FAQs

Please click on a topic below to be taken to questions on that subject.

General questions
Legal costs & how to limit them
Business structures
Purchase/sale of real estate
Purchase/sale of a business
Purchase/sale of intellectual property
Protection of assets
Granting/obtaining rights to use assets
Business transactions/contracts
Employment & contracting
Finance & securities
Business succession & estate planning

To speak to one of our lawyers, please call: +61 (02) 9966 1799

General questions

Where is your office and how do I get to it?

Please click here for a map and comprehensive travel directions.

Is there parking near your office?

There is metered parking outside and in the streets around our office. Please click here for details of nearby parking stations.

What are your office hours?

8.30 am to 5.30 pm. There is lift access to our office from 8.00 am to 6.00 pm. Before or after that, access may be gained by calling us on (02) 9966 1799.

How often will you communicate with me during my matter?

We will communicate with you as often as necessary to complete the matter efficiently. It is our policy to keep all our clients well informed throughout the course of each matter. We do this by telephone, text message, email, fax or mail as appropriate in the circumstances.

Will you send me written confirmation of your advice?

It is our policy to send you a written summary of the key points of our advice, so far as practicable, and to charge for doing so. Our experience shows the following benefits from this practice:

Sometimes we need to clarify or include additional advice;
You receive a permanent record of our advice;
Sometimes our summary flushes out misunderstandings, which can be quickly clarified.

In one case, our summary made our client realise that he had given us completely wrong instructions. When the situation was clarified, we were able to correct our advice and save our client a lot of expense that otherwise would have been wasted.

Can I alter the document(s) that you draft for me?

Yes, but we strongly recommend that you do not do so without consulting us. We know of several cases where clients have changed our documents without our knowledge and have caused themselves serious problems as a result. (Click here for a case study)

Even with standard forms that we draft, we recommend that our clients send us copies of the first few that they complete, so that we can check that they complete them correctly.

What do I have to pay stamp duty on?

Stamp duty is payable on a wide variety of transactions including, for example, transfers of 'dutiable property' (e.g., real estate and business assets), transfers of certain company shares, leases, licences, hiring arrangements, declarations of trust and in various other instances. Sometimes duty is payable even if no document is created. Sometimes exemptions or concessions apply. Because of the complexity of the Duties Act, it is not practicable to give a comprehensive summary in this answer. Careful planning of transactions can sometimes save thousands of dollars in duty. On the other hand, interest and penalties for late payment can be substantial. Contact us for advice on the liability to stamp duty in respect of your proposed transaction.

Legal costs & how to limit them

How much do you charge for your services?

For some matters (e.g., conveyancing, registration of trade marks, probate applications) we charge a fixed fee (which may be on a scale basis) for the routine work & hourly rates for additional (non-routine) work.

For other matters we charge an hourly rate, which varies according to the seniority of the person(s) who do the work.

Will you give me quote before you start work on my matter?

We give quotes for the routine work involved in matters that we charge a fixed fee for. For other work (including additional work in fixed fee matters) we give a written cost estimate, provided the cost is expected to exceed $825 (incl. GST). Sometimes things happen so fast that it is not practicable to give you a cost estimate before doing the work, but we do our best to keep you informed as costs are incurred.

Do your fees include the disbursements (expenses) you incur?

No, we recover our disbursements (e.g., stamp duty, filing fees, agency fees, etc.) from you in addition to our legal fees. We do not add a markup on disbursements.

How can I minimise the legal costs of my matter?

There are various ways that you can help us to minimise your legal costs, including:

Giving us a clear, comprehensive written summary of your situation, a written chronology and copies of all relevant documents (where appropriate) at the start of the matter;
Giving us a clear and concise statement of the advice or action and outcomes you seek from us at the start of the matter;
Informing us promptly of any relevant change of circumstances that occurs;
Responding promptly to our advice and other communications with you;
Carrying out any activities that it is not essential for us to do (e.g., making enquiries with local councils or commissioning independent reports)
Discussing costs and your arrangements to pay them openly with us both at the outset and during the course of the matter.

