Companies, NSW Conveyancing and NSW Business and Franchise
This bundle includes guides from the following three publications.
Recent updates can be viewed at Obiter - News & Updates, via the link above.
Companies, Trusts, Partnerships and Superannuation
This valuable publication provides a simple guide to companies, trusts, partnerships, joint ventures and superannuation, with all commonly required documents, allowing you to advise and service your clients with confidence.
Superannuation is explained simply and comprehensively, and is accompanied by a full suite of precedents, including everything needed to set-up, run and amend a self managed superannuation fund.
The commentary provides a tax and succession planning overview sufficient for most circumstances found in general practice.
Some of the most popular precedents included in this publication:
- Comparative table of business structures
- Limited recourse borrowing documentation
- Company constitution
- Company resolution
- Shareholder agreement (long and short forms)
- Agreement for sale of shares
- SMSF trust deed and rules
- Binding death benefit nomination
- Unit trust
- Discretionary trust deed
- Hybrid trust
- Joint venture agreement
- Partnership agreement
- Put and Call option
- Charitable trust
NSW Conveyancing
A complete matter-management solution which allows solicitors, conveyancers and support staff to run a busy conveyancing practice. Includes the By Lawyers Contract for Sale of Land.
Each step in the transaction is set out in sequential order with easy access to all of the required precedents and a simple but comprehensive commentary. The publication includes the reference materials ‘1001 Conveyancing Answers’, ‘A full description of the sale process in NSW’ and ‘A full description of the purchase process in NSW’.
Popular precedents include:
- Contract for sale of land – By Lawyers
- Order on the agent
- Letter to vendor's solicitor with settlement adjustments and requesting payment directions
- Detailed cover sheet - Purchase of real property
- Section 66W certificate
- Direction to pay to purchaser’s solicitor
- Notice to complete
- Contract for sale of land – Law Society
- Letter to vendor's solicitor submitting transfer
- Settlement instructions mortgagee
NSW Business and Franchise
The Sale and Purchase of Business and Franchise publications seek to assist the practitioner to successfully navigate the complex process that is business conveyancing.
The commentaries set out the tax consequences of sale price apportionment and explain the tax treatment of stock, long service leave and other employee entitlements, the status of the premises and many other important issues.
The many precedents include the By Lawyers Uniform Contract for Sale of Business which 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 comprehensive matter plan is an effective risk management tool, assisting practitioners to work though the matter ensuring the necessary steps of a typical matter are considered as required.
The Business Structures and the Comparative Table commentary usefully compares the various business structures. This is particularly useful when advising purchasers.
The Franchises commentary is a comprehensive manual on franchise agreements.
Recent updates can be viewed on Obiter - our News & Updates site.
Popular precedents in this publication include:
- By Lawyers Uniform Contract for Sale of Business
- Retainer instructions
- Library of 24 special conditions
- Library of 19 other contracts, licences and agreements
- Settlement adjustment sheet
- Client Enclosure - Summary of relevant considerations
Guides in this publication
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Business structures and the comparative table
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COMPANIES
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TRUSTS
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JOINT VENTURES
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PARTNERSHIPS
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SELF MANAGED SUPERANNUATION FUNDS
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SALE OF REAL PROPERTY (NSW)
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PURCHASE OF REAL PROPERTY (NSW)
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RETIREMENT VILLAGES (NSW)
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SALE OF BUSINESS AND FRANCHISE (NSW)
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PURCHASE OF BUSINESS AND FRANCHISE (NSW)
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1001 Conveyancing Answers (NSW)
MATTER PLAN
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“ Commentaries ”
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“ ATO Website - Partnerships ACT - Business Development ”
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“ Companies Trusts ”
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“ This publication is designed to assist with the set-up of a new business structure, the acquisition of an existing structure and the change from one structure to another by covering the essential elements, advantages and disadvantages of each possible structure in relation to income tax, capital ... ”
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“ The following table considers: The status of each structure in relation to income tax, capital gains tax and land tax. ”
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“ A sole proprietorship, most often known as a sole trader, is the simplest structure. Its key feature is that the business has no separate legal existence from its owner. It is owned and run by one individual who is responsible for all debts and liabilities of the business. A sole trader does not ... ”
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“ A partnership is the relationship between persons carrying on a business in common, with a view to making a profit. A minimum of two partners is required to form a partnership: s 1 Partnership Act 1892. The maximum number of partners allowed by law is 20, s 115 Corporations Act 2001, unless the ... ”
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“ Unlike partnerships and sole traders, a company is a legal entity separate from its shareholder owners. There are four types of companies: a company limited by shares; ”
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“ A joint venture is a commercial relationship between two or more entities for the purposes of a particular undertaking, with a view to realising mutual commercial gain. Joint ventures are usually established for a specific purpose. ”
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“ A trading trust is a business structure where the trustee holds property, incurs liabilities, earns income and distributes it on behalf of the beneficiaries of the trust. The trustee is personally liable unless otherwise agreed with the transaction’s counter party. The trust deed normally provides ... ”
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“ Associations are not normally considered to be business structures as they generally serve the purpose of providing protection to a committee and members of a group usually conducting a 'not-for-profit' activity. Unincorporated associations ”
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“ The principal way in which tax is minimised is by the 'splitting' of income by having the flexibility to divert income to the lowest tax rate entity. Therefore a sole trader and a partnership of individuals rate poorly in the table. The current income tax rate for companies and base rate entities ... ”
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“ Taxable capital gains are added to the total taxable income of the taxable entity for the income year in which the capital gains tax event occurred and the marginal rate of tax is then applied. The taxation of capital gains is however preferential to that of ordinary income because of the ... ”
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“ Land tax in New South Wales Land tax is an annual tax calculated on the total value of taxable land above the land tax-free threshold, which is currently $692,000. ”
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“ The sole trader fairs badly in that they are liable to the full extent of their assets. The partnership is in even worse shape in that it is possible to be liable for debts incurred by a partner without the knowledge or authority of the other partners. ”
