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Expertise 2018-02-05T09:11:37+00:00

BUSINESS LAW

Part of Adam Ahmed & Co’s services is in acting as advisers generally to our business clients.

Business law covers a range of areas which arise when someone is starting a business, running a business or even interacting with a business, such as:

  • What is the best structure to use when setting up a business?
  • Are there any legal implications to consider when buying a business?
  • Are there any legal implications to consider when selling a business?
  • What needs to be covered in a sale or supply contract, intellectual property contract, loan contract or other business related contract?
  • What to do if you are involved in a dispute or a relationship that has gone sour.
  • How to best protect yourself from disputes, non-paying customers, or being sued?

The law can only help so much and the legal system is not really designed for quick outcomes.  It is far better to be clear upfront, negotiate properly and then document what was agreed with a view to preventing disputes.  The best contracts are the ones that have been well negotiated and never looked at again because they are never needed.

Free information on commercial / business law in Australia:

DEBTS TELL A STORY

The story of a person who worked hard and didn’t get paid.  Or the story of a person who got a bill they couldn’t afford to pay – often not by choice.

Debt collection takes place when creditors or collectors that represent creditors seek to secure payment from consumers or businesses who they think are legally bound to pay or to repay money owed. It is important that any organisation involved in recovering debt is aware of its legal obligations.

Whatever the situation, each side has rights and you should know what they are.  For example, there are some rules around what a debt collector should and should not be doing.  A debt collector should not be using physical force, harassing or hassling you to an unreasonable expect, misleading or deceiving you or taking unfair advantage of any of your vulnerabilities.

Tackle the problem head on, but make sure you know the rules.

Free information on recovering or defending against debt recovery and other claims:

DEFAMATION AND YOUR RIGHTS

You know you’ve been defamed when you hear something about yourself or read something about yourself and you feel sick to the pit of your stomach.  You feel that special anger and hurt that comes from reading something about you that’s untrue.  From the fear that someone else might believe it.  You start to wonder – who else read this?  Who else has heard this?  What will this mean for me?  How do I stop it?

Your reputation has been affected. Your image has been affected.

Defamation has a lot of names – slander, trolling, gossip, rumour, innuendo – whatever you call it, you have rights. The law of defamation tries to make good when something like this has happened.

What is defamation?
Defamation goes to the heart of your reputation and can cause serious damage to your income earning ability and your general well-being. Anyone who has had damaging material written or said (legal term is “published”) about them can take legal action against authors, publishers, broadcasters and distributors to defend their reputation.

Is there any way of defending a claim of defamation made against me?
There are several defences or justifications, such as the publications were true or are subject to qualified privilege (e.g. what your boss or co-workers say about you when reviewing your job performance).

What can I do about defamation?
You should first contact the person defaming you and tell them to stop, issue a retraction and/or apology, and, if you think it is justified, as for compensation.
If you end up going to Court, you can ask the Court for damages (compensation) and injunctions (to stop the person from defaming you in future).
Often retractions and apologies can reduce the amount of any damages awarded.

Free information on the law of defamation:

EMPLOYMENT LAW

Asuccessful relationship between an employer and an employee is one of the keys to success for a business, with both sides have obligations to the other.
In this regard, employment contracts are not much different to commercial contracts in that they spell out what is expected of each party. However, the real benefit is in the negotiation phase, where each side tells the other what they would like and are expecting. The deal should be clear, so both sides are able to enter into it willingly and then proceed to what will hopefully be a productive relationship.

On top of the contract, there are a significant number of statutory rules that need to be complied with. These generally relate to working conditions, minimum wages and leave. The effect is to create a base minimum standard that all employment arrangements need to comply with.
Essentially any employment arrangement needs to be equal to or better than the minimum standard.

There are a few grey areas:

  • whether a person is an employee or a contractor for employment law purposes, tax, superannuation or other purposes. An independent contractor does not have the same rights as an employee – think of the guy who comes to your house to fix a tap (a contractor) vs someone you instruct on how to do their job (an employee).
  • protection of the employer’s intellectual property, such as who owns the copyright in work created by employees.
  • any pre-requisites for employment.
  • non-compete provisions for when an employee leaves (these can be notoriously difficult to enforce)
  • extended probation periods
  • performance measures; and
  • termination provisions

Some of these areas can be clarified in the contract, but others will be subject to existing laws which may override the contract (e.g. with non-compete clauses).

A general rule is that contracts are only really looked at if there is a problem, so the first step is to make sure it reflects what the parties intend and expect of each other and the second is to draft it in a way that will, as best as possible, effect what you have agreed to do.

If you’re looking for a job or looking to hire someone for a job you want to make sure everyone is on the same page and that the deal is fair.

