Commercial Law

A company name must not be identical to an existing name. If you are not yet ready to register the company but want to secure a name, you can apply to reserve it. If ASIC approves your application, the name will be held for two months. If you need to extend the reservation, you must apply again. Check for existing trademarks or similar names. Even if you have reserved or registered a name, other companies with similar trademarks or names may take action against you. It is your responsibility to ensure that your chosen name does not infringe upon any existing trademarks or company names. A company’s name must reflect its legal status. It must disclose the members' liability and status. If the members' liability is limited to the unpaid amount on their shares, the company name must end with "Proprietary Limited." If members have unlimited liability, the name must end with "Proprietary."

According to Australia's current immigration policy, many new immigrants obtain the Business Innovation and Investment visa (subclass 188A). For such immigrants, the key to obtaining permanent residency is establishing and operating a business in Australia. In Australia, businesses and companies are separate entities, meaning that new immigrants usually need to establish a company before purchasing a business. The applicant must be the primary shareholder and director of the company and must register a business number (ABN, ACN). This company qualifies to purchase a business, and the business can be registered under the company’s name.

Prior to signing a commercial lease, the landlord must provide the tenant with a proposed lease and a Lessor Disclosure Statement no less than seven days before the signing date. If the landlord fails to comply, the tenant may have the right to terminate the lease. The tenant must also provide a Lessee Disclosure Statement, disclosing any representations or promises made by the landlord during negotiations. If the lease does not reflect these promises, the tenant may seek compensation. If the tenant operates fewer than five retail businesses, they must also obtain a Legal Advice Report from a solicitor and a Financial Advice Report from a registered accountant before signing the lease, ensuring full understanding of the lease's terms.

A lease agreement grants the tenant exclusive possession of the leased premises for the duration of the lease term. This exclusive possession allows the tenant to exclude others, including the landlord, from the premises. Under common law, the tenant enjoys the right of quiet enjoyment. However, the premises must be specifically defined, enclosed, and lockable for exclusive possession to apply. A licence agreement, on the other hand, does not grant exclusive possession. The landlord merely permits the tenant to use certain rights over the property, typically for areas that are not lockable or enclosed, such as car parks or common areas in shopping malls.

Employers must backpay any underpaid wages and may be subject to penalties. If an employer is found to have underpaid wages, they must pay the difference, and the Fair Work Ombudsman (FWO) may impose fines based on the severity of the violation. The 2017 amendment to the Fair Work Act 2009 (Cth) placed more emphasis on protecting vulnerable workers, including international students, immigrants, and non-native English speakers. Employers who underpay wages will face significant penalties, and workers' rights will be protected.

Force Majeure refers to unforeseen, unavoidable, and insurmountable natural or social events. This concept, derived from civil law, corresponds to the common law doctrine of Frustration of Contract. There are three essential elements of force majeure: the event occurs without human intervention; it is unforeseeable; and it is beyond the parties' control, making performance impossible. In Lebeaupin v Richard Crispin & Co, the court defined force majeure as any event beyond human will or control, including acts of God, war, strikes, embargoes, unusual weather, and epidemics.

In Taylor v Caldwell, the doctrine of frustration was defined: when an event occurs that is beyond both parties' control and makes it impossible to perform contractual obligations, the contract is automatically discharged, and unperformed obligations are excused. Events such as the death of one party, destruction of the contract’s subject matter, changes in law making performance illegal, and court orders are examples of frustration. Notably, foreseeability and self-induced events do not constitute frustration. Therefore, if one party is unable to perform their obligations due to COVID-19 (e.g., quarantine, travel restrictions), the doctrine of frustration can often be relied upon to excuse non-performance.

