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Business and Franchise

NSW

This publication guides practitioners through the sale or purchase of a business or franchise in New South Wales.

4 Matter Plans

Overview

The Sale and Purchase of Business commentaries set out the tax consequences of sale price apportionment, explain the tax treatment of stock, long service leave and other employee entitlements, consider the status of the premises and any franchise agreement, and discuss many other important issues affecting business conveyancing.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

The By Lawyers Uniform Contract for Sale of Business covers all aspects of the transaction from pre-exchange vendor warranties and purchaser guarantees, by shareholders where applicable, to completion, the effective release of PPSR security interests, the transfer of business assets including copyright works, trade marks, supplier contracts and the ASIC requirements for the transfer of the business name.

The contract also customises the competition restraints so they are enforceable, binds the key people, and deals with confidential information and non-solicitation of staff and customers.

The Franchise commentary is a comprehensive manual on franchise agreements.

The Business Structures and the Comparative Table guide provides a comparison of the pros and cons of different business structures.

Also included is 1001 Conveyancing Answers (NSW), which is a useful reference guide.

Precedents in this publication include:

  • Uniform contract for sale of business;
  • Library of special conditions;
  • Library of other contracts, licences, and agreements;
  • Settlement adjustment sheet;
  • Suite of letters to the client, the other side, and relevant authorities;
  • Relevant notices;
  • Client enclosure – Summary of relevant considerations.
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4 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Sale of Business (NSW)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Costs Answers
    • Item icon 1001 Conveyancing Answers (NSW)
    • Item icon Company tax rates
    • Item icon Individual income tax rates
    • Item icon Further information
  • Item icon Overview
    Before selling a business, the structure in which it is held, and the tax consequences of the intended transaction need to be considered. If the business is owned by a company or trust, selling shares or units will have a different tax outcome than selling a business owned by a sole trader or ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Sale of business
    • Item icon To do list - Sale of business
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Sale of business
    • Item icon Conflict of interest check
    • Item icon Initial letter to vendor
    • Item icon Initial letter to vendor no instructions yet
    • Item icon Costs agreement - NSW
    • Item icon Scope of work - Sale of business
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Enclosure - Summary of relevant considerations
    • Folder icon If required - Authority to contact accountant
      • Item icon Authority to contact accountant
    • Item icon Initial letter to agent
    • Folder icon If required - Acting for both parties
      • Item icon Letter to client acknowledging we act for both parties
    • Folder icon If required - Verification of identity
      • Item icon Verification of identity certificate
      • Item icon Client authorisation
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Preliminaries
    • Item icon Nature of the transaction
      The sale of a business typically involves:

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    • Item icon The need for presale planning
      The tax payable by a vendor needs to be considered before any business assets are sold, as it may be better if the purchaser acquires the entity that owns the assets and conducts the business. The importance of structuring the ownership of assets to qualify for concessions cannot be overemphasised ...

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    • Item icon The importance of the distinction between income and capital
      Structuring the sale of a business in the most tax-advantageous manner presents can save the client money. The rates of tax payable differ depending on the nature of the asset - whether it is a revenue or capital asset - and, if it is a capital asset, the type of taxpayer deriving the capital gain.

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  • Folder icon C. Presale negotiations
    • Item icon Presale negotiations
      Preliminary agreements that a vendor and purchaser may enter into before or while negotiating the terms of the purchase contract and potential issues need to be considered. The heads of agreement for sale are negotiated based on limited information the vendor provides, either directly or through a ...

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    • Item icon Confidentiality
      Usually, a vendor or their agent will require prospective purchasers to enter a confidentiality, or non-disclosure, agreement before financial and other information about the business is disclosed. This may be required before the name of the business will be revealed. It ensures that all ...

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    • Item icon Non-disclosure agreement - Formal
    • Item icon Non-disclosure agreement - Informal
    • Item icon Exclusivity
      Negotiating a period of exclusivity can be highly advantageous to the purchaser, particularly in a strong market or with an attractive business. During this period, the vendor will not be able to negotiate with anyone else, allowing the purchaser sufficient time to conduct their due diligence ...