Business structures

What business structure should I choose for my business?

The 5 main business structures are sole trader, partnership, trading trust, joint venture and company. Which one is appropriate depends upon a variety of factors. Contact us for a discussion and our advice on selecting the right one for you.

What's the difference between a partnership, a company and a trust?

Lots! Each differs with respect to:

Rights of management and control;
Your personal liability to creditors;
Distribution and taxation of profits;
Transfer of ownership;
Set-up and running costs; and
Record-keeping requirements.

All these factors should be considered when choosing the best way to set up your business or structure a project. Contact us for a discussion and our advice on selecting the right business structure for you.

What's the benefit of a shareholder's agreement?

A company's constitution sets out the basic rules which govern its administration and is usually mostly concerned with issue and transfer of shares, shareholder decision making processes, appointment and removal of directors, directors' decision making processes, etc.

A shareholders agreement generally records the parties' agreement on broad policy issues (e.g., business plans and dividend policies) and day to day practicalities (e.g., funding of working capital requirements, protection of minority shareholders and dispute resolution). (Click here for a case study)

A shareholders agreement complements, rather than replacing the company's constitution. Contact us for a checklist of issues that you might wish to cover in a shareholders agreement.

What are our options for dealing with the shares of a shareholder who wants to leave the company?

Generally, the 2 main options are (a) purchase of the departing shareholder's shares by the remaining shareholders and (b) a buyback of the departing shareholder's shares by the company. Which is appropriate will depend partly on the parties' resources, the financial position of the company, tax and timing considerations. Contact us for an assessment and advice on which option is appropriate.

Why is it important to keep my company's statutory records properly?

Because, apart from breaching the Corporations Law, failure to keep the records properly can lead to significant difficulties and additional expense when there are subsequent changes in the company (e.g., changes of shareholders or directors or when raising working capital). (Click here for a case study)

Purchase/sale of real estate

Can I be gazumped if I leave a holding deposit with the agent for a property I want to buy?

In principle, yes, because the property remains 'on the market' (i.e., available for sale) until a contract for its sale is made. A seller may agree to take the property off the market for a short period after you pay a holding deposit, to give you enough time to complete the things that are necessary before you exchange contracts. However, the seller is not prevented from selling the property to someone else if he chooses to.

If you are buying a residential property, you can exchange contracts and have a 'cooling off' period of 5 business days, during which you can complete the necessary checks and decide whether or not to proceed with the purchase. This prevents the seller from selling the property to anyone else. However, if you decide not to proceed, then you must pay the seller 0.25% of the agreed price.

If I buy an investment property, will I have to pay land tax? If so, when?

Liability to pay land tax depends partly on the value of the relevant land and partly on the status of the owner. The tax is assessed and becomes payable during the first 6 months of each year. Full details are available at the Office of State Revenue's website www.osr.nsw.gov.au. Contact us for a preliminary view on whether you will become liable for land tax for a particular property.

What should I do before I exchange contracts to buy a property?

There are 3 main things to be done before exchanging contracts:

Have the contract reviewed from a legal point of view and negotiate any necessary amendments;
Have a building and pest inspection (for a free-standing property) or a strata records inspection (for a strata title property) carried out; and
Ensure that you have a confirmed finance offer, if required.

There are other things that may be necessary in particular circumstances. Contact us for a preliminary view on what may be necessary.

Why do I need a building and pest inspection or a strata records inspection?

If you buy a free-standing property, you will become solely responsible for maintaining it, so it is prudent to have an expert inspection carried out to discover whether the property has any existing building or pest problems before you buy it.