In Queensland, Australia, choosing the right law firm for your business is crucial. Auslaw Partners provides comprehensive business legal services to ensure your business operates legally and compliantly, while offering professional advice when needed. Below are some key reasons to choose our firm:

1. Professional Experience: Auslaw Partners has extensive experience in business law in Queensland. We specialize in handling various business matters, including company formation, shareholder agreement reviews, business acquisitions and sales, and commercial property transactions.
2. Tailored Legal Solutions: Our business lawyers will tailor solutions to meet your specific needs, ensuring your company complies with the Corporations Act 2001 (Cth) and other relevant laws. Whether drafting shareholder agreements or assisting you with commercial property transactions, you can rely on our expertise.
3. Comprehensive Online Legal Support: With the development of the internet, online businesses face unique legal challenges. Auslaw Partnersprovides specialized legal support covering privacy policies, website terms of use, and more, helping your online business operate smoothly within a legal and compliant framework.
4. Risk Management and Dispute Resolution: We not only help you develop risk management strategies but also provide effective legal support when disputes arise. Whether it is a business contract dispute or a shareholder conflict, Auslaw Partners can offer practical solutions.
5. Localized Service: Auslaw Partnersunderstands the legal environment in Queensland and can provide tailored local legal services to ensure your business operates steadily within the legal framework.

The core responsibility of a business lawyer is to provide legal advice to businesses, help protect their business interests, and ensure compliance with the law. Specific services include:

1. Contract Management: Drafting, reviewing, and negotiating business contracts to ensure the terms are legal and beneficial to the client.
2. Company Governance and Structure: Providing advice on business structures and drafting company constitutions, shareholder agreements, and more.
3. Compliance and Risk Management: Identifying and mitigating legal risks in business operations and ensuring compliance with relevant laws.
4. Mergers and Acquisitions:

5. Dispute Resolution: Handling business disputes and coordinating litigation or mediation processes.
6. Project Management: Coordinating interdisciplinary teams to ensure projects are executed smoothly.

Due diligence is a key step to ensure the safety of a transaction, typically conducted before signing a contract or within the contract's due diligence period.
Core checks include:

1. Financial Review: Verification of financial records, cash flow, and liabilities by an accountant.
2. Employee Review: Employee list, salaries, and vacation entitlements.
3. Legal Compliance: Licenses, leases, intellectual property, and validity of supply agreements.
4. Asset Review: Checking equipment availability, inventory, and accuracy of accounts receivable.
5. Leased Property Condition: Ensuring the property meets intended use and zoning requirements.

In Queensland, you can register a security interest via the Personal Property Securities Register (PPSR) to gain priority in case the debtor defaults or goes bankrupt.
The registration steps are as follows:

1. Confirm the secured property: For example, vehicles, machinery, equipment, inventory, accounts receivable, etc.
2. Draft a security agreement: Clarify the debt amount, performance conditions, and scope of security.
3. Register online in the PPSR systemand retain the registration number and confirmation letter.
4. Renew and update: Security registrations usually have an expiry, and must be renewed before they expire.

Yes, it is legal, but debt collection agencies must comply with the laws of Queensland and the Federal Government, including licensing requirements, code of conduct, and not abusing their powers. Key requirements include:

1. Licensing Requirements: In Queensland, all debt collection agencies must be licensed. As a creditor, you should ensure that the debt collection agency you use holdsa valid license.
2. Code of Conduct: According to the Australian Competition and Consumer Commission (ACCC)and Australian Securities & Investments Commission (ASIC), the Debt Collection and Creditor Behavior Guidelines, debt collection must not include “excessive harassment” or threaten to imprison debtors (unpaid civil debts in Queensland cannot lead to imprisonment).
3. Reasonable Contact: Debt collection must occur within reasonable hours, frequency, and methods, without harassment or contacting during weekends or late nights.
4. Debtor Rights: Debtors have the right to clear explanations, question the debt, and file complaints regarding collection activities. Creditors must also monitor the conduct of debt collectors to ensure they comply with regulations.

