(02) 9525 8688

(02) 9525 8688

Commercial and Corporate Advice

Tue, 01/29/2013 - 14:04 -- alexr

Starting a Business or Incorporation of a Company

We regularly advise clients who are starting a new business, or restructuring their current business arrangements, as well as those that wish to sell or put a business succession plan in place.

The type of business structure that best suits your needs will depend upon a number of factors which may include:

  • the type and size of the business finance requirements;
  • establishment fees and maintenance costs; tax obligations;
  • and the level of asset protection.

The 4 maintypes of business structures commonly used by small businesses are:

  1. Sole Trader - A sole trader is the most simple and inexpensive form of business structure to set up. The structure consists of an individual trading on their own and operating under their own name or with a registered business name. Registration of a business name does not make the sole trader a separate legal entity. The sole trader controls and manages the business and is personally responsible for all debts and liabilities.
  2. Partnership - A partnership is formed when 2 or more people (up to 20) go into business together with a view to making a profit. They may operate under their own names or with a registered business name. A partnership is not a separate legal entity and doesn't pay income tax on the income earned by the partnership. Instead, each partner pays tax on their share of the net partnership income. In a partnership liability is also unlimited (unless you are in a Limited Partnership) and extends to debts incurred by a partner without the knowledge or consent of the others. We regularly advise our partnership clients to put in place a formal written Partnership Agreement to set out each partner's responsibilities and reduce the likelihood of disputes. For example, one partner may be contributing more money or time to the business and therefore be entitled to a greater share in the business. This type of agreement can also cover what happens if the structure is dissolved or changed, for example, through the retirement or death of one of the partners.
  3.  Proprietary Limited Company – a private company is a more complex business structure formed by one or more people who wish to have a business that is a separate legal entity to themselves. The shareholders own the company and the directors run the company. The directors of a company, as well as company employees, can be shareholders. There are costs associated with registering a company and the company is taxed on all profits. However, a company often offers a greater level of asset protection as opposed to some of the other business structures, as your personal assets are separate from the business. Private companies are regulated under the Corporations Act (Act) which sets out substantial obligations for company directors. Establishment and ongoing administrative costs associated with the Act compliance can be high which is why the structure is generally considered to be better suited to medium to large businesses.
  4. Trust - A trust is a business structure whereby the trustee holds property and earns and distributes income on behalf of the beneficiaries. One of the most common types of trusts is a discretionary or family trust. There are costs associated with establishing a trust and for discretionary trusts, profits are distributed to the beneficiaries at the discretion of the trustees and can, therefore, be distributed in such a way to minimise tax, such as by distributions to beneficiaries in lower tax brackets. A trust often offers a greater level of asset protection as opposed to some of the other business structures if the trustee is a company that owns no assets.

When starting up a new business it's important to find out what registration and licences apply to you. This can be complex as local, state, territory and federal governments all handle registration and licensing for various aspects of your business.

You also need to understand your obligations in regards to:

  • Registering your business name;
  • Your business structure;
  • Registering your domain (if you want to trade online);
  • and Registering your trademark (if you want to legally protect your brand and stop others from trading with it).

You may also need to register your business for:

  • Australian business number (ABN);
  • Fringe benefits tax (FBT);
  • Goods and services tax (GST);
  • Pay As You Go (PAYG) withholding;
  • Tax file number (TFN);
  • and Pay-roll tax.

If you intend to employ people to help you operate your small business, you'll need to start thinking about how you will manage them effectively. As an employer, you have a number of legal requirements and obligations to adhere to including awards and conditions, superannuation, workers compensation and OH&S regulations. When the time comes for you to take on new employees, you should be aware of all the relevant employee entitlements. These can range from wages and conditions to holidays, leave, superannuation and redundancy entitlements and can be set out in an Employment Agreement.

back to top

Banking and Finance

We have an experienced team of lawyers available to assist in relation to all aspects of this complex area of law.

Whether advising on a new deal, restructuring or refinancing we can facilitate and negotiate the transaction from start to finish.
 