If you buy a strata title property, you will share responsibility for management and running costs of the development and for maintaining it with all the other owners. A strata records inspection will (so far as possible) reveal any existing problems before you commit yourself to the purchase. Sometimes it may indicate a need for a building and pest inspection as well. (Click here for a case study)

Why should I get a survey before buying a property?

A survey will reveal whether buildings and fences are on the right land, with the right clearances from boundaries and whether covenants affecting the property have been complied with. This can potentially save many thousands of dollars of costs of rectifying such defects if they are not identified before exchange of contracts. (Click here for a case study)

When will I need to be concerned about builders warranty insurance?

Broadly, if 'residential building work' has been carried out on the property and:

It cost $12,000 or more; and
It comprises non-structural work completed within 2 years before sale of the property; or
It comprises structural work completed within 6 years before sale of the property.

If builders warranty insurance is required, then the property cannot be sold without it. Contact us for specific advice on building work carried out on the property you want to buy or sell.

What is a deposit bond?

A document issued by a bank or insurance company, by which the issuer promises to pay the seller the amount of the deposit if the buyer fails to complete the purchase. A deposit bond may be used by a buyer who does not have (or does not wish to use) a cash deposit.

How do I apply for the First Home Owners Grant and First Home Plus?

Full details about the First Home Owners Grant and First Home Plus and how to apply for them are available at the Office of State Revenue's website www.osr.nsw.gov.au. Contact us if you require any further information or help in applying for them.

When do I have to pay stamp duty?

Stamp duty is payable by the buyer of real estate (but, subject to price limits, first home buyers may be exempt from the duty).

Generally stamp duty must be paid before settlement (completion) or within 3 months after the contract is made (whichever comes first). In the case of 'off the plan' purchases, stamp duty must be paid within15 months after the contract is made or before settlement (completion) or on resale of the property (whichever comes first).

How long will it take to prepare a contract for sale?

We can prepare a contract on the same day you instruct us, except for obtaining the compulsory local council planning certificate, which generally takes:

1 business day if ordered 'over the counter' and collected next day (e.g., by your agent); or
About 5 business days if ordered by mail.

Can I sell my property even though I did not get council approval for an extension?

Yes. If the council is asked to provide a building certificate (which necessitates an inspection of the property) then, depending on the nature and quality of the extension, the council might:

Allow it to remain;
Order remedial work; or
Order demolition of the extension.

Can I sell my house even though I had building work done on it without builders warranty insurance?

Broadly, if 'residential building work' has been carried out on the property and:

It cost $12,000 or more; and
It comprises non-structural work completed within 2 years before sale of the property; or
It comprises structural work completed within 6 years before sale of the property;

you must either get builders warranty insurance before you sell the property or wait until the insurance is not required. If you don't, you risk a penalty under the Home Building Act, 1989 and the buyer will be able to rescind the contract at any time before settlement. (Click here for a case study)

What happens at exchange of contracts?

Identical copies of the contract – one signed by the seller and the other signed by the buyer – are exchanged, so that each party holds a copy of the contract signed by the other party and the contract is made. At the same time, the buyer delivers a cheque for the deposit (or a deposit bond) to the seller (or the seller's representative) as part payment of the price.

What happens at settlement (completion)?

The seller delivers the transfer of the property to the buyer in exchange for the balance of the price. Generally the seller's mortgagee (lender) attends settlement to hand over a discharge of its mortgage, in exchange for payment of the sum owed by the seller. Similarly, the buyer's mortgagee attends to hand over the money it is advancing for the purchase and to receive the transfer document (which it will register).

Do I need to be present at exchange of contracts or settlement (completion)?

No. Both exchange of contracts and settlement (completion) are 'paper-shuffling' exercises carried out by the seller's and the buyer's representatives and there is no need for the seller or the buyer to attend.

What are disbursements? Why do I need them?

Disbursements are the expenses we incur on your behalf because they are compulsory or they protect your interests or they are necessary to complete your transaction.