When you, as a creditor, are owed money in Queensland, the legal process for recovering debts generally includes confirming the debt, sending a demand letter (letter of demand), selecting the appropriate judicial route, and enforcing payment if necessary. The process is as follows:

1. Confirm the Debt: Check the owed amount, contracts/invoices, payment terms, and any payments already made. Only if the debt is legally valid and supported can the next steps proceed.
2. Friendly Communication + Payment Demand Letter: You can first remind the debtor via phone/email; if there is no response, send an official letter of demand, clearly stating the amount, reason, final payment date, and consequences for non-payment (i.e., legal action).
3. Choose the Correct Court or Arbitration Body:
4. For debts ≤ A$25,000: You can apply to the Queensland Civil and Administrative Tribunal (QCAT).
5. For debts > A$25,000: You may file a lawsuit with the Magistrates Court, District Court, or Supreme Court, depending on the amount and situation.
6. Enforce the Judgment or Arbitration Outcome: If the court or QCATrules that the debtor must pay but they still refuse, you can apply for enforcement orders, asset seizure, bank account garnishment, or bankrupt proceedings.
7. Statute of Limitations: In Queensland, the statute of limitations for contractual debts is 6 years (starting from the debt’s creation), and if the time limit has passed, you may not be able to recover the debt.

In Queensland, commercial contracts are a key foundation for business operations, and breach risks are common in the course of contract performance. To effectively manage breach risks, businesses need to take a series of preventive and responsive measures to ensure the contract's legality and enforceability.

1. Clarify Contract Terms

• Performance obligations: Clearly define each party’s specific duties and responsibilities.
• Payment terms: Include payment amounts, methods, and deadlines.

2. Set Reasonable Breach Remedies

• Compensation clauses: Define the amount to be paid by the breaching party.
• Penalty clauses: Set a fixed amount as a penalty to compensate for the other party’s loss.
• Contract termination clauses: Clearly state that the non-breaching party can terminate the contract and seek damages in case of a breach.

3. Regularly Review Contracts

4. Risk Management and Prevention

• Credit checks: Perform a credit check before entering into a contract with a partner to ensure their performance capability.
• Insurance arrangements: Consider insuring against breach risks to mitigate potential losses.
• Regular communication: Maintain good communication with the contract party to detect and resolve potential breach issues early.

5. Dispute Resolution and Timely Response

Business contracts are the foundational documents for business cooperation, and any oversight may lead to subsequent disputes or financial losses. Before signing, the following clauses should be carefully reviewed:

1. Parties' Information— Ensure that the company name, ABN (Australian Business Number), or ACN (Australian Company Number) are accurate.
2. Contract Subject and Price— Clearly define the goods, services, and payment terms.
3. Term and Termination Clauses — Including renewal, cancellation, and default compensation.
4. Confidentiality Obligation and Intellectual Property (IP) Ownership.
5. Dispute Resolution Mechanism— Mediation or arbitration may be agreed upon.
6. Applicable Law and Jurisdiction — It is preferable to choose Queensland law to reduce the risk of litigation in other jurisdictions.

• Lack of clear payment terms or delivery standards.
• Neglecting default remedies.
• Failure to specify confidentiality and non-compete clauses.
• Using online templates that result in unenforceable contracts.

In Queensland, commercial contracts usually do not need to be in writing as long as the essential elements such as offer, acceptance, consideration, intent to create legal relations, and clear terms are present, the contract will be valid. This means that contracts can be oral, written, or online. However, certain contracts are required to be in writing.
Nonetheless, we recommend using written contracts in most business transactions. Written contracts clearly outline each party's rights and obligations, reduce disputes, and provide legal evidence. Especially for large or complex transactions, written contracts better protect the interests of all parties.
If you require further assistance, you may contact Auslaw Partners for professional legal advice and representation. You may also visit Auslaw Review for more solicitor-written Chinese-language articles on Australian commercial law. For personalised and immediate template-based assistance, you may consult Auslaw GPT (AI language models may contain errors and do not constitute legal advice).

Yes. Commercial lease laws in Queensland are complex, and leases are legally binding. Leases are categorized into two types:

1. Retail Leases— Governed by the Retail Shop Leases Act 1994 (Qld).
2. Non-Retail Leases— Not protected by this Act, and terms are entirely subject to negotiations between parties.

