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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 depends mainly on the amount of money owed to you. The successful party is in most (but not all) courts entitled to recover 60-70% of their legal costs from the unsuccessful party, leaving the successful party to pay 30-40% of their costs. To decide if it is worth proceeding, the amount of the claim needs to be compared to the anticipated legal costs, and in particular the 30-40% of that cost that will be payable, win or lose.

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 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 for 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 at the time of 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 when leaving that employment) should also be considered.

Q. A competing business is pressing our suppliers to stop to dealing with us. What can we do?

A. The conduct of the competing business may be prohibited under Competition & Trade Practices law. If the competing business is also making false or misleading comments about your business, this may constitute misleading and deceptive conduct (also prohibited under Competition & Trade Practices law).

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

A. You can protect your business by drawing up a Distribution Agreement for proposed distributors to sign. This will set out what the distributor can and cannot do. In particular it ensures they do not acquire any rights to your trade marks or other intellectual property and it sets out what they are paid in return.

Q. I want 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 a business relationship will be smooth or successful. The reverse is often the case. It is prudent to deal with your business arrangements on an arm’s length basis. This means a partnership agreement and any other appropriate agreements need be prepared to set out the role each of you will play in the business, how the business will operate, what the financial arrangements are, what each person’s rights are, and so on. Keeping the arrangement on a clear, formal basis can be a great help in ensuring the venture goes well.

Q. I made a Will many years ago. Do I need to update it?

A. Yes. A Will should be reviewed every 3 to 4 years to ensure that it is still appropriate for your circumstances. Wills should also be reviewed when your circumstances change, for example, through marriage or divorce, birth of children, or acquisition of significant assets.

Q. I am in a relationship. How can I protect my assets from claims by my partner if we separate?

A. If you are in a de facto relationship, or married, or about to marry, you can set up a Financial Agreement that suits both partners. You and your partner can agree in advance how assets will be dealt with in the event of a separation. The financial arrangement is important with a view to asset protection and estate planning.