commercial

Setting up a new business

Before starting a new business, the first thing that you need to consider is the structure of the entity to operate the business.

There are numerous options to choose from, such as:

  • sole trader;
  • partnership;
  • company; and
  • unit trust.

This is when it can pay to get good accounting/taxation, financial planning and legal advice as there are advantages and disadvantages associated with each type.

WHICH STRUCTURE IS THE BEST?

There is no right or wrong answer to this necessarily, although some are preferred more than others.

To determine the most appropriate structure, you need to consider what is most important for you and your family and things such as what assets/business you already have interests in, whether you intend to be in business with others or you’ll go it alone, how you intend to run the business and whether it is a long term plan or whether you intend to quickly build and sell it.

Each option has different qualities, including:

  • simplicity vs complexity,
  • asset protection vs personal liability,
  • income going to one individual vs ability to minimise tax through income splitting,
  • taxation issues on sale such as CGT exemptions; and
  • business succession planning issues.

OTHER THINGS TO CONSIDER

Once the structure has been determined, and depending on the structure to be adopted, other things that need to be covered off include:

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to starting or buying a business, drafting business documents or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Superannuation and your estate planning

Did you know that your superannuation does not necessarily form part of your estate when you die? This can cause problems unless it is properly dealt with as part of your Estate Planning.

Your superannuation will not be dealt with in accordance with your wishes (in your Will) unless you have a valid and binding beneficiary nomination in place. The trustees of most funds have discretion as to who to pay benefits to. If you have no dependants, the trustee will likely pay it to your estate, but why take the risk?

Take control of your superannuation death benefits and put in place a beneficiary nomination today.

To avoid applications to the Superannuation Complaints Tribunal or the Supreme Court, make a nomination – they can be binding or non-binding, lapsing or non-lapsing and require formalities such as 2 witnesses etc.

Speak to us about your estate planning and ensure your wishes are properly documented.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

What is a Power of Attorney?

GRANTING A POWER OF ATTORNEY

The Powers of Attorney Act 2003 (NSW) provides for a person to appoint another person as their attorney to make financial and contractual decisions on their behalf. The document granting a power of attorney is a prescribed form under the Act.

general power of attorney does not require a solicitor’s certificate however, it ceases to be of effect if you lose mental capacity (like where you are in a coma or suffer from dementia).

An enduring power of attorney on the other hand continues to be effective if you were to suffer such an incapacity. For this reason, an enduring power of attorney must be explained to you and witnessed by a lawyer who will provide a certificate in the prescribed form. We usually recommend an enduring power of attorney so that if some event happened to you that affected your capacity, your attorney would still be able to assist you.

If you are suffering from any illness, have deteriorating health, are going overseas or interstate or just want peace of mind, appointing an attorney to assist you to manage your affairs is generally a good idea.

HOW DOES IT OPERATE?

The nominated attorney has the ability to decide whether or not to accept that role by signing it.

You can choose when your power of attorney is to take effect. It can be restricted to only take effect if a registered medical practitioner certifies that you are of unsound mind, upon some other event (such as whilst you are overseas), from a date you choose or, it can operate immediately (for convenience).

You can give the power of attorney for specific purpose (for example to assist with the sale or purchase of a specific property or to attend an auction and bid on your behalf), for a specified time (for example, between 2 dates) and you can give directions on how powers are to be exercised (such as not to bid above a certain level or to only sell for a certain reserve price).

You can have a power of attorney for situations of necessity, like where you are ill or absent, or simply for convenience, but you have to appoint someone you trust without reservation.

An attorney may not use the principal’s monies or assets for gifts or benefits to the attorney or third parties unless this is specifically authorised in the document granting the power of attorney

ENDING AN APPOINTMENT

Provided you remain of sound mind, you can revoke a power of attorney at any time by signing a form of revocation and providing the attorney with that revocation.

The New South Wales Civil & Administrative Tribunal can review or revoke a person’s appointment as a power of attorney and can make a financial management order appointing a new attorney (or attorneys) or by appoint a representative of the NSW Trustee & Guardian if it is considered that your attorney not making appropriate decisions on your behalf.

DO I HAVE TO REGISTER THE POWER OF ATTORNEY?

