Wollongong Business and Commercial Lawyers

Wollongong Business and Commercial Lawyers

Brander Smith McKnight is a well-respected and established law firm proudly servicing Wollongong. We provide excellence in business and commercial law and offer a premium, personal service without the prices of a big city firm. We provide professional and expert legal advice, outstanding court advocacy, integrity and personalised services. We are conveniently located within walking distance of Wollongong Courts and Wollongong Railway Station. BSM has proudly assisted the people of the Illawarra for over 10 years.

Brander Smith McKnight provides responsive, personal service to small and large business clients. We provide the type of service that would be expected from a boutique firm but also provide legal services to some of the largest and best-known companies and brands in Australia and the world. Our clients include Sydney Ports, Sydney Airport, Pacific National and the owners of brands such as Omo, Cold Power, Sard, Loctite, Fab and Schwarzkopf.

Why Clients choose BSM

Brander Smith McKnight is a highly regarded law firm with a team of professional and highly experienced lawyers.

• We have a clear and proven process and provide a precise written description of each stage and all costs.
• We pride ourselves on communication. We listen to you and keep you informed. We guarantee to return your calls and emails within 1 working day. We keep you informed every step of the way.
• We are renowned for providing personalised and premium legal advice tailored to your situation. We listen to you, develop an effective strategy and professionally represent you.
• We vigorously advocate for you to achieve outstanding results.

Costs Involved

We provide a 20-minute free consultation that includes an assessment of your legal matter, provides various strategies and options and a cost estimate. Prior to any work being undertaken clients receive a written cost agreement, we provide weekly invoices with complete transparency and are always available to discuss costs.

1300 152 993

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Legal Services Provided by BSM

• Business Law
• Debt Recovery
• Civil and Commercial Litigation
• Dispute Resolution Law
• Trust Law
• Bankruptcy Law
• Property Law

Business Lawyers

BSM are industry experts with over 50 combined years of experience and world-renowned clients. Our team of business lawyers provide professional legal advice to all businesses, from start-ups and small businesses to large corporations. We have worked with some of the world’s leading companies and brands. Our clients have remained loyal to the firm and we are proud to have developed long-term relationships based on trust, professionalism and excellent commercial results.

We provide a full range of responsive, client-focussed and cost-effective services to businesses. We can assist you with:

Business Startup and Structures

Our business and commercial lawyers will help you navigate the often stressful and daunting process of starting a business and selecting the most suitable business structure for every stage of your business. We provide custom legal advice and support with regard to contracts, employees, business structures and legal requirements. Our team is able to mitigate legal and business risks and maximise your business’ commercial success.

Pre-Contract Negotiations and Business Contract Drafting

Our experienced lawyers can negotiate and draft your business contracts to safeguard your commercial interests. Our team will negotiate the terms of your business contract to protect you from unfair terms which, if left unchecked, could cause future financial losses. We will effectively draft comprehensive and legally effective business contracts to manage legal and business risks, avoid potential disputes and protect your commercial interests. For example, our team has negotiated and drafted contracts for the development and construction of major infrastructure; joint development of intellectual property; sponsorship, talent endorsement and advertising; and international supply and purchase agreements for medical products, cosmetics, construction products and fast moving consumer goods (FMCGs).

Business Contract Review and Enforcement

BSM lawyers can review, amend and enforce business contracts. To avoid future legal problems, we will review contracts prior to you signing and being bound by their terms, identifying problematic clauses and ensuring that you understand the terms and the legal rights and responsibilities it creates. We will also assist with enforcing the terms and conditions of your business contract in the event that it is breached by the other party.  This may include embarking on a well considered negotiation strategy, various forms of dispute resolution, or litigation seeking various remedies including damages, specific performance and injunctions. Our highly effective lawyers will fight for your rights.

Director’s Duties and Disputes

Our skilled lawyers can advise on both the legal and fiduciary duties imposed on directors by legislation and common law, arising from relationships of trust and confidence. Directors who fail to comply with their legal duties face severe legal repercussions, including financial penalties, disqualification, and imprisonment. The severity of these penalties highlights the importance of seeking legal advice in relation to directors’ duties. BSM lawyers can also provide you with appropriate advice about how directors’ rights and duties change depending on a company’s solvency.

The Corporations Act 2001 (Cth) sets out directors’ duties in sections 180, 181, 182, 183, 184, 190, 191, 286 and 588G.  These duties include acting with reasonable care, in good faith and in the best interests of the company, not to improperly use their position to gain advantage, to disclose personal interests, to keep proper books and records and avoid insolvent trading.

Directors are generally not liable for the debts of the company.  However, there are some exemptions to this generalisation which include liability for insolvent trading (section 588G Corporations Act 2001 (Cth)), unpaid GST and PAYG tax (Schedule 1, Taxation Administration Act 1953 (Cth)), and unpaid superannuation (Superannuation Guarantee Administration Act 1992 (Cth)).

Our team has advised many directors and companies on directors’ duties and liabilities and directors’ disputes.

Our team regularly manages and advises on legal compliance for many large companies, including multinational corporations, and has drafted policies and contracts to comply with the Privacy Act 1988 (Cth) and the Modern Slavery Act 2018 (Cth).

Shareholder Agreements and Disputes

Our lawyers can provide advice regarding your rights as a shareholder, including how to enforce and protect them. We can also offer legal advice in relation to a breach of any director’s duties or a business decision any shareholder may disagree with.  Shareholders’ rights are protected to a large degree using mechanisms such as oppressive conduct as set out in sections 232 to 235 of the Corporations Act 2001 (Cth) and a derivative action as set out in Part 2F.1A of the Corporations Act 2001 (Cth).  A derivative action enables a shareholder to bring a court action on behalf of the company where the company has been wronged by another party such as a director.

Prior to purchasing shares in a proprietary limited company the intending shareholder should seek legal advice and ensure that the rights of a shareholder are protected.  The Corporations Act 2001 (Cth) sets out the rights of the shareholder and the management of the company.  The management of the company is set out primarily in the replaceable rules, a table of the replaceable rules appears in section 141 of the Corporations Act 2001 (Cth).  However, the replaceable rules will not provide sufficient protection for a shareholder of shares in proprietary limited company, issues such as exit of a shareholder and sale of shares are not addressed and there is no market for the sale of such shares (unlike a company which is listed on any stock exchange).

Our lawyers recommend that shareholders of shares in a proprietary limited company should ensure that there is a shareholders agreement that addresses issues such as exit, valuation of shares, decision making, appointment of directors and so on.  Our lawyers can advise on and draft thorough and effective shareholder agreements and company constitutions mitigate the risk of shareholder issues and disputes.

Commercial and Retail Leases

Our team has extensive experience negotiating, drafting and finalising residential, retail and commercial leases. We will make sure that your transaction is completed safely and at a competitive price. We have extensive experience in acting for both lessees and lessors in drafting leases and in lease disputes.

Bankruptcy and Insolvency

We can help you navigate the complex and serious legal processes associated with bankruptcy and insolvency. Our team can offer advice about receivership, liquidation, business restructuring and fundraising options. If your business is facing financial difficulties, we can also provide expert legal advice to creditors to help safeguard your interests and financial position.

Our lawyers have expertise in insolvency, the options available to any company facing insolvency and any directors concerned about the solvency of a company.  Our lawyers have experience with the simplified restructuring and liquidation processes in the recent Corporations Amendment (Corporate Insolvency Reforms) Act 2020.

A company suffering financial stress may be placed into liquidation or administration, either by a creditor or voluntarily.  Liquidation is used in circumstances where the company cannot survive. Administration is used in circumstances where the company may survive and continue to trade.  Where a company is placed into administration it may result in a resolution pursuant to section 509D of the Corporations Act 2001 (Cth) to wind up the company.  Alternatively the unsecured creditors may vote for the company to enter into a Deed of Company Arrangement (DOCA) to manage the affairs of the company and repay the creditors in full or in part.  The administrator manages compliance with the DOCA.