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“ Most clients seek to minimise their tax liability, provide for the protection of their assets and also retain full control of their affairs. The sole trader has full control but as seen above has no opportunity to split income and is exposed to creditors to the full extent of their assets. ... ”
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“ The set-up costs for a sole trader are minimal and this structure also has the lowest running costs. In addition, the principal is not an employee of the business and therefore compulsory employee superannuation contributions, payroll tax and workers compensation do not apply. Partnerships usually ... ”
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“ Each structure is given a flexibility score from the least flexible to the most flexible. All have wide choices when it comes to investments and all have wide general powers. Superannuation funds are limited by their restricted ability to borrow, by their inability to run a business and by their ... ”
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“ Division 152 of the Income Tax Assessment Act 1997 brings together all of the small business capital gains tax reliefs into the one area with a common set of eligibility criteria. The importance of structuring the ownership of assets to qualify for these concessions cannot be over emphasised as ... ”
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“ In the event that a family trust incurs losses then it will be prudent to seek appropriate advice on whether or not they can be carried forward and whether or not a family trust election needs to be made. The consideration of the complex rules involved are outside the scope of this commentary but ... ”
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“ Many clients believe that they have protected a trading name by registering a company name or even by registering a business name or domain name. This is not the case. A business name is merely a name under which a business operates. The purpose of registration is to allow ASIC to maintain a ... ”
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“ New South Wales – Duty on land rich companies and trusts The duty on the transfer of shares and units was generally abolished back in 2016. However for land rich companies and trusts the duty is still payable on these transactions. ”
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“ Example 1 – Tax advantages of a vendor selling shares Tax advantages of a vendor selling shares in the company rather than the company selling the business ”
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“ The partnership structure falls between sole proprietor and a company in terms of complexity and establishment costs. The relationship between partners is contractual and fiduciary and good faith is an essential assumption in this relationship. ”
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“ There are three types of partnerships: A general partnership is normally a partnership between two or more individuals carrying on a business together sharing equal rights and responsibilities for the operation and management of the business. As far as third parties are concerned, each partner is ... ”
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“ Establishing a partnership is a relatively simple process. The broad legal and financial requirements include: A partnership agreement (optional). ”
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“ As partners stand in a fiduciary relationship with one another, each partner is considered to be an agent of the other partners in carrying on the business and has the ability bind other partners. Therefore, the partnership relationship carries the expectation that partners conduct themselves in ... ”
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“ Certain restrictions apply to individuals seeking to be a general partner or the manager of a limited partnership or incorporated limited partnership. A person may be ineligible if they are: An individual insolvent under administration; ”
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“ It is not essential to have a formal written agreement for a partnership to exist, and the agreement between partners can be oral or even implied. However, partnership agreements that effect a transfer of interests in real property must be in writing. Also, in Tasmania, a partnership that is to ... ”
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“ General and limited partnerships lack an independent legal personality, however the partnership legislation in each jurisdiction still allows for a partnership to hold property under certain circumstances. It is important to acknowledge the distinction between partnership property and a partner’s ... ”
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“ General partnership As far as third parties are concerned, each partner in a general partnership is jointly and severally liable for the debts, obligations and actions of the other partners and the firm as a whole. After his or her death, a partner’s estate is also severally liable for debts and ... ”
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“ Tax generally General partnerships ”
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“ Buy and sell agreements or put and call option agreements are commonly included within the clauses of a well drafted partnership agreement; however, they can also be used as a separate document alongside a partnership agreement. In a buy and sell agreement, the parties agree, that on the occurrence ... ”
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“ Buy and sell agreements are commonly used in conjunction with insurance policies which are taken out on the partners in relation to their death or total permanent disability. On the occurrence of either the death or total permanent disability of a partner the proceeds of the insurance policy are ... ”
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“ Mediation has cost and time saving advantages and can be particularly useful for partnerships where a small business with limited financial resources is involved. In mediation, an impartial and independent third party is appointed by agreement between the parties, or sometimes by a mechanism in the ... ”
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“ Litigation involves the parties to a dispute asking the court to determine the outcome. The decision of the court is binding on the parties and enforceable. Litigation is the most expensive and time-consuming method of dispute resolution. The stressful and adversarial nature of litigation often ... ”
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“ A dissolution that does not result in the partnership ceasing to operate is commonly known as a technical dissolution. The outgoing partner may assign their interest in the partnership to a new incoming partner or the existing partners. A reconstituted partnership is not required to apply for a new ... ”
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“ There are several events that will trigger the dissolution of a partnership: ”
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“ Subject to the partnership agreement, a general partner who wishes to end the partnership must give notice of their intention to dissolve the partnership in writing to the other partners. The partnership will be dissolved from the date identified in the notice. A written notice of dissolution ... ”
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“ A comprehensive deed of dissolution is a valuable tool for terminating a partnership. A dissolution deed should cover the following issues: A clause reciting and announcing the dissolution. ”
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“ An incorporated limited partnership can be wound up by terms in the partnership agreement or by a special resolution that is passed by at least 75% of the limited partners. The partnership agreement may also set out how assets are to be dealt with in the event of voluntary winding up. If there are ... ”
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“ Registrar’s certificate The registrar may give written notice to an incorporated limited partnership requiring the partnership to show good cause as to why it should not be required to be wound up. ”
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“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains ... ”
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