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QUESTIONS OF
THE WEEK

QUESTIONS OF THE WEEK

Question of the week October 9th 2020

Selling a business- how does a lawyer assist with the process?

 

If you have decided to sell your business, it is prudent that you seek professional legal and accountancy advice before placing the business on the market for sale.

Several matters may require or benefit from professional advice, including a determination as to what should be sold (the business entity or only its assets), taxation aspects (income tax, GST and capital gains tax), valuation of the business assets or shares, disclosure and concerns with respect to any confidentiality obligations.

It is usually necessary to undertake some legal work by solicitors before marketing a business for sale. That includes assembling the information required for the preparation of the contract, such as  a detailed list of assets and plant, their depreciated values, copies of leases, licences, and other contractual documents that purchasers will need to inspect.

Your lawyer will also manage the conveyancing aspect of the sale starting from the preparation of the contract, negotiations, execution, and the post contract process up to completion.

It is imperative that an experienced commercial lawyer draft the sale contract and negotiate its terms with the purchaser or their solicitor to ensure that its terms are favourable to you and that you are protected from unnecessary disclosure or warranty obligations, misleading and deceptive conduct claims and other legal obligations that may arise during or after the transaction.

Some non-exhaustive matters to consider and obtain advice on are:

  • The business valuation: you want to undoubtedly get the best price for your business and knowing what your business is worth will assist you to get this. We will undertake negotiations on your behalf with the purchaser to ensure this process occurs smoothly. 
  • The assets you are selling: does the sale include goodwill, licenses, patents, the business name etc. or are you only selling physical assets such as equipment, machinery and stock? As the seller, it is your responsibility to clearly identify what you are selling.
  • Relevant disclosures: a seller can be held responsible if they do not disclose the relevant information to the purchaser. If you are unable to differentiate between what you need to disclose or not, you should contact our team to discuss.
  • Warranties, guarantees and representations.
  • Lease: does the business operate under a lease? Most leases require consent from the landlord to assign or transfer the lease, which we can negotiate on your behalf. Failure to transfer the lease may be detrimental to your business valuation.
  • Employees: will your employees continue working for the business or will their employment be terminated when the business is transferred to a new owner?
  • Tax implications of the sale.
  • Vendor financing and security of loans.
  • Restraint of trade.
  • Goodwill obligations post-contract.

    The expert Commercial Law team at Brydens Lawyers will carefully consider all the relevant aspects of your sale and guide you through the complexities of the transaction to ensure that the process is stress-free and smooth. For all your commercial law needs contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au.

    At Brydens lawyers – #WEDO commercial law

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    NEED LEGAL ADVICE? YOUR QUESTIONS ANSWERED

    PERSONAL INJURY

     

    ANONYMOUS QUESTION:
    I was involved in a car accident where someone changed lanes and hit me. I was in the left lane and deemed not at fault. I have no insurance but the other at fault driver does. I contacted his insurance company and they said he needs to lodge the insurance claim himself. I contacted him and he refused to lodge a claim. What do I do in this case to ensure damage to my vehicle is compensated for by the at fault party?

    BRYDENS LAWYERS ANSWER:
    What you have raised is unfortunately a difficulty that is encountered quite regularly. That is, if the party at fault does not make a claim on their insurance then the claims process itself is not activated and the insurer will not respond to a claim as against its insured. It is of course open to you to try and encourage the other party to make a claim on their insurer. If they fail or refuse to do so then there would be no reason why you should not commence formal court proceedings to recover the damages to which you are entitled. Such proceedings would no doubt focus the attention of the other party who would be motivated to contact their insurer. Brydens Lawyers are available to assist and should you require legal representation please click here to contact us to speak with one of our experts.

    FAMILY LAW

     

    ANONYMOUS QUESTION:
    My partner and I have separated and we wish to resolve our financial issues. We purchased a house and land package together although our relationship broke down soon after. We have separated now and the house is near completion. Do we need to go to court? I want to make sure I receive what I am entitled to, I am worried it is getting messy and unfair.

