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.