• Asymmetric rent adjustment mechanisms.
• The landlord passing on land tax, repair fees, or legal costs (prohibited in retail leases).
• Disclosures or errors in the Disclosure Statement that could render the contract void.

When selling a business in Queensland, you can complete the transaction through either a business sale or a share sale. There are significant differences in law, tax, and risk assumption between the two methods. The main differences are as follows:

1. Transaction Subject:
   1. Business Sale: The buyer purchases the business's name, goodwill, assets, inventory, employees, and other operational elements, but not the company itself.
   2. Share Sale: The buyer directly purchases the company’s shares, becoming a shareholder and inheriting all of the company’s assets and liabilities.
2. Control:
3. Business Sale: The buyer acquires the business's assets but not control over the company itself.
4. Share Sale: The buyer becomes a shareholder, directly gaining control over the company.
5. Contract Transfer:
6. Business Sale: The buyer must re-sign all contracts and leases related to the business.
7. Share Sale: The company's existing contract relationships remain unchanged, with the buyer inheriting all existing contracts.
8. Tax Implications:
9. Business Sale: May involve GST and asset revaluation tax issues.
10. Share Sale: Primarily involvescapital gains tax (CGT) and usually does not involve GST.
11. Risk Assumption:
12. Business Sale: The buyer only assumes the risks related to the purchased assets.
13. Share Sale: The buyer inherits all of the company's debts and obligations, assuming broader risks.

Selling a business is a complex, time-consuming process involving various legal issues. While hiring a lawyer is not mandatory, it is wise from a risk management, compliance, transaction structure, and contract terms perspective.

1. Legal and Regulatory Compliance:

2. Transaction Structure and Contract Review:

3. Risk Disclosure and Due Diligence:

4. Dispute Prevention and Resolution:

Choosing a business structure is a significant decision that affects taxation, control, liability risks, setup and operating costs. You should consider your business size, financial situation, risk tolerance, and future direction, and it is advisable to consult a business lawyer. Below are the main types of business structures:

1. Sole Trader
2. Advantages: Low setup costs, simple operations, complete control over the business.
3. Disadvantages: You assume all responsibility for the business, including losses and legal actions, with unlimited liability.
4. Partnership
5. Advantages: Up to 20 people can operate together, low setup costs, suitable for small-scale collaborations.
6. Disadvantages: Partners share joint and several responsibility for business debts; one person’s actions may hold all partners liable.
7. Company
8. Advantages: Separate legal entity status, limited liability, tax planning flexibility (profits can be retained by the company or distributed as dividends).
9. Disadvantages: High setup and administrative costs, increased compliance obligations, which may be burdensome for small businesses.
10. Trust
11. Advantages: Used for asset protection and tax planning, typically combined with a company.
12. Disadvantages: High operating costs, requires a trustee to undertake formal administrative tasks, and the structure is more complex.

A company constitution is the core document for company governance, serving as the "constitution" for the internal operations of the business. Under Section 140 of the Corporations Act 2001, the company constitution has contractual effect in Queensland and is binding on the company, directors, and shareholders. It clearly defines the rights, obligations, duties, and decision-making procedures of shareholders and directors and sets out the specific rules for company operations. A company constitution typically includes:

1. The company’s business scope and objectives.
2. Share classes, issuance, and transfer rules.
3. Director appointment and dismissal procedures, board powers, and meeting procedures.
4. Dispute resolution mechanisms and shareholder voting procedures.
5. Whether the replaceable rulesin the Corporations Act 2001 

A company constitution is the core document for company governance, serving as the "constitution" for the internal operations of the business. Under Section 140 of the Corporations Act 2001, the company constitution has contractual effect in Queensland and is binding on the company, directors, and shareholders. It clearly defines the rights, obligations, duties, and decision-making procedures of shareholders and directors and sets out the specific rules for company operations. A company constitution typically includes:

1. The company’s business scope and objectives.
2. Share classes, issuance, and transfer rules.
3. Director appointment and dismissal procedures, board powers, and meeting procedures.
4. Dispute resolution mechanisms and shareholder voting procedures.
5. Whether the replaceable rulesin the Corporations Act 2001 

In a partnership, actions taken by one partner in the scope of the business generally bind the entire partnership and other partners. However, if they exceed their authority and the third party is aware or unaware of their authority, there may be exceptions.