If you are a seller, we pay for various searches and certificates, representing compulsory disclosure of information about your property, as well as fees for our agents to perform certain parts of the transaction.

If you are a buyer, we pay for various searches, certificates and reports, representing investigation of the title to the property and other matters that may affect it, as well as fees for our agents to perform certain parts of the transaction.

We give you a written estimate of the disbursements we expect to incur when we begin work on your transaction.

Why do I pay more legal fees if I want advice on a mortgage?

When we give you a cost estimate for conveyancing, it only covers our work relating to the transaction between you and the seller. If you need advice in relation to your mortgage, that concerns a separate transaction between you and the lender, with a completely different set of documents and procedures to be followed. Since some lenders' procedures necessitate our involvement, whilst others' do not, we only charge for services in relation to your mortgage when we are required to advise you.

When do I have to pay the legal costs for my property transaction?

If you are a seller, we invoice you separately for:

Preparing the contract (payable within 7 days of invoice); and
Our work from the time a buyer is found to completion of the sale (payable on settlement).

If you are a buyer, we invoice you shortly before completion of your purchase (payable on settlement) unless there is an extended settlement period (e.g., for an 'off the plan' purchase) in which case we may invoice you separately for:

Our work up to exchange of contracts (payable within 7 days of invoice); and
Our work from exchange of contracts to completion of the purchase (payable on settlement).

Whether you are a seller or a buyer, we invoice you immediately (payable within 7 days of invoice) if the contract is terminated or rescinded (i.e., is not completed).

Purchase/sale of a business

What are the issues that need to be considered when buying or selling a business?

There are many issues that may need to be addressed, including:

Financing and payment of the price;
Valuation of goodwill;
Identification and valuation of plant and equipment;
Transfer of intellectual property, including copyrights and trade marks;
Valuation of stock and work in progress;
Verification, transfer or acquisition of business licences;
Continuation of contracts with suppliers, customers and others;
Transfer of franchises;
Premises leasing;
Transfer of employees and payment of their entitlements;
Training of the purchaser and restrictions on post-sale competition by the seller;
Tax and stamp duty.

(Click here for a case study)

Is GST payable on the transfer of a business?

A business may be transferred free of GST provided it is the 'sale of a going concern'. Broadly, this means that the seller supplies to the buyer everything necessary to carry on the business. Whether this is the case is not always as easy to determine as it first appears and it is important to get professional advice in each case. (Click here for a case study)

Protection of assets

How can I stop competitors using my business information and ideas?

Information which is written, printed or stored in a computer is protected by copyright, but you may need to record ownership in writing, particularly if work is created by a contractor.

New designs, products or processes may be protected by design registration or the grant of a patent. However, premature publication or use may prevent registration.

Registered trade marks offer greater protection than a passing off action for breach of an unregistered trade mark.

Why won't registration of my business name prevent my competitors using the same or similar names?

Registration of your business name simply gives notice to the public that you are (or your company is) the person behind the business name. It gives you no exclusive right to use the business name. And, whilst you may be able to stop competitors 'passing off' their businesses and products as yours by litigation, if you only register your business name in one state, others will be free to register the name in other states.

How can I prevent a person or company I approach to help develop or commercialise a new product or process from simply copying it?

First, it helps to develop the distinctive features of the product or process as much as you can before you disclose it. Then you need to have the person or company sign a carefully drafted confidentiality agreement before you disclose the product or process. (Click here for a case study)

How can I ensure that I own the copyright in a work that I commission another person or company to produce?

You need to negotiate, as a term of the appointment, that you will own the copyright in the work and that its creator will assign all the rights (including moral rights) in it to you when it is completed.

What is a trade mark?

A trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. It is used to distinguish the goods or services of one trader from those of another. A registered trade mark gives you the legal right to use, license or sell it within Australia for the goods and services for which it is registered.

Why should I register my trade mark?