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    • Item icon Exclusivity deed - Sale of business
    • Item icon Heads of agreement
      Heads of agreement are a precursor to a formal contract. They are not usually binding on the parties unless intentionally binding clauses, such as confidentiality or exclusivity, are included. They can serve as a record of the parties’ agreement and set out the key terms of a complex transaction ...

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    • Item icon Heads of agreement
    • Item icon Due diligence by the purchaser
      Due diligence by the purchaser generally involves making reasonable investigations before entering any investment to minimise, or at least understand, any risk involved. For a purchaser, this means making all possible enquiries to ensure that the ownership, finances, and operation of the business ...

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  • Folder icon D. Contract
    • Item icon Disclosure requirements
      Unlike the sale of real property, there are no legal requirements for disclosure for a sale of a business, except the assignment of a retail lease which requires the vendor to provide a copy of the prescribed disclosure statement. It is important for the vendor to provide all relevant information ...

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    • Item icon Form of contract
      There is no prescribed form for a contract for the sale of business. As with conveyancing, the agreement for sale of business is normally drafted by the vendor’s legal representative. However, unlike conveyancing, there is no requirement that the draft contract is made available before or during ...

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    • Item icon The By Lawyers Uniform Contract for Sale of Business
      The By Lawyers Uniform Contract for Sale of Business is widely used, because it:

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    • Folder icon By Lawyers - Uniform contract for sale of business
      • Item icon Uniform contract for sale of business - Part 1 of 2 - Particulars of sale - By Lawyers
      • Item icon Uniform contract for sale of business - Part 2 of 2 - Terms and conditions - By Lawyers
    • Folder icon Law Society - REINSW Contract for sale of business
      • Item icon Law Society of NSW - Shop - Contract for Sale of Business 2015
      • Item icon Standard special conditions - For Law Society contract
    • Item icon Share sale agreement
      Sometimes, the company that owns and conducts the business is sold rather than the business itself. This involves selling the company’s shares rather than its assets. While there may be savings in transfer duty and possible tax and other advantages, most purchasers prefer not to risk inheriting the ...

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    • Item icon Taxation considerations for the vendor
      Apportionment of the sale price – Depreciation It is customary, but not necessary, for the contract to show an apportionment of the sale price between the various assets that make up the business. Normally, this will be confined to identifying the part of the price attributed to plant and equipment ...

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    • Item icon Motor vehicles
      If the business includes motor vehicles, the contract will specify them and provide for their formal transfer via Transport for New South Wales (TfNSW). There is no duty on business sales. However, even if part of a business sale, stamp duty is payable on the transfer of motor vehicles under ...

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    • Item icon Liquor licence
      The transfer of a liquor licence can be quite complex. See the Liquor & Gaming NSW Transfer your licence page and Liquor fact sheets for details. See also, the Liquor Licence Transfer special condition in the Library of special conditions for business and the Liquor and gaming forms folder in ...

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    • Item icon Domains, websites, and email addresses
      The current registrant of any domains, probably the vendor, needs to be involved in the process of transferring those names, regardless of what is said in the contract. An authorisation code needs to be provided for each domain, which the purchaser enters when transferring it. Some registrars might ...

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    • Item icon Employees
      As an employment relationship is personal between an employer and employee, under general contract law principles, the employment contract cannot be unilaterally transferred from one employer to another. Employees are free to either accept or reject offers of employment from the purchaser, and the ...

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    • Item icon Business names
      Every business name must be registered unless the proprietor trades under their own name. Although business names are not strictly intellectual property in the sense that trade marks are, they can have substantial value. The sale of a business usually includes the transfer of the business name from ...

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    • Item icon Trade marks
      A business sale usually includes assigning any trade marks from the vendor to the purchaser. The By Lawyers Uniform Contract for Sale of Business provides for this by requiring the vendor to provide the purchaser with the duly executed transfers of all business intellectual property assets and ...

