Commercial

Contracts

A contract is a legally binding agreement between two or more people and usually undertaken by way of an offer and acceptance.

When drafting contracts we must consider all parties interests and that these are documented concisely as it is a requirement that the terms are clear and an agreement has been reached. However, it is equally important to cover the legal issues, including common provisions, at the same time. D’Angelo Legal will happily draft documents as required, in plain English, so that your interests are protected.

At D’Angelo Legal we can advise and prepare contracts to record almost any lawful circumstance and various party intentions no matter how big or small.

For practical and commercially orientated advice contact D’Angelo Legal today to see how we can assist you in drafting a contract tailored to your needs.

Equally important is to review a contract before signing it. You should never sign (execute) a document if you do not understand it. If you have been presented with a contract and have not understood it or would like to know what all or parts of the contract mean including your obligations, speak to us today.

Drafting & Review/Advice

Our Commercial Lawyers can review contracts in plain English – assisting clients in wading through the complex legalese that still exists in legal contracts. We seek to assist clients in understanding what they are signing, negotiating changes where necessary, to ensure their contracts are as fair as possible and address all of the client’s concerns with the relevant transaction. We meet with our clients to ascertain the conditions of the agreement they are not willing to negotiate on and by knowing these “deal-breakers” we can better advise our clients and take steps to ensure they are getting what they require from the transaction.

We not only review contracts, but also draft them in plain English. We can draft various types of contracts for clients, including:

1. Terms and Conditions;
2. Sale / Purchase Agreements;
3. Employment and Subcontractor Agreements;
4. Supply Agreements;
5. License Agreements;
6. Leases;
7. Hire Purchase Agreements;
8. Credit Terms and Guarantee documents relating to trade accounts;
9. Loan Agreements and all associated security documents (drafting and registration);
10. Privacy Policies;
11. Deeds of Guarantee;
12. Deeds of Settlement and Release;
13. Heads of Agreement / Terms sheets, as a precursor to Sale Agreements; and
14. Most other agreements between related and arm’s length parties.

Lending & Security Documents

D’Angelo Legal is experienced in preparing lending and security documents that will be specifically designed and expediently prepared to meet the client’s needs. We can assist with drafting various agreements where monies have been loaned to another party, or even a related party. We also provide advice regarding security risk and prepare and register relevant security documents.

The types of documents we may draft and / or review in this regard include:

1. Acknowledgement of debt;
2. Loan agreement;
3. Mortgage agreement;
4. Caveat; and / or
5. PPSR charge deeds.

It is important that loan terms are made clear and adequate security is taken to protect the lender, but also to protect the borrower.

As a full service firm, we can also assist with demands and enforcement proceedings where there has been a breach of an agreement.

Terms and Conditions

We are quite often engaged to commence debt collection proceedings against debtors, only for our client to become aware that their terms and conditions of trade do not allow them to claim legal costs or interest. Do your terms and conditions include the right to charge interest (including post-judgement interest) and legal costs to the debtor? If not, you may be limited in what costs you may claim from the debtor, potentially leaving you out of pocket – even if you win in court.

Your terms and conditions should address:

1. What standards apply to your products and services;
2. The quoting and variation process;
3. The inclusions and exclusions in your service;
4. Payment terms including interest and fees;
5. Default costs and legal costs;
6. Refund and change of mind policy;
7. Your privacy policy; and
8. The rights and obligations of the parties.

We provide assistance to our clients in reviewing the terms and conditions, as well as drafting the same.

Privacy Policies

With recent changes to the Privacy Act (Cth), there are numerous companies that must comply with the Act and have a privacy policy in place. The privacy policy may include information regarding:

1. What data is collected;
2. The purpose for which the data is collected;
3. How and where the data is stored and backed-up;
4. How the data may be changed or deleted;
5. How the data may be sold to third parties;
6. Whether direct marketing will take place.

There are legislated criteria for the Privacy Policies, such as when they may be applicable to your business. This includes any business that may have had a $3,000,000.00 turnover or contracts with the government. D’Angelo Legal can advise if the Act applies to you and if required, draft a privacy policy for your business.

Debt Collection

The need for debt recovery is a common occurrence. At D’Angelo Legal we assess, with you, the likelihood of recovery with the most cost effective approach. Simplifying the process, an unpaid invoice is a breach of contract. Disputes arise when parties to a contract don’t do what they agreed too. In these situations it is paying for products or services supplied by you.

Debt collection may involve a few stages:

1. First, we review our client’s agreement with the debtor to ascertain whether legal costs and interest can be claimed – quite often the terms and conditions are silent on this point, which triggers a recommendation the client have the same redrafted to avoid future issues;
2. A letter of demand is issued to the debtor and an outcome can sometimes be negotiated if the debtor responds – this may result in full payment, or a deed of settlement being prepared to finalise the dispute between the parties;
3. If an outcome cannot be agreed, the litigation team at D’Angelo Legal take steps to assist the client in taking the matter to court, if able and if instructed to do so.

Our Commercial team commence assisting clients with these matters, before passing the same to the Litigation team, if required.

Clients are provided with a risk analysis of their claim and are asked to consider the commercial / financial risks as well as other costs as each client has different appetites for risk.

Franchise Agreements

Franchising is a business system that delivers products and services to a particular market place under the franchisor’s brand or trade mark, in return for a fee. The Franchising Code, which is underpinned by the Commonwealth Trade Practices Act, regulates the rights and obligations under a Franchise Agreement.

Buying a franchise can be an expensive exercise and it’s vital that clients understand the potential risks and costs in buying into a franchise.

It is important to note that franchise agreements are often complex documents so it is imperative that you seek legal advice. Contact our team today for an appointment to discuss your needs and receive plain English advice.