A power of attorney must be registered at the Land & Property Information Division of the New South Wales Department of Lands if it is being used for dealing with land in NSW, such as selling, transferring, mortgaging property and the like.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

What is a director penalty notice? (and what to do if you receive one)

WHAT IS A DIRECTOR PENALTY NOTICE?

In addition to potential liability for insolvent trading, company directors need to be aware of their potential personal liability if their company fails to remit certain amounts as and when due.

Directors will become personally liable when a company fails to remit amounts withheld under the PAYG withholding system or fails to meet its superannuation guarantee obligations.

This personal liability arises through the issue by the ATO of a Director Penalty Notice (DPN) under s. 222AOE of the Income Tax Assessment Act. If not complied with, a DPN makes the director it was issued to personally liable for the amount that the company should have paid, through imposition of a penalty.

The director’s PAYG withholding credits can also be reduced/taxed as part of the process.

The Commissioner is using the Director Penalty Notice provisions to pursue directors more and more.

The Commissioner of Taxation will usually first make a formal demand on the company seeking payment. If the company fails to comply with the notice, at the Commissioner’s discretion, a DPN may be served.

HOW TO AVOID LIABILITY

A director’s liability under the DPN is remitted if, within the 21 days stated in the DPN, the company either:

  • pays the amounts due,
  • is placed into Administration, or
  • has a Liquidator appointed.

The liability will not be remitted if the company has failed to report its PAYG withholding liability or superannuation guarantee shortfall within 3 months of the lodgement day. This encourages reporting.

Importantly:

  •  The 21 days cannot be extended.
  • Notice is given on the day the DPN is issued, not when it is or is likely to have been received.
  • A DPN is sent via ordinary mail to the last recorded residential address on the ASIC database – so these details need to be kept up to date as actual non-receipt of a DPN is not a defence.
  • The DPN provisions can also apply to new directors where, if after 30 days of their appointment, the company has not discharged its relevant liabilities.
  • A DPN can be served on a director’s registered tax agent.
  • Resigning as a director at or before the due date is no escape from the DPN regime.

Defences may be available where recovery proceedings are subsequently instituted against a director following non-compliance with a DPN.

All directors must ensure they stay completely abreast of their company’s affairs and must ensure the company meets all relevant obligations at all times.

This is why having good procedures and good advisors – whether legal, accounting, financial or otherwise – can prove invaluable.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to bankruptcy/insolvency, litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Legal considerations for starting your online business

Online business is booming. Most consumers now favour online shopping given that it is quick, convenient and usually cheaper than in a retail shop.

Consider the legal considerations and responsibilities of running business online, preferably before you start trading.

THE FORMALITIES & NECESSARY REGISTRATIONS

The first thing that needs to be remembered is that even though you do not have a shopfront, you are still operating a business. As such, there are certain legal requirements that you will need to abide by. In particular, you need to think about:

  • The structure of your business – consider asset protection, taxation issues, income splitting;
  • Registration of your business name and (the all too often overlooked trademarks, social media and URL registration);
  • Obtaining a tax file number, ABN and, if required, registering for GST;
  • Putting in place Terms of Trade, Privacy Policies and the like.
  • Government regulations and any advertising restrictions regarding the products or services that you wish to sell.

Although these considerations may seem daunting at first, it is important that they are given due consideration. Take for instance the choice of business name. Many would consider this the most important decision in the establishment of an online business. When choosing a name, you need to make sure that it does not infringe upon or not too similar to an existing business name or another person’s trademark. Preferably you would do this before spending money on websites, logos and the like!

CONSUMER LAWS

Before embarking into the world of e-commerce, it is important to remember that there have been major legislative changes to the laws regulating business transactions. In particular, you should take note of the Australian Consumer Law which regulates consumer affairs and transactions. Provisions which may be relevant to an online business usually concern the issue of misleading and deceptive conduct, misrepresentation and misdescription of products.

Consider the descriptions that you will be putting up about the products you will be selling and the impact that these may have in the mind of the consumer. If you think that they may create a false assumption, then it is best to re-word them and make it clear exactly what the product or service does.

If you are planning on selling products internationally, then you may also need to take regard of legal requirements of the countries that you are proposing to deliver to.

