Commercial & Business Lawyers Melbourne

Frequently asked questions.

Plain-English answers to the questions we are asked most often by Melbourne clients.

When should I engage a commercial lawyer?

As early as possible — ideally before signing anything, committing to a transaction, entering a new business relationship or making a significant change to the way your business operates. Early advice is almost always cheaper than fixing a problem after the fact. Engaging a commercial lawyer at the planning stage of a sale, acquisition, joint venture, franchise or major contract allows the legal structure to support your commercial objectives rather than constrain them.

What should I consider before buying a business?

Due diligence is critical. Before buying a business you should understand exactly what is being sold (assets, shares, goodwill, contracts, premises, employees, intellectual property), the financial position of the business, the terms of any key contracts and leases, employee entitlements transferring across, regulatory approvals and any contingent liabilities. The sale agreement should reflect the negotiated commercial deal, allocate risk appropriately and protect you between exchange and completion.

Why is a shareholder agreement important?

A shareholder agreement governs the relationship between the owners of a company — how decisions are made, how disputes are resolved, what happens if a shareholder wants to exit, dies or becomes incapacitated, and how the business will be valued. Without one, the default rules in the Corporations Act and the company constitution apply, and they are often a poor fit for owner-operated businesses. A well-drafted shareholder agreement prevents many disputes from arising and provides a clear process for resolving the ones that do.

What should be included in a commercial contract?

At a minimum: a clear description of what is being supplied or received, the price and payment terms, delivery and performance obligations, warranties, limitations of liability, intellectual property arrangements, confidentiality, termination rights, dispute resolution and governing law. The right contract reflects the actual commercial deal between the parties, allocates risk fairly and is drafted in language the parties can understand and rely on years later.

What is involved in selling a business?

A typical business sale involves preparing the business for sale, agreeing heads of terms, responding to due diligence, negotiating and signing the sale agreement, satisfying conditions precedent (such as landlord consent to a lease assignment), completion, and post-completion matters such as warranty claims and restraint enforcement. We assist with each step, working alongside your accountant and business broker to achieve a clean exit on the best available terms.

How can I protect my business from disputes?

Most commercial disputes are caused by unclear documentation, undocumented variations to agreements, governance gaps and a failure to address risk at the time the relationship is set up. A periodic review of key contracts, terms of trade, shareholder and partnership arrangements, and corporate governance frameworks will identify weaknesses before they become disputes. Early intervention when a problem first appears is also far cheaper and less damaging than waiting for litigation.

What is a franchise agreement?

A franchise agreement is the contract under which a franchisor grants a franchisee the right to operate a business using the franchisor's brand, systems and intellectual property. Franchising in Australia is heavily regulated by the Franchising Code of Conduct, which requires extensive pre-contractual disclosure, mandates certain terms and provides cooling-off and dispute resolution mechanisms. Franchise agreements are long, technical documents and should not be signed without proper legal advice.

Why is business succession planning important?

Without a succession plan, the death, incapacity, retirement or exit of a key owner can disrupt or destroy a business that has taken decades to build. Business succession planning addresses ownership transition, management succession, funding arrangements (often using buy/sell agreements supported by insurance) and the interaction between the business and the owner's personal estate plan. It is one of the highest-value pieces of legal work an owner-operated business will undertake.

Can a commercial lawyer assist with governance issues?

Yes. We advise directors and boards on their duties under the Corporations Act and at general law, the design of governance frameworks, risk management and compliance, board and shareholder decision-making, conflicts of interest and the appropriate response when a governance issue arises. Good governance is not just about compliance — it materially reduces risk and supports better commercial decision-making.

How often should commercial agreements be reviewed?

As a general rule, key commercial agreements should be reviewed at least every two to three years, and immediately whenever the business changes materially — a change in ownership, a new product or service line, entry to a new market, a regulatory change or a significant new counterparty. Terms of trade and standard contracts should be reviewed more often. A regular review picks up drift between the documents and the actual commercial relationship before it causes a problem.