Generic legal documents are readily available online. So why engage the services of a lawyer?
Over the past few years there has been a boom in the online legal document business. You can now download a wide variety of legal documents off the internet including a will, a contract or lease - even a divorce form, for a fraction of the cost of engaging a lawyer to draft one.
At first glance these online documents seem to offer convenience and value for money, but it is a case of buyer beware! Downloading and using generic legal documents or forms gives the false impression that the document will be fit for purpose. However, their use could end up costing you more in the long run, be ineffective in accomplishing your aims, and be unenforceable in the event you end up in court over a dispute.
For example, generic online legal documents can be out of date or flawed, and the companies which sell them make no warranty that their products and services will be fit for purpose. Misguided or incorrect assumptions can be made by the purchaser as to the use of certain phrasing, or the necessity of certain clauses or policies in such documents, which can put them, their assets or their business interests at unnecessary risk or cause reputational damage. There is also a tendency when using off-the-shelf documents to simply adjust the circumstances to fit the document, however, legal issues are rarely straight-forward. Engaging the services of a lawyer provides clients with peace-of-mind knowing their unique circumstances have been considered, and the legal documents have been customized to meet their specific needs.
Many websites also offer access to a virtual lawyer however, this adds to the cost and can be problematic in that you may not be getting the best or most appropriate legal help. For example, the lawyer is not one of your choosing, they may not possess a suitable level of expertise in law relevant to your matter, nor be familiar with the laws of your jurisdiction.
Scammell & Co have experienced lawyers who can answer your questions, provide you with tailored advice and services on all aspects of contracts, leases, and other documents to ensure they meet your specific needs, mitigate risks and protect your assets.
For further information on how we can assist you with your contracts, leases and agreements click HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
The four most common business structures explained
The most common business structures are sole trader, partnership, company, and trust. The business structure you choose will determine: your business’s legal and operational risk; what control you have; asset protection; tax obligations and ongoing costs.
Sole trader is inexpensive, simple to set up and easy to maintain. Individuals have complete control over the management and direction of their business. As individuals operate under their own name, they own all their business’s profits and assets, but they are also legally responsible for all aspects of the business including any debts. They also pay tax on profits at their marginal tax rate, which may be higher than the company tax rate.
A partnership consists of two or more people running a business together. A partnership can be set up simply and cost-effectively. However, there are disadvantages, for example, partners are jointly responsible for any debts and equally liable for the actions of other partners.
A company structure consists of shareholders, company directors and managers who are typically the same two or three people.
As a separate legal entity, a company provides several advantages, namely:
- Shareholders can only lose the value of their shares and are not liable for company debts.
- Legal arrangements are in the company's name, not in the name of its directors and managers.
- The tax rate for companies is less than the highest rate for individuals.
Due to its greater complexity there are disadvantages, namely:
- Companies are more regulated than other business structures.
- The rules for establishing and running a company are more complex and costly than other business structures.
- Lessors, suppliers, and lenders are reluctant to lend money, or enter into contracts or leases with companies unless directors or shareholders provide personal guarantees.
- If directors fail to meet their legal obligations, they may be held personally liable.
- Profits distributed by companies to shareholders are taxable.
In a trust structure, a trustee holds your business for the benefit of others (the beneficiaries). The trustee can be a person or a company but is not a separate legal entity. A trading trust requires a formal trust deed that outlines how the trust operates. The trustee is legally responsible for the operation of the trust, and liable for its debts. Commonly however, the trustee is a corporate trustee, which can reduce liability. A trust can be tax effective due to the flexibility of its asset and income distribution. It can't distribute losses however, only profits. Trusts can be difficult to dissolve or make changes to once established.
A Scammell & Co commercial lawyer can provide legal advice on a wide range of business issues. For further information on our commercial law services please follow the link here
Covid-19 lockdowns give rise to commercial leasing disputes
Legislation introduced by the South Australian government in the early stages of the COVID-19 pandemic in 2020, (namely, the Covid-19 Emergency Response Act 2020 and COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020), provided special protections to tenants, preventing landlords from imposing rent increases and/or evicting tenants experiencing financial hardship caused by ongoing restrictions and lockdowns.
This in turn caused confusion from landlords and tenants alike, leading to a spike in commercial lease disputes and both tenants and landlords seeking legal advice from commercial and property lawyers throughout South Australia.
With a new emphasis on negotiating on good faith, and businesses being able to continue to trade after the end of the COVID-19 pandemic, many issues were resolved without litigation being instigated via negotiations between the parties and mediation, however, more contentious disputes were still being referred to and dealt with in the Magistrates Court.
With the ever-present risk of further Covid-19 outbreaks, businesses across the state face continued uncertainty and financial pressures brought about by ongoing disruptions to trade, especially amongst the state’s hospitality and retail sectors. These ongoing economic challenges highlight the importance of regular and frank communication between businesses and landlords and ensuring rights between the parties are properly documented (i.e. via lease agreements).
