease?

    As a business owner and tenant, a commercial lease will be one of your business’ most important contracts. It imposes legal and financial obligations on you over a period of years, and your landlord will be one of your most well secured creditors. If, in the future you ever wish to sell your business, a lease is also considered a core asset.

    A lawyer can provide advice on your key obligations, potential pitfalls and negotiate on your behalf when deciding to enter into a commercial lease. For example, your lawyer can advise you on the outgoings that your landlord is entitled to. In addition, they may also be able to negotiate the maintenance terms, signage restrictions or eviction clauses on your behalf.

    It is generally considered a commercially wise decision to ask a lawyer to act on your behalf to review any proposed lease before you sign, rather than bring a problem to your lawyer after the lease is signed.

    A lawyer can also assist with other aspects of setting up your business such as due diligence; business structures and trading terms and conditions.

    Free legal advice.

    If you have some questions, want some advice or want to get the process underway, contact Scammell & Co. to arrange a meeting. In many cases (not all) the first 30 minutes of your first meeting is free. This can give time to outline your matter and for us to give you preliminary advice.
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