 

In addition to the common types of business structures set out in Starting a Business or Incorporation of a Company, you may also decide to operate your business as a:

Franchise - an agreement under which a franchisor licenses a franchisee to operate a developed method of doing business that is identifiably associated with the franchisor. The franchisor also provides ongoing guidance, systems and assistance in return for periodic payment of fees and/or purchases;
 
Independent contractor - an individual or entity that provides goods or services to another entity under terms specified in a contract; or
 
Home based business - a small business that operates from the business owner's home office.
 
We are experienced in assisting clients to achieve their business objectives through effective structuring and planning. We can provide advice on various types of business structures and the required documentation to manage these structures.
 
Your legal and taxation obligations will vary depending on the type of business structure that you choose to operate through. It is important that you carefully consider each option to determine what business structure and type is most suitable to your needs.
 

Our team of commercial lawyers are experienced in all areas of Business Sales and Acquisitions. From negotiations with vendors, purchasers and agents, to preparation and negotiation of Sale Contracts with third parties.

We can provide comprehensive advice to assist you in your negotiations and the structuring of your sale or purchase.

There are 3 common ways to dispose of an interest in a business. You can either sell the assets of the business or the business itself, or, if the business is a corporation, you call sell the shares. There are important differences between these types of sales. We can provide you with clear advice on which type of sale or purchase would suit your circumstances and assist you in the structuring of your arrangements.

Our experienced team of commercial lawyers regularly deal with the sale and acquisition of businesses of all sizes.

The contract for the sale of a business is normally prepared by the vendor’s lawyer pursuant to negotiations between the vendor (or their agent) and the purchaser of the business. The purchaser would engage their own lawyer to vet the documents, and often new clauses are added to and often removed from the contract. Normally, the assets would be listed and the ‘goodwill’ component of the business stated clearly. The liabilities to be assumed by the purchaser would also be set out.

The contract can include clauses that protect the purchaser. Examples include:

Restraint of Trade Clauses - These prevent the seller (vendor) from setting up a similar business within a certain radius and for a certain amount of time from the settlement date of the transaction;

Training Clauses - These clauses allow the purchaser to work in or observe the business prior to settlement, so that the purchaser can gain a greater understanding of the operation of the business;

Performance Clauses - These may state the minimum takings of the business over a certain period of time;

Staged Payment Clauses- stating that payment of the agreed price will be made in stages. This may give the purchaser greater bargaining power if a dispute arises after the transfer of ownership or if the business does not perform as promised; and

Guarantee Clauses - providing a guarantee from the vendor that all representations made regarding sales, costs and profits figures are correct.

Things that you should consider and discuss with us include:

  • the warranties that should be obtained in relation to the rights and liabilities attaching to the shares and the assets owned by the company;
  • the application of related party transactions or application of financial assistance provisions of the Corporations Act;
  • the possible application of the Foreign Acquisitions & Takeovers Act;
  • settlement procedures and required company secretarial tasks; and
  • whether the transaction will affect any existing arrangements which are important to the business e.g. contracts with change of control provisions.

You should consider and discuss with your accountant whether stamp duty, or any other taxes (Capital Gains Tax; GST), will be payable on the transfer of shares or assets. You should review with your accountant the company’s financial statements, including the balance sheet and profit and loss account. Your accountant should review the taxation warranties and indemnities to ensure they provide adequate protection.

In addition to the above, if you are considering acquiring or starting a business with others through a company or trust, whether a Shareholders' Deed may be required. Such documents can cover:

  • how the management will be structured;
  • what the requirements are for business plans, budgets and accounts;
  • how additional shares/units will be allotted to existing or new shareholders for unit holders;
  • what rights will attach to shares/units and how they can be varied;
  • how the company/trust will acquire or dispose of significant assets;
  • how the business can be sold or another business acquired;
  • who can make decisions to incur significant debts or expenses;
  • whether directors or shareholders/unit holders can obtain loans from the company/trust;
  • whether directors must be employed by the company/trust and what happens if their employment ends; and
  • who can make a decision to wind up the company/trust if it is solvent,

and operates as a legally binding contract and details a number of requirements in relation to the operation of a business.

back to top

Sales, Mergers and Acquisitons

Our team of commercial lawyers are experienced in all areas of Business Sales and Acquisitions. From negotiations with vendors, purchasers and agents, to preparation and negotiation of Sale Contracts with third parties.

