Question: What is the best way to sell parts or all of my business?

Short Answer: As unhelpful as it sounds – ‘it depends’

Key Takeaways

  • Asset Sales transfer the item/property/business without transferring past responsibilities.
  • Share Sales maintain the business but transfer control.
  • Choosing what works for you depends entirely upon your unique situation.

When selling integral aspects of a business, a question we are frequently asked is whether an Asset Sale or Share Sale is more appropriate.

Question: Can I sign documents electronically? 

Short Answer: Yes – but it depends on the document and where you are. 

Key Takeaways:

  • Contracts often have no signature restrictions, but enforcement can be an issue.
  • Some states allow electronic signatures or witnessing on other formal documents.
  • Corporations temporarily have greater flexibility when executing documents.
  • In WA, formal documents must be ink-signed and witnessed in person.

A common question we receive from clients is whether they are required to physically sign documents, or whether they can indicate agreement electronically (e.g. via email). This has been especially common during COVID.

Key Takeaways

  • Changes to the Strata laws introduce simpler, more efficient processes;
  • Disputes resolutions processes are clarified and simplified;
  • These reforms are significant and address substantial existing issues.

Changes to the Strata Titles Act 1985 (WA) came into effect on 1 May 2020. These changes seek to provide strata property owners and prospective buyers with better information and greater clarity on strata management and how to address disputes.

Question: Who is an ‘officer’ of a company? 

Short Answer: Directors & Company Secretaries and sometimes other key personnel 

Key Takeaways:

  • ‘officers’ have onerous duties to their company and its workers
  • Definition of company ‘officer’ expanded
  • May include decision-makers who do NOT hold a formal ‘officer’ position

A recent decision by the High Court of Australia has expanded how the definition of ‘officer’ is to be interpreted.

Question: When does a contract become binding? 

Short Answer: Contracts have fundamental elements – once they are established, an enforceable contract exists.

Key Takeaways

  • Contracts require key elements to be binding
  • They can be binding even without a signature or written terms
  • Other legal avenues might prevent ‘legal loopholes’ creating unfair results

Contracts are an everyday part of modern life.  From purchasing items from a supermarket to ordering a coffee, we enter into ‘binding’ contracts every day.

After nearly a decade of gradual progress, WA is close to implementing new harmonised Work Health and Safety (WHS) laws which will replace existing Occupational Safety and Health (OSH) legislation. 

The WHS Bill 2019 (WA) (WHS Bill) was introduced into WA parliament on 27 November 2019 and is nearing the final stages of implementation, potentially coming into effect early 2021. Its purpose is to address deficiencies in, and unify, the current legislation.

Below we look at the key changes that the WHS Bill will introduce as well as the protection it will offer above and beyond the ‘model’ provisions. Keep in mind these changes have not yet fully passed parliament and are subject to change.

Question: How do I know which workers are ‘employees’? What is the cost of getting it wrong?

Short Answer: Employees generally have more ‘permanent’ arrangements than other workers. Mischaracterisation can result in substantial backpay liabilities.

Key Takeaways

  • There are many categorisations of ‘workers’
  • Different types of workers get different benefits (pay rates, leave entitlements, etc)
  • Mischaracterisation leaves employers on the hook for unpaid benefits

The courts are regularly updating and clarifying the way that workers are characterised and how entitlements are calculated.  We are often asked by clients to help describe employment relationships and provide advice regarding worker entitlements.  In a constantly shifting legal landscape, getting the right advice is essential to achieving a desirable outcome.

Key Takeaways

  • Broad changes to ASX listing rules are effective 1 December 2019;
  • Newly listed companies face tighter restrictions for 24 months prior to listing; and
  • Cash payments now prohibited for some transactions.

Major changes to the ASX listing rules came into force in late 2019. These updates cover a wide range of areas and make it essential to have effective financial and legal advice.

Question: What is so important about confidentiality agreements?

Short Answer: They provide valuable and essential protection for your business.

Key Takeaways

  • Confidentiality agreements protect the sensitive information of your business;
  • Without them, valuable information could be shared with outside parties;
  • Breaching a confidentiality agreement can have serious ramifications.

Businesses might possess a wide variety of valuable or sensitive information. Whether this information concerns business opportunities ripe for exploitation, designs or reports which are the result of substantial investment, or just sensitive personal information, it is essential to have protection against its disclosure. Confidentiality agreements prevent this information from being shared with outside parties.

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DISCLAIMER: the above material is only general in nature and not intended to be specific to the reader’s circumstances. As laws change frequently, all readers are advised to undertake their own research or seek professional advice before relying on the information provided.

Let’s talk about how Marshall Lawyers can help you.