Areas of business law can become complex quickly, so to assure that you have the best team behind you when you need it, trust Peter May McAuliffe Legal and our experience in areas like business structures, business succession, establishing a business name, companies trusts or partnerships and preparing documents like loans, guarantees and employment contracts.
Contracts and Agreements
Every business has a range of contracts specific to their type of operation. If you have employees, they should have employment contracts. If you are providing goods or services you should ensure that you protect your business by having terms and conditions of trade.
Businesses operating in Margaret River, Busselton, Bunbury and the South West region generally are no different to other businesses. They have the same types of issues and must take the same steps to protect themselves.
At Peter May McAuliffe Legal, we are acutely aware of the types of issues that arise in most businesses and the particular issues that arise in many rural based businesses and industries.
At Peter May McAuliffe Legal we can help you tailor your contracts and agreements to best suit your business needs.
Most businesses are run under a name other than that of the owner or operator. In Western Australia, you must be registered to operate a business in any name other than your own.
At Peter May McAuliffe Legal we have assisted many businesses with the registration of business names to be compliant for their businesses in Margaret River, Busselton and Bunbury.
Companies must also comply with the names regime under the Corporations Act. At Peter May McAuliffe Legal we have extensive experience in dealing with ASIC in the registration and variations to the registration of company names.
Choosing the best business structure is important for a range of reasons.
At its most basic level the correct structure is important to determine how you pay your taxes. Taxes paid through an individually owned business can be very different from those paid through a company structure. This also has an impact upon taxes such as GST if you are registered as an Australian business and capital gains tax depending upon your particular structure. At Peter May McAuliffe Legal we work extensively with accountants in the south west in relation to taxation issues.
Structure is also very important when considering succession planning. Succession planning may simply be bringing in new partners and owners into the business. In family businesses, it is important that the structure be conducive to enable the business to be carried on by future generations.
At Peter May McAuliffe Legal we are acutely aware of succession planning issues that arise in agricultural ventures. Passing on the family farm to the next generation must be structured carefully to minimise the range of taxes that might otherwise arise. Control of family run businesses is very important when considering generational change.
Structures need to be tailored such that a person with the requisite skill can take over the ongoing operation and that it is not left to a mixture of different individuals who may have different views and may not necessarily run the business in the best interests of the family group.
Purchase and Sale of Business
At Peter May McAuliffe Legal, we assist many clients in the purchase and sale of businesses.
Sales of businesses in the south west region have their particular complexities. The original contractual relationships between the parties must be clearly documented. This is an area where many people get caught if they do not do their documentation correctly.
If you are a purchaser you need to ensure that it is properly documented that you get what you are paying for.
If you are a vendor you need documentation to ensure that you are not bearing the liabilities that may arise for the subsequent purchaser. These are but a few of the many issues that arise in the documenting of the sale of a business.
Of further importance is the actual business settlement. Here many mistakes are made by vendors and purchasers. There is a vast array of issues that should be thoroughly considered when conveying the business.
Businesses that operate in rural areas have a number of unique issues that are not commonly encountered in businesses operating in the metropolitan area of Perth. At Peter May McAuliffe Legal we have a clear understanding of the issues that are particular to Margaret River, Busselton, Bunbury and rural businesses in the South West.
We are able to assist you in the management of documenting and completing the purchase or the sale of your business.
Companies, Trusts and Partnerships
Many businesses operate through a structure of a company, a trust or a partnership. Each of these structures has its own peculiarities.
Companies are operated under the terms of the Corporations Act. This is complex legislation that requires solicitors with extensive experience in a whole range of different issues and many of the practical issues of dealing with ASIC.
At Peter May McAuliffe Legal, we have many decades of experience in assisting companies in dealing with Corporations Act compliance issues. Failure to comply with these issues can lead to strict penalties being imposed not only upon the company but also upon office bearers.