We can provide comprehensive advice to assist you in your negotiations and the structuring of your sale or purchase.

There are 3 common ways to dispose of an interest in a business. You can either sell the assets of the business or the business itself, or, if the business is a corporation, you call sell the shares. There are important differences between these types of sales. We can provide you with clear advice on which type of sale or purchase would suit your circumstances and assist you in the structuring of your arrangements.

Our experienced team of commercial lawyers regularly deal with the sale and acquisition of businesses of all sizes.

The contract for the sale of a business is normally prepared by the vendor’s lawyer pursuant to negotiations between the vendor (or their agent) and the purchaser of the business. The purchaser would engage their own lawyer to vet the documents, and often new clauses are added to and often removed from the contract. Normally, the assets would be listed and the ‘goodwill’ component of the business stated clearly. The liabilities to be assumed by the purchaser would also be set out.

The contract can include clauses that protect the purchaser. Examples include:

Restraint of Trade Clauses - These prevent the seller (vendor) from setting up a similar business within a certain radius and for a certain amount of time from the settlement date of the transaction;

Training Clauses - These clauses allow the purchaser to work in or observe the business prior to settlement, so that the purchaser can gain a greater understanding of the operation of the business;

Performance Clauses - These may state the minimum takings of the business over a certain period of time;

Staged Payment Clauses- stating that payment of the agreed price will be made in stages. This may give the purchaser greater bargaining power if a dispute arises after the transfer of ownership or if the business does not perform as promised; and

Guarantee Clauses - providing a guarantee from the vendor that all representations made regarding sales, costs and profits figures are correct.

Things that you should consider and discuss with us include:

  • the warranties that should be obtained in relation to the rights and liabilities attaching to the shares and the assets owned by the company;
  • the application of related party transactions or application of financial assistance provisions of the Corporations Act;
  • the possible application of the Foreign Acquisitions & Takeovers Act;
  • settlement procedures and required company secretarial tasks; and
  • whether the transaction will affect any existing arrangements which are important to the business e.g. contracts with change of control provisions.

You should consider and discuss with your accountant whether stamp duty, or any other taxes (Capital Gains Tax; GST), will be payable on the transfer of shares or assets. You should review with your accountant the company’s financial statements, including the balance sheet and profit and loss account. Your accountant should review the taxation warranties and indemnities to ensure they provide adequate protection.

In addition to the above, if you are considering acquiring or starting a business with others through a company or trust, whether a Shareholders' Deed may be required. Such documents can cover:

  • how the management will be structured;
  • what the requirements are for business plans, budgets and accounts;
  • how additional shares/units will be allotted to existing or new shareholders for unit holders;
  • what rights will attach to shares/units and how they can be varied;
  • how the company/trust will acquire or dispose of significant assets;
  • how the business can be sold or another business acquired;
  • who can make decisions to incur significant debts or expenses;
  • whether directors or shareholders/unit holders can obtain loans from the company/trust;
  • whether directors must be employed by the company/trust and what happens if their employment ends; and
  • who can make a decision to wind up the company/trust if it is solvent, and operates as a legally binding contract and details a number of requirements in relation to the operation of a business.

back to top

Discretionary and Family Trusts

A trust is a relationship where a person (the Trustee) is under an obligation to hold property for the benefit of other persons (the Beneficiaries). The terms of the obligation are defined by the terms of the relevant Trust Deed. A trust is not a separate legal entity even though a trust tax return will be required to be lodged with the Australian Taxation Office each year. The Trustee is the legal owner of the trust property and the beneficiaries hold the beneficial interest in the trust property.

A discretionary trust is a common form of trust, often used in tax and asset protection planning, in which Trustees can freely distribute trust income and assets to beneficiaries named in the Deed.

