What a business lawyer is actually for
The valuable work happens before there is a problem: getting the structure right, putting the agreement in writing, and registering the security interest. Almost every expensive commercial dispute we see traces back to a document that was never drafted, or was drafted from a template that did not fit the business.
- Business structuring and formation
- Sale and purchase of businesses
- Shareholder and partnership agreements
- Commercial contracts and terms of trade
- Retail and commercial leasing
- Franchising
- Security interests and the PPSR
- Business succession and exit planning
Choosing a structure
There is no universally correct structure. The right answer depends on your risk, your tax position, who else is involved, and what you eventually intend to do with the business. What matters is choosing deliberately, because restructuring later can trigger transfer duty and capital gains tax that a different starting decision would have avoided.
| Sole trader | Company | Discretionary trust | |
|---|---|---|---|
| Personal liability | Unlimited | Limited, subject to guarantees and director duties | Limited if a corporate trustee is used |
| Set-up and running cost | Minimal | Moderate, plus annual ASIC fees | Higher; deed plus trustee company |
| Income distribution | All to you | Dividends, franked | Discretionary between beneficiaries |
| CGT discount | Available | Not available to companies | Flows through to beneficiaries |
| Bringing in partners | Difficult | Issue or transfer shares | Awkward |
| Selling | Assets only | Assets or shares | Usually assets |
Incorporation does not do what most people think
A company limits liability in theory. In practice landlords, banks and major suppliers routinely require directors' personal guarantees, which puts your house back on the table. Directors also carry personal duties under the Corporations Act 2001 (Cth) — including the duty to prevent insolvent trading under section 588G, which can make a director personally liable for debts incurred while the company was insolvent.
Every director now also needs a director identification number. It is a personal, lifetime number and applying for it is the director's own obligation, not the accountant's.
Buying or selling a business
The single most consequential decision in a business sale is whether you are buying the assets or the shares in the company that owns them. Buy the shares and you inherit the company's entire history — its tax position, its employment liabilities, its litigation, its contingent claims. Buy the assets and you generally leave those behind, though the tax outcome for the seller is usually worse, which is why sellers push for share sales.
| Asset sale | Share sale | |
|---|---|---|
| Historic liabilities | Generally stay with the seller | Stay with the company — you buy them |
| Employees | Terminated and re-employed; entitlements negotiated | Continue unbroken, with accrued entitlements |
| Contracts and leases | Need assignment or novation | Usually continue, subject to change-of-control clauses |
| Licences and permits | Often must be reapplied for | Usually stay with the company |
| Transfer duty | Payable on dutiable assets | Generally not, unless landholder provisions apply |
| Usually preferred by | The buyer | The seller |
What due diligence must cover
- Financial records and tax position
- The lease, and whether it can be assigned
- Employee entitlements and accrued leave
- Supplier and customer contracts
- Licences, permits and registrations
- PPSR searches over the assets
- Intellectual property and business names
- Current or threatened disputes
Search the PPSR before you buy anything
The Personal Property Securities Register records security interests over business assets. Plant and equipment that appears to be owned outright may be subject to a registered interest, and a buyer who fails to search can acquire assets a financier is entitled to repossess. It is a cheap search and an expensive omission.
The same Act catches sellers. If you supply goods on retention of title terms and do not register, your interest can be defeated entirely when a customer goes into administration — the goods you still legally own become the administrator's.
Retail and commercial leasing
If your premises are a retail shop, the Retail Shop Leases Act 1994 (Qld) gives you protections that cannot be contracted out of — and they favour the tenant. Whether the Act applies is a threshold question worth resolving before you negotiate, because it changes the entire footing.
Protections that override the lease
- Disclosure. The lessor must give a prospective lessee a disclosure statement at least 7 days before the lease is entered into.
- Minimum term. Retail tenants generally have a statutory minimum 5-year occupancy right including options, unless properly waived.
- Ratchet clauses void. A provision preventing rent falling on a market review has no effect.
- Land tax not recoverable from a retail shop tenant.
- Outgoings recoverable only where properly disclosed, with annual estimates and audited statements.
- Contracting out prohibited — the Act prevails over inconsistent lease terms.
Assignment matters more than most tenants realise. If you ever intend to sell the business, the lease is much of what you are selling — and an assignor has its own disclosure obligations to a prospective assignee, generally at least 7 days before the landlord is asked to consent. Get the assignment provisions right at the start, not when a buyer is waiting.