Company directors should be aware that a company director can be liable for the debts incurred by an insolvent company as described above under the heading Directors’ Duties and Disputes.

Our lawyers have advised creditors in the use of a statutory demand pursuant to section 459E of the Corporations Act 2001 (Cth) to enforce a debt or judgment against a debtor company and the use of a bankruptcy notice pursuant to section 41 of the Bankruptcy Act 1966 (Cth) to enforce a judgment against a debtor person.

1300 152 993

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Civil and Commercial Litigation

The civil and commercial litigation lawyers at BSM have extensive experience resolving disputes both in and out of court.

While the term litigation refers to the legal resolution of disputes in court, in reality, many of these disputes are resolved without going to court using alternative dispute resolution and tactics such as interlocutory applications. We are proud of our ability to resolve 90% of our civil litigation disputes prior to a formal hearing saving you legal expenses and time.  Our lawyers are expert strategists and negotiators and will develop a negotiating strategy for any dispute prior to the dispute being litigated in court.

If your matter proceeds to court, our lawyers have experience in the Federal, Supreme, District and Local courts as well as in tribunals, adjudications and arbitrations. We are experienced legal advocates able to navigate the complexities of the judicial system and expertly and professionally advocate for you.

Commercial Disputes

Disputes concerning individuals, businesses, including sole traders, a company or a partnership. These may be related to contracts, debt recovery, finance documents, intellectual property, insolvency, building and construction disputes, employment disputes or director and shareholder disputes.

Our lawyers have extensive experience in general corporate and commercial matters for small to large companies and the State and Australian Government.

Civil Litigation

An umbrella term for disputes between both individuals and business entities. It includes the previously mentioned commercial disputes, as well as defamation actions, torts (private legal actions not involving a contract) and legislative proceedings (for example between neighbours).

Alternative Dispute Resolution

Methods used to resolve legal disputes outside of court. These include negotiation, mediation, conciliation, arbitration and adjudication. Alternative dispute resolution can save the time, stress and money associated with litigation.

Litigation can be risky and costly.  Alternate dispute resolution allows the parties to retain some control over the decision and minimise risk.

Our lawyers have extensive experience and expertise in developing an appropriate alternate dispute resolution strategy that will include evaluating all options, selecting the most suitable method of alternate dispute resolution, preparing all necessary documents and appearing and advocating in these forums in a manner that will optimise your outcome and minimise the risk of any dispute.  This is discussed in more detail below:

Litigation

The process of resolving disputes through a court system. The experienced civil and commercial litigation lawyers at BSM will meticulously prepare, file and serve a statement of claim, represent you at the directions hearing and attend to all of the legal requirements such as organising lay and expert evidence.

Apart from the alternative dispute resolution techniques previously discussed, we use negotiating tactics such as offers of compromise and interlocutory applications to benefit our clients and work towards a rapid settlement with minimum legal expenses

At least 85% of our commercial disputes are settled by the skilled lawyers at BSM without the need for costly litigation. There are many ways of resolving disputes and our lawyers work hard to find practical, creative and commercially advantageous solutions best suited to your unique situation.

In most cases, our lawyers are able to settle your dispute through negotiation. If the matter does proceed to litigation, we have the experience to advocate expertly and fiercely for you in court.  We use expert barristers with highly relevant experience.  For less complex matters we have the expertise and experience to advocate for you, saving you the additional expense of a barrister.

Negotiation

An informal method of dispute resolution whereby parties discuss the problem and attempt to reach a compromised solution. Our lawyers will advise you of your legal rights, listen carefully to you and develop an effective negotiating strategy suited to your situation. This may involve correspondence, providing offers of settlement or meetings that include lawyers and clients.

Mediation

A method whereby an independent professional mediator helps parties settle their dispute by facilitating a discussion and helping to find a mutually beneficial solution. It is a confidential and voluntary process and mediators must remain impartial. You may have your lawyer present during the mediation.