A discretionary trust is where the beneficiaries do not have a fixed entitlement or interest in the trust funds. The trustee has the discretion to determine which of the beneficiaries are to receive the capital and income of the trust and how much (if any) ach beneficiary is to receive. The trustee does not have a complete discretion. The trustee can only distribute to beneficiaries within a nominated class as set out in the terms of the trust deed.

A discretionary trust usually has a wide range of beneficiaries, including family members, companies and other trusts. The beneficiaries of a discretionary trust do not have an interest in the assets of the trust. They merely have a right to be considered when the trustee exercises its discretion to make a distribution.

The law imposes upon a Trustee a duty to act in good faith for the benefit of beneficiaries named in the Trust Deed establishing the trust. The Trustee must administer the trust in accordance with the terms, conditions and powers enumerated in the Trust Deed and implied by law. Provided that a Trustee acts in accordance with the terms, conditions and powers contained in the Trust Deed and any other laws, it will be protected from any liability in respect of those actions or any claim by any beneficiary, despite the result of those actions.

All decisions of the Trustee, if a company, in relation to the trust should be made at a meeting of the directors of the Trustee properly constituted in accordance with the provisions of the Trustee's constitution. Proper minutes of each such meeting of the directors of the Trustee should be kept. Similarly, proper accounting records should be maintained by the Trustee.

The major advantage, particularly in the case of a discretionary trust, is the ability to split income amongst the pool of beneficiaries. A benefit can be obtained by directing income to members of the family with low marginal income tax rates. The Trust Deed allows the Trustee various alternatives in relation to the net trust income earned in each financial year. Some alternatives, and some of the taxation ramifications of each of them, are as follows:

The Trustee may distribute the net trust income amongst the beneficiaries or any one or more of them in such proportions as it determines at a meeting of the directors of the Trustee. All the trust income can be distributed to one beneficiary to the exclusion of others, the income can be distributed equally, or it can be distributed disproportionately. If the whole of the trust income is distributed to adult beneficiaries, the amount received by each beneficiary is taxable in the hands of the recipient as an addition to the total income of that recipient.

Tax on income held on trust for or applied for the benefit of beneficiaries under the age of 18 is in effect paid by the Trustee on behalf of the beneficiary as if it were the income of an individual. Special provisions apply where the infant beneficiary has income from other sources. Special rates of tax apply to income held, applied or distributed to beneficiaries under the age of 18.

The Trustee may determine in a particular year not to distribute any proportion of the net income of the trust but to accumulate that income as an addition to the Trust Fund. In these circumstances, the Trustee is liable to pay tax (from the trust fund) on the net income of the trust at the highest personal rate. In exceptional circumstances, the Commissioner has a discretion not to apply the highest rate to accumulated trust income.

The Trustee may decide to distribute part of the net trust income and to accumulate the balance of that income. In these circumstances, the amounts received by beneficiaries would be taxable in their hands in the manner set out in paragraph 1 or 2 above and the balance retained by the Trustee and accumulated would be taxable in the Trustee's hands in the manner set out in paragraph 3 above.

In the absence of any written determination by the Trustee to distribute or accumulate the net trust income in a particular year, that income is accumulated automatically as an addition to the Trust Fund and the tax consequences outlined in paragraph 3 will apply.

With the introduction of capital gains tax, careful consideration will need to be given to the consequences for the trust of various types of transactions which may give rise to a taxable capital gain. If the Trustee sells a trust asset and realises a gain on the disposal, the gain will be included in the assessable income of the Trust to be distributed or accumulated as any other income. Capital losses may be subtracted from the gain before a net amount is included as assessable income of the Trust.

A distribution to a beneficiary need not entail a physical payment of the amount distributed to the beneficiary. If the Trustee wishes to retain the money which it has decided to distribute to a particular adult beneficiary it may, with the consent of the beneficiary, establish a loan account in the books of the trust in the name of that beneficiary and credit the amount of the distribution to that loan account.

