Commercial Transactions Articles

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 »

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 »

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 »

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 »

All businesses should have well written terms of trade.   It is just as important to make sure that they form part of your contract.  Notwithstanding that you have good terms of trade, they will do little to help in a Court dispute if they were first presented after the contract was formed. Good debtor… Read more »

In South Australia, the Retail and Commercial Leases Act 1995 provides that a retail shop lease cannot require a tenant to pay land tax but a landlord’s liability for land tax can be taken into account in assessing the amount of rent.  The Act does not always apply and in certain circumstances land tax can be… Read more »

Personal liability of directors for unpaid superannuation and PAYG taxes has been extended by virtue of recent amendments to the Income Tax Assessment Act 1997.  The law now extends a director’s liability to unpaid employee superannuation and may not protect a director who puts a company into administration. The Australian Taxation Office now has the… Read more »

We may still be disappointed when a due diligence exercise reveals what a mistake the purchase of a particular property or business would have been.  It can be difficult to overcome the excitement and anticipation of a new home, investment or business, even though your lawyer shows you that you may have just “dodged a… Read more »

Starting a business can be an exciting and rewarding experience.  It can also quickly become a nightmare (even if the business is successful). Often it is difficult for an individual to find the finance necessary to start a business and so people look for partners.  A partner can also bring to the business skills and… Read more »

A fairy floss story: Whizzo had a fairy floss franchise.  It sold its territory in SA and WA to Floyd.  Under the franchise agreement, Floyd agreed not to compete with Whizzo after the end of the franchise period for 10 years anywhere in Australia. At the end of 5 years, Whizzo asked Floyd to renew… Read more »

We have significant experience in advising our clients on their rights and obligations under domestic and commercial building contracts, and residential “house and land” package deals. In South Australia a domestic building work contract can be cancelled if you take action to “cool-off” before the “prescribed time”.  This is not a step that should be… Read more »

Imagine this: you engage a contractor to perform construction work.  You are issued with an invoice at the end of the job, but the work is defective or not what you asked for.  You do what you think is the right thing and try and talk to the contractor about fixing the work before you… Read more »

What can go Wrong? A landlord owned prime commercial premises that were leased to company B, the branch of a national retail chain, and payment of the rent was guaranteed by company C. B transferred the lease to another company; both went bust.  C didn’t have to pay the lost rent because the Guarantee only… Read more »

In my experience there is a common theme amongst many failed businesses – the proprietors fail to understand the vital importance of getting paid on time and making sure that “writing-off” bad debts happens rarely, if ever. Successful businesses have credit control measures in place that include the following: Make sure your client understands how… Read more »