Commercial & property

Contract & commercial disputes

Johnston Withers’ experienced Commercial litigation team act for a wide range of clients including individuals, small to medium enterprises (SMEs) and large corporations.

We have significant experience in areas including:

  • Contract disputes
  • Partnership disputes
  • Restraint of trade
  • Enforcement of loans and guarantees
  • Insolvency
  • Australian consumer law litigation

Our experienced Commercial Team will provide honest advice about written, verbal or implied contracts and their terms, and your obligations and rights under them. Once you know where you stand, we can act on your behalf in any proceedings, including litigation or alternative dispute resolution methods such as mediation.

We understand your priority is to resolve any disputes quickly and in a cost-effective way. We will also work with you to preserve the relationships with other parties wherever possible, in order to protect your business’ long term commercial interests.

We are committed to providing honest, comprehensive and forthright advice which will achieve the best possible results. While we are highly experienced in litigation proceedings, our knowledge of Alternative Dispute Resolution methods such as mediation and negotiation can help achieve the best result in the most cost-effective way.

Business sale agreements

The sale or purchase of a business can be a complex process, with many factors to consider. Our team of experienced lawyers can assist you throughout this process to ensure the best outcome which adheres to the necessary legal requirements and fulfils your expectations.

We can assist you with preparing the contract for the sale of the business, including accounting for all assets such as business names, licences and intellectual property. In addition, we can assist you to make arrangements with regard to employment contracts (if applicable), current invoices/orders and other relevant contractual obligations. It is also important to agree on the business premises; for example it may be necessary to transfer a lease or title.

In addition, should a dispute arise, our team of experienced and effective Commercial Law specialists will be able to advise and assist you.

Director/Shareholder agreements

A directors agreement is an important agreement that clarifies the relationship between the director (or directors) and the company. It outlines their obligations and responsibilities and therefore helps to minimise the likelihood of a dispute arising in the future.

The agreements can be complex, presenting an opportunity to cover a wide range of issues and eventualities. For this reason, it is advisable to seek out the advice and expertise of a legal professional who can draft the agreement.

The team at Johnston Withers is highly experienced in this field, and can provide advice about the ongoing significance of the agreement and how to ensure the obligations are fulfilled. Our Commercial Team can also advise directors on their rights, obligations and liabilities under the agreement.

Shareholder agreements

A shareholder agreement sets out the ground rules about issues that affect shareholders, who are individuals who own one or more shares of stock in a company. Although it is not required by law that a company have a shareholder agreement, it is highly recommended so as to set rules and account for possible eventualities.

Due to the need for a comprehensive agreement, there is a great deal to consider when establishing a shareholder agreement. For example, types of shares, the voting and financial rights of shareholders, the division of dividends, the process for appointing directors, the process for selling shares and the liability of shareholders if the company is in debt.

These are just a few of the issues that should be covered and demonstrate the necessity of receiving expert advice and drafting in regard to these agreements. In addition, agreements can be a complex area for individuals to navigate, and Johnston Withers can give honest and practical advice to shareholders about their rights and obligations.

Partnerships

A partnership, whereby a commercial venture is carried out by two or more people with a view of sharing the profits, is a common business structure.

This structure has significant legal ramifications and comes with duties and fiduciary obligations, such as to avoid conflicts of interest, to act in good faith and to provide account of partnership assets. In addition, each partner is usually jointly liable with the other partners for all debts and contractual obligations incurred while they are a partner.

Therefore, it is crucial to receive honest, expert advice regarding partnerships so as to protect the longterm interests of your business and ensure partners are aware of their obligations and responsibilities to the company. Prior planning can minimise the chance of future disputes and account for possible eventualities.

Sometimes disputes do occur as a result of partnership agreements, for example when a conflict of interest arises or if one partner does not seem to be acting in good faith. In these circumstances, Johnston Withers can provide effective and efficient advice to help you find the best course of action.

In addition, we are strong advocates with significant experience in both litigation and alternative dispute resolution. Therefore, you can be confident that disputes will be dealt with efficiently, with an emphasis on being cost effective and preserving relationships where possible.

Leases

The team at Johnston Withers has significant experience in both property law and commercial practice, making us highly effective in providing assistance and advice regarding leases.

We have acted for both commercial tenants and landlords, drafting contracts for lease of properties, negotiating leases and also enforcing the terms of the agreement. In addition, our experienced team is effective in representing clients during disputes and finding cost-effective resolutions.

