HELD LAWYERS

Est.1991

Property & Commercial Law

Law Matters

August 2012 Newsletter

Welcome
In this months bulletin, we continue our review of the sale of privately owned businesses.
We also discuss the differing views on landlords passing on repair costs to tenants.
If there are topics you would like us to look into, please let us know.
Adam Held
Principal

Landlord obligations under the Building Act

who pays?

if the lease is not covered by the Retail Leases

Act 2003 (Vic.), the parties can have any regime
they like for a landlord to pass those costs on to
the tenant.

A recent article in the April 2012 Law Institute

Journal (Tenants Beware: Dont get hit by safety
maintenance costs) suggests that the cost of work
required to be done by landlords under the Building Act
1993 (Vic.) (Act) cannot be passed on to the tenants,
notwithstanding any lease provisions seeking to do so.

Please contact us if you require our assistance with any

of these matters.

A broader, somewhat contrary view was presented by

barrister Robert Hay at the recent annual LIV Property
and Planning Law Conference. Briefly, his views as
expressed are that:

In preparing to sell a business, sellers need to consider a

range of issues, including:

the Act only covers situations where the landlord

does not do the required work. If the owner does not
do the required work, the: tenant can do the work and seek recovery of
costs from the landlord
tenant can offset the costs against rent
landlord cannot contract out of its obligations
the Act does not cover situations where the landlord
does do the required work. If the landlord does do
the required work: under a properly drawn Retail Leases Act 2003
(Vic.) lease, the landlord can pass those costs on
to the tenant

Business sale of business

information gathering

name, situation and general nature of business

who owns the business assets, and if more than one
person - in what shares or arrangements?
what are the sellers reasons for selling the business
and are there any reasons for expediting or delaying
the sale?
when did the seller acquire the business?
was it acquired as a single entity or on two or
more occasions?
was any portion of the business acquired after
20 September 1985?
was the business acquired for the purpose of resale?
who is the sellers accountant/financial/taxation
adviser?

Malvern Office

Carlton Office

Postal Address

Contact Details

Level 1, 180-182
Glenferrie Rd
MalvernVIC3144
(corner Winter St)
Melway59C8

113 Cardigan St
CarltonVIC3053
Melway2BF10

P.O. Box 467

Malvern VIC 3144
W: www.heldlawyers.com

T: 03 9509 0710
M: 0407 548 632
F: 03 9500 0805
E: info@heldlawyers.com

 has the seller consulted your accountant/taxation

adviser regarding the intended sale of business?

licences, permits or approvals relating to the conduct

of the business or the use of the business premises

does the seller require professional advice on

assessing the value of the business for sale or
in marketing it?

leases, subleases, licences relating to occupation

and use of the business premises

has any brochure, profile of the business or financial

or marketing material been prepared for the sale?

current leases or credit purchase agreements

relating to plant or equipment included in the sale

what taxation and financial records can be made

available for inspection by prospective purchasers?

instructions to and arrangements with any business

agent

should prospective purchasers be required to enter

into confidentiality agreements?

In next months issue, we will look at problem issues

that might need to be addressed prior to a sale.

has the seller instructed any business agent?

having regard to the application of the Goods and
Services Tax (GST), whether any GST is payable
in relation to the supply under this contract will be
determined by whether or not this is a taxable supply
by the Vendor under the GST Act. To the best of the
sellers knowledge, is either: the seller registered, or required to be registered
for GST purposes? or the
sale considered a sale in the course or
furtherance of an enterprise?
is the seller aware of: any current or threatened litigation, arbitration
or prosecution by or against you relating to
the business, including by suppliers, creditors,
customers (or clients) or by the lessor of the
business premises?
any judgments, writs of execution or applications
to appoint a receiver or for bankruptcy or
liquidation by anyone against you or your
business?
any notices, orders, proposals, relating to the
conduct of the business or to the business
premises, by the local council or by any statutory
authority?
any structural or building alterations or additions
made to the business premises by you or by a
prior owner of the business; and were they carried
out with the consent of the local council and the
owner of the property?

service agreements relating to employees

Referrals
Should you require non-legal assistance with various
matters, we are happy to provide you with contact details
for a range of service providers, including financial
institutions, accountants, real estate agents, etc.
Topics next issue include
PPSA companies
Business selling a privately owned business
problem issues
Laws of succession, wills & probate review
Landlord insurance who is covered?
Owners Corporations - certificates
Areas of practice
Property Law including conveyancing and leasing
Commercial and Business Law
Banking and Finance Law including mortgages
and guarantees
Wills and Estates Law
Intellectual and Industrial Property Law
Litigation
If you would like further details or assistance or to
discuss information contained in this publication or
generally, please do not hesitate to contact us. For
copies of this and other publications, visit our website
at www.heldlawyers.com.

Sellers will also need to provide documentation and

information regarding:
registration certificates of any business name,
trade name, trade mark or design which is included
in the sale
copies of taxation returns for the past three years,
including copy of the depreciation schedule for plant
and equipment
service or maintenance agreements and warranties
relating to plant and equipment
Disclaimer
This publication is intended to provide a general outline. It is not intended to be a complete or definitive statement of the law on the subject matter covered.
Further professional advice should be sought before any action is taken in relation to the matters described in this publication.
Liability limited by a scheme approved under Professional Standards Legislation

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