Company Incorporation

For a company to be incorporated in Australia the company is required to be registered with the Australian Securities and Investment Commission (“ASIC”). A number of steps need to be undertaken before registering a company.

These include:

• deciding on an appropriate business structure;
• obtaining the appropriate legal and financial advice;
• choosing a company name;
• determining whether the company will operate under replaceable rules or constitution; and
• obtaining relevant consents.

It is recommended that legal advice be sought to ensure that the chosen company meets your particular circumstances. For practical advice on the best avenue that suits your particular requirements, please contact us today.

Bankruptcy and Insolvency

Insolvency is defined by the Corporations Act as an inability to pay debts, as and when they fall due, out of the debtor’s company resources and refers specifically to businesses and companies. Insolvency generally leads to liquidation or administration of a company.

Bankruptcy refers to the situation where an individual is unable to meet their financial obligations and repay accrued debt. There are several acts of bankruptcy, for example being bankrupt, part X arrangements and part IX arrangements.

D’Angelo Legal has a sympathetic understanding of insolvency issues and our approach is client focused and we work closely with trustees in bankruptcy.

At D’Angelo Legal we can assist with all aspects and variations of insolvency, including:

• Voluntary administration;
• Insolvent trading;
• Directors liability; and
• Bankruptcy.

Trusts

We can assist clients by preparing discretionary family trusts and associated documents, such as trustee variations (including updating the titles for any land owned by the trust). We can review and provide advice on trust documents and advise parties on what can / cannot be done pursuant to the trust terms, as well as assist in vesting and winding up trusts when required.

We can also assist in transferring assets between trusts, such as from a bare trustee of a self-managed superannuation fund, to the trustee of the fund in accordance with the SIS Act, once the relevant loans have been repaid.

We are conscious of potential CGT, landholder duty and stamp duty issues and work in conjunction with your accountants to ensure the appropriate advice is obtained from them as required.

Trusts are a great tool to assist with asset protection and often provide income splitting benefits to reduce tax. We can work in conjunction with clients’ financial planners and accountants to ensure the best structure is adopted by the client and the same is documented as required.

For all your trust needs and for an efficient and effective service contact D’Angelo Legal today.

Partnership / Shareholder / Buy-Sell Agreements

Partnership Agreements

A partnership is a relationship that exists between two or more people who are carrying on a business with the common view of profit. As a business structure, partnerships are a simple, flexible and, if properly established, are effective arrangements. It is important to seek legal and accounting advice to determine if a partnership best suits your business’ needs, as both disadvantages and advantages arise in relation to the establishment of a partnership (such as the joint and several liability of partners).

Once a partnership is agreed upon, it is imperative to document the terms of the partnership, as the initial costs will far outweigh the unnecessary legal costs and disputes that may arise if and when the partnership ceases or when a partner wishes to retire or leave due to illness or death.

It may also be worthwhile to include in this document buy sell provisions as explained below.

Shareholder Agreements

Shareholder agreements are contracts between the shareholders of a company in which they agree to regulate the exercise of some of their rights as shareholders. A shareholders agreement is a supplement to the company’s constitution and will generally regulate shareholders rights and regulate the management and operation policy of the company.

It may also be worthwhile to include in this document buy sell provisions as explained below.

Buy-Sell Agreements

A buy/sell agreement sets out an arrangement designed to protect the interests of the departing owners in a business and the remaining owners, while preserving the business itself.

There are some key issues to be addressed in a buy/sell agreement, such as:

1. The trigger events for a sale of an ownership interest – not just death and TPD, but also if an owner retires, becomes bankrupt, disappears from the business or ceases to be employed or active in the business (eg performance issues) as required;
2. The criteria to value the business;
3. The transfer aspects of the transaction (ie the sale conditions); and
4. The sale price and funding arrangements.

A buy/sell agreement is a contract usually entered into between business shareholders pursuant to which the surviving shareholders are bound to buy out the other partner’s / shareholder’s interest in the business should a specific event occur.

The agreement is often linked to an insurance policy on each partner’s / shareholder’s life. The policy provides the surviving shareholders with the money to be able to buy out the deceased/disabled/departing partner’s / shareholder’s interest.

Generally the agreement is structured in such a way that it does not matter what business structure has been used to own the business i.e. family trust, company, shareholders.

Establishing a New Business

Many dream of owning their own business, but very few understand the complexities involved in establishing such a business. Issues to consider when establishing a business include;

• In what form/structure do you intend on conducting your business;
• Terms of Trade conditions and various client /customer contracts;
• Potential tax implications;
• Protection of intellectual property (if required);
• Necessary licenses (if required); and
• Considerations necessary when purchasing an established business.

Contact our team to streamline the process of establishing a business and to ensure a stress free start to your new venture.

Joint Venture

A joint venture is a legal term that describes the relationship between two or more parties entering into an agreement to work towards the same strategic goals while remaining separate legal entities. A joint venture differs from a partnership in that joint ventures tend to relate to a specific project or business goal, usually with a defined end.

Similar complexities arise with a joint venture as a partnership; therefore it is recommended that legal advice is obtained first and that the terms of the Joint Venture Agreement are drafted correctly to record the interests of all parties.

Solicitor Advice Certificate

It can be a condition of borrowing funds that directors of a company, spouses or parents act as a guarantor of the loan. It is also a requirement for certain types of agreements (such as franchise agreements and reverse mortgages) that a solicitor provide an advice certificate noting independent advice has been provided to the relevant party.

There are no legal benefits to being a guarantor, only risk, and we ensure that the advice required for the guarantors is provided in an easy to understand format and in compliance with the lender’s requirements.

We provide the advice certificates for a fixed fee and ensure the guarantor understands the risks and obligations (as well as their rights) when acting as a guarantor before signing any required certificates.