legal advice Tag

There are different laws which relate to different kinds of law suites. The procedure that needs to be followed in the early stages to prepare a response are however the same in all the courts. The Uniform Civil Procedure Rules set the procedural rules relating to most litigation, except for the Queensland Civil and Administrative Tribunal which is a much more relaxed jurisdiction. Our focus in this article are claims relating to a commercial disputes. Civil disputes can be brought in a number of different jurisdictions.  These kinds of disputes include:

Almost every commercial lease will provide that before a lease can be assigned, the consent of the landlord must be obtained.   If  you have commercial premises associated with your business there are some very good reasons to make sure that the assignment of the lease is properly handled. We recently acted for a commercial tenant.  This client came to us with a big problem, which had only become obvious to them a year after the date of the sale of their business. The commercial tenant had sold their business a year earlier and had assigned the lease of the business premises to the buyer.  Things did not go smoothly. The landlord set out the conditions upon which consent would be given.

Dealing firstly with whether it is possible to franchise your business.

If your business:

  • was only established in recent years,
  • has not been tested over time in a range of economic conditions,
  • is not a respected and recognizable brand in your local area,
  • does not utilize  operational documentation relating to the processes employed in that business,
  • is not strongly supported by employed managers who are fans of the business,
  • does not utilize a patent or other assets that other potential business owners would value and
  • does not produce a healthy profit after factoring in the franchisors anticipated administration and promotions costs

then you are probably not ready to franchise.

In our last article we described how it is necessary for a Queensland landlord to issue a form 124 notice before taking any steps to retake possession of premises from a tenant who holds those premises under a Queensland Commercial Lease. A commercial tenant will always have the right to apply to the courts for something called "relief against forfeiture".   The relief may be given even if the tenant is in default of the lease and even though the lease specifically provides that the landlord has the right to terminate. Courts have a wide and unfettered discretionary power to take into account all of the circumstances before deciding if the Court will allow a landlord to retake possession from a tenant.  Therefore a landlord may not have the ability to terminate a lease even if the tenant is in default. A tenant cannot claim relief against forfeiture before the landlord has commenced proceedings for possession or has taken possession. If the tenant anticipates that the landlord is making preparation to take possession then the tenant may apply for an injunction.  The tenant may do this once the section 124 notice is served. So how does the court decide if it will grant this "relief against forfeiture"?

Do you lease premises for your business? Many business owners do not realize that when they sell their business and assign their lease, they may remain liable to the landlord for many years after the assignment.  If the buyer (the new business owner) can't pay the rent then the landlord may come looking for the previous tenant to cover the loss.  Is that you?

Many leases actually provide that an assignment of the lease does not release the previous tenant from liability to the landlord. Don't despair!  Read to the end of this article where we make reference to some legislation that may assist if you are a retail shop tenant.

Lots of people have great ideas but, do not have the time, the focus or the money, to implement or advance those ideas.  In these times, which many business people see as, uncertain times, people are not prepared to take a risk, even if the potential reward is handsome.

There are however ways of reducing the cost and risk associated with the development of  an idea, project or business, while at the same time obtaining access to a bank of  ideas, knowledge and resources, at no upfront cost.  Yes, less cost and a better chance of success!  It is possible!

Unless you have seen first hand, the way that legal proceedings can be built or destroyed, by a written note relating to a matter in issue, then you cannot appreciate how much lawyers and the court system love bits of paper.  Written notes on  bits of paper can literally determine the outcome of legal proceedings.

The absence of written notes can cause lawyers on both sides of an argument to work for days preparing affidavit material, each trying to recount, with limited success what was said.  In many cases the factual debate is often won by the person with the best supporting paper.

"That contract's not worth the paper its written on".  I understand that this is how people may feel, when they have  taken the time to make a contract, yet a dispute arises anyway.  Nevertheless this statement is rarely true, where a contract is properly drafted.

The point of a contract is to provide the parties to the contract, with a starting point, in case there is a  disagreement.  It is not the case that a White Knight will ride in, to put things right, when the terms of the contract are broken.  If the agreement is properly drafted there will be a good number of matters on which it is more difficult to have an argument.  Yet there will remain scope for an argument and it is up to you to enforce your rights.  You will see below there are things that you can do to make a dispute less likely.

Most transactions whether for the sale of property or a business include at least two or three important dates. These dates are:

1. The date that the contract is signed by the parties to that contract

2. The date that special conditions are satisfied

3. The date that the contract reaches settlement or completion. The completion date and the settlement date are different words, used to describe the same thing.

Which of these dates do authorities rely upon when determining the date of the sale?

Assume firstly that the hypothetical Franchise System is a properly run Franchise System. Of course this is not always the case. In this hypothetical system, what then are the primary risks to success? It should be expected that the reasons for failure in small business are in many cases the same as the reasons for failure of a Franchisee within a franchise system. The failure rate for franchised businesses  is perhaps less than for private small business as a whole because while some applicants would not be accepted by any competent franchisor, there is no restriction on any punter starting a business. It must be accepted that some people are not suited to owning a business. What however are the most common reasons for failure within a franchise system. I recently followed a panel of advisors who considered these to be the primary causes of failure: