New National System for Business Names
A new national business names registration system commences on 28 May 2012.
The national register of business names will replace the existing state and territory registers.
The new system will be administered by Australian Securities and Investments Commission (ASIC)
Benefits of the new national register
The national register will offer some advantages to Queensland business owners:
- The national system eliminates the need for registration in more than one state.
- The new system will allow for online registration and renewal. Online payment options will also be available.
- Business name registration will happen simultaneously with the registration of an Australian Business Number.
- There may be a reduction in fees in Queensland
Transistion to the new national register
The Queensland register will be discontinued from 5pm on Friday 25 May.
As a business name holder in Queensland, you do not have to do anything during the transition. All existing Queensland business names will automatically transition to the national register in preparation for its commencement on Monday 28 May.
Duplicate names
If you have registered the same business name in multiple jurisdictions, all of your business names will transitioned to the national business names register, meaning that you may have multiple identical business names registered to you.
Under the new system, you can choose to keep one of your business names and let the rest expire. If you prefer, you can speed up this process by cancelling any business name that you no longer require. There is no fee to cancel a business name.
If the same business name has been registered by different businesses in different jurisdictions, all of the business names will still be transitioned to the national business names register. An additional identifier (such as the word ‘Queensland’) will appear on the register to assist in differentiating between identical business names.
This additional identifier will not form part of your business name, meaning that you can continue to trade using the business name you have always had.
Renewing your business name
If your business name is due for renewal before 28 May 2012, you may have already received your business name renewal form from the Office of Fair Trading. You should renew your business name in Queensland, prior to the transition to the national register. If you haven’t already done so, please ensure that you lodge your form and appropriate fee as soon as possible.
If your business name is due for renewal on or after 28 May 2012, ASIC will send you a business name renewal form and you will renew on the national register.
If your business name is due for renewal between 28 May 2012 and mid to late June 2012, you may receive your renewal notice from ASIC a bit later than you would normally expect it. If you do, you will get an extension of time in which to renew, so that you are not disadvantaged.
Fees
Once the transition to the national register is complete, fees for Queensland businesses will be cheaper. Online payment options such as BPay and credit card payment will be available. Registering an ABN will remain free.
New application for registration of a business name for 1 year – $30
Application for renewal of a business name for 1 year – $30
New application for registration of a business name for 3 years – $70
Application for renewal of a business name for 3 years – $70
Note: Fees are current as at 23 November 2011. They are subject to change at the start of each new financial year.
If your business name is due to expire before 28 May 2012, you will need to renew in Queensland and pay the current Queensland fee.
You are entitled to renew for only one year in Queensland to reduce your costs.
What happens if a lease is assigned without Landlord Consent?
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.
Most of the conditions were satisfied but, not all of them. The landlord had required (as is normal) a deed of consent to assignment.
The seller and the buyer had apparently both signed the deed of consent to assignment and the Deed had been left with the buyer to send back to the Landlord.
The transfer of the lease was also left with the buyer so that the assignment of the lease could be registered at the titles office. The assignment was not registered. But the buyer took possession of the premises.
The buyer did not return the Deed of Assignment to the landlord and did not stamp or register the transfer of lease.
The buyer is now in liquidation. The landlord claims that consent was never given to the assignment.
The tenant is being sued by the landlord for a very large sum of money.
The moral of the story is that all of the risk is with the seller. Therefore, it is the seller that must make sure that they have a copy of consent in writing signed by all parties before, the sale proceeds. The only substitute is a solicitors undertaking.
If the consent is not given the seller has
- lost control of the premises and
- still has the responsibility to pay all rental and other lease costs.
RIBA Business Lawyers
Strength Through Knowledge
Franchising, Leasing, Acquisitions
Head office: 34 Duporth Avenue, Maroochydore, Sunshine Coast, Queensland.
Maroochydore: 07 54791488
Brisbane: 31032115
Increase the Value in your Business! By Linda Harley
When it is time to sell your business, how sure are you that you will receive good value for what you have created?
From my experience in business sales, the importance of planning for the future of your business can not be underestimated. A business plan will ensure that you stay firmly on track and focussed, but of equal importance is the Exit plan. How are you going to optimise the value for the business you have created?
You are probably familiar with the saying “you get what you pay for” – in selling a business it is “you receive the value for what you create”.
To plan for your exit continue to run the business as you normally would but, always ask yourself how a new owner might view the business you have built, and respond to the decisions you make.
Each business has its unique selling points and no two businesses will necessarily have the same market value. As a guide there are seven things a buyer will pay a premium for: Read more
Business Succession Planning
For all businesses, it is inevitable that the time will come when there will be a ‘changing of the guard’. But what happens when this is unexpectedly forced upon us?
In the event that a director or key person was to suffer an unexpected departure from the business due to death or disability, there are several important factors that every business needs to consider.