Trust law can be a minefield. At Peter May McAuliffe Legal, we understand the importance of getting your trust documentation correct and keeping it up to date. Many trusts that are operated are often old and out of date. This can inhibit the proper functioning of trusts, particularly those that are operating businesses. At Peter May McAuliffe Legal we also understand many of the complex legal issues that can arise when there are disputes in the operations of companies and trusts. We have extensive experience in litigating and dispute resolution for companies and trusts for our client businesses operating in Margaret River, Busselton and Bunbury.
In rural communities, partnerships are very common. Many agricultural enterprises are run in partnerships between family members. Regrettably, these often become an area of considerable disputation over time. This particularly occurs where new members enter families through marriage, de facto relationships or generational change.
The best means of ensuring that you minimise problems within partnerships is to ensure that you have a detailed partnership document that regulates the core provisions of the agreement between all the parties.
Many parties do not consider what happens if a partner wishes to exit a partnership. Many agreements do not have clear rules as to what the terms are for someone entering the partnership. What happens if someone dies? What happens if someone undergoes a divorce? These are common problems that we encounter on a daily basis with our clients in Margaret River, Busselton and Bunbury.
At Peter May McAuliffe Legal, we can help you navigate this minefield of issues and document the issues before the problems arise. If the problems have already arisen we have extensive experience in dispute resolution to quickly and cost effectively resolve these problems for you.
Lending and Borrowing Money
Commonly, within family groups monies are lent from parents to children, sibling to sibling and between friends. Whilst the arrangements are simple enough in the early days, complexities often arise over the passage of time. Families fall out. Friends fall out. Parties enter into transactions with different expectations of what will happen.
At Peter May McAuliffe Legal, we have documented many loans between related parties. Whilst it is common for unrelated parties to seek legal advice, related parties often assume that they do not need to. Unfortunately our experience tells us that these are the more problematic loans and the ones that can destroy relationships within families and between friends.
At Peter May McAuliffe Legal, we have documented many loans between related parties and more arms’ length loans between other parties for our clients in Margaret River, Busselton and Bunbury. Some of these loans simply document the basic relationship so that both parties know what their expectations will be. In more complex transactions we prepare security documentation to ensure that if something goes wrong with the borrower’s finances that the lender has greater protection as a secured creditor.
At Peter May McAuliffe Legal, we are happy to discuss your needs and arrive at the type of documentation that adequately suits your particular circumstances.
Bank Documentation and Guarantees
Borrowing money from a bank has never been more complex. Even the most minor transaction leads to the customer being given a huge volume of documentation that most people simply do not understand.
At Peter May McAuliffe Legal, we have many years of experience in advising our clients in Margaret River, Busselton and Bunbury upon banking documentation.
One of the more common transactions that we advise upon is bank guarantees. There are many risks for a guarantor in entering into a bank guarantee. Within families these are not commonly understood. With our extensive experience in this area we are able to alert our clients to many of the more common pitfalls of entering into such documentation and to help them amend or formulate the documentation in a manner which will limit many of the concerns that they encounter on a day to day basis.
We are commonly asked to advise upon reverse mortgages. These have their own peculiar requirements and need to be understood by the borrowing party before most banks will enter into the transaction. At Peter May McAuliffe Legal, we regularly advise our clients upon entering into reverse mortgages.
Did you know that there are special rules for people who live in rural areas relating to stamp duty?
Many transactions that people enter into are assessable for transaction duty. However in rural areas certain types of transactions are exempt. For example, if you comply with the family farms exemption rules you can enable generational change within your family group without having to pay large amounts of stamp duty. These transactions have considerable legal complexity. Our clients must ensure that they strictly comply with the rules under the duties legislation to obtain their exemption. Failure to strictly comply can lead to an imposition of duty of up to 5.5% of the transaction value. The transaction value is not what you, the parties, place upon it. In related party transactions it is what an independent valuer will place upon it. That can be many times what you anticipated. The stamp duty assessment, if unplanned, can be financially crippling.
Between husband and wife there are ways to convey certain types of property without having to pay stamp duty. Again, these exemptions require strict compliance with the rules. At Peter May McAuliffe Legal we have acted for many clients in the South west in ensuring compliance with these exemptions to minimise any imposition of stamp duty.