Trusts can be very useful tools for asset protection and tax planning so the advice of a lawyer, accountant and/or financial planner should be sought before undertaking any dealings in relation to them.

back to top

Tax Minimisation

Tax planning and tax minimisation is a widely used practice, but there are still many individuals and businesses that do not take all legal steps available to them to minimise their potential taxation liability.

Whilst tax laws are ever changing, there are always opportunities to increase your tax refund and minimise your taxation liability.

We work closely with a number of tax accountants and financial planners to assist clients in this area both during peoples' lives in establishing appropriate business entities such as companies, discretionary trusts, unit trusts and hybrid trusts as well as in relation to business succession planning and estate planning with the use of Wills incorporating Testamentary Trusts.

back to top

Commerical Litigation and Dispute Resolution

We regularly work with our commercial and corporate clients to assist them to resolve internal disputes as well as disputes with third parties. We aim to do this in the most cost effective way possible, which is why we recommend using alternative methods of Dispute Resolution to enable clients to achieve quick and cost effective results.

Our litigation team are experienced in dealing with many different types of claims. Some of these include:

  • Building and Construction issues;
  • Debt Collection;
  • Consumer Protection and Trade Practices;
  • Partnership Disputes;
  • Insurance Claims;
  • Property and Lease Disputes;
  • Taxation Appeals;
  • Intellectual Property; andDispute Resolution.

Whilst the above list contains some of the more common types of claims, every case is different and we can provide you with advice to assist you with your claim. We regularly act for commercial clients in preparing demands and claims, as well as assisting others who may have received a written demand or been served with papers for court proceedings.

Our clients include individuals, local small and interstate businesses and public companies and our Commercial Services team regularly appears for clients in proceedings in courts and tribunals including:

  • Federal Court of Australia,
  • Federal Magistrate's Court,
  • Supreme Court of New South Wales,
  • District Court of New South Wales,
  • Local Court of New South Wales,
  • Land and Environment Court,
  • Administrative Decisions Tribunal
  • Chief Industrial Magistrate's Court
  • Family Court of Australia
  • Industrial Relations Commission
  • Consumer, Trader and Tenancy Tribunal
  • Residential Tribunal
  • Guardianship Tribunal

In addition to handling any litigation, prior to or parallel with any court action being commenced, we can also assist with avenues of Alternative Dispute Resolution (ADR), such as Arbitration, Conciliation, Mediation, Negotiation and Expert Determination.

One of the advantages of ADR is that the parties have control over the process so it can be a more informal, quicker and cheaper process than litigation, designed to get to a solution so that the parties can back get on with business. Unlike the court system where everything is on the public record, ADR allows the parties affairs to remain confidential.

We recognise that all disputes are different and, as a result, always provide tailored advice as to which method of dispute resolution is right for you.

back to top

Commercial Agreements

A commercial contract is a type of contract that defines the terms of a commercial transaction. There are several types of commercial contracts and these will depend upon the type of services or products that are being supplied.

Many negotiation disputes centre around the drafting of the exact wording of the contract. During negotiations, you should consider not only the terms but also the legal enforceability of the contract. Even if you never go to court, the mere possibility of legal action should influence how the contract is negotiated and drafted.

The parties must at least agree on the basic terms of the agreement and consent to them. If one term is not explicitly stated in the written agreement, a court may imply terms in litigation, but it is best not to rely on what a court may later imply. It is best to spell out all terms in the written agreement.

A contract has 5 broad elements:

  • an offer;
  • acceptance of the offer;
  • the agreement must be intended to create legal obligations (e.g. not a family arrangement, although these can involve contracts);
  • consideration (paying a price or promising to do or not to do something); and
  • privity - you can only sue the person with whom you made the contract, though you may be able to sue other people associated with the contract under other laws.