Registration of a trade mark makes it easier to prevent competitors using the same or a similar trade mark compared with an unregistered trade mark. It also provides a greater range of remedies against persons who infringe your trade mark.

Why should I use your services to register a trade mark?

Registration of a trade mark is not as simple as filling in a form. There are many potential pitfalls. Our experience can help you save time and money by determining whether or not your trade mark is capable of being registered, properly defining your goods and services, selecting the right registration classes and overcoming opposition to registration.

How can I protect my business or personal assets from the claims of creditors of my business?

There is a variety of entirely legitimate ways to protect assets from creditors' claims, including the way you structure your business and ownership of your assets. As every case is different, we invite you to contact us for a discussion of your particular situation and how we can assist you to achieve your aim. (Click here for a case study)

Granting/obtaining rights to use assets

Why is it important to have a commercial lease reviewed?

Commercial leases are long and complex documents. Whilst there are some standard forms, most solicitors firms use their own lease forms which are not identical. Even with standard forms, there is plenty of potential for drafting errors. Since a lease is generally a long term arrangement, the effect of errors can be considerable. Common problems with leases include badly drafted rent review clauses (which could prove expensive) and failure to obtain registration (which could lead to eviction). (Click here for a case study)

What is the difference between a licence and a franchise agreement?

A licence to use a person's intellectual property (e.g., written works such as training manuals or graphical works such as designs or photographs) is the grant of the right to use the works (sometimes with an associated name or trade mark). In broad terms, a franchise is a licence which includes the additional requirement that the licensee follows a business system prescribed by the person who owns the intellectual property and uses an associated name or trade mark. Franchises must comply with the Franchising Code of Conduct, prescribed under the Trade Practices Act.

Business transactions/contracts

Do contracts have to be in writing?

Some do, others don't, but written contracts can save you time and money. For example, putting your standard trading terms in writing can prevent arguments with customers. (Click here for a case study)

However, poorly drafted contracts may invite disputes or contravene legislation such as the Trade Practices Act and the Fair Trading Act. Contact us to discuss how our contracts can add value to your business.

What is the difference between an agent and a distributor?

An agent is effectively an extension of the person who appoints him. The agent has the level of authority granted to him by his principal (but may also have 'ostensible authority'). The principal is responsible for the authorised acts of his agent.

A distributor is an independent business which buys products from a supplier and then takes responsibility for selling them to others, without recourse to the supplier except in case of defects. Thus a distributor bears the risk if it cannot resell all the products it buys from the supplier. (Click here for a case study)

How does the Trade Practices Act affect my business?

The Trade Practices Act prohibits false advertising, misleading conduct, price fixing and many other anti-competitive arrangements. Ignorance of the rules, especially amongst your marketing and sales staff, can result in severe penalties. However, in some cases you may be able to obtain an official exemption. Contact us for a discussion of the steps you can take to prevent inadvertent breaches of the Trade Practices Act. (Click here for a case study)

Will I be liable if a product I sell injures someone, even if I'm not the manufacturer?

Liability for loss or damage caused by defective products applies without proof of fault. If the manufacturer is overseas, then the importer, distributor or retailer may be held responsible. Steps to protect your business include improving systems, keeping adequate records and seeking appropriate indemnities. (Click here for a case study)

Employment & contracting

Why is it important to know whether a given individual is an employee or a contractor?

Employees have numerous statutory rights, including minimum pay scales, leave and superannuation entitlements. Employers have various responsibilities with regard to employees, including legal liability for what they do at work and liability to deduct tax from salaries and wages and pay it to the government. By contrast, in broad terms, contractors do not have equivalent entitlements and persons who engage contractors do not have equivalent responsibilities. Companies which mislead people into thinking they are contractors when, in legal terms, they are employees risk substantial penalties under the Fair Work Act. (Click here for a case study)

How can I tell whether an individual should be treated as an employee or as a contractor?