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    • Item icon Tax including GST, going concern, and CGT with the small business concessions
      The objective is to incur the minimum tax liability arising from the sale. The tax rates applicable to the proceeds of sale depend on whether the asset sold is a revenue or capital asset. Revenue assets are generally trading stock, plant and equipment, intellectual property, and land purchased to ...

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    • Item icon Appendix – Example sale structures from a tax perspective
      Example 1 – Tax advantages of a vendor selling shares in the company rather than the company selling the business

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    • Folder icon Library of contract annexures
      • Item icon Uniform contract for sale of business - Annexure page
      • Item icon Annexure with employee details
      • Item icon Annexure of plant fixtures and fittings
      • Item icon Annexure of registered vehicles
      • Item icon Annexure detailing ongoing agreements
    • Folder icon Library of special conditions for business
      • Item icon Arbitration
      • Item icon Completion - Time is of the essence
      • Item icon Computer software and domain names
      • Item icon Confidentiality
      • Item icon Domain names, websites and email addresses
      • Item icon Exchange on less than 10% deposit
      • Item icon GST payable by purchaser in addition to price
      • Item icon Guarantee for corporate purchaser
      • Item icon Interdependent contracts
      • Item icon Interest to run from expiry of notice to complete
      • Item icon Late completion - Payment of interest
      • Item icon Liquor licence transfer
      • Item icon PPSA - Release of security interest
      • Item icon PPSA - Undertaking by secured party to register release of security interest
      • Item icon Purchaser to comply with outstanding notice
      • Item icon Registered vehicles
      • Item icon Restraint of trade variation of standard clause
      • Item icon Restraint of trade variation of standard clause - Existing clientele
      • Item icon Sale of rent roll business
      • Item icon Software
      • Item icon Transfer of business name
      • Item icon Vendor to comply with outstanding notice
      • Item icon Trial period
    • Item icon Other agreements and licences
      Agreements A business sale usually includes assigning relevant contracts from the vendor to the purchaser. The By Lawyers Uniform Contract for Sale of Business provides for this by requiring the vendor to provide the purchaser with such, assignments of all contracts relevant to the business ...

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    • Folder icon Library of other contracts, licences and agreements
      • Item icon Agreement for sale of units in a unit trust
      • Item icon Non-disclosure agreement - Formal
      • Item icon Non-disclosure agreement - Informal
      • Item icon Contract for sale of a rent roll
      • Item icon Contract for sale of personal property
      • Item icon Agreement for sale of shares - Concise
      • Item icon Agreement for sale of shares - Extensive - Company takeover
      • Item icon Deed of assignment of lease
      • Item icon Deed of assignment of agreement
      • Item icon Deed of restraint of trade
      • Item icon Distribution agreement
      • Item icon Intellectual property licence
      • Item icon Licence of business name
      • Item icon Licence of copyright
      • Item icon Medical centre licence agreement
      • Item icon Option to purchase
      • Item icon Nomination
      • Item icon Short licence agreement of business and premises
      • Item icon Trade mark agreement
      • Item icon Transfer of domain name
  • Folder icon E. If required - Franchises
    • Item icon Franchises
    • Item icon Model disclosure document for franchisee or prospective franchisee
    • Item icon Information statement for prospective franchisee – ACCC
    • Item icon Enclosure - Issues for a prospective franchisee to discuss with an existing or former franchisee
    • Item icon Franchise agreement
    • Item icon Independent advice statement and certificates
    • Item icon Deed of prior representations
    • Item icon Clause - Sale subject to franchisor's consent and suitable franchise agreement
    • Item icon Clause - Seeking franchisor's consent to sale
  • Folder icon F. Negotiations and exchange
    • Item icon Time for completion
      The contract stipulates a completion date, which usually is not of the essence but can be made so by a notice to complete. If time is important – for instance, just before the Christmas trade – a special condition making time of the essence can be found in the Library of special conditions for ...