Options to renew are lost by silence
An option to renew must be exercised strictly within the window the lease specifies — commonly between 6 and 12 months before expiry. Miss it and the option is generally gone, whatever your relationship with the landlord.
Diarise every option date the day you sign. It is the most common and most avoidable loss we see in commercial leasing.
Contracts and terms of trade
Most small businesses trade for years on terms they have never read, drafted by someone else, for a different business. Terms of trade set your payment terms, your retention of title over goods, your limitation of liability, and whether you can recover your costs when you have to chase a debt. They are also the source of your PPSR registration rights.
Unfair contract terms now carry penalties
Since 9 November 2023, it is a contravention of the Australian Consumer Law to propose, apply or rely on an unfair term in a standard form contract with a consumer or small business — not merely a matter of the term being unenforceable. Substantial civil penalties apply, and the small business threshold was widened at the same time.
If you issue the same contract repeatedly without negotiation, it is a standard form contract and this applies to you. Terms worth reviewing include unilateral variation rights, broad indemnities, automatic renewal, and one-sided termination clauses.
Business succession
If you and a business partner have no written agreement about what happens when one of you dies, becomes ill, retires or simply wants out, the default answer is usually a dispute. A shareholders' or partnership agreement decides it in advance: how the business is valued, who may buy, what happens to a deceased owner's interest, how deadlocks break, and what restraints apply to someone who leaves.
Business succession also has to line up with your personal estate planning. A will leaving everything to your spouse means very little if the shareholders' agreement compels a sale to your co-owner on death — and those two documents are frequently drafted by different people who never speak to each other. We handle both, which is the point of having them in one firm.
What it costs
Written costs agreement before we start, with fixed fees wherever scope allows. Lease reviews, standard contracts and company set-ups are usually quoted as a fixed amount. Transactions are estimated by stage and updated as the deal develops.
- Fixed fees for defined documents
- Written estimates for transactions
- Searches and registration fees at cost
- Scope changes flagged before the work
- Commercial advice, not just legal advice
- Honest views on deal risk
Frequently asked questions
Buying shares means acquiring the company with its entire history, including tax position, employee entitlements and any litigation. Buying assets generally leaves those liabilities behind, but the tax outcome for the seller is usually worse, which is why sellers prefer share sales. Asset sales can also attract transfer duty and require contracts, leases and licences to be assigned or reapplied for.
The Act applies to retail shop leases in Queensland, and whether particular premises qualify is a threshold question worth resolving before you negotiate. Where it applies, the protections cannot be contracted out of and the Act prevails over inconsistent lease terms.
No. Under the Retail Shop Leases Act 1994 (Qld), land tax cannot be recovered from a retail shop tenant in Queensland. A lease containing a clause attempting to pass it on is a signal the document was not prepared with the Act in mind.
A ratchet clause prevents rent decreasing at a market rent review, so rent can only ever rise. Under the Retail Shop Leases Act 1994 (Qld), a ratchet rent provision in a retail shop lease is void.
Strictly within the window your lease specifies, commonly between 6 and 12 months before expiry. If the window passes without written notice, the option is generally lost regardless of your relationship with the landlord. Diarise every option date on the day you sign the lease.
The Personal Property Securities Register records security interests over business assets. Equipment that appears to be owned outright may be subject to a registered interest held by a financier who is entitled to recover it. The register also matters to sellers: if you supply goods on retention of title terms and do not register, your interest can be defeated if the customer becomes insolvent.
Yes, in several ways. Directors' personal guarantees to landlords, banks and suppliers are common and are enforceable. Directors also owe personal duties under the Corporations Act 2001 (Cth), including the duty to prevent insolvent trading under section 588G, which can make a director personally liable for debts incurred while the company was insolvent.
If you issue the same contract repeatedly without meaningful negotiation, it is a standard form contract and the regime applies. Since 9 November 2023 it is a contravention to propose, apply or rely on an unfair term in a standard form contract with a consumer or small business, with substantial civil penalties, rather than simply rendering the term unenforceable.
The agreement is not about trust. It is about circumstances neither of you can currently foresee: death, illness, divorce, insolvency, or simply wanting different things in ten years. Without one, the default position under the company constitution and general law is usually an expensive dispute.
