Commercial & Business
We provide specialist commercial advice and transactional work as well as acting for in house counsel. Complex matters we have acted on have included contractual, franchising, leasing, property, trade practices and insurance. By understanding clients' industries, we develop commercial solutions to alleviate the need for lengthy litigation and the Court process.
Meet The Team:
Head of Health Care, Aged Care & Retirement Villages
Senior Associate & Accredited Property Law Specialist
Alternative Dispute Resolution
Also known as "ADR", these are methods to resolve legal conflicts and disputes in a private manner and other than through litigation in the courts. Usually through mediation, arbitration or expert determination, it typically involves a process much less formal than the traditional court process and includes the appointment of a third-party to preside over a hearing between the parties. The advantages are privacy, expediency and cost effectiveness in comparison to court litigation. The disadvantage is that it often involves compromise. Our lawyers are more available than in larger firms and partners oversee all matters and ensure diligence is maintained and that commercial solutions are achieved for our clients.
Bankruptcy, Insolvency & Debt Recovery
A person not able to pay his or her debts as they become due is termed "insolvent" and this is the formal prerequisite to being declared bankrupt under law. The legal effect is to divert most of the debtor's assets and debts to the administration of a third person, sometimes called a " trustee in bankruptcy", from which outstanding debts are paid pro rata. Bankruptcy forces the debtor into a statutory period during which his or her commercial and financial affairs are administered under the strict supervision of the trustee. Bankruptcy usually involves the removal of several special legal rights such as the right to sit on a board of directors. The duration of "bankruptcy" status varies from state to state but it does have the benefit of erasing most debts even if they were not satisfied by the sale of the debtor's assets.
We assist clients through the many complex issues occurring as a result of insolvency or corporate reconstruction. Our lawyers aim to ensure the maximum number of options and achieve the optimum commercial outcome possible.
Business & Commercial Law
Our lawyers focus on a high level of personal service and cost effective solutions for a wide range of business and commercial law issues. This includes helping clients to understand their transactions, for example the due diligence process through mergers and acquisitions and ensuring protection through appropriate legal compliance.
In addition to commercial contracts, we organise clients' business structuring, including the admission or exit of shareholders or partners.
In the event of disputes, we seek an efficient determination to assist clients to resolve disputes rather than engaging in expensive and drawn out court action. Where court action is required, our litigation experience covers a very wide range of contractual and property disputes, trade practices, tax and insurance litigation.
Commercial & Shopping Centre Leasing
For small businesses, understanding the lease of the premises is one of the most important things for the business. A retail lease is a contract that grants the right to operate a business from rented retail premises. As such it is a legally binding contract between the landlord and the tenant. It sets out the terms, conditions and rights as well as the obligations of both parties in relation to the occupancy of retail premises. Leasing law is complex and retail leases are dynamic documents governing rights and obligations over the life of the lease. Once signed, the tenant is obligated for the full term.
Common disputes in commercial lease relationships include scope of exclusivity clauses, lock-outs of lessees by lessors for alleged non-payment of rent, rights of shopping centre managers to see lessee turnover figures and alleged oral variations to the strict terms of the lease.
Tenants in shopping centres encounter unique issues that are not normally faced by retail tenants in other types of retail locations, such as in street front shopping, where each shop is independently owned.
The drafting and negotiation of leases must be considered a serious risk management issue. Time spent in the early stages can prevent possible issues once the lease has commenced and can improve landlord/tenant relationships, as everyone will be more knowledgable on where they stand.
Copyright & Intellectual Property Protection
Copyright law protects the expression of ideas, not ideas themselves. Ideas can be protected through common law action for breach of confidence, under the Trade Practices Act, actions for passing off or misleading or deceptive conduct.
There is no global intellectual property law. In Australia works protected by Copyright must first be published in Australia or be made by an Australian citizen or by a resident of a country that is a member of a relevant copyright treaty.
The author's life plus 50 years is generally the extent of copyright protection for most works and is administered by their legal representative. Copyright cannot be renewed and after this protection period the work becomes part of the Public Domain where anyone can use the material without infringing copyright.
While nobody can prevent users from copying and redistributing copyrighted material once they have had access to it, there are some legal solutions. These include injunction (which seeks to restrain the breach occurring or continuing), damages (which is compensation for infringement) or account of profits (which is to gain payment of the profits to the copyright owner).
Corporate Governance & Corporations Law
Corporate governance describes the principles and practices adopted by a company to ensure sound management of the company within the letter and spirit of the law. It affects and defines the relationships between the board, management and auditors, and includes obligations of the board and management to manage the company so as to protect and enhance shareholder wealth as well as meet the company's obligations to all parties with which it interacts.
We have an understanding of and commitment to the outcomes of corporate practices rather than simply focusing on the process of compliance. We recognise that corporate practice does not simply involve compliance but also performance. As well, responsibility for corporate activities is not confined to directors and extends beyond the board of directors to individual directors, executives, officers and employees of a corporation.
We assist our clients with:
- incorporation, including drafting and amending company constitutions
- ownership structures such as disposal and/or acquisition of shares
- corporate governance, including the role and rights of shareholders, members, directors and creditors
- compliance with reporting and other requirements
- compliance with and training in relation to directors' duties
- compliance with fundraising requirements, such as disclosure
- insolvency and external administration, such as voluntary administration
Disputes in franchising usually arise because a franchisor has not provided adequate information, or else has provided information that could be misleading. Another common complaint is that one or both of the parties is unwilling to negotiate
The responsibility is not always just on the franchisor. Franchisees need to differentiate between a franchise agreement and the disclosure document. The disclosure document contains the information that a franchisor must give the franchisee. It gives a prospective franchisee time to read about the business details of the franchise and to get legal or financial advice. Having read and understood the disclosure document, the franchisee is then asked to sign a franchise agreement. This is the business contract and contains the specific terms and conditions of the franchise. The disclosure document will usually only contain a summary of the terms and conditions of the franchise agreement.