TERMS OF TRADE

Most online businesses do not sufficiently state the terms of their proposed sale to consumers. The description of the goods is usually there, as is the price and a method of delivery… but that’s about it! What if something goes wrong – what other terms would be useful?

Consider these:

  • Where is the law of the contract?
  • At whose risk are the goods while in transit?Are they insured?
  • What warranties or indemnities (if any) are required?
  • Can the performance of the contract be delegated to a third party?
  • Have you secured supply of key components of your product?
  • Can liability be limited in the contract?
  • What happens if circumstances beyond my control prevent you from fulfilling my contractual obligations?
  • Do you need to protect the intellectual property in any goods sold?
  • How will any disputes be resolved?

Many, if not all, of these matters can be addressed by having appropriately drafted terms of trade. If you haven’t brought all of your terms to the customer’s attention before the contract is entered into, they do not form part of the contract at all.

SECURITY & PRIVACY CONCERNS

On-line systems are at risk of fraud 24/7 and from anywhere in the world. When dealing with sensitive information such as personal contact details and credit card information, it is important that you have appropriate security measures in place. You should aim to:

  • Ensure that all personal details and credit card information is securely stored (and encrypted or not stored at all);
  • Take steps to seek to prevent fraud by using appropriate firewalls and software (as well as third party payment systems);
  • Provide a safe and secure online space.

Remember that by doing these actions, you are not only protecting consumers, but also protecting your and your business.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

The importance of proper Terms of Trade for your business

DOES YOUR BUSINESS EVEN HAVE ANY TERMS OF TRADE? IF SO, ARE THEY ADEQUATE (AND UP TO DATE)?

We all sell goods and services, but do we ever really stop and think about what it takes to have a valid contract? There are 4 essentials at law, namely:

  1.  Offer – what is being sold
  2. Consideration – the price
  3. Intention to legal consequences – this is presumed at law
  4. Acceptance – agreement to purchase

Even buying a bottle of water for $1 is entering into a contract. We know what is on offer, we know the cost, we know that once we pay the price, ownership changes hands and it is accepted by paying the price.

Certain things cannot be sold without a written and signed contract in a very specific format that contains certain prescribed documents and words – such as a contract for the sale of land. Most things however don’t need that sort of detailed documentation to form a legally effective and binding contract

Most T&Cs are terribly inadequate. Often they are just copied and pasted from other documents and not tailored, leaving businesses thinking they are adequately protected when they really are not.

Most businesses that have Terms of Trade have terribly inadequate ones and often, the terms don’t form part of the deal at all as they are notified too late – for example where they are printed on the back of a receipt after the deal is concluded. The Terms need to be agreed before the deal is done.

WHAT SHOULD BE IN YOUR TERMS OF TRADE?

Here is a some of the things that should at least be considered for Terms:

  • Parties names and details – Use proper names (a business name is not a legal entity). Who is the buyer/seller?
  • Quotes/estimates – Is it fixed price or based on hourly rates or quantities?
  • How is the offer accepted – Payment, signature, purchase order, ticking a box to acknowledge the terms and then clicking ‘submit’ for online businesses
  • Exclusivity – Is there any obligation not to deal with or sell to others?
  • Term – Is there a fixed term for the arrangement or is it ongoing?
  • Renewal – How can it be renewed and for what term?
  • Obligations – What other obligations (if any) do the parties have to each other?
  • Title – When does ownership to the goods actually pass?
  • Risk – Who is responsible for the goods whilst in transit?
  • Insurance – Who is to take it out? For what amount? To cover what risks?
  • Payment – How much? When is it due? How is it to be paid?
  • Interest – What is the consequence for paying late? What about liquidated damages?
  • Security – What security (if any) is provided to secure late/non-payment? Charge, Mortgage, PPSR Security Interest? Is a director to guarantee a company’s obligations?
  • Termination – On what basis? On what notice?
  • Notices – How are they given and what period of notice is required?
  • Obligations on termination – Return of goods, payment in full of all amounts due etc
  • Limitation of liability – To what extent is it limited? What liability can’t be excluded?
  • Releases and indemnities – What things may be covered by a release and what events is one party entirely responsible for?
  • Privacy – How is private information to be dealt with? Can you use their details to market other goods to them?
  • Warranties – What promises have been made about the product?
  • Entire agreement – is this agreement intended to cover the field regarding the parties’ dealings? Or are there numerous contracts that operate on other terms?
  • Force majeure – What happens if the parties can’t comply through no fault of their own, like a strike, accident or inclement weather?
  • Dispute resolution – What do the parties need to do to resolve a dispute? Mediate? Get an expert? Can they go to court without doing this?
  • Jurisdiction and governing law – which law applies and which court will hear any dispute? Really important for online trading!
  • Delegation – Can a party delegate their role to a third party? How? Do they need approval?
  • Assignment – Can a party assign the benefit of the contract to someone else?
  • Confidentiality – Are the terms of the deal to be kept secret? Are staff also to be restrained?
  • Intellectual property – Who owns the IP? How is it to be used/returned?

If you buy, hire, sell or on-sell goods or services, whether through a shopfront or on-line (or you have a client that does so), please consider whether they actually even have any Terms and Conditions of Trade or if they do, whether they are adequate.

If they do have T&Cs, it may be that they simply copied and pasted various parts from other documents and websites they had seen. This can often lead to them mistakenly thinking they are adequately protected when they actually are not.

They may need to be updated to reflect recent changes in the law such as the Australian Consumer Law and the Personal Property Securities Act (or if they refer to legislation that doesn’t even exist anymore! (Such as the old Corporations Law and the Trade Practices Act).

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to starting or buying a business, drafting business documents or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Planning on giving money to your kids?

THERE ARE BETTER WAYS TO HELP YOUR KIDS THAN A GIFT

Most parents want to give their kids a headstart in life. Often, this takes the form of money for a car or a deposit for a first home.

Have you considered what would happen to that money if your son or daughter either:

  • broke up with their partner,
  • passed away; or
  • ran into financial difficulties or became a bankrupt?

There are better ways to help your kids than a simple gift of money – protect it so it can continue to be used for their benefit even if they get into financial trouble.

If you give money to your kids, it won’t automatically come back to you if any of those things happen

  • on their separation or divorce, it would be an asset of their relationship and be available for distribution between your son or daughter and their partner under the Family Law Actor the Property (Relationships) Act.
  • on death, those funds will flow to their beneficiaries as stated in their Will (or if they don’t have a Will, in accordance with the laws of intestacy).
  • on bankruptcy, their trustee in bankruptcy will be able to use those funds to pay themselves and any creditors.

In order to protect against these types of events, the advance needs to be documented as a loan. In the absence of such a document, the “presumption of advancement” applies because of the relationship of parent and child and it will be considered a gift.

If your child died, got into financial strife or had matrimonial issues, the loan could be called in – and would be available to lend again once things had settled.

Ideally, in addition to a Loan Agreement, some form of security for the loan could be provided, such as a Mortgage or Caveat over land or a Security Interest registered on the Personal Property Securities Register.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

 

Do you have a Shareholders Agreement?

CONSIDER THESE COMMON ISSUES

What would happen to your company if you or your business partner became so ill that one of you could no longer work – or worse still, died?

Would you still be paying dividends or making distributions of profit to that person even through he or she is not around, or to their spouse or family?

If they died and left their spouse everything in their Will (including their shares in your company), would you want to be in business with his or her spouse?

What if your business partner sold his or her shares in your company to a complete stranger or a competitor following an argument?

How are your shares to be valued and over what period will the purchase payments be made to your family? Or is there an insurance policy to fund the payment in a lump sum?

HOW CAN A SHAREHOLDERS AGREEMENT HELP?

A Shareholders Agreement can cover these not uncommon scenarios and tailor the rights and obligations of the shareholders of a company to fit your personal circumstances and your particular business to help avoid some of these potential problems for everyone’s ultimate benefit.

You may have a Will, but you may not have certainty in relation to what will happen to your family or your business in the event of your death or serious illness unless these matters are clearly dealt with in a Shareholders Agreement.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

Wills with testamentary trusts – why you need one

WHAT IS A TESTAMENTARY TRUST?

A Testamentary Trust is simply a trust established by a person’s Will.  As opposed to more “simple” Wills, where beneficiaries receive the benefit of any gift personally, with a Testamentary Trust, the beneficiaries receive the benefit of the gift but rather than having it legally owned by them personally, a trustee holds the relevant asset in trust for them.

Wills with Testamentary Trusts are recommended by many lawyers, accountants and financial advisers for various reasons, including asset protection and taxation advantages.

ASSET PROTECTION

Because of the legal ownership being different to the beneficial interest, Testamentary Trusts can offer beneficiaries significant and important advantages such as asset protection. As the trustee of the Testamentary Trust owns the asset (not the primary beneficiary personally), creditors and trustees in bankruptcy of the relevant beneficiary cannot gain access to the asset.

Often, beneficiaries are in business for themselves and have implemented asset protection measures so as to keep their assets safe from claims by third parties. The last thing that beneficiary may want is to receive an inheritance in their personal name, effectively undoing all of their efforts to safeguard their assets!

There can be significant tax advantages in taking an inheritance through a testamentary trust, in addition to asset protection.

Testamentary Trusts can be drafted so as to have the beneficiary effectively control the trust and for that control to be relinquished on the occurrence of certain events, such as bankruptcy or divorce/marital separation, with a nominated person to act in the role of trustee whilst that incapacity remains.

TAXATION BENEFITS – INCOME SPLITTING

Rather than taking a gift in a personal capacity as would usually be the case with a more “basic” Will, with a Will that incorporates Testamentary Trusts, beneficiaries have the ability to split income earned among other people in their family such as spouses, children, grandchildren or any other company or trust in which they have an interest.

Where an estate has income producing assets such as an investment property, under a more “simple” will, the person who received that gift would have the income earned from that asset added on top of the income they already receive from their employment or investments. This could mean that they go into the next marginal tax bracket and pay significantly more tax.

A Testamentary Trust allows the income earned to be split amongst the various family members, many of whom are likely to either not be working (so the tax free thresholds become available) or earn lower incomes (and are therefore in lower taxation brackets).

Children that receive income from a Testamentary Trust are taxed at marginal rates as if they are adults (as opposed to the usual discretionary / family trusts, where they are taxed at unearned income penalty tax rates) so for a family with a non-working spouse and several children, significant income can be received whilst very little or no tax may be payable on the testamentary trust income.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Have you just been served?

COURT PAPERS JUST DELIVERED TO YOUR OFFICE?

If you have received a Statement of Claim, Summons, Originating Process or Writ, be aware that you must act very quickly.

Replying to the person, entity or firm that issued the Court/Tribunal papers is not enough. Formal steps to file an Appearance, Defence, Notice of Intention to Defend or Reply must be taken within the relevant time.

The proper form of response varies depending on which court and in which jurisdiction the proceedings have been commenced as they each have different Rules and Regulations that apply.

Generally, a Defendant, Respondent etc will have only 28 days or such other period as may be specified in the document in which to file the appropriate response. Failure to do so in time or at all will leave the recipient open to summary or default judgment (automatic judgment against you without a hearing).

Failure to file and serve the appropriate document in response in time can have dire consequences.

A judgment can affect credit ratings, the ability to seek finance in the future and is a precursor to enforcement actions such as bankruptcy litigation, liquidation and winding up of companies, garnishee orders, writs of possession, visits from the Sheriff, notices for examination etc!

Default judgments can often be set aside, but this comes at a cost and immediately puts you on the back foot. In litigation, it is best to stay ahead of the game and be pro-active.

Most court documents are required to be served personally however, companies can be served by post at their registered office. Documents commencing proceedings for small claims (claims under $10,000) can be served by post by the court.

If a court document is served, steps should be taken to immediately seek advice from (rather than leaving it to the last few days).

McKillop Legal can assist in various ways such as:

  • seeking more details of the claim from the lawyers for the party commencing the claim,
  • filing and serving the appropriate document to prevent default judgment,
  • advising on the claim and its prospects of success,
  • filing any defence document
  • preparing your evidence,
  • attempting to resolve the matter prior to any hearing, and/or
  • if necessary, running the hearing with a barrister.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

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