Be smart.

Free information on employment law:

FAMILY LAW

Family law covers all domestic relationships and is therefore deeply personal for most people. The three most common areas covered by family law are:

  • relationship breakdown (e.g. divorce) whether a marriage or defacto – allocation of assets between the parties and any maintenance payments from one side to the other.
  • children – custody of children of a relationship, visitation rights and child support payments.
  • Wills – being left out of a will or not being given enough out of a will and asking for a share (or greater share) through the Court process.

Family law is one of the most emotional areas of law. Your children are at stake – will you see them again? How often will you see them?
Your spouse and you have drifted apart – will you be financially ruined by divorce?
You hate your spouse – can you get out of having to give them anything? Do you have to keep seeing them?

Dealing with the law is hard enough. Dealing with the emotional turbulence just makes it that little bit harder.
Be informed and objective (as much as possible). You can get through this. Get as much information as you can so you know what is happening and can take control of the situation as soon as possible.

Free information on family law:

INTERNATIONAL TAX

If you are a foreign resident doing business in Australia or an Australian doing business overseas, welcome to the wonderful world of international taxation.

A world where every country wants a share of your profits, someway, somehow. But you know if you pay two or three different governments taxes you won’t have anything left.

You also know, instinctively, that no tax authority is going to feel sorry for you. Can you imagine the ATO in Australia feeling sorry for your ‘multinational’ business? Yes, you are a multinational now, because you are operating in more than one country. You have about as much chance as when you see a parking inspector starting to give you a ticket, you run over and ask them not to, but apparently now they have ‘no choice’ because they have already ‘put it in the system’.

It’s up to you to make sure that your operations are successful and all your profits aren’t eaten up in taxes.

The key issues you will be looking at will be:

  • Residency – most countries tax on a residency basis, so which country are you a resident of? Is it vague and if so is there something you can do to make it clear?
  • Source – countries also try to tax profits that are sourced in their country. You can see a problem here, right? If you are resident in Australia (taxed in Australia) but your profits are sourced in, say, France, will you be taxed in both countries?
  • Branches and permanent establishments – countries will try to tax permanent establishments and branches – these are non-residents that are not normally subject to taxation that are operating in the country so the country taxes them anyway.
  • Tax treaties – if you are operating between two countries that have signed a ‘tax treaty’, the tax treaty will often dictate which country can tax what money. The idea is to prevent you being taxed in two countries at the same time. Does one of these apply? Can you organise your business in a way to ensure you don’t get taxed twice?
  • GST, sales taxes and other indirect taxes – some taxes are federal and some state based – and not all tax types are covered by tax treaties. Are there any indirect taxes you need to pay? GST is legally required to be paid by the seller – because they are the ones collecting the money – even though people look at it as if the buyer is paying the GST. They are (sort of) but they do this by giving the money to the seller who is then legally obliged to pay the tax office.
Free information:

LIQUIDATION AND INSOLVENCY

An insolvent company is one that is unable to pay its debts as and when they fall due for payment.

The three most common corporate insolvency procedures are voluntary administration, liquidation and receivership. The personal insolvency procedures that apply to a person, not a company, are bankruptcy and personal insolvency agreements.

All of these require the appointment of an independent person – be it a liquidator or bankruptcy trustee – who then basically takes over and looks at what you’ve done and throws the book at you if you’ve made a mistake.

This can be a tough pill to swallow because most people are just trying to have a go and worked as hard as they could to keep customers happy or grow the business. When tough times come the instinct is to double down and see if you can turn things around.

Nobody reads the corporations act when they are focusing on building their business, making sales and focusing on customers. However, the corporations act assumes you did read it and were as familiar with it as a law school professor.

When a business runs into money problems, debts mounting, people notaren’t paying, you’re spending so much time dealing with problems you don’t have time to spend growing the business, let alone reading the corporations act, which you neglected to read when you started the business. It is a vicious cycle.
Planning and advice is key here because the independent person you appoint (e.g. liquidator or bankruptcy trustee) want to be paid and the usual source of money is you. The company has no money anymore. Where else is the money going to come from? Think about it.

You have rights and you have options. Be smart. Plan and have a strategy, pivot and take control of the situation.

Free information on liquidation and insolvency:

PROPERTY LAW

You’re property is your most valuable asset. You buy it, you sell it, you borrow against it, you give it to your kids. You fight with the neighbour, or work with the neighbour. You develop it. It’s your home. It’s an investment.

Of all the areas of law, property law includes the most jargon. Did you know that a mortgage is really an equitable right to own your own home, subject to you paying back the loan? That means the bank sort of really does own you home, and you just have a right to own it if you pay them back.

