FAQ

Our lawyers covers a diverse range of practice areas. Here are some examples of common questions we deal with on a daily basis. We hope you find this information useful and encourage you to contact us for any further assistance you require.

The information contained in these FAQs is not intended to be a complete statement of the law with respect to the issues raised and should not be relied upon as such.

FAQ

I am considering the purchase of an investment property, should I set up a company or trust structure from which to do it?
It is important to structure the ownership of your personal, business and investment assets in such a way as to securely protect those assets to the full extent possible under the law. Everyone’s circumstances are unique and as such the best ownership structure for one person may not be suitable for someone else. We can assist you make the right choice so that your ownership structure affords your assets the best available protection.

I have an idea for a new business I’d like to establish, where do I start?
There are a number of issues you must consider, including a suitable structure for your business, private asset protection measures available, intellectual property issues and statutory requirements that relate to the particular type of business to name a few. Allow us to guide you through what can sometimes seem like a legal minefield so that you can focus on the business of growing your business.

I am considering the purchase of an existing business but am worried that the vendor may start a competing business and take all my customers. What should I do?
It is possible to include in the contract of sale a clause preventing the vendor from competing with your business for a specified period of time after the sale within a specified area surrounding the business. The extent of any restraint must take account of the individual business and its market reach. The courts will only enforce a restraint if it is reasonable in duration and geographic area. You should obtain advice from a lawyer on a suitable restraint to protect your investment.

I am the owner of a commercial rental property and the tenant has not paid last month’s rent, what are my rights?
Your rights in these circumstances will be determined by the lease, legislation and common law. It is important to remember that the law also affords tenants certain rights in such cases. Therefore, it is vitally important that you obtain expert legal advice prior to making any decision on a possible course of action.

I am selling my business and the purchaser tells me that GST is not payable in addition to the price because the business is a going concern. I am worried that I might be left with a GST liability, how do I protect myself in these circumstances?
There are very specific legal rules that determine whether or not a business is a going concern for GST purposes and ultimately whether GST is payable with respect to the sale of a business. Quite often, what would appear to be a ‘going concern’ may not qualify as such under the legal definition of that term. Even if the business is on its face a GST exempt ‘going concern’ the transaction must be handled correctly in order to qualify for the exemption. You need to see a lawyer so that (a) your transaction is handled correctly and (b) any GST payable is collected from the purchaser at the time of sale.

I suspect that an ex-employee is using my confidential information, what can I do about it?
The ability of a business to protect its confidential information can be strengthened by provisions in its employment agreements that clearly express a prohibition on the use of the business’ confidential information. It is also very important that information deemed confidential be treated in such a way – it is no good claiming misuse of confidential information if you are unable to point to the measures put in place to protect the information in question. Let us advise you on your rights and consider instructing us to review your current employment agreements to make sure your confidential information is protected.

I am a franchisee, and the franchisor says it is entitled to increase the franchise fees, what can I do about it?
The Franchising Code of Conduct governs the relationship between franchisee and franchisor. You will need to speak with a lawyer about whether the franchisor has complied with the Code and is acting in accordance with the terms of the franchising agreement.

I have a standard contract that I ask all my customers to sign. Recently a customer claimed the contract could not be enforced because of an ‘unfair’ term, is this true?
Recent changes to the law make unfair terms in standard form consumer contracts void. However, only the courts can determine whether a term is unfair or not. A court may make an order refusing to enforce all or any of the terms of the contract, also, it may vary the contract as it sees fit. Talk to us and we can advise you taking account of your specific circumstances.

I am about to retire and my accountant has advised me to transfer an investment property I own into a self managed superfund. He says I don’t have to pay stamp duty. Is that correct?
It is possible that a transfer of an investment property into a self managed superfund is stamp duty free. Of course this is not always the case as there a very specific provisions of the Duties Act (2000) that come into play. Once you have obtained advice from your accountant about the financial and taxation consequences of any such transfer come and see us and we can advise you whether the proposed transfer is duty free and make sure the correct process is followed so that you can take advantage of any exemption available in your circumstances.

Contact

Level 1, 176 Main St, Mornington 3931
Victoria, Australia

PO Box 628, Mornington 3931
Victoria, Australia

Phone: (03) 5975 7588

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