1. Enforceability of Partner Actions:

2. Exceptions:
3. If a partner exceeds their authority and the other party is aware of the limited authority, the actions may not bind the partnership.
4. If the third party does not know or believe the individual is a partner, the transaction may not bind the partnership.
5. Liability Sharing:

4. Partner Removal Mechanism:

Mergers and acquisitions (M&A) in Queensland are a complex process that requires strict adherence to legal requirements. Below is a typical M&A process designed to ensure the legality, transparency, and successful completion of the transaction.

1. Initial Assessment andDue Diligence

• Financial Review: Checking the target company's financial status, balance sheets, income, and expenses.
• Legal Review: Investigating pending litigation, contract obligations, or intellectual property issues.
• Compliance Review: Confirming whether the target company complies with industry regulations, tax, and environmental laws.

2. Drafting Agreement and Negotiation:

• Transaction Structure: Deciding whether it will be an asset purchase or share purchase. Asset purchase typically applies when the buyer wants to select specific assets, while share purchase acquires the entire company.
• Shareholder or Merger Agreement: Signing detailed agreements outlining transaction terms, payment methods, purchase price, warranty clauses, and post-merger management structure.

3. Regulatory Approval:

4. Contract Signing and Payment:

5. Closing and Integration:

• Personnel Adjustments and Organizational Restructuring:
• Ensuring management teams and employees transition smoothly to the new structure.
• Systems and Process Integration: Merging operational processes and technology systems.

6. Post-Transaction Monitoring and Compliance Checks:

Personal property security (PPS) is a mechanism for securing loans or debts, where creditors can establish a security interest to ensure they can execute their rights if the debtor defaults. This mechanism is governed by the Personal Property Securities Act 2009 (Cth) (PPSA) and registered through the PPSR system.
Common types of secured property include:

• Vehicles, machinery, tools.
• Business inventory, raw materials, accounts receivable.
• Jewelry, artwork, and other personal property.

When drafting commercial contracts in Queensland, to protect the rights of both parties and minimize legal risks, the contract should clearly include standard clauses to ensure the terms are clear and enforceable. A qualified commercial contract should include clauses on delivery, payment, liability allocation, contract termination, and applicable law. This helps prevent disputes and clarifies rights and obligations.

1. Delivery and Payment Methods

• How and when goods or services are delivered.
• Payment terms, methods, interest on overdue payments, or penalties for breach.

2. Retention of Title

3. Limitation of Liability & Indemnities

4. Force Majeure

5. Contract Termination & Notice Periods

6. Assignment & Third-Party Rights

7. Applicable Law & Jurisdiction

In Queensland, an employment contract is a vital legal agreement between the employer and employee. A valid employment contract must comply with the Fair Work Act 2009 and other related laws. Key elements to ensure the contract is valid include:

1. Written or Oral Contracts

2. Clear Work Terms and Conditions

3. Compliance with the Fair Work Act

4. Job Description and Duties

5. Probation Period Clause

6. Termination Conditions

7. Confidentiality and Non-Compete Clauses

8. Salary and Compensation Clauses

The information on this page was last updated in November 2025 and is provided for general reference purposes only. It does not constitute legal advice, a basis for decision-making, or any form of professional opinion in relation to any specific matter. The content has been prepared using publicly available information considered to be reliable; however, no independent verification of its accuracy or completeness has been undertaken. The information is subject to change without notice. Neither the author nor the platform accepts any responsibility or liability for any consequences arising from actions taken or not taken in reliance on the contents of this page.