When it comes time to drafting the commercial agreement, it is important to:

  • Create a preamble in which you identify the parties to the contract by legal names and addresses. A common mistake is to identify an individual as a party to the contract when the company that the individual represents is the real party. If this happens, the person who signed the contract may become legally liable to perform the contract, while the company will not be bound. You should also briefly state the broad purpose of the contract. Courts can use the purpose clause as a guide to interpreting the rest of the contract.
  • Identify the goods and/or services that are the subject of the agreement. In the case of goods, you should be as specific as possible - include catalogue or model numbers, for example. If many types of goods are being purchased, you can list them in an appendix. Agreements are legally required to list the products being sold - if the goods are not listed clearly enough, a court may void the contract.
  • State the price for each item, the currency of payment, payment due dates and the means of payment. You should be specific about the means of payment - in the case of a bank transfer, for example, list the account details. In the case of a sale of goods, a price must be stated in order for the agreement to be enforced.
  • Insert a section detailing the seller's representations and warranties. Representations are statements such as those regarding the quality or nature of the products and warranties are guarantees for example that the products will perform up to a certain standard.
  • Include terms on refunds and exchanges. In the event of a lawsuit, the seller can be held liable if a representation turns out to be untrue or if a warranty is not honoured.
  • Include a disclaimer section in which the seller limits its liability for defective products. The seller will probably want to disclaim liability for "consequential damages" or lost profits. For example, if the seller's widget malfunctions causing the buyer's factory to shut down for a week, the seller would not want to be held responsible for the buyer's lost sales. Certain legal warranties are considered "implied", meaning that courts will enforce them even if they are not mentioned in the agreement.

back to top

Corporate Compliance and Directors and Officers Responsibilities

If you’re a director, office holder or secretary of a company, you must follow the requirements set out in the Corporations Act 2001 (Corporations Act). The Australian Securities and Investments Commission (ASIC) is the company law watchdog.

As a director, you must:

  • be honest and careful in your dealings at all times;
  • know what your company is doing;
  • take extra care if your company is operating a business because you may be handling other people’s money;
  • make sure that your company can pay its debts on time;
  • see that your company keeps proper financial records;
  • act in the company’s best interests, even if this may not be in your own interests, and even though you may have set up the company just for personal or taxation reasons;, and
  • use any information you get through your position properly and in the best interests of the company. Using that information to gain, directly or indirectly, an advantage for yourself or for any other person, or to harm the company may be a crime or may expose you to other claims. This information need not be confidential; if you use it the wrong way and dishonestly, it may still be a crime.

If you have personal interests that might conflict with your duty as a director, you must generally disclose these at a directors’ meeting. This rule does not apply if you are the only director of a proprietary company.

If a director is found to breach their duty, ASIC can:

  • Commence civil penalty proceedings or alternatively, criminal proceedings where recklessness or intentional dishonesty is apparent; or
  • Take administrative action, for example, banning directors, where a particular situation warrants such an approach.

You and any other directors will control the company’s business. Your company’s constitution (if any) or rules may set out the directors’ powers and functions.

You must be fully up-to-date on what your company is doing:

  • Find out and assess for yourself how any proposed action will affect your company’s business performance, especially if it involves a lot of the company’s money;
  • Get outside professional advice when you need more details to make an informed decision;
  • Question managers and staff about how the business is going; and
  • Take an active part in directors’ meetings.

You must not act as a director or secretary (or manage a company) without court consent if you:

  • are an undischarged bankrupt;
  • are subject to a personal insolvency agreement or an arrangement under Part X of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act)that has not been fully complied with;
  • are subject to a composition under Part X of the Bankruptcy Act and final payment has not been made; or
  • have been convicted of various offences such as fraud or offences under company law, such as a breach of your duties as a director or insolvent trading. If you have been convicted of one of these offences you must not manage a company within 5 years of your conviction. If imprisoned for one of these offences, you must not manage a company within 5 years after your release from prison.