    BRYDENS LAWYERS ANSWER:
    The majority of property settlements occur outside the court system. It is indeed the preferable course. It is a much cheaper and quicker alternative to commencing proceedings in court. If the parties are able to resolve their differences and reach a resolution then the agreement can be formalised and lodged with the Family Court for appropriate orders to be made. No court attendance is required. An alternative is for the parties to enter into a binding financial agreement which does not need to be lodged with the court. There are however a number of specific legal requirements pertaining to a binding financial agreement which must be fully complied with in order to ensure that the agreement is valid.

    SUPERANNUATION & TPD

     

    ANONYMOUS QUESTION:
    I used to work for a government agency from 1986 until November 1994. Due to a car accident on the way to work, I was injured and unable to work after this. I have been living on a disability pension ever since. Recently I have found out that I might be able to seek a lump sum payout and a pension from superannuation fund. Is this possible and can you assist with it?

    BRYDENS LAWYERS ANSWER:
    We assume that the insurer deemed you to be at fault in the accident and that no motor vehicle accident claim was made. It is correct that there may be rights available to you to claim lump sum benefits pursuant to your superannuation policy which would ordinarily contain provision for a total and permanent disablement claim. Given that you have been unable to work you would, ordinarily, qualify for payment of benefits in this regard. Brydens Lawyers has a specialised Superannuation and TPD Division which can assist. We would invite you to contact us to arrange an appointment with one of our expert lawyers.

    COMMERCIAL LAW

     

    ANONYMOUS QUESTION:
    I want to understand my current obligations under my commercial lease agreement that is contingent on DA being approved. My DA is not yet approved but I have been told the council today that they are thinking of providing me with a deferred commencement date which means the DA is not operational until the conditions are met. The financial implications are too much for me to meet the condition and I would prefer not to continue with the both the DA and the lease but don’t want to lose my deposit. What are my rights?

    BRYDENS LAWYERS ANSWER:
    Of course, any arrangements or contract including the Commercial Lease to which you refer, can be altered, amended or terminated by agreement between the parties. It would be recommended that discussions be undertaken with the lessor to determine whether or not they would be agreeable to a Surrender of Lease and if so, on what terms. Otherwise it will be the terms of the Commercial Lease that will determine the rights and obligations of the parties. If, as you say, the Commercial Lease is contingent on a DA being approved then until such time as the DA is approved the Commercial Lease is not in force or has effect. Brydens Lawyers has a specialised commercial division which is available to assist. We would invite you to contact Brydens Lawyers to speak with one of our experts should you wish to engage expert legal advice and representation.

    PROPERTY LAW

     

    ANONYMOUS QUESTION:
    We bought an investment property in QLD through a financial group in Sydney. They misrepresented the property, providing us with paperwork that states it was a brand new build. Upon settlement we found out that the property was in fact 5 years old. We want to claim compensation for loss of depreciation, extra strata costs, misrepresentation and mental anguish. Are we within our rights to do this?

    BRYDENS LAWYERS ANSWER:
    When buying any property the guiding principle for purchases is “buyer beware”. That is, as the purchaser you bear the onus of investigating and establishing exactly what it is that is being bought before Contracts are exchanged.
    That being the case consideration may have to be given as to whether there is an available cause of action as against your solicitor or licensed conveyancer who acted on your behalf in whom was entrusted the obligation to ensure that what was being purchased was that which was being represented to you. Your legal representatives have an obligation to ensure that the contract and all the details of the property that are being purchased are explained to you fully and that you understand same.
    Before advising further it would be necessary for us to undertake a complete review of your conveyancing file. The Contract and Disclosure Documents would establish the basis of the agreement that existed as between you and the vendor. Any other representations about the property, whether made verbally or in marketing material, generally cannot be relied upon unless they form part of the Contract. Therefore, your only recourse may be against those who were representing you on the purchase.
    To consider the matter we would invite you to contact Brydens Lawyers on 1800 848 848 to speak with one of our experts.

    WORKERS COMPENSATION

     

    ANONYMOUS QUESTION:
    I am a pharmacist in a small country NSW town. I had recently banned a woman with a drug problem from entry to the pharmacy. Last month, she attacked me, tore through the shop – destroying property and stock and stole medication. The police initially charged her on 7 counts but the courts dropped it to 2 and she was out on bail right away. I am in the process of putting in place an AVO against her and her partner. I have also required medical attention and time off work as a result of the injuries sustained during her attack. Can I sue her for compensation in addition to the criminal charges she is facing?

