Employment Agreements are becoming increasingly important to counter internet-driven pilfering of business and company client lists and proprietary information.
A well drafted employment agreement will protect the wealth of your business or company by way of ensuring that employees, and even co-owners, have agreements in place contracting them from not breaching confidentiality of the business; not competing with the business when they leave; not enticing away employees of the business when they leave; not converting intellectual property to their own benefit at any time; and obliging them to comply with Fair Work; anti-Bullying legislation; and Work Safety legislation.
Loan Agreements for purchasing property and other business assets, or shares in other businesses or companies, whether you or your company be a lender or a borrower, should always be properly documented and signed off by all parties. Security for such loans should also be considered; put in place; and registered, as a condition of the loan.
Guarantor Agreements where you or your company are guaranteeing a lender to another business or company, need to be carefully read and understood, as the terms give the lender a strong right of claim over the asset of you and your business, if the borrower defaults.
Likewise, for situations where you and /or your company require a guarantee from a third party for commercial accommodation that you wish to make available to another party, you should contact Wilson Haynes to ensure that the terms and registration of the facility will be given full effect.
Supply and Commercial Agreements
Supply and commercial agreements with small businesses of many types are now subject to the new national unfair contract provisions, in default to which they can be terminated by the weaker party. This means that business and company owners should have their agreements worded in such a way that they do not give their business or company an unfair contract advantage, when dealing with other contractual parties.
Asset Purchase and Lease Agreements
Asset purchase and lease agreements should be carefully read, and in the event of breaches of warranty or unsuitability of the goods, you may need recourse to the Australian Consumer Protection Laws and the general civil laws.
As a business or company owner, you can be a plaintiff or a defendant in such proceedings. For example, if you have sold sub-standard goods to a customer, if the customer acted against you, you would be the defendant.
Where it is a key piece of equipment or an asset, a damages claim for loss of profits is often the claim, and is supported by expert evidence as to loss of profits.
Retail Shop Leasing Agreements
Retail Shop Leasing agreements are covered by the relevant State laws and these are available on the relevant websites. It is important that where required Disclosure notices are given by both the lessor and the lessee.
Shareholder; Partnership and Joint Venture Agreements
Shareholder; Partnership; and Joint Venture agreements are critical to setting out the terms of business and company relationships and Wilson Haynes is well experienced in documenting these arrangements, for parties of all sizes, be they Small-to-Medium- Sized Enterprises of Family Businesses.
Sole Trader/Company/ Trust/Joint Venture
It can be extremely costly to establish a business and not get the structure right, up front.
Later changes can result in adverse tax consequences, not to mention confusion with staff and customers.
At Wilson Haynes, we first talk to your accountant about the best structure in which you should conduct your business or company, to ensure tax effectiveness for you. If we need to establish companies or trusts for you, we can do this easily.
Our intra-party agreements in companies, trusts and joint ventures contain provisions for dispute resolution and mediation, in the event of a disagreement between the business owners, shareholders, unit trust holders, or joint venturers.
They also clearly set out “who will do what’; what happens if one wants to sell out; and how future funding of the business will occur, and by whom.
Shareholder; Partnership; and Joint Venture agreements are critical to setting out the terms of business and company relationships and Wilson Haynes is well experienced in documenting these arrangements, for parties of all sizes, be they Small-to-Medium-Sized Enterprises of Family Businesses.
Family and small businesses are the lifeblood of the nation. Our principal, Jim Wilson, has completed a Directors’ Course in the running and operation of family businesses to complement his having run many other commercial businesses.
Owners and shareholders of family businesses are often looking to develop an exit strategy, whether it be a sale to a family member or members; staff; a third party; or a bigger company.
Wilson Haynes has much experience in working with business and company owners and their accountants and tax advisers in documenting a long-term business plan for current owners to leave, and in providing legal advice and documentation on any final-exit sale.
Conveyancing & Leasing
Our conveyancing and leasing services are based on a competitive fixed-fee-for-service, of which we notify business and company clients, in advance.
Both conveyancing and leasing involve transferring and registering a legal interest in real estate, be it title to the land, or an interest in use of the land, respectively.
We act for business and company sellers, and lessors; and business and company buyers , and lessees.
In both cases we follow a careful end-to-end process.
It can be very distracting to a business which tries to handle these matters ‘in house’, only to find that they have not achieved the right or title for which they contracted. Your business premises are your biggest asset and the standard of them is the key to your business success and personal wealth creation via your business or other structure.
Using a solicitor, rather than a ‘cut-price conveyancer” is recommended because, if there are problems created by the counter party, your solicitor can give immediate legal advice and take appropriate remedial legal action, whereas a ‘conveyancer’ who is not a solicitor, cannot.
We offer a 40-minute, no-cost consultation to clients, to talk through the matters mentioned below for business and company owners.
You may have heard the term “Estate Planning.” This is the term used to bring together all the life and death considerations relating to the health and wealth of a business or company owner. It is a dynamic process during the life of a business or company owner: it is not a “once only event”.
Life considerations relate to what happens if, as a business and company owner, you lose capacity to manage you’re the financial affairs of the business and yourself; and your health affairs, while you are alive. To not get this right can mean serious disruptions to the wealth you have in the business or company.
It is important that Enduring Powers of Attorney and Enduring Guardian documents be completed. They should nominate someone you trust to make these decisions for you and particularly in relation to the business, company or trust you own, either by yourself or in the company of others. You may even need an Advanced Healthcare Directive to cover the particularities of your preferences for health care, or religious or other reasons. Having these documents ensures that your health and wealth will be managed to the best extent possible, when you are alive.