Other common transactions encountered in rural areas relate to the acquisition of businesses. Many of these acquisitions arise with limited documentation. The absence of documentation does not mean that there is no stamp duty on business acquisitions. Strict rules require documentation to be prepared and lodged with the Commissioner of Stamp Duties upon which the Department can levy an assessment of up to 5.5% of the assessment.
At Peter May McAuliffe Legal we are happy to assist our clients with the preparation of this documentation. We identity those parts of the transaction that are exempt to minimise the amount of duty that you must lawfully pay.
Many transactions relating to farming land are often conducted through the sale of shares. It is a common mistake of many persons that this is not a dutiable transaction. The sale of marketable securities does not normally attract stamp duty. However, where it falls within the definition of a land rich corporation various returns must be lodged with the Commissioner of Stamp Duty upon which stamp duty is assessable. Peter May McAuliffe Legal can help you with the preparation of these documents. Failure to lodge documentation advising of assessable transactions can lead to heavy penalties in addition to incorrect assessments due to improper preparation of the final documentation.
Employing any person can expose the employer to a raft of claims if incorrectly done. In addition to the provisions of the Fair Work Act, and the obligations of an employer under the National Employment Standards, there are a range of taxation issues that must also be considered.
Employers can, in some circumstances, be liable for paying the taxation for a person that they believed was a contractor. PAYG tax may have been required to be deducted.
With superannuation many employers incorrectly assume that if an employee has an ABN that no superannuation is payable.
These are but a few of the issues that must be considered when entering into any employment contract. It is the lack of certainty in employment contracts that is often used against employers when there is a dispute. The easiest means of avoiding disputes is that both parties to the transaction understand the ground rules upfront. Further, the parties must understand what ground rules they can agree and what ground rules are imposed upon them by legislation.
At Peter May McAuliffe Legal, we have drafted many employment contracts for our Margaret River, Busselton and Bunbury clients. We have assisted many of our clients in disputes in the Fair Work Commission. The majority of these disputes have all been satisfactorily resolved at an early stage. Early intervention is one of our strongest recommendations where there is a dispute. If parties can negotiate early and in good faith both parties can at least walk away having minimised the losses that might otherwise have been sustained.
Early comprehensive cost effective advice is the key to minimising your costs in employer disputes. At Peter May McAuliffe Legal we have extensive experience both in terms of understanding the complexities of the law and in coming up with simple practical solutions that are cost effective at the earliest stages for both parties.
Setting up a Small Business
Starting a small business is not simply opening the door on your new shop or office. Much forward planning must be undertaken to ensure that you have complied with all of the various laws that apply. This is no different whether you are in Margaret River, Busselton, Bunbury or metropolitan Perth.
At its most basic level it is to ensure that you get your structure right. At Peter May McAuliffe Legal we will liaise with you and your accountants to ensure that the correct structure is put in place for the type of business that you are going to operate.
In any business it is likely that you will employ staff. We can guide you through the rules that relate to the employment of staff and assist you with all the core documentation to protect you and your employees.
In your premises you will necessarily need to buy the premises or lease the premises. At Peter May McAuliffe Legal, we can assist you in drafting or advising upon your leasing or purchase documentation. Failure to properly consider the financial consequences of the documentation that you are signing and making sure that you only sign the correct documentation for your type of business is critical to avoiding financial disaster.
We can also assist you with the registration of your new businesses trademark, logos and other intellectual property aspects.
Once your doors are open, you must ensure that your terms and conditions of trade and your terms and conditions of credit are designed in a way to maximise protection for your business. Failure to address these issues can find you in a position where you have claims against your business that could have been avoided.
Equally, claims that you may wish to make, including for payment, can be affected by the terms and conditions of your documentation.
At Peter May McAuliffe Legal, we have vast experience in drafting terms and conditions specific to the type of business that you are operating. We spend time to ensure we understand our client’s business and that the terms and conditions maximise the client’s opportunity for successful and profitable business into the future.