Commercial & Property Perspective Update

Welcome to this new edition of the Commercial & Property Perspective Blog, where we provide you with up to date and relevant information from the world of commercial and property law.

In this November 2018 edition you can read about Self-Managed Super Funds; an update on the new Retail Leases Act; an explanation of Shareholder Agreements and Company Constitution; and what you need to know about business names and company names and trade marks.

We hope you enjoy this blog. We are always keen to hear your feedback, so please contact Rostom Manookian, (e) Rostom.Manookian@dcstrategy.com; or Nina Rossi (e) Nina.Rossi@dcstrategy.com at DC Strategy Lawyers. Alternatively, book a phone meeting with Rostom on the button below:

What is a Self-Managed Super Fund (SMSF)? 

A SMSF is a superannuation trust structure that provides benefits to its members upon retirement, where the SMSF members are also the trustees of the fund. 

If you already have a SMSF speak to us if you are looking to purchase a property through the SMSF as there are regulatory requirements that you must comply with.  Borrowing or gearing your super into property must be done under strict borrowing conditions called a “limited recourse borrowing arrangement”.  A limited recourse borrowing arrangement can only be used to purchase a single asset, for example a residential or commercial property. 

If you are considering setting up a SMSF, you must meet the “sole purpose test”. Contact us to discuss how we can assist you in setting up a SMSF and how you can use your SMSF to purchase an asset. 

Changes to the Retail Leases Amendment (Review) Act 2017 (NSW) - what does this mean to you or business?

The Retail Leases Amendment (Review) Act 2017 (NSW) commenced on 1 July 2017. The Retail Lease Act (RLA) regulates the relationship between landlords and tenants of retail shops.

The new legislation will be beneficial to both lessors and lessees. 

The following is a summary of the main changes:

• removes the minimum five-year term requirement for retail shop leases;
• excludes leases of premises used for certain non-retail purposes from the RLA;
• confers a right to compensation on a tenant who terminates a retail shop lease during the first six months because they were not provided with an appropriate disclosure statement;
• reinforces the need for a landlord to be accurate when disclosing and estimating outgoings in the disclosure statement;
• provides a specific time frame for return of bank guarantees to tenants;
• excludes online sales revenue from turnover rent calculations except in certain cases;
• prevents landlords recovering mortgagee consent costs from tenants;
• allows the landlord to include certain management fees charged by the landlord as part of the outgoings;
• clarifies the procedure for tenants to seek landlord's consent to an assignment;
• clarifies when the demolition provisions will operate; and
• changes the time frames for return of signed leases and lodgement for registration.

Company Constitution & Shareholder Agreement Explained

As lawyers we are often asked to draft shareholder agreements. It is important to understand that not all shareholder agreements are the same.  The circumstances and requirements for each company are different.  Care should be taken when preparing a shareholder agreement.

A shareholder agreement is intended to work alongside the company constitution to govern the relationship between shareholders and directors with more specific rules, rights and obligations.  Although the company constitution and shareholder agreement both govern similar rights and obligations, they do address different topics depending on the circumstances of the company. 

A company constitution is governed by the Corporations Act 2001 (Cth). A shareholder agreement is a commercial contract which deals with specific management matters negotiated between the shareholders whereby the parties involved are able to contract whatever matters they wish to include in the shareholder agreement provided it does not conflict with the Corporations Act 2001 (Cth).  

Contact us to discuss on how we can help in preparing a shareholder agreement for your company.

What you need to know about business names, company names, domain names and trade marks

If you are in the process of setting up your business, it is important that you know the difference between business names, company names, domain names and trade marks.

It is a common misconception that the registration of a business name, company name or a website domain name confers some form of ownership or exclusive rights to the use of that name in Australia.

The reality is that it does not!  

Only a registered trade mark will confer proprietary rights. Having a registered trade mark can provide legal protection for your business, its brand and goodwill and gives you statutory rights to prevent another business from using the same or similar trade mark. Intellectual property often represents a significant asset of your business. 

Imagine the well-known brands of Apple, Facebook, Twitter, Google or Yahoo without the ability to protect their brands internationally.

A registered trade mark is your businesses most valuable marketing tool, as well as an appreciating asset on your balance sheet.   Registering a trade mark offers the strongest protection to prevent or stop other businesses from using your business name. If you have invested time building your businesses reputation and identity around your business name, then you should protect it.

If you have any questions on whether a trade mark is right for you, please contact us.  We can assist in registering your trade mark for your business and protecting it.