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    • Item icon Letter to purchaser's solicitor submitting contract
    • Item icon Letter to vendor to come and sign contract
    • Item icon Letter to vendor with contract for signing
    • Item icon Letter to purchaser's solicitor with contract by way of exchange
    • Item icon Letter to purchaser's solicitor effecting telephone exchange
    • Item icon Letter to purchaser's solicitor after telephone exchange
    • Item icon Letter to vendor following exchange
    • Item icon Letter to agent confirming exchange
    • Folder icon If required - Deposit at settlement
      • Item icon Letter to agent when deposit required at settlement
    • Folder icon If required - Lessor
      • Item icon Letter to lessor's solicitor seeking deed of assignment of lease
  • Folder icon G. Mid-transaction
    • Item icon Conditions precedent
      The contract may provide for various conditions to be met before the sale can be completed. A common one is vendor training of the purchaser. A licence, such as a liquor licence, may also need to be transferred before the purchaser can start trading. Another condition precedent is the assignment of ...

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    • Item icon ASIC - Update business name
    • Item icon ASIC - Transfer business name
    • Item icon ASIC - Cancel business name
    • Item icon Replies to By Lawyers requisitions
    • Item icon Replies to requisitions - Blue Star
    • Item icon Replies to requisitions - Australian Law Stationers - Purchase of Business form 750 - 2008
    • Item icon Letter to vendor with replies to requisitions for approval
    • Item icon Letter to discharging mortgagee for discharge
    • Folder icon Common forms
      • Folder icon Land Registry Services
        • Item icon Charge
        • Item icon Lease
        • Item icon Sublease
        • Item icon Surrender of lease
        • Item icon Transfer
        • Item icon Transfer of lease mortgage or charge
        • Item icon Variation of lease
      • Folder icon Revenue NSW
        • Item icon Acquisition statement - acquisition of an interest in a private landholder
        • Item icon Exempt acquisition statement - acquisition of an interest in a landholder
    • Item icon Liquor licence
      The transfer of a liquor licence can be quite complex. See the Liquor & Gaming NSW Transfer your licence page and Liquor fact sheets for details. See also, the Liquor Licence Transfer special condition in the Library of special conditions for business and the Liquor and gaming forms folder in ...

