About Commerical Law

What does commercial law cover?

Commercial law is an umbrella term that refers to the body of law governing the rights and relations of businesses engaged in trade and commerce either with the public and/or with other businesses.

The legal issues falling within the scope of commercial and business law are expansive. These could range from implementing the best business structure at the start-up phase, reviewing, and negotiating service and supply contracts, to being involved in a commercial dispute.

Buying or selling a business

Buying or selling a business requires careful planning, so ensure that agreed terms and conditions are properly negotiated. The contract should detail the parties’ rights and obligations, deal with GST matters, and set out processes to manage contingencies. Your contract and incidental agreements (such as leases or hire agreements) should be properly reviewed with due diligence.

Companies and directors’ liability

A company is an incorporated legal entity with the capacity to enter binding transactions. Companies are a popular choice for operating small to medium-sized businesses. When formed, one or more directors are appointed as authorised officers to conduct the company’s affairs. Directors hold a position of power and trust and have several duties. Essentially, directors must:

•  act honestly and use their powers to make decisions based on what is right for the company.
• avoid conflicts of interest and not use their position for personal profit to the detriment of the company.
• exercise care, skill and diligence in performing their duties.
• prevent insolvent trading.

Directors of companies facing financial difficulties should seek professional assistance early. Certain defences may be available to a director who has breached a duty to avoid insolvency. In the case of uncertainty, directors should seek urgent advice to clarify their position.

Commercial contracts

Businesses enter numerous commercial transactions during their lifetime. These arrangements should be governed by a written contract which captures the parties’ rights and responsibilities. It includes essential terms such as the scope of services or products to be provided, warranties and indemnities, and dispute resolution processes. Retaining a lawyer to prepare or review your commercial contracts can help keep negotiations on track, mitigate risk and protect business and personal interests.

Debt recovery

Debt recovery is commonly experienced by many businesses. There are various ways to pursue an unpaid debt, including issuing a letter of demand or commencing court proceedings. When attempting to recover bad debts, it is important to avoid throwing good money after bad. A lawyer can explain the different processes and recommend the method most likely to help you recover your debts.

Commercial disputes

Knowing how to manage a commercial dispute is key to ensuring the long-term success of your business. Our lawyers will review your situation to explain the most appropriate and cost-effective way to resolve it. Commercial disputes may be resolved without resorting to expensive litigation and court proceedings.

Alternative Dispute Resolution – Mediation

Many disputes are resolved through alternative dispute resolution processes such as mediation, conciliation, and negotiation. This is generally more cost effective and efficient than starting court proceedings.

Mediation involves a neutral person (the mediator) meeting face to face with the parties to a dispute and assisting them to reach a resolution. The meeting is confidential, and the mediator does not provide legal advice, nor does he or she determine the dispute.

Mediation is best used when the parties are willing to negotiate in good faith and make genuine attempts to resolve the dispute. Even if mediation does not provide a definitive outcome, it can at least identify the issues in dispute and narrow the unresolved matters.

Mediation can also provide opportunities for the parties to preserve their relationship, which is particularly useful when they intend to continue working together.

Litigation

Despite best efforts, it may be impossible to resolve a commercial dispute without going to court. In such cases we will carefully assess your matter and its likely prospects if litigated, so you can make an informed decision. We are experienced litigators and advocates with a deep understanding of court processes.

Our commercial lawyers act for a range of business entities and will discuss your individual circumstances to tailor solutions to help with your growth plans and to address the many planned and unplanned events that occur throughout the life of a business.

If you need any assistance, contact one of our lawyers [email protected] or call 03 9598 8699 for a no-obligation discussion and for expert legal advice.