The following is general information only and should not be relied upon as a substitute for obtaining detailed advice or as a basis for formulating business or other decisions.

Q. We are owed money by another business. Is it worth our while attempting to recover this through the Courts?

A. This will depend largely on the amount of money that is owed to you. A successful party is in most (but not all) courts entitled to recover 60-70% of its legal costs from the unsuccessful party, leaving the successful party to fund the remaining 30-40% of those costs itself. The amount of the claim therefore needs to be compared to the anticipated legal costs, and in particular the 30-40% which the party will have to fund itself even if successful, to determine if the claim is worth pursuing.

Q. We have a registered business name. Does this prevent other businesses from trading under the same or a similar name?

A. No. A business name registration simply permits the owner thereof to trade under that name. It does not give the owner any right to prevent any other business from trading under that name. However a trade mark registration (which can be in respect of a trading name) gives the owner the right to prevent any other person using that trade mark in respect of the goods or services for which it is registered.

Q. How can we stop our employees from taking our valuable information and using it to compete with us if they leave our employment?

A. Employment contracts should contain confidentiality and intellectual property clauses prohibiting an employee from dealing with the confidential information and intellectual property of the employer (especially upon leaving that employment), except with the prior consent of the employer. Depending on the seniority of the employee, restraint of trade clauses (which prohibit an employee from working for a competitor of the employer upon leaving that employment) should also be considered.

Q. A competing business is pressing our suppliers not to deal with us. Is there anything that we can do?

A. Yes. The conduct of the competing business may constitute a restrictive trade practice which is prohibited by the Trade Practices Act. In addition, if the competing business is making false or misleading comments about your business, its conduct may constitute misleading and deceptive conduct (which is also prohibited by the Trade Practices Act).

Q. Can I appoint a solicitor to conduct my property settlement?

A. Yes. Solicitor’s charges for conducting settlements are generally comparable to those of settlement agents for smaller transactions and less expensive for larger transactions. The advantage of using solicitors is that they can deal with any legal issues which may arise during the settlement process, whereas settlement agents can only deal with the settlement itself.

Q. Our business is expanding and we wish to appoint distributors in the other States. How do we go about this?

A. You should enter into formal distribution agreements with the proposed distributors. Such agreements set out what the distributors can and cannot do, in particular that they do not acquire any rights to your trade marks or other intellectual property and what they get paid in return.

Q. I wish to go into business with a friend. What do I need to do from a legal perspective?

A. Friendship on a social level does not necessarily mean that your business relationship will be successful. In fact the reverse is often the case. It is therefore prudent to deal with your business arrangements on an arm’s length basis. This means that the appropriate agreements (for example, a partnership agreement) should be prepared to record the role each of you will play in the business, how the business will operate, what the financial arrangements are, etc.

Q. I made a will several years ago. Is it necessary to update it?

A. Yes. A will should be reviewed every 3 to 4 years to ensure that it remains appropriate to your circumstances. Wills should also be reviewed upon a change in your circumstances, for example, marriage or divorce, birth of children, acquisition of significant assets.

Q. I am in a de facto relationship/married/about to marry. Am I able to protect my assets from claims by my partner if we separate?

A. Yes. Financial agreements can be entered into by both de facto and married couples, or couples about to get married. The parties to these agreements can agree in advance on how their assets should be dealt with in the event of a separation. As such, financial agreements are important from the perspective of asset protection and estate planning.