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    • Folder icon Liquor & Gaming NSW
      • Folder icon Gaming
        • Item icon Change gaming machine shutdown period - early openers
        • Item icon Change gaming machine shutdown period - to the general 6-hour period
        • Item icon Change gaming machine shutdown period - weekends & public holidays
        • Item icon Change gaming machine shutdown period on hardship grounds
        • Item icon Direct debit request form
        • Item icon Gaming machine entitlement lease transfer - hotel
        • Item icon Gaming machine entitlement transfer - hotel
        • Item icon Gaming machine entitlement transfer - registered club
        • Item icon Gaming machine entitlement transfer - related premises of a registered club
        • Item icon Gaming machine threshold increase
        • Item icon Gaming machine threshold increase - registered club in 'new development area'
        • Item icon Gaming machine threshold increase - removal of hotel - with LIA
        • Item icon Gaming machine threshold increase - removal of licence within a LGA - no LIA required
        • Item icon Gaming machine threshold increase - removal of registered club - with LIA
        • Item icon Gaming machine threshold increase where LIA required
        • Item icon Gaming machine threshold increase with gaming machine entitlement transfer - registered club
        • Item icon Hotel gaming machine entitlements lease
        • Item icon Local impact statement
        • Item icon Single gaming machine entitlement transfer with threshold increase - country to country hotel
        • Item icon Single gaming machine entitlement transfer without threshold increase - country to country hotel
        • Item icon Transfer poker machine permits
        • Item icon Vary/end hotel gaming machine entitlements lease
      • Folder icon Liquor
        • Item icon Admit temporary membership of registered club
        • Item icon Application for review of a decision made by the Secretary
        • Item icon Auctioneer notification
        • Item icon Banning order application by Commissioner of Police or Secretary
        • Item icon Bed and breakfast liquor notification
        • Item icon Approval for under 18s to access licensed premises
        • Item icon Category A community impact statement form
        • Item icon Category B community impact statement form
        • Item icon Cease liquor sales during standard trading hours
        • Item icon Change 6-hour closure period - application by Commissioner of Police or Secretary
        • Item icon Change 6-hour closure period - application by licensee
        • Item icon Change approved manager application
        • Item icon Change business type
        • Item icon Change liquor licence condition - application by Commissioner of Police or Director General of NSW Trade and Investment to ILGA
        • Item icon Change liquor licence condition - application by licensee
        • Item icon Change liquor licence condition - submission by licensee to the Secretary, NSW Department of Customer Service
        • Item icon Club functions authorisation
        • Item icon Club licence - removal
        • Item icon Drink on-premises authorisation
        • Item icon Exception from open to public requirement
        • Item icon Exception from requirement to sell, supply, serve liquor
        • Item icon Exception from requirement that licensee not be absent more than 6 weeks
        • Item icon Exemption application from a schedule 4 condition
        • Item icon Exemption from a precinct related special licence condition
        • Item icon Extended trading authorisation - club licence
        • Item icon Extended trading authorisation - hotel licence
        • Item icon Extended trading authorisation - on-premises licence
        • Item icon Extended trading authorisation - packaged liquor licence
        • Item icon Extended trading authorisation - producer or wholesaler licence
        • Item icon Extended trading authorisation - special occasion
        • Item icon Extended trading authorisation - small bars
        • Item icon Hotel licence - removal
        • Item icon Junior members authorisation
        • Item icon Lease or sublease licensed premises
        • Item icon Limited licence functions - police notification
        • Item icon Liquor licence transfer - club licence
        • Item icon Minors functions authorisation
        • Item icon Notice of development application
        • Item icon Online liquor licence transfer - declaration by business owner
        • Item icon Online liquor licence transfer - declaration by existing licensee
        • Item icon Online liquor licence transfer - declaration by owner in possession
        • Item icon Online liquor licence transfer - declaration by proposed licensee
        • Item icon On-premises licence - removal
        • Item icon Packaged liquor licence - removal
        • Item icon Premises file archives and records request
        • Item icon Premises licence data request
        • Item icon Primary service authorisation
        • Item icon Producer wholesaler licence - removal
        • Item icon Statement of risks and potential effects
        • Item icon Temporary licensed premises
        • Item icon Vessel trading authorisation
        • Item icon Wine show or producer's market/fair notification
  • Folder icon H. If required - Notices
    • Item icon Time for completion
      The contract stipulates a completion date, which usually is not of the essence but can be made so by a notice to complete. If time is important – for instance, just before the Christmas trade – a special condition making time of the essence can be found in the Library of special conditions for ...

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    • Item icon Notice to complete
    • Item icon Notice of termination
    • Item icon Notice of rescission
    • Item icon Letter to other side serving notice
    • Item icon Letter to other side's solicitor serving notice
    • Item icon Letter to other side's solicitor disputing notice to complete
  • Folder icon I. Settlement
    • Item icon Adjustments
      Depending on the type and size of the business it will be necessary to adjust some of the following:

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    • Item icon Other actions that may be required
      The vendor will need to supply any documentation the purchaser might require when:

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    • Item icon Settlement Adjustment Sheet
    • Item icon Direction to pay to purchaser's solicitor
    • Item icon Letter to agent notifying date and time of settlement
    • Item icon Letter to agent with order on agent or cheque for commission
    • Item icon Letter to vendor with settlement figures and our account
  • Folder icon J. Finalising the matter
    • Item icon Letter to vendor following settlement finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - NSW
    • Item icon Invoice recital - Sale and purchase of business
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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