Business Law

Vamp Law's business law practice covers the legal side of owning and running a business, with a focus on avoiding disputes and resolving those that arise. It acts for sole traders, companies, directors and shareholders across NSW.

Every matter is run directly by Kyra Pastrovic, who has worked in a number of Australia's leading law firms, servicing international and national commercial clients. For disputes already under way, see commercial litigation.

The right structure depends on ownership, risk and plans for growth, and it affects personal liability from the start.

Founding documents, such as a shareholders agreement or trust deed, set out what happens when owners disagree or one leaves, and are easier to agree at the start.

Disputes between a company's owners are resolved first under its own rules and then, if needed, by the court under the Corporations Act 2001 (Cth). A company's internal management can be governed by the replaceable rules in the Act, a constitution, or both (s 134), and those rules operate as a contract between the company and each member and director, and between the members (s 140). A shareholders agreement can add rules on funding, deadlock and valuing an outgoing owner's shares.

Where the conduct of a company's affairs, or an act, omission or resolution, is oppressive to, unfairly prejudicial to or unfairly discriminatory against a member, or contrary to the interests of the members as a whole, a member can apply to the court (ss 232 and 234). The court can make any order it considers appropriate, including for the purchase of shares or winding up the company (s 233).

A member or officer can also seek leave to sue in the company's name, for example against a director. Leave requires, among other things, that the company is unlikely to act itself and that the applicant acts in good faith (ss 236 and 237).

Directors owe duties under the Corporations Act 2001 (Cth) and the general law, and a breach can expose them personally. The main statutory duties are:

These are civil penalty provisions, and s 184 makes a reckless or dishonest breach of the good faith duty, or a dishonest misuse of position or information, a criminal offence. Directors must also prevent insolvent trading (s 588G; see insolvency). Advice is worth getting before a contested decision, on any conflict of interest and once solvency is in doubt.

The Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth), applies between businesses as well as to consumers. Section 18 prohibits misleading or deceptive conduct in trade or commerce, including in negotiations, and a forecast or other representation about a future matter is taken to be misleading if made without reasonable grounds (s 4). Loss can be recovered from the business or anyone involved in the contravention, within six years (s 236).

Small businesses are also protected from unfair terms in standard form contracts for goods, services or land where at least one party employs fewer than 100 people or had a turnover of less than $10 million in its last income year (s 23). An unfair term is void, and since 9 November 2023 proposing or relying on one can attract a penalty, for contracts made or renewed from that date and terms varied or added on or after it. See contract law.

Check the business itself, the seller's promises, which contracts can transfer and the restraint on the seller.

A retail tenancy dispute in NSW must generally be mediated before court or tribunal proceedings start. The Retail Leases Act 1994 (NSW) covers premises used for prescribed retail businesses and for any business in a retail shopping centre, with exclusions such as shops of 1,000 square metres or more and leases of 25 years or more.

Under s 68, apart from applications for an order in the nature of an injunction, proceedings cannot be brought until the Registrar of Retail Tenancy Disputes, within the NSW Small Business Commission, certifies in writing that mediation has failed, or the court or tribunal is satisfied that mediation is unlikely to resolve the dispute. NCAT, the NSW Civil and Administrative Tribunal, can then determine retail tenancy claims up to a monetary limit. A claim generally must be lodged within three years after the liability or obligation arose (s 71).