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Business and Franchise

WA

This publication guides practitioners through the sale or purchase of a business or franchise in Western Australia.

3 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 seller 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.

Precedents in this publications include:

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3 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Sale of Business (WA)
  • 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 Company tax rates
    • Item icon Individual income tax rates
    • Item icon Further information
  • Item icon Overview
    The variety of businesses that might be the subject of instructions on their sale is vast. The incidents of each sale vary enormously. To some the lease of the premises is vital to secure the retailing location to others it is irrelevant. To some the agreements with suppliers are vital with others ...

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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 seller enclosing cost agreement
    • Item icon Initial letter to seller no instructions yet
    • Item icon Costs agreement - WA
    • 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 Fact Sheet - Legal Costs - Your right to know - Law Society of Western Australia
    • Item icon Initial letter to agent
    • Item icon The importance of the income and capital distinction
      There is an opportunity to save your clients money by structuring the sale and purchase of the business in the most tax advantageous manner. This opportunity arises because of the possibility of different rates of tax. The rates of tax payable differ depending on the nature of the asset – whether ...

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    • Item icon The need for pre-sale planning
      Consideration of the tax payable by a seller is an essential task that must be undertaken prior to the sale of any business assets. The planning may well result in the decision that the business should not be sold at all but rather the buyer should be required to acquire the entity that owns the ...

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    • Item icon GST overview
      GST property tool The obligation to remit (pay) GST belongs to the seller.

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    • Item icon Disclosure requirements
      Unlike real property, there are no disclosure requirements except in relation to the assignment of a retail lease. In order to achieve a successful sale it is therefore important to anticipate the concerns of the buyer and to provide all relevant information. The By Lawyers Contract for Sale of ...

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    • 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 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. Contract
    • Folder icon By Lawyers - Uniform contract for sale of business
      • Item icon By Lawyers Uniform Contract for Sale of Business
        Features

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      • 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 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 Buyer to comply with outstanding notice
      • Item icon Completion - Time is of the essence
      • Item icon Computer software and domain names
      • Item icon Confidentiality
      • Item icon Domain name website email address
      • Item icon Exchange on less than 10% deposit
      • Item icon GST payable by buyer in addition to price
      • Item icon Guarantee for corporate buyer
      • Item icon Interest to run from expiry of notice to complete
      • 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 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 Seller to comply with outstanding notice
      • Item icon Transfer of business name
      • Item icon Trial period
    • 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 agreement
      • Item icon Deed of assignment of lease
      • 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 Nomination
      • Item icon Short licence agreement of business and premises
      • Item icon Option to purchase
      • Item icon Trade mark agreement
      • Item icon Transfer of domain name
    • Item icon Taxation considerations for the seller
      Apportionment of the sale price It is important to structure the sale of business agreement with an apportionment of the sale price to the actual assets transferred. Namely, it is not only desirable to have an identification of the actual assets being conveyed but also it is important to have an ...

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    • Item icon Motor vehicles
      Motor vehicles including any registered plant such as graders, bobcats and trucks are best dealt with in a separate special condition with values attached. A special condition is in the library. The contract can then be stamped by the buyer for the consideration excluding the registered vehicles ...

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    • Item icon Liquor licence
      Applications for a new licence or to transfer an existing licence can be quite complex. The best place to start is the Department of Local Government, Sport and Cultural Industries – Racing, Gaming and Liquor. Applications are made online through the Department’s portal. See the Online lodgement ...

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    • Item icon Service providers, domain names, web sites, email and social media accounts
      An internet service provider is a business organization that provides access to the internet including email and web site hosting. A website is hosted on a computer system known as a web server. Each website has an IP address (internet protocol address), for example 101.178.697.345. This is the ...

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    • Item icon Tax including GST, and CGT with the small business concessions
      The objective as always 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 asset or a capital asset. Revenue assets are generally stock, and plant and equipment. Any taxable gain is taxed at the ...

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    • Item icon Employees
      When an employer buys or sells a business, the sale may affect the employment and entitlements of employees that are already working for the business. The transfer of business provisions of Part 2-8 of the Fair Work Act 2009 deal with situations where a business is transferred from one employer to ...

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    • Item icon Business names
      Although business names are not strictly ‘intellectual property’ in the sense that trademarks are, it is clear that they can have substantial value, as in ‘Myer’, ‘McDonald’s’ and so on. Every business name must be registered with ASIC unless the proprietor is trading under their own name. For ...

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  • Folder icon C. 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 D. Negotiations and exchange
    • Item icon Time for completion
      As far as time for completion is concerned, the contract stipulates a completion date, which is not of the essence and provides for a notice to complete. If time is essential, for instance just before Christmas trade, then a special condition is required and one is found in the library of special ...

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    • Item icon Letter to buyer's solicitor submitting contract
    • Item icon Letter to seller to come and sign contract
    • Item icon Letter to seller with contract for signing
    • Item icon Letter to buyer's solicitor with contract by way of exchange
    • Item icon Letter to buyer's solicitor effecting telephone exchange
    • Item icon Letter to buyer's solicitor after telephone exchange
    • Item icon Letter to seller following exchange
    • Item icon Letter to agent confirming exchange
    • 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 E. Mid transaction
    • Item icon ASIC - Update business name
    • Item icon ASIC - Transfer business name
    • Item icon ASIC - Cancel business name
    • Item icon Replies to By Lawyers For 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 seller with replies to requisitions for approval
    • Item icon Letter to discharging mortgagee for discharge
    • Folder icon Common forms
      • Folder icon Landgate forms
        • Item icon Additional page - B1
        • Item icon Blank instrument form
        • Item icon Caveat
        • Item icon Discharge of mortgage
        • Item icon Discharge of mortgage (part of moneys and some of the mortgagees)
        • Item icon Statutory declaration
        • Item icon Withdrawal of caveat
      • Folder icon Department of finance forms
        • Item icon Transfer duty statement
        • Item icon Transfer duty statement - acquisition of an authorisation or entitlement
        • Item icon Concessional rate for certain residential land or business assets
      • Folder icon Department of transport forms - Motor vehicles
        • Item icon Statutory declaration: Vehicle ownership - Department of Transportation
        • Item icon Proof of identity: Nominated owner - Vehicle licence holder - Department of Transportation
        • Item icon Notification of change of vehicle ownership - Department of Transportation
  • Folder icon F. If required - Notices
    • 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 G. Settlement
    • Item icon Settlement
      Time for completion As far as time for completion is concerned, the contract stipulates a completion date, which is not of the essence and provides for a notice to complete. If time is essential, for instance just before Christmas trade, then a special condition is required and one is found in the ...

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    • Item icon Other actions that may be required
    • Item icon Settlement Statement
    • Item icon Letter to agent notifying date and time of settlement
    • Item icon Letter to seller with settlement figures and our account
    • Item icon Direction to pay to buyer's solicitor
    • Item icon Letter to agent with order on agent or cheque for commission
  • Folder icon H. Finalising the matter
    • Item icon After settlement letter to seller
    • Item icon Fact Sheet - Your right to challenge legal costs - Law Society of Western Australia
    • Item icon Example invoice incorporating notification of client's rights - WA
    • 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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