Insurance & Compensation
Peace of mind is what insurance buys. This is a constantly changing area of law that often attracts unwanted media coverage.
To be liable to pay damages to another person because of negligence it needs to be established that there was an existence of a duty of care, a breach of that duty, and material damage as a consequence of the breach of duty. The common law provides compensation to persons injured as a result of negligence by another. It compensates for actual loss and does not treat everyone the same.
We advise our clients on many types of insurance such as professional indemnity, directors and officers, corporate, commercial, IT, product liability, medical negligence, compliance and industry specific such as pharmaceutical. Clients' circumstances and claims are rarely similar and we focus on understanding our client's industry to ensure that the solutions we advise are appropriate and strategically commercial.
Work undertaken includes formulation and design of policies, advice on drafting contracts and handling litigated claims such as resisting a claim for indemnity on the basis of fraudulent non-disclosure.
In NSW the sale of alcohol at licensed premises is regulated by both the Liquor Act 1982 (NSW) and the Registered Clubs Act 1976 (NSW). Formal proceedings for a breach of the liquor laws can be brought before NSW Courts in the form of either an 'information' or a 'complaint'. An information is distinguished from a complaint in that the former refers to criminal conduct whereas the latter is of a civil disciplinary nature. Although no criminal conviction is recorded as a result of a complaint being lodged, enforcement action of this type can have a significant impact on licensed premises because the Licensing Court has the power to place conditions on the licence which can restrict trading.
An information can be laid before the Licensing Court or Local Courts by an informant in person, or by his or her counsel, attorney, or another authorised person and is disposed of summarily by the Court. Specific penalties are stipulated for each offence (generally a monetary penalty) but additional penalties for offences can also be imposed by the Licensing Court.
Applying for a liquor licence through the Liquor Administration Board requires advice around the changing laws on liquor licensing and related planning laws to which hoteliers, clubs and other clients need adhere.
We can also assist on related planning applications for variation of hours of operation and licence conditions, approval of management arrangements, applications for the grant of new licences and for the transfer of existing licences.
Management, Marketing & Distribution Agreements
"Make everything as simple as possible...." - Albert Einstein
We assist clients to achieve commercial agreements which provide for their business goals while minimising business risk. The negotiating process is crucial in the arrangement of legal agreements. We assist clients to determine the main issues for their business in consideration of their particular legal agreements, for example regarding management rights, to decide whether to licence or assign rights and whether appropriate usage restrictions will protect their value.
There will be legal compliance issues and these could include issues such as:
- Privacy - the collection of, and permitted uses and disclosures of, personal information from customers
- Financial Regulations - if a payment mechanism is to be included
- Contract Law - development of fair customer contracts
- Trade Practices and Competition Law - ensuring no anti-competitive conduct or breach of consumer protection law
Planning & Environmental Law
Atkinson Vinden Lawyers are skilled in the area of planning and environmental law, including issues dealing with local councils, private instruments affecting land, conditions of development consent, appeals to the Land & Environment Court, building and compliance certificates and all advice relating to NSW planning laws and State environmental planning policies.
It is important to address these planning issues at the earliest available opportunity in order to avoid enforcement action from a local council or from a third party such as a neighbour. Notably in NSW any person may bring proceedings in the Land & Environment Court to restrain a breach of a development consent. This is known as 'open standing'.
We can provide advice on objecting to development that may have a detrimental impact on property and we have an in depth knowledge of the decision making process. Often our clients' interests can be furthered by a freedom of information application to obtain certain documents such as council reports and we can provide advice on how to structure a development application.
New laws have recently been introduced relating to design of residential flat buildings, development in bushfire prone areas, as well as sensitive coastal areas.
Product Liability Law
Claims brought by product recalls, classes and individuals require a different set of strategic and management techniques. Product liability issues often involve many parties, including the media and require expediency and care to ensure that the Client's business reputation is upheld through the process.
Despite the most vigilant quality assurance systems and product recall policies, astute and detailed strategies are required to manage the directors' governance and exposure issues that are likely to arise.
Amongst the regulatory framework of product and packaging legislation requirements, business risk has increased notably with a growing trend for class actions and litigious individuals. Our team have investigatory expertise and know the importance of understanding Clients' products and their manufacturing processes to deliver solutions that will minimise business risk.
Trade Practices & Consumer Protection
Consumers are protected through a mixture of Federal, State and Territory legislation and industry self-regulation. The legislation promotes fair trading practices and improves the competitive position of manufacturers and suppliers.
The Trade Practices Act (TPA) deals with unconscionable conduct, unfair practices, product safety and product information, conditions and warranties in consumer transactions, manufacturer's liability and product liability. The TPA also regulates restrictive trade practices by prohibiting certain anti-competitive conduct.
We assist clients to know their rights under the TPA and to find a pathway through the complex avenues of determining the most appropriate enforcement mechanism. If a dispute is not resolved by negotiation between the parties, it is possible to use an industry-based complaints mechanism or tribunal, then going to Court is the last option.
While the consumer claims tribunals and small claims courts in each State and Territory are generally a quick, effective and relatively cheap alternative to litigation for small claims, they may be inaccessible to businesses.
We have helped our business clients deal with the TPA in matters such as goods and services provided by other businesses and competitors protecting their commercial interests.