A lawyer with leasing experience can assist with a range of matters including, to:-
- assist in the negotiation of lease terms
- draft and review leases
- provide advice on financial obligations and potential pitfalls
- renegotiate leases
- advise in respect to breaches of lease
A Scammell & Co lawyer can also represent either party in any legal proceedings which may be brought before a court because of an unresolved dispute over a lease.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
In a dispute over a breach of contract? Here are your options.
A contract is a legally binding agreement between two or more parties that sets out the obligations and expectations of the relationship or transaction. Most commercial and consumer dealings are regulated by a contractual agreement.
There are three basic elements to a contract. Firstly, there must be an agreement between the parties where one party offers something, which the other party accepts. Secondly, each party must give something of value such as money, goods and services, skills, or labour. Thirdly, each party must have willingly entered into the agreement.
Not all contracts have to be in writing, however, to avoid misunderstandings that can lead to disputes, it would be prudent to have a written contract. In certain circumstances it is a legal requirement that contracts are in a written form.
Depending on the type of breach the contractual obligations may be repudiated by the other party to it. An example of repudiation is where a party openly states that they are either unwilling or unable to perform their obligations under the contract. A party’s conduct can also amount to an act of repudiation.
If a contractual breach occurs by one party, the party that is not in default can take three actions:
- they can sue for specific performance, which includes a court order directing the party that is in default to carry out its contractual obligations.
- they can seek an injunction, which is a court order restraining a party from breaching the contract.
- they can sue for monetary compensation (known as “damages”) for any loss resulting from the breach of contract.
Irrespective of which side of the dispute you find yourself, a Scammell & Co dispute resolution lawyer will support you through the process. This includes:
- providing legal advice and workable options to protect your interests;
- handling negotiations;
- conducting mediation; and if all else fails,
- representing you before a relevant court.
A Scammell & Co lawyer has the experience to safeguard your rights and resolve disputes as quickly and amicably as possible to avoid you incurring further losses.
For further information about our legal services relating to contracts, leases and agreements, please click HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
In troubled times existing commercial leasing arrangements may be in need of scrutiny
Coronavirus related economic impacts continue to affect commercial leasing, but there are options available to both tenants and landlords.
Commercial and retail tenants and landlords have been greatly affected by ongoing trading restrictions and forced closures due to the pandemic. This prompted state and territory governments to introduce temporary emergency response legislation. The legislation restricts rent increases for tenants and the ability of landlords to terminate lease agreements.
While such an initiative cushioned the economic fallout for businesses who qualified for financial support, these measures are due to expire in February. Therefore, both tenants and landlords continue to face uncertainties.
Whilst we can be tentatively optimistic about the handling of the pandemic and the economic outlook here in SA, only time will tell how businesses fare in the long term. In the meantime, parties may need to renegotiate on leasing arrangements before emergency legislation is repealed.
A lawyer with experience in leasing can assist with a range of leasing matters such as:
- draft and review leases;
- provide advice on financial obligations and potential pitfalls;
- renegotiate leases;
- apply for a rent reduction or deferral of rent payments;
- provide legal advice on different leasing jurisdictions;
- negotiate lease clauses including fixtures and fit-out terms, costs and assignment of leases; and
- resolve a breach of a lease.
Any renegotiations should be appropriately documented. Depending on the specific arrangements this may entail a simple letter or side deed, or a more formal variation to the current lease.
A Scammell & Co. lawyer can also represent either party in any legal proceedings which may be brought before a court as a result of an unresolved dispute over a lease.
Click here for further information on Scammell & Co.'s commercial and company law services.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
It's all in the planning if you are a business owner looking towards retirement
Understandably, business owners are often so busy focusing on the day-to-day operations that little thought is given to the future of the business should a key person no longer be involved due to death, illness or retirement.
Proper succession planning should mean the business value is maximised, the current owners are able to exit successfully, the business continues after the transition, preserving the owner’s legacy and the new owners are also able to continue successfully in a good, well-managed and profitable business.
Scammell & Co. Solicitors work together with other professional advisors to help create an effective Business Succession Plan that can assist to mitigate any potential worry and conflict that often accompanies change.
Scammell & Co. Solicitors is a multi-service law firm, giving us the ability to work across various areas of law with business owners, stakeholders and family members to assist in identifying risks, goals and strategies to make a comprehensive succession plan that works for everyone. Our lawyers can advise on business structuring, buy-sell contracts, asset protection, preparing family constitutions and stakeholder agreements.
As skilled mediators, we can also convene family meetings to facilitate the resolution of any business conflicts which may arise.
Our Wills and Estate Planning team will ensure appropriate and necessary estate planning is in place including valid Wills, Powers of Attorney, Superannuation Binding Death Benefit nominations and arrangements, and documentation in relation to the passing of control of non-estate assets such as those held as joint tenants or in a family trust.
For a comprehensive outline of Scammell & Co.'s commercial law services click here.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.