Commercial Transactions Articles

Stamp Duty on SA Business Transfers Abolished


Stamp Duty was abolished from all SA business transfers from 18 June 2015 but this is still (good) news for lots of people. In fact, SA stamp duty was abolished for transfers of all non-quoted marketable securities (shares in private companies), units in unit trusts and all non-real property (non-land) transfers which includes licences such… Read more »

Is it a Good Idea to Trademark?


The risks associated with not using a registered trade mark are highlighted in the recent Full Court of the Federal Court of Australia decision in Lodestar Anstalt v Campari Amercia LLC [2016] FCAFC 92. If a trademark has been registered for a period of five years from the filing date, it can be cancelled because… Read more »

Confidentiality Agreements


It is always difficult to commence discussions with any potential business partner when commercially sensitive information is involved. This is not unusual considering that such information is valuable and should be protected. While the best protection is simply not to disclose information, a Confidentiality Agreement (“CA”) is one method used to attempt to protect such… Read more »

When the average yield for a 3 bed house in Adelaide is around 4.5%, is it really possible to buy an average 3 bedder that grosses 15% or higher? Yes it is! But of course, there’s a unique business model behind this strategy. One of my long term clients, Melinda Mayne, bought a very ordinary… Read more »

Small Business Incentives


As part of the federal government’s $5.5 billion small business package, Australian small businesses with less than $2 million annual turnover may be able to deduct assets they purchase (in particular office products and electronics goods) valued to $20,000. Small businesses that supply employees with portable devices like laptop and tablets will also no longer need… Read more »

If you have been thinking about starting a new business, now might be a great time with the introduction of a number of significant small business incentives set out in the Federal Budget for 2015/16 announced on 12 May 2015.   The tax incentives for new business start ups include: Small business tax rate cuts (the 2015/2016 tax… Read more »

Ostensible Authority


Ostensible authority of an agent is imposed by the law as a way of preventing a principal from repudiating a deal instituted by someone who appeared to have authority for that principal where it would be unconscionable to a third party to do so. If a principal (P) such as a corporation, partnership or an individual uses a person… Read more »

Access to Company Records


A company is a legal entity and is therefore considered for most intents and purposes as a separate ‘person’. As such, it retains rights of privacy over its financial records. However, certain persons have legal rights to such records: TYPES OF DISCLOSURE Large companies have to provide an annual report to members (shareholders). Public listed… Read more »

Illegal Contracts are Void


A Contract may be invalid for a number of technical or practical reasons but what of a contract that is completely valid according to normal contractual requirements but it is nevertheless void? This can happen with the contractual doctrine against illegality. Illegality often comes from a conflict between the terms of the contract and legislation…. Read more »

Cooling Off Rights in South Australia


A right to “cool-off” is a contractual or statutory right which gives a party to an otherwise binding contract the right to change their mind during a certain period of time.  Provided that the cooling off notice is given strictly in accordance with the relevant procedure, the contract will come to an end.  Generally speaking,… Read more »

There are a number of reasons why one may want to sell or transfer the right to receive rental income from a leased property. They include: (1) The desire to convert the future rental payments into an upfront capital amount by selling the right to receive rental income; (2) estate planning purposes and the desire… Read more »

People carrying on business in common for profit are in Partnership. It is an old and historically successful business model, although more businesses today incorporate as a limited liability corporation. The unwritten essence of a partnership is trust between partners and when trust no longer remains, the end of a partnership becomes a real possibility. A… Read more »

“We Won’t Go To Court” Arbitration Clauses


A familiar term of many contracts is what lawyers call a “Scott v Avery” (Scott v Avery (1856) 5 HLC 811) clause.  This is a clause saying the parties to the contract, who have a dispute arising from the contract, agree in advance that neither will bring an action in Court until arbitration has been… Read more »

Can Courts Correct Contracts?


While the Courts won’t re-draw a legal document to improve it, they will, in certain cases, correct the document (“rectification”) if it clearly doesn’t set out what was intended.  This power exists in relation to a range of legal documents, some only of which are mentioned here. Contracts If the contracting parties agreed to something… Read more »

Untrustworthy Trustees


Trusts are appropriate legal structures in many circumstances.   However even a well thought out trust structure supported by an excellent trust deed will fail the settlor’s aims if the trustee is untrustworthy.   What is a Trust? A Trust is an arrangement where X holds or controls property for Y.  In this case X… Read more »