There is a variety of tests to determine when a person is an employee, the main one being the issue of control – i.e., who controls what, when and how the person will do what he/she is engaged to do. Generally speaking, an employee is engaged to fulfil a role as directed by his/her employer, whereas a contractor is engaged to produce a result and is free to decide how to achieve it. However, distinguishing an employee from a contractor can be much more complex in practice. Contact us for advice on specific cases.

Why should I give my employees written contracts of employment?

Written employment terms will help you avoid costly disputes about pay and conditions with your employees, unions and regulatory authorities. A properly drawn contract should take account of federal and state employment legislation and should contain appropriate undertakings by the employee to protect your business not only while employed but also when he/she leaves.

Does my business have to pay retrenchment pay to an employee dismissed on the grounds of redundancy?

It may have to if your business has 15 or more employees, but not if the employee has been employed in your business for a continuous period of less than 12 months. We recommend that you contact us for advice on the specific situation before you dismiss an employee.

Can my business be sued for unfair dismissal if I dismiss an employee?

Yes, unless you take steps to ensure that the dismissal is not unfair. Special rules apply in the case of a business with fewer than 15 employees. Whatever the number of your employees, your business may also be sued if it dismisses an employee on prohibited grounds (called 'unlawful termination'). We recommend that you contact us for advice on the specific situation before you dismiss an employee.

Finance & securities

Why should I get legal advice before signing my bank's standard loan documents?

Because the bank's standard documents are designed to protect its interests, not yours, and they are frequently completed incorrectly. Careful review before you sign them will reveal the hidden risks and enable problems to be identified and solved, so as to avoid later argument. (Click here for a case study)

Why do I need a loan agreement and mortgage if I lend money to a family member?

It is particularly devastating when members of the same family have a dispute over money. The best way to avoid this is to approach the lending arrangement in a very businesslike manner and to record all the terms in writing, with appropriate securities. Then, even if circumstances change (e.g., due to relationship breakdown) there should be no dispute over the parties' rights and obligations with respect to the loan.

Business succession & estate planning

How can I prevent my business collapsing if my business partner is disabled or dies?

A business succession plan (also known as a 'buy/sell agreement' or a 'business will') provides a means of ensuring the continuation of your business if your business partner is disabled or dies. Properly structured, it will enable the affected partner to be paid out tax-effectively and without straining the resources of the business or the other owners. (Click here for a case study)

What's the difference between a fixed trust, a discretionary trust and a hybrid trust?

A fixed trust is one where the beneficiaries (the people who are the ultimate owners of the capital of the trust) each have a fixed share or interest in the trust capital and income. A discretionary trust is one in which there is a class of beneficiaries (e.g., an individual and defined relatives of the individual) but none of them has any right to any part of the trust capital or income until the trustee declares one in favour of particular beneficiaries. A hybrid trust combines features of both a fixed trust and a discretionary trust. There are many variations of each type of trust.

Why do I need to both grant a power of attorney and make an enduring appointment of a guardian in case I am disabled?

A power of attorney authorises the person you appoint to deal with your property (e.g., manage your investments). An appointment of a guardian authorises your appointee to make life decisions for you (e.g., where you will live and what medical care you will receive). Some people appoint different people for each role, so as to keep them separate.

Why should I make a will?

If you die without leaving your will, your property will be distributed according to the rules laid down in legislation. Not only might this have unexpected consequences, it might prove more expensive in tax terms than if you make a will. If you die without a will and have no family members who qualify to inherit, ultimately your estate goes to the Crown (i.e., the state). To ensure that your property is left as you wish, it is important to make a will.

Why shouldn't I use a will kit and write my will myself?

Drafting a will can be surprisingly complicated, even when there is not much property to be left or many beneficiaries to leave it to. A poor choice of words can sometimes cause the will to have a significantly different effect from what you intend. Uncertainty can result in expensive litigation. Having your will professionally drafted will avoid these risks. (Click here for a case study)