Death considerations relate to your will which, amongst a raft of other things, should specify who you want to be your executors and how you want them to distribute your assets on your death, including your interests in your business or the shares in your company and/or the interests in any trusts. If you die without a will, or your will is found to be invalid, a court-appointed administrator may be appointed to run your business, company or trust and may make all types of decisions that, whilst legal, will be against the wishes that you had before your passing.
Your will may also include a testamentary trust or trusts if, for example, you have a child with special needs or want the business to be kept running for the benefit of your children. Also, generally, but particularly in blended families, care must be taken to have fairness applying to the children of existing and prior relationships, lest there be legal claims (family provision claims) against your estate by disgruntled beneficiaries, after your death.
When you pass on, if you have property of certain amounts, including the shares in your business or company then, depending on the amount and nature of the assets to be distributed to nominated beneficiaries, the executors of your estate will need to have Wilson Haynes apply for Probate. This is a formal certification by the Supreme Court that the will is valid, and its terms can be given effect to (subject to any subsequent challenges, of course.)
Superannuation, technically, is not a part of your estate (assets) under the control of your executors, when you pass. Many business and company owners have self-managed superannuation funds, administered by themselves through a trustee company. We encourage you, as administrator, to ensure that you have a current binding death benefit nomination form, which specifies to your fund who you want to be the beneficiary of your superannuation death benefits. More than likely, you should direct the Trustee of your Superannuation fund to pay the proceeds of your super to the executor of your estate, to be distributed in accordance with the provisions of your will.
If you have a self-managed superannuation fund, there are certain specifics that need to be checked to ensure that your fund remains a complying one in varying circumstances that may apply to you.
Reviews of your Estate Plan should occur every 5 years as a minimum, or earlier, especially when you have purchased or sold property, company, business or trust; entered a marriage or de-facto relationship; sold all or part of a business or company; have divorced or separated; or a spouse or partner has died.
Relationships & Marriage
We are able to assist you in the following areas of family law:
Property settlements after separation (de facto and married)
Consent orders regarding property and children
Binding financial agreements
Since 1 March 2009, the laws regarding the rights and obligations of de facto couples are essentially the same as those relating to married couples. In the event of separation, the court can make orders regarding the distribution of assets, spousal maintenance and the care of children. Preferably, the parties can make their own decisions in respect to their terms of settlement, which reflect their individual circumstances and avoid the financial and emotional stress of court intervention.
IMPORTANT NOTE: Any private settlement agreement will be unenforceable, unless the parties formalise the settlement by filing consent orders in the court or enter into a binding financial agreement.
We specialise in helping separating couples create enforceable family law agreements that provide timely resolutions which both protect your rights and allow you to move on with your life. We also recognise that your former partner may not always be reasonable or willing to participate in meaningful negotiations and, if this proves to be the case, we have the litigation experience to ensure that your rights are protected and your family law entitlements are not sacrificed.
Once the parties have reached agreement regarding their property settlement and possibly the care arrangement for their children, these can be formalised by filing the terms of the agreement in the court. If the court determines that the proposed settlement is just and equitable in the circumstances and/or in the best interests of the children, the court will approve the orders and they will become legally binding and enforceable against the other party.
Binding financial agreements
More commonly known as “prenups” or “separation agreements”, binding financial agreements are private agreements entered into by parties to a relationship who wish to contract out of the provisions of the Family Law Act which apply in the event of separation and replace them with their own pre-determined formula. Contrary to popular belief, in normal circumstances these agreements will withstand legal challenge, provided they are drafted correctly and the parties have provided full and frank disclosure as to their financial situation.
Binding financial agreements can be entered into at various stages of a relationship (married or de facto), including:
Prior to moving in together
They provide enormous flexibility and can deal with a broad range of issues, including:
Distribution of assets, liabilities and financial resources
Management of corporate entities, trusts and partnerships
Inheritances, compensation payments and other windfalls
In addition to resolving the division of property and care of children of the relationship, married couples must file an application for divorce in the Federal Circuit Court to formally bring the marriage to an end.
We provide a streamlined process for couples to make either a sole application or joint application for divorce, which can usually be carried out on a fixed-fee basis, without any requirement for the parties to appear before the court. We can also advise you regarding your eligibility for filing fee concessions.
Most business people know that Intellectual Property (“IP”) is represented, usually, by Trade Marks; Copyright; Designs’ and Patents.
Wilson Haynes specialises in IP.
Protecting these aspects is vital to the success of your company or business and the “value in its brand.” It has been proven that there is much shareholder value in a well-recognised brand. Consider the golden arches of McDonalds!
There are registration and claim procedures with which Wilson Haynes is familiar and competent, and we are experienced in these all around the World.
Patent registration is not one of our services, although legally protecting them is.
Contesting infringements of IP is an expensive form of litigation, so Wilson Haynes recommends that businesses and companies who possess valuable IP, speak to us to commence the registration process, as soon as possible.
Litigation can arise from disputes in which business and companies and their owners are involved either as a plaintiff (claimant) or a defendant; agreements; conveyancing and leasing; contested wills and estates; and property settlements, including rights to IP, as part of divorce proceedings.
Depending on the nature of the proceedings, they can be heard in the relevant State’s Civil Administrative Tribunal; the Magistrates Court; the District Court; the Supreme Court; the Federal Court, or the Family Court.
We advise on the substance of any claim by or against you as a business or company owner and set out clearly what are your prospects for success, and what it will cost you.
Litigation has proven to be the most expensive of all legal services, because of the need for us to obtain and plead detail; the highly adversarial nature of it; the uncooperative conduct of parties who are against you; the need for mediators and barristers; and filing and court costs.
Cost Free Initial Consultation
If you are interested in knowing more about how we might be able to assist you, please call 07 5536 3055 to make a cost free initial, 40 minute consultation with our Principal, Mr Jim Wilson.