Practice area 02
Corporate and Commercial
Structuring, transacting and governing business entities — from establishment and shareholder arrangements through to acquisitions, restructures and exits.
The members of our Corporate Group at Broadley Rees Hogan have extensive experience in a broad spectrum of legal matters relevant to the establishment and ongoing operation of corporations and other forms of business entities. That experience is used to provide an efficient, cost-effective and practical approach to the resolution of all matters arising in commercial transactions.
Set out below is a sample of the major areas of coverage by our Corporate Group, including examples of the specific types of matters we regularly engage in while advising and assisting our corporate and commercial clients.
Business structures
- Review of business requirements to identify appropriate corporate structures, including proprietary limited companies, companies limited by guarantee, incorporated associations, discretionary trusts, unit trusts, partnerships and joint ventures.
- Advice on establishment and registration of business entities.
- Identification of ongoing compliance issues and legislative requirements.
- Implementation of joint venture arrangements.
- Establishment of management arrangements.
Business transactions
- Acquisition and disposal of business assets including goodwill of existing businesses, intellectual property and business premises (freehold and leasehold).
- Identification of, and advice on, related revenue issues (GST, stamp duty, CGT).
- Conducting due diligence programs for acquisitions.
- Restrictive trade covenants.
- Company share transactions.
- Mergers and acquisitions.
- Claims for compensation as a result of compulsory acquisitions by public authorities.
Corporate governance and compliance
- Advice on directors' duties and responsibilities.
- Avoiding insolvent trading.
- Composition of the board of directors.
- Corporate funding requirements, including shareholder loans and private equity transactions.
- Oppression of minority shareholders.
- Related party transactions and conflicts of interest.
- Advice on financial assistance obligations under the Corporations Act.
- Share buyback procedures and capital reduction programs.
- Company secretarial requirements.
Corporate restructures and reorganisation
- Review of existing business structures to identify potential reorganisation benefits.
- Advice on reorganisation requirements arising from business acquisitions or disposals.
- Facilitation of equity participation by management.
- Introduction of employee equity programs and profit share agreements.
- Capital raising projects and initial public offering arrangements.
- Trade sale arrangements.
- Contract preparation and control of implementation programs.
- Application for corporate reconstruction exemptions and related revenue considerations.
Intellectual property
- Identification of IP assets available to, or required by, an entity for business purposes.
- Advice regarding subsistence or creation of IP rights including copyright, trade marks, patents and designs.
- Liaising with IP Australia on applications for, and registration of, IP assets.
- IP protection mechanisms, including confidentiality agreements, non-competition covenants and formation of appropriate entities to hold IP assets.
- Advice on commercialisation of IP assets, including franchise systems, licensing programs and distribution networks.
- Preparation of IP licence agreements, including documentation of IP sale and assignment arrangements.
Franchising
- Advice on different styles of franchising structures, including master agreements, exclusive distribution agreements and exclusive territory arrangements.
- Identification of the appropriate structure for franchise systems.
- Compliance with Australian Franchising Code of Conduct requirements.
- Preparation of disclosure documents, franchise agreements and related documents.
- Advice on international franchise systems, in particular North America, Asia and the Middle East.
Partnerships and shareholder arrangements
- Advice concerning use of a partnership as a business entity, including unincorporated joint ventures as partnership vehicles.
- Acquisition and disposal of partnership interests, including revenue implications.
- Partnership disputes and exit strategies.
- Sale and purchase of shareholdings in private companies.
- Drafting shareholders' agreements to control relationships between company participants.
- Appointment and removal of representative directors.
- Advice on share classes and associated shareholder entitlements.
- Planning and implementing exit strategies and share ownership succession arrangements, including the use of buy/sell insurance policies.
Trusts
- Advice regarding the type of trust entity to be used for particular business applications.
- Use of trusts for asset protection and income distribution purposes.
- Documentation of transactions involving acquisition and disposal of interests in trusts.
- Trust administration requirements, including retirement and replacement of trustees, amending trust deeds and preparation of trustee minutes.
- Winding-up of trusts and distribution of trust assets.
- Revenue issues arising from transactions involving trusts, including Queensland corporate trustee duty considerations.
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ExploreCorporate questions
Structuring, transacting and governing a business.
General information only, current at the time of writing — not legal advice. Every matter turns on its own facts, so please talk to us before acting on anything here.
What structure should I use for my business?
It depends on who is involved, how profits will be distributed, what assets need protecting and what you intend to do with the business eventually. Companies, unit and discretionary trusts, partnerships and joint ventures each carry different tax, duty, liability and succession consequences. The cost of getting it right at the start is a fraction of the cost of restructuring later.
What is due diligence when buying a business?
A structured investigation of what you are actually buying: financial records, contracts, leases, employees and entitlements, licences, intellectual property, litigation and compliance history. It informs the price, the warranties you need and, sometimes, the decision not to proceed. Building a due diligence condition into the contract before signing is what preserves your ability to walk away.
Do I really need a shareholders agreement?
If there is more than one shareholder, yes. A company's constitution and the Corporations Act deal with the mechanics, not the relationship — what happens if one shareholder wants out, dies, becomes incapacitated, stops contributing, or the two of you deadlock. Those questions are cheap to answer while everyone is on good terms and expensive afterwards.
What is insolvent trading, and when should a director worry?
A director can be personally liable for debts incurred while the company is insolvent or becomes insolvent because of them. The warning signs are familiar — creditors outside terms, tax debts, refinancing to pay wages. Getting advice early preserves options, including safe harbour, that disappear once a liquidator is appointed.
How long does a business sale usually take?
Straightforward small business sales often run four to eight weeks from signed contract to completion. Anything involving landlord consent, licence transfers, FIRB approval or third-party contract assignments takes longer, and those consents are usually what sets the timetable rather than the legal drafting.
Are restraint of trade clauses enforceable in Queensland?
A restraint is void as against public policy unless it goes no further than is reasonably necessary to protect a legitimate business interest — typically goodwill, confidential information or client connection. Reasonableness is judged on scope, geography and duration at the time the contract was made. Well-drafted cascading restraints are far more likely to survive than a single sweeping clause.
What do I need before offering a franchise?
The Franchising Code of Conduct requires a disclosure document, a key facts sheet, the franchise agreement and a copy of the Code to be given to a prospective franchisee, with a disclosure period before signing and a cooling-off period after. The Code also governs marketing funds, transfers, renewal and termination. Non-compliance carries penalties, so the documents need to be current.
What is corporate trustee duty?
A Queensland duty that can apply when interests in a corporate trustee change hands, and a common trap in restructures and share transfers involving trust structures. It is one of several revenue issues — along with transfer duty, landholder duty, GST and CGT — that should be assessed before a transaction is documented, not after.
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