Business & Commercial Law

Take Care When Signing Things

• Don't sign anything until you read it.
• Don't sign anything until you understand it.
• Don't sign anything unless you agree with it.
• Don't sign anything with blank spaces or that does not include all the things that are important to you.
• Keep a copy of everything you sign.
• If you're told what is written down really means something different from what you think it means, don't automatically believe it.
• If you're not sure about signing something, take it to a lawyer before you sign it, not after.
• Keep good records.
• Written contracts are easier to prove than verbal ones.
• If someone is trustworthy enough to do a deal with, they should be willing to sign a written agreement.
• The answer to "Don't you trust me" is always "It is not an issue of trust; it is an issue of doing things properly".

Take Care When Buying Things

• If a deal looks too good to be true, it probably is.
• When you're buying something, don't rely on the advice of a salesman who gets paid only if you buy it.
• When buying a house, hire your own qualified home inspector.
• Do lots of research before hiring a contractor.
• If a deal is valid only if you sign right now, it's almost never a good deal.
• After you buy most things, you do not have 3 days to change your mind.
• You're still responsible for paying your lease, even if you move out early.
• If someone on the other side tells you that you don't need a lawyer, you almost certainly do.

Australian Consumer Law

The Australian Consumer Law (ACL) is a single, national consumer law.

The ACL includes:

• an unfair contract terms law covering standard form contracts;
• a law guarsanteeing consumer rights when buying goods and services, which replaces existing laws on conditions and warranties;
• a national product safety law and enforcement system;
• a law for unsolicited consumer agreements, which replaces existing State and Territory laws on door-to-door sales and other direct marketing;
• simple national rules for lay-by agreements; and
• new penalties, enforcement powers and consumer redress.

There are many publications about the ACL for both business and consumers at:

• Australian Consumer Law
• Consumer Affairs Victoria collection of resources
• Australian Competition & Consumer Commission (ACCC)
• Product Safety Australia

They have a separate brochure on Professions and Competition.

Fair Trading List of Publications also includes topics on building & renovating, associations, indigenous & youth and property & tenancy.  Some of this is available in video and audio as well.

Guidelines for developing a voluntary industry code of conduct assist industry members to improve business practices and compliance with their legal obligations.

Finance & Debt

For Creditors

Law Handbook S.A.suggest the steps that you should take before initiating legal proceedings to recover payment of a debt.

Once you reach the point where you decide to issue legal proceedings then you should look at NSW web sites for information as the law is different in every State.

For information on dealing with businesses in liquidation see Dealing with businesses in liquidation.

For Debtors

Office of Fair Trading NSW has a lot of information about consumer rights.

If you are in financial difficulty, then it is often helpful to see a financial counsellor. They can help you devise an action strategy to get your finances back on track and advise you on your options if you simply cannot afford to pay all your debts.

You can find a free counselling service near you using the Community Services Directory.

For information on bankruptcy go to Australian Financial Security Authority (AFSA). They also have information on some other choices other than bankruptcy for people who cannot pay their debts.

Mortgage Stress Handbook has information for people in trouble with paying their mortgage.

Consumer Credit Legal Centre NSW offer free financial counselling, information, referral and legal advice to individual consumers in NSW on credit, debt and banking.

Commonwealth Financial Counselling (CFC) Directory lists services funded by them.

Small Disputes

Disputes about many consumer claims and disputes, including issues involving residences and leases, are dealt with in the NSW Civil and Administrative Tribunal (NCAT). Other disputes involving less than $10,000 are dealt with in the Local Court as Small Claims.

justice has practical guides on Claims and debts of $10 000 or less Small Claims.

For more information on the Tribunal, Suing or being sued and Small Claims go to the Foolkit State Courts page.

DIY Resources

• Personal counselling services
• Audio guides on financial issues for indigenous people - Fed
• Bankruptcy - declare yourself bankrupt kit - Fed
• Bankruptcy forms and guides to have somebody declared bankrupt or to oppose your own bankrupty - Fed
• Getting a loan - NSW
• Common banking problems and how to get your dispute resolved - NSW
• Problems with insurance - NSW
• Problems with your loan - NSW
• Debt collectors can and can't do - NSW
• Debt Handbook - NSW

Industry Complaints Resolution Bodies

A number of industries have established independent offices to assist the public to resolve disputes with their members. Examples include banking, insurance and telecommunications.

Their sites often have useful information and links. They explain how they can help to resolve a dispute and what you need to do. Usually there are limits on the size of the dispute that they can resolve.