The complexities of the relevant tenancy legislation mean it is highly beneficial to engage the services of an experienced practitioner when dealing with high-value commercial lease agreements.

Mortgages

Johnston Withers has significant experience in the field of mortgages, and particularly in acting for commercial clients in this respect. Our experienced Commercial Law team can provide you with comprehensive, honest and practical advice to minimise the risk of any future disputes.

We have experience acting for large lenders but also smaller, local operators and mortgagors. We can assist in all aspects of mortgage work including documentation, registration, settlement as well as discharges and recovery.

In the event that a dispute does occur, we are highly skilled in litigation and can act effectively on your behalf. We are also highly experienced in Alternative Dispute Resolution methods such as mediation and negotiation and utilise these to find the most cost-effective resolution.

Mortgagee in possession

A mortgagee in possession refers to the lender who exercises a power of sale over land purchased by the owner who has failed to keep up with repayments. Therefore, the power is exercised so that the mortgagee’s debts are repaid.

This is a very complex area of law and not all mortgages are the same. In addition, the mortgagee in possession has a number of obligations that must be upheld whilst acting in relation to the property. As a result, it is imperative that both mortgagees and mortgagors seek legal advice specific to their situation.

Johnston Withers is highly experienced in this field. We regularly act for lenders seeking to recover against secured property. We are also able to assist homeowners, and borrowers generally, facing actions by financiers.

Loan agreements

When lending money in a personal or commercial context, it is wise to formalise the loan agreement in order to protect both your financial interests and the integrity of the relationship.

Often, loan agreements can be complicated with many factors to consider, such as repayment schedules, security and avenues for recovery in the event of a default.

Johnston Withers is highly experienced in these matters and can give you the best advice to secure most favourable outcome. In addition to providing forthright and practical advice, we can also assist you by drafting the contract to ensure your rights and obligations are clearly set out. In the event that a dispute does arise, you can be assured that Johnston Withers’ experienced Litigation and Dispute Resolution team will protect your interests.

It is important to maintain records relating to the loan, such as bank statements and copies of correspondence. If you are seeking advice about a new or existing loan, please do not hesitate to contact our team who will be able to assist you.

Trusts

Trusts are a type of legal relationship where a person (or group of people) act as trustees and hold onto property for the benefit of one or more others (the beneficiaries).

Many Australian small businesses and corporations take advantage of trusts as they can be effective in reducing tax and minimising the risk of creditors making a claim against your assets. In addition, trusts can be used to place assets out of the direct control of individuals at risk of making poor decisions in regard to that property.

There are many different types of trusts and many factors to consider in deciding whether the establishment of a trust is the right course of action. Our experienced team can advise you on this as well as act for you in establishing the trust. In addition, we can assist you on all related issues such as succession planning.

Superannuation

The law regarding superannuation can be highly complex, but is extremely relevant to both employers and employees. Superannuation contributions are mandatory for most Australians in casual, part-time or full-time work. It is therefore necessary that businesses and workers are aware of their rights and responsibilities in this regard.

Johnston Withers can assist by providing honest and comprehensive advice to commercial clients about their obligations.

We can also act for employees in superannuation matters, such as in the case of disability or permanent injury, as many superannuation funds offer insurance or assistance to their members.

Tax issues (including stamp duty/CGT)

Taxation is a complex yet crucial aspect of any commercial enterprise, and Johnston Withers’ experienced Commercial Team can guide you through to find the best options for your business. In many instances, the correct advice on issues such as structuring and timing can provide significant gains in terms of taxation.

It is important to receive comprehensive advice due to the differing forms of taxation which your company may incur, such as capital gains tax, stamp duty, land tax, income tax and payroll tax. We can take you through the costs and benefits of any course of action, so you can be assured you are making the best decisions for your business.

In particular, our practitioners are highly experienced in Stamp Duty, a state tax on the transfer of ownership of some types of property, which can be a significant outlay, and Capital Gains Tax, which is a tax on the income made from the disposal of an asset. Due to the significant financial and legal implications of this, it is highly beneficial to seek the advice of our Commercial Team in this regard.

Franchising

Johnston Withers is experienced acting for both franchisors and franchisees, so we are able to provide comprehensive advice relating to all aspects of franchising businesses, including the purchase and sale, and resolving disputes.

Franchisees

If you are considering purchasing a franchise, there are a lot of things to consider in order to decide whether it is the right decision for you. Our team of experienced Commercial lawyers will provide you with honest and practical advice so you can make a well-informed choice.