For the purpose of this article we will assume ABC Pty Ltd has 3 directors, Allan, Bart,and Cindy, and director Allan has recently passed away unexpectedly.
Business Equity:
Upon Allan’s death, his equity within ABC Pty Ltd, has passed directly to his estate, and Bart & Cindy are now in Read more
Should I franchise my business?
Firstly would a franchise system based on your business model be likely to succeed? Secondly, even if it could succeed is it the most attractive option for you and your business? If you have a great business model which would assist others to succeed in business then there are obviously plenty of options open to you, if you have the resources. In considering whether to franchise what factors should be considered?
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. Read more
Retailers, beware of implied conditions!
When a retailer purchases from a wholesaler or a manufacturer the retailer must ensure that they know the limitations of the goods purchased. If the goods are faulty then the retailer may be liable to any subsequent buyer.
Whenever a retailer sells goods to a consumer there is a sale agreement and conditions are implied into that agreement. Consumers may make use of these conditions to successfully claim against a retailer.
The stakes can be high! If a product is not fit for a purpose it may cause damage and necessitate rectification works the cost of which may go well beyond the cost of the goods supplied. A glue that doesn’t stick may cost the user more than a tube a glue.
What kinds of conditions may be implied into a contract between a retailer and a consumer?
In some instances a supplier may wish to undertake their own testing in order to ensure that they are not exposed to risk.
Fit for purpose
If a retailer is told, or it is implied that goods to be purchased by a consumer will be used for a particular purpose there is a condition implied into the contract that the goods will be suitable for that purpose. This is so, even if the purpose is not a purpose for which the goods would normally be used. See section 55 of the Competition and Consumer Act 2010, Schedule 2.
The most obvious way to rebut this implied condition is to show that the consumer did not rely upon, or it was not reasonable for the consumer to rely upon the skill and judgement of the supplier. The consumer may for instance have been obtaining expert advice from some third party who was better placed than the retailer to determine if the goods are suitable for the purpose.
Quality
There is an implied condition in section 54 of the Competition and Consumer Act 2010, Schedule 2 that good are of acceptable quality. In making this determination the following matters are considered:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
Obviously defects which are known or ought to be known by the consumer are not caught by this implied condition.
This implied condition places the onus on the retailer to know the quality of goods sold.
RIBA Business Lawyers
Strength Through Knowledge
Franchising, Leasing, Acquisitions
Head office: 34 Duporth Avenue, Maroochydore, Sunshine Coast, Queensland.
Maroochydore: 07 54791488
Brisbane: 31032115
Tenant Breach may not mean termination!
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”? Read more
Do you own your business name? No, you don’t. Register a Trade Mark!
You cannot own a business name!
Before you even commence business you must understand the difference between each of these very different business tools - Business Names, Trade Marks and Company Names.
Anyone considering the sale of their business should also consider these things carefully. If trade marks, domain names, business names and business structures are not all in order, then seek legal advice as early as possible. We have seen business sales fall over because intellectual property including the business name is not registered.
The registration of the name is a process, nothing more, and that process does not guarantee exclusivity. The business owner having registered the business name has no legal right to prevent others from using that name, nor does completing the registration process provide any entitlement to compensation if the name is used by someone else without authority.
So what do you own after registration of your business name? It may surprise you that, you own nothing. Read more
Employee or Contractor?
There is lot at stake for an employer who incorrectly identifies a relationship as one between contractors when in fact the relationship is properly defined as one between employer and employee. An improper assessment of the relationship can lead to the financial ruin of a business. The improper assessment may result in a requirement for the unexpected payment of many years of award payments, sick leave, holiday leave, long service entitlements and superannuation. It is essential to get this right.
It is necessary to note at the outset that you cannot agree that a person is a contractor if in fact that person is an employee. An agreement between the parties of this kind is of no effect. The payments due to employees are required by statute and cannot be waived by anyone, not even the employee.
If it looks like a duck and quacks like a duck it is probably a duck. It should be no surprise that the courts don’t place any weight upon the “title” given to a worker. To assess whether a worker is an employee or a contractor the whole of the relationship must be examined.
Since the High Court decision in Hollis V Vabu (2001) 207 CLR 21 the common law distinguishes employees and contractors by considering various indicators under seven headings: Read more
Interest Rates Heading South says Westpac’s Bill Evans
In an interview late last month Bill Evans said that he expects that interest rates will be cut by .25% on 7 February 2012. This will bring Australia’s official cash rate to 4%. It currently stands at 4.25%.
Mr Evans believes that rates will bottom out at about 3.75% and may then sit at that level for some time.
While Mr Evans expects our economy to continue to grow and increase that rate of growth he also pointed to the well documented risks in the global economy.
Mr Evans remarked on slowing growth in China which as dropped from 12% in 2009/2010 to 9.5 in 2010/2011 and now he expects to see no better than 7.5% growth in China this year.
Watch out for stimulus packages throughout the world.