    BRYDENS LAWYERS ANSWER:
    Given that the injuries sustained by you occurred during the course of your employment, (and assuming that you are an employee), you are entitled to make a claim on your employer’s workers compensation insurer. The benefits to which you are entitled include weekly benefits of compensation (wages) for periods of absence as well as reimbursement of all reasonable and necessary medical treatment expenses.
    In some cases, you would be also entitled to claim lump sum compensation commensurate with the degree of permanent impairment that results from the injuries. In addition to same, you would have a common law action in assault available as against the perpetrator. Of course, any compensation that you receive from the workers compensation insurer would have to be reimbursed to that insurer from any damages that you recover from the perpetrator. There is a prohibition on “double dipping”. However, what would be of more concern, is whether there would be any prospects of recovering any judgment monies from the perpetrator. That is, although the claim may be successful and you are awarded damages for the injuries which you have sustained a question then arises as to whether the perpetrator has any capacity to pay those judgment monies. One other alternative is to make a claim through the Victims Compensation Tribunal for the injuries which you have sustained. Again however it is not open to you to retain both benefits under the workers compensation scheme and compensation from the Victims Compensation Tribunal.

    EMPLOYMENT DISPUTES

     

    ANONYMOUS QUESTION:
    My wife is pregnant and our baby is due later this year. My employer is saying I am not entitled for parental leave because I muts be employed for 12 months to be eligible. I will be employed for 11 months and 16 days when our baby is due. What are my rights in this situation?

    BRYDENS LAWYERS ANSWER:
    Section 67 of the Fair Work Act provides than an employee is not entitled to parental leave unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that the leave is taken. Leave can be taken within 12 months after the birth of the child. If:
    a) The employee has a spouse or de facto partner who is not an employee; and
    b) The spouse or de facto partner has a responsibility for the care of the child for the period between the date of the birth of the child and the start date of the leave.
    Therefore, you will need to continue working until you have completed 12 months of continuous service for your employer before being entitled to take parental leave.

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    Brydens Lawyers were the only people to stand by me offering support and encouragement to get me through my injury. I have been a client since 2016, and the service has been amazing throughout both of my cases. Without Brydens Lawyers I wouldn’t have gotten anywhere near the results that were achieved. I can’t thank them enough.

    Sue from Carlingford, a client of our Common Law division

    From start to finish, Brydens Lawyers made the conveyancing process so easy! I couldn’t be happier with the service provided- I would definitely recommend them to anyone in need of legal assistance.

    Alex Twal of the Wests Tigers

    Brydens Lawyers were the only people to stand by me offering support and encouragement to get me through my injury. I have been a client since 2016, and the service has been amazing throughout both of my cases. Without Brydens Lawyers I wouldn’t have gotten anywhere near the results that were achieved. I can’t thank them enough.

    Sue from Sydney, a client of our Workers Compensation division

    I couldn’t be happier with the Family law team at Bryden Lawyers. I dealt with Natalie and Amanda who were both professional and knowledgeable in my case which ran for 2 years. Overall, I was impressed with the way they guided me in that time, and I felt I could make accurate decisions clearly on their advice. This helped achieve a good outcome to the case and in the end, I considered the cost to be very reasonable for the amount of time that was spent on the matter

    Brenden, a client of our Family Law division

    Losing a parent at any time is a sad and stressful time for a family. Our dealings with Natalie made things that bit easier. Natalie’s professionalism and patience made things seamless and that bit easier after Mum’s sudden passing. My siblings and I would recommend Brydens Lawyers

    Paul Sironen of the NRL

    In January I lost my license for 6 months due to a medical condition. I got in contact with Avinash Singh from Brydens Lawyers, straight away Avinash put me at ease. Within a week my license was renewed, and I was able to drive again. I was so impressed with the dealings I had with Avinash and Brydens Lawyers, I wouldn’t hesitate to use them again or recommend them to my family of friends.

    Andrew Johns of the NRL

    Unbelievable, I’m very happy with my TPD result. Honestly Lee and the team at Brydens Lawyers treat you like family. All my family and friends have had miracle results with Brydens.

    Fred from Sydney

    Omar Khan of Brydens Lawyers resolved everything quickly and looked out for my interests every step of the way. I’m very satisfied with how things played out and will definitely be contacting them if I need help again.

    Paul M, a client of our Commercial division

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