But property is so much more, for example:

  • leases (a right to ‘quiet enjoyment’ of a property, subject to paying the rent)
  • easements (rights of someone else to use your property)
  • strata (which really means you own a patch of airspace)
  • covenants (promises)
  • options to purchase

A developer might want an easement on your property, in which case you will want to know if you can say no (there is a Court process to force you to say yes) and you will want to maximise how much compensation you get. The same happens if you are forced to sell your property.

You may want to give someone rights over your property subject to them agreeing to do certain things. Did you know that if you don’t use the right wording, these promises won’t be enforceable?

You might have a contract to purchase a property at a great price that someone now wants to back out of.

Then there is the assortment of taxes – capital gains tax (can you get a discount or exemption from tax?), GST, land tax and stamp duty.

There are all sorts of possibilities, but one certainty – because property is so valuable you want to get it right.

Get the most value out of your property.

Free information on property law in Australia:

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TAX LAW

Tax law can be divided into two areas.

The first is tax planning. This is where the perception that the rich know all these strategies to minimise their taxes come from. They pay these fancy accountants and lawyers. They know the loopholes. You can know how the tax laws work and get access to the same information as everyone else because this is really just tax planning – thinking about the different ways something can be done and the tax implications each time.

An easy example – some people live in a house, renovate it and then sell it. If you do it this way, you may not have to pay tax on the gain because it is also a main residence. However, if you did this for an investment property then you would need to pay tax each time you sell.

Another example – you might have a mortgage, paying interest and not being able to claim the interest. Well, if you run your own business you can pay down the house with pre-tax money and then borrow money to pay off your tax debt – all of a sudden the interest becomes deductible..

There are so many things you can do.

If you are running a business there are also options that allow for the deferment of taxes (i.e. you don’t pay now, you pay later). If you do this, it leaves you more money now to re-invest in the business.

Planning gives you financial advantages and you can’t afford not to plan. Your competitors and others are planning and meanwhile you are working harder than you need to or you business is less competitive because you aren’t.

There are so many areas to consider, capital gains tax, GST, the taxation of financial arrangements, capital works and capital allowances (depreciation), international tax, permanent establishments, residency, withholding taxes, stamp duty, land tax, payroll tax, the list goes on. Its easy to get stung by an unexpected tax if you do not plan.

The second area is tax audits, reviews, objections and appeals. The ATO or the state revenue office audit and review small businesses all the time. Why don’t they target the rich? Or the big companies? They say they do but when you are dealing with the ATO it doesn’t feel like it sometimes. Not when you are a small business owner, struggling to grow your business, and being hit with an audit or review and told you need to pay.

This type of compliance activity is all about knowing where you stand, having a strategy and executing that strategy. If you are under audit, things can go bad very quickly and very easily. The ATO does not have a lot of patience and will make negative assumptions about you if they don’t have any other information. Sometimes they will make negative assumptions anyway. The tax system works like this – the ATO tells you what you owe, and can force you to pay – and it’s up to you to tell them why they are wrong. It is guilty unless proven innocent.

It sounds unfair and harsh but that’s how it is and it is better to know that now than find out the hard way.

Strategy is key. So is planning.

Tax is all about strategy and planning.

The tax law is the same for all Australians. The only difference is access to quality information and knowing your rights.

Feel that sense of confidence from knowing your taxes are correct and comply with the law.

Be smart.

Free information on Australian tax law:

WILLS

AWill is a legal document that clearly sets out your wishes for the distribution of your assets after your death. Having a clear, legally valid and up-to-date Will is the best way to help ensure that your assets are protected and distributed according to your wishes. You won’t be around to tell anyone who your assets – that you worked hard all your life for – will go to. The Will is all there is.
Studies show that half of all Australians do not have a current Will. If you die without a Will no-one knows who you wanted as your beneficiaries, or who you wanted as your executor (the person or organisation you nominate to administer your estate upon your death). Your assets will be distributed according to a set formula with certain relatives receiving a defined percentage of your assets, despite what you may have wished. Worst case it will just go to the Government.

The Will also creates a unique opportunity for tax planning and asset protection as you leave assets for the next generation or even for a charity or cause that you support.
Of course, this opportunity only exists if you have a Will.

Do you want your kids to have a better life than you did?

Do you want your hard-earned money to go to a cause or to something you care about?

You build wealth for your children and family, be smart about it. When you go, you won’t be around to help.

You need to get it right.

Free information on Wills and Estate Planning law:

Expertise

Expertise- At Adam Ahmed & Co we have qualified commercial lawyers and qualified accountants meaning we can leverage both sets of skills to your maximum advantage.

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