We can also assist you through the process of purchasing the business and with regard to contracts and agreements. We will ensure that your rights and responsibilities are clear, including having an exit strategy for if you decide to sell or close the business.

Franchisors

Our team is also highly experienced in acting for franchisors across a range of matters. We can assist franchisors to make agreements with regard to their business, for example by drafting franchise contracts or negotiating their terms with franchisees.

In addition, we can advise and assist in matters including poor performing franchisees, renewal and termination of agreements. Our team is experienced in alternative dispute resolution and litigation, so you can be confident that we will provide the best service for your business.

Intellectual property

Intellectual property can be extremely valuable to a business, and therefore it is important to protect your company’s commercial interests. Therefore, our team of experienced practitioners can assist you to protect or enforce your intellectual property rights.

Our lawyers have significant experience in this regard, and can provide honest and practical advice about intellectual property across a range of areas. In particular, we can assist you with regard to trade mark law, copyright law, patents and passing off laws.

Therefore, if you believe your property rights have been infringed, or that your valuable property is not protected, please do not hesitate to contact us.

Building contracts

Johnston Withers’ Commercial Team has significant skill and expertise when it comes to drafting and enforcing Building and Construction Contracts. We can assist in drafting the Building Contract, and also by collaborating with other professionals to ensure necessary Schedules and Specifications are included.

Given the many legal requirements for these documents, legal advice is crucial to ensuring all parties can put their full confidence in the agreement.

In the case of disputes, we can also act for parties by providing advice and also acting on their behalf in any Court or Tribunal proceedings. Our experience in alternative dispute resolution methods such as mediation and arbitration mean we can also pursue these avenues in order to come to the most cost effective solution.

Development and planning

Johnston Withers’ Commercial Team has significant experience in acting for developers, local government, state government, business owners and land owners in the area of development planning. We have a pragmatic and forward-thinking approach to all matters and will work with our clients to provide a positive outcome.

Our firm’s long history means we are well-respected and connected across many industries, and can seek out the advice of relevant experts where necessary. This is a crucial part to providing our clients with comprehensive and practical advice, as well as the best assistance through the planning and delivery stages of the project.

Due to the complex legalities and fast changing nature of environmental and planning laws, it is highly beneficial to engage the services of an experienced solicitor to assist you. Please do not hesitate to contact Johnston Withers if we can be of assistance.

We are also experienced in litigation and dispute resolution regarding development. Click here.

Bankruptcy and insolvency

Johnston Withers can assist clients in both personal bankruptcy and corporate insolvency. Our commitment is to ensure our approach is practical, efficient and cost-effective so as to achieve the best results for our clients.

When acting in insolvency matters, our experienced Commercial Team can provide expert advice and also act in line with relevant legal requirements and obligations. Our experience also enables us to communicate effectively with relevant third parties such as liquidators or creditors. Specifically our team has significant experience in the following matters:

  • Voluntary administrations
  • Liquidations
  • Receiverships
  • Providing advice to creditors, directors and external administrators
  • Debt restructuring

With regard to personal bankruptcy, we understand the stresses of this time and will work to minimise these and enable you to get back on your feet as soon as possible.

Succession planning

Succession planning is important to ensure the ongoing security of your assets. For commercial clients, this can be especially important and complex, therefore requiring expert advice from lawyers with experience providing tailored solutions for individuals and families.

When considering how to best protect your interests, Johnston Withers’ Commercial Team will consider the full range of factors including your business’ position, strengths and weaknesses and the directors’ goals and aspirations for the business. This will allow us to provide comprehensive advice in regard to exit strategies, taxation implications and asset protection.

Family succession planning and business succession planning often overlap but should both be considered fully. For more information about family succession planning, click here.

Wine law

The law affecting the wine industry is wide ranging and encompasses a variety of specialised areas. Johnston Withers can assist by providing honest and comprehensive advice to our wine industry clients about their obligations – be they vignerons, wine makers or company executives.

We regularly assist our primary producer clients with business structuring and re-structuring, including corporate set up, succession planning, debt recovery and tax issues.

Johnston Withers are also experts when it comes to contractual matters, including grape supply contracts, wine distribution agreements, liquor licensing matters and employment agreements. We also have the expertise in occupational health and safety, insurance, trade practices, consumer protection and dispute resolution.

Johnston Withers can attend to the practical, terroir-related aspects of the wine industry too. We are experienced in all aspects of property law including leases, boundary realignments and land divisions.

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