Industry Complaint Resolution Bodies

• Complaint Line - how to resolve a complaint and who to complain to for a wide range of industries
• Banking Industry Ombudsman (Now Financial Ombudsman Service) (ABIO)
• Australian Direct Marketing Association (ADMA)
• Australian Communications and Media Authority
• Credit Ombudsman Service(includes mortgage industry)
• Fair Work Ombudsman
• Franchising - Office of the Franchising Mediation Advisor
• Financial Ombudsman Service
• Produce & Grocery Industry Ombudsman
• Health Insurance Private Health Insurance Ombudsman
• Horticulture Mediation Adviser
• Australian Human Rights Commission (HREOC)
• Insurance Industry Ombudsman (now Financial Ombudsman Service)
• Intelligence Inspector General of Intelligence and Security
• Migration Review Tribunal and Refugee Review Tribunal
• Privacy Commissioner
• Migration Review Tribunal and Refugee Review Tribunal
• Oilcode Dispute Resolution Adviser
• Social Security Appeals Tribunal
• Superannuation Complaints Tribunal
• Telecommunications Industry Ombudsman
• Veterans Review Board

NSW Complaint Resolution Bodies

• NSW Civil and Administrative Tribunal (NCAT)
• Anti-Discrimination Board
• NSW Commission for Children & Young People
• Department of Family and Community Services
• Disability Complaints Service
• Energy and Water Ombudsman NSW
• Health Care Complaints Commission
• Housing Appeals Committee
• Independent Commission Against Corruption
• Industrial Relations NSW
• Bench Books
• Office of the Legal Services Commissioner
• Police Integrity Commission
• Information and Privacy Commission
• Veterans Review Board

Starting and Running a Business

Federal Government Business Web site is the entry point to the Australian government's resources for business and is very practical. It includes information on starting or buying a franchised business.

Small Business NSW has both online information and programs for business owners. It also has an online Small Business Toolkit (includes videos).

NSW Small Business Website has information on the business life cycle, business regulation, doing business with the NSW Government, Employment, Programs and Grants and Environmental issues.

How-to-guides from the excellent business.gov.au site.

Business Plans & Checklists is an online library which brings together a wide range of business tools. It includes templates, calculators, tips and how to guides.

Other sites to obtain general information on running a business are:

• Invest Victoria and the Industry body Australian Venture Capital Association.
• Franchise Council of Australia - Franchisee Manual - Franchising Code fact sheets
• Workcover NSW
• Business Licence Information Service

Business Enterprise Centres

Business Enterprise Centres (BECs) are independent, community-based organisations, which provide advice and assistance to existing and potential small business owners and operators. They have offices located in city and country areas throughout Australia.

Environment Protection

Department of Environment, Climate Change and Water (NSW).

Information for Business has information on licensing, good environment practices and legislative requirements. 

Intellectual Property - DIY

• Register a Trade Mark using Headstart - Fed
• Copyright and other issues in the Arts - Fed
• Standard Contracts for Arts Law - Fed
• Intellectual Property Explorer - Fed online business tool to help you identify and protect your IP assets
• delete Ausinvent - NSW collection of resources for inventors and commercialising ideas
• Copyright infringement and letter of demand

Good names for your business

Choosing a name that won't get you into trouble with anyone can be difficult. It is not enough just that you registered a business name or domain name. Even a Registered Trademark can be challenged later on.

For discussions about this see Business names, company names and domain names and What is a business name?. Places you check should include these:

• Search available Domain Names
• Search who owns a domain name
• Searching the business names register
• ASIC National Names Index of company and business names
• ABN - Search the Registry
• Trade Mark Check
• Trade Mark Searches ATMOSS (sign on as a guest)
• Google or other search engine
• White Pages (search State by State)

Registering a business name lets you register a Business Name online. Alarm bells should ring if you are choosing a name because it is sort of like somebody else's name.

Consumers - DIY

• Problems with insurance - NSW
• Car buyers handbook - NSW
• Used car buyers Guide - NSW

Which Business Structure

Should you set up your business as a sole trader, partnership, trust, company or something else?

Each is quite different from a tax, risk and management point of view.

With tax, you need to consider not only income tax on your profits, but also Capital Gains for when you finally dispose of your business. Some structures expose you to more tax, and others give you the opportunity to spread your income amongst the family.

Risk needs to be considered in the context of what other assets the family owns and whose name they are in and any risks that are involved there. It is not just about the risks in your business and that you may put the family home at risk.

It is important to make the right decision as early as possible. It can be very difficult and expensive to change later on.

You should seek the advice of your solicitor and accountant before deciding on a structure.

Not For Profits & Social Enterprises

• Not For Profit Law Information Hub
• Social Enterprise Guide

Personal Property Securities Register

The new Personal Property Securities (PPS) law is expected to commence shortly. A new national register of personal property securities is part of the reform. The register will help you manage credit risk, check for debt owing on goods planned for purchase, and search and register security interests in personal property.

Personal Property Securities Register has information for anyone involved in finance secured by personal property, leases of personal property and supply of goods on a retention of title basis. The law affects buyers as well. Under Information Resources they have videos.

Internet

Stay Smart Online The Australian Government's cybersecurity website provides information for Australian internet users on the simple steps they can take to protect their personal and financial information online.

For information about transactions online refer to the topic on Australian Consumer Law on this page.