All company officers must make sure that the company attends to some basic ‘housekeeping’ matters. The directors remain ultimately responsible for the company’s compliance with the Corporations Act. When a company is set up, you must:

  • register your company name with ASIC and obtain an Australian Company Number (ACN); and
  • have a registered office. (If your company doesn’t occupy the same address as the registered office, then you must have written consent from the person who occupies the registered office.)
  • Make sure that you:
    o display the company name at every place at which your company carries on business and that is open to the public. Also, a public company must display its name and the words ‘registered office’ prominently at its registered office; and
    o display the company name, the words ‘Australian Company Number’ (or ‘ACN’) or ‘Australian Business Number’ (or ‘ABN’) and the relevant number on:
    o the common seal (if the company has one);
    o every public document of the company;
    o every negotiable instrument (e.g. cheque, promissory note ) of the company; and
    o all documents lodged with ASIC.

Your company must keep:

  • registers of members (shareholders);
  • registers of option holders (if you have them);
  • minutes of general meetings;
  • minutes of meetings of directors;
  • registers of charges created by the company over company property; and
  • financial records that enable an assessment of the company’s financial position and performance and are sufficient for financial statements to be prepared (and audited if necessary) for at least seven years after the transactions are completed.

We have experience in drafting the following types of documentation which may reduce your liability as a director or office holder:

  • Corporate Deeds;
  • Directors Deeds; and
  • Directors and Officers Indemnities.

We are also able to provide advice on directors and officers duties and liabilities and statutory compliance.

back to top

Consumer Protection

Governments consider consumer protection to be an important issue requiring legal regulation. There are a number of laws that set minimum standards for the suppliers of goods and services. Consumer protection laws exist to assist in the regulation of contracts.

There are a number of different areas which are covered by the new consumer law. These include:

  • Avoiding unfair business practices - including misleading or deceptive conduct, unconscionable conduct, false or misleading representations and related offences, information standards and country of origin representations;
  • Consumer guarantees – this includes which guarantees apply to goods and services, who is responsible for these guarantees and when remedies, such as refund repair and replacement are available;
  •  
  • Product safety – there is a new national product safety regime;
  • Sales practices - including unsolicited supplies, unsolicited consumer agreements, pyramid schemes, multiple pricing, lay-by agreements, referral selling and harassment and coercion;
  • Unfair contract terms – The unfair contract terms laws do not define what is a ‘standard form contract’ or an ‘unfair contract’, however, in broad terms a standard form contract will typically be one that has been prepared by one party to the contract and is not subject to negotiation between the parties – that is, it is offered on a ‘take it or leave it’ basis.

The first step to resolving a consumer problem is always to approach the person or company you are unhappy with. Explain your problem and outline what the company could do to fix it. Remember that the problem may be solved more quickly and easily if you have kept all the documents you received with your purchase, such as receipts or statements.

The next step to consider is to contact your consumer protection agency such as the Office of Fair Trading. If after following all the above steps your complaint has not been resolved, you may wish to take your matter to a court or tribunal for formal resolution. Courts and tribunals can make decisions that will be legally binding. In NSW, this is the Consumer, Trader & Tenancy Tribunal (CTTT).

The CTTT was established as the specialist dispute resolution forum for consumer, trader and tenancy based matters. It has a relatively small application fee. The CTTT works together with the NSW Office of Fair Trading. It is generally a quick and inexpensive way of resolving consumer problems. Any decision made by the CTTT is binding on both parties.

When operating a business, it is important to understand the laws, codes of practice and service charters that govern your behaviour in the marketplace, and the Office of Fair Trading’s role in creating a level playing field for all businesses by ensuring compliance with the law. Some of these laws include:

It is unlawful to make false claims or misleading descriptions about the supply or possible supply of consumer goods or services or when promoting the supply or use of goods or services.

Business conduct is likely to break the law if it creates a misleading overall impression among the intended audience about the price, value or quality of consumer goods or services. Whether you intended to mislead or deceive is irrelevant; what matters is how your statements and actions - your 'business conduct' – could affect the thoughts and beliefs of a consumer.

Your business must not make false or misleading representations about the country of origin of goods.

You must ensure goods and services you supply comply with relevant information standards, if sold within Australia and be familiar with information standards relevant to those goods and services.

We are able to assist consumers who may require advice on their rights under the consumer protection laws. We can also assist businesses in minimising their risks to consumers and where appropriate drafting terms and conditions of business.

back to top