More information
Successful business people recognize the value of good advice.
Commercial And Business Lawyers Rockhampton
Whether you are looking to buy or sell a commercial property or a business, have a query about franchising, require advice about asset protection, or are concerned about how the ATO will view your trust distributions, we can help.
Our commercial and business team works with you from the start of your business or can assist to restructure your established enterprise to protect assets and ensure continued operation into the future and across generations.
Our approach to business is one of planning and involvement. Once you have been through the process of getting started in your new venture or have settled your latest acquisition, we will continue to be there to support you with accurate and timely advice.
We Can Assist With:
- Business Structuring
- Business Acquisitions
- Business Succession, Shareholder & Management Agreements
- Agribusiness
- Franchising
- Commercial Leasing
- Commercial Property Conveyancing
- Hiring and Chattel Leases
- Partnerships, Companies & Trusts
- Banking and Finance
- Planning and Environment
- Mining Resource and Resumption
- Taxation
- Insolvency
- Personal Property Security Register
- Mediation
Expert Business and Commercial Lawyers in Rockhampton
Running a business can be complex. That is why having the right legal guidance is so critical – to guarantee that your enterprise is structured correctly and runs efficiently. Our experienced business and commercial lawyers can assist with all aspects of commercial law – including business structuring, acquisitions, succession planning, shareholder and management agreements, agribusiness/franchising/commercial leasing/property conveyancing/hiring / chattel leases / partnerships companies trusts banking & finance planning & environment mining resource resumption taxation insolvency personal property security register.
Selecting the correct business structure is a critical decision, and our business lawyers can offer expert guidance on the advantages and drawbacks of various structures such as sole traders, partnerships, companies, and trusts.
Are you thinking about purchasing a business? Our commercial lawyers offer expert guidance on the due diligence process, negotiating the purchase price, and creating and reviewing purchase agreements.
Effective business succession planning is essential for ensuring an orderly transition of a company from one generation to the next. At our law firm, our business lawyers offer expert guidance on all aspects of succession planning – including drafting and reviewing shareholder and management agreements.
Agribusiness is a complex industry, and our commercial lawyers offer expert guidance on all types of agribusiness transactions such as contracts, leasing, and disputes.
Selecting the correct business structure is critical for success of your venture. At our law firm, our experienced lawyers can advise you on all types of structures such as partnerships, corporations and trusts.
Our commercial lawyers offer expert guidance on all types of banking and finance transactions, such as loan agreements, security arrangements, and debt recovery.
Need advice on planning or environmental matters? Our business lawyers offer expert guidance on all types of planning and environment matters, such as development applications, environmental impact statements, and land use planning.
Do you need assistance with mining resource or resumption matters? Our mining lawyers are available to provide expert counsel.
Mining resource recovery and restarting can be complex processes. Our commercial approach makes the process straightforward – contact us now for assistance!
Taxation is an integral aspect of running a successful business, and our business lawyers offer expert guidance on all kinds of taxation matters such as GST, income tax, and stamp duty.
Are your business financial struggles? Our commercial lawyers offer expert guidance on all aspects of insolvency, such as voluntary administration, receivership, and liquidation.
The Personal Property Security Register (PPSR) is an essential factor for any business, and our legal professionals can offer expert guidance on registering and managing security interests.
Why Choose Our Business and Commercial Lawyers in Rockhampton?
We understand that every business is unique and provide tailored legal solutions tailored to suit the requirements of each client. With a proven track record for success, our business and commercial lawyers take pride in offering timely, efficient, and cost-effective legal solutions.
If you require legal advice with any aspect of business or commercial law in Rockhampton, our Rockhampton lawyers are here to provide expert guidance and support. Whether it is structuring a business, acquisitions, succession planning, shareholder and management agreements, agribusiness operations and franchising activities; commercial leasing; property conveyance services; hiring/chattel leases; partnerships/companies/trusts banking finance planning environment mining resource resumption taxation insolvency personal property security register – or anything else – contact one of our experienced lawyers today to schedule a consultation!
Extensive Experience
Our professional team has extensive experience in a wide range of legal areas. Our approach is one of planning and involvement. We will continue to be there to support you with accurate and timely advice.
This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Time limits and thresholds change — several figures on this page are indexed annually. Speak to one of our lawyers before acting.