Our lawyers will prepare a mediation paper and a plan for the mediation in consultation with you prior to embarking on any mediation.

Conciliation

Similar to the mediation process, but unlike a mediator, a conciliator may play an advisory role in the content and resolution of the dispute. Like mediation, conciliation is a confidential and voluntary process that aims for an amicable dispute settlement. A conciliator also cannot make a binding decision. You may have your lawyer present during conciliation.

Our lawyers will prepare a strategy and plan for your conciliation in consultation with you in preparation for any conciliation.

Arbitration

The most formal alternative to litigation, arbitration, allows parties to have their dispute decided by an independent, neutral decision-maker, called an arbitrator (or sometimes a panel of arbitrators). A private and sometimes confidential process, arbitration sees disputing parties put forward legal arguments,submissions and evidence that the arbitrator assesses before making a decision, called an award. The decision is legally binding and enforceable. You may have your lawyer present during arbitration.

Adjudication

A form of arbitration that is available pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW), also known as SOPA, for the prompt resolution of payment claims.  Adjudication and arbitration both typically involve representation by dispute resolution lawyers. Such representation will usually take the form of evidence, legal arguments and written submissions.  Brander Smith McKnight has extensive experience and expertise in the preparation of of such documents.

Expert Determination

A technique whereby an independent expert on a dispute’s subject matter is engaged. Parties present their arguments and evidence to the expert who makes a final and binding determination (subject to any contract between the parties regarding the expert determination). Expert determination is often used to resolve technical disputes such as design, construction and complicated financial disputes.

Litigation

The process of resolving disputes through a court system. It is the most formal and costly process, so the lawyers at BSM remain committed to resolving disputes as early as possible. This involves developing a strategy for litigation and includes tactics such as ongoing negotiation, making formal offers of compromise and interlocutory applications to court where appropriate.

Debt Recovery Law

BSM recovers over 90% of debts without the need to go to court or for mediation. We can help collect the money that is owed to you.

If court proceedings are required, we have extensive experience and run all debt recovery matters without the additional expense of a barrister. Once judgement is obtained, our lawyers know how to navigate the legal mechanisms of enforcement, such as writs, garnishee orders, bankruptcies and insolvency.

Letter of Demand

The first, fast and most cost-effective step is a letter of demand. A letter of demand makes it clear that you are serious and may pursue additional legal action if payment is not made. The lawyers at BSM can prepare this letter within just a few days. Over 75% of debts are successfully recovered by BSM through this process.

Statement of Claim

If payment is not received after a letter of demand, the next step is to issue a statement of claim. This is a legal document filed with the court and served on the debtor that initiates legal proceedings. This often results in a payment or negotiations to avoid litigation. If a defence is not filed by the defendant, our lawyers can apply for default judgment.

Litigation

Litigation describes court proceedings, including the preparation and service of evidence and the hearing of the matter. Each court has different financial jurisdiction, which our lawyers appear in regularly. For example, our team has successfully acted in litigation in the Supreme Court to recover funds misappropriated in bitcoin and other internet transactions, unpaid invoices, disputed invoices, unpaid loans and money mistakenly paid. Our team typically appears in court without the need for the additional expense of a barrister, however, where a barrister is required, we have a panel of expert barristers on hand that we can engage. The vast majority of BSM’s debt recovery cases are successfully recovered without litigation.

Garnishee Orders

If a defendant refuses to pay, our lawyers will develop a strategy using the available enforcement methods to recover your debt. A garnishee order is one method of enforcing a judgement, by compelling third parties (such as a bank or employer) that control the funds of the debtor to pay money directly to you, the creditor.

Bankruptcy and Insolvency

Where a judgement debt is greater than $10,000, the debtor can be bankrupted for failure to make payment. This method of enforcement is suitable when the debtor is an individual (not a company) and the amount owed is a relatively large amount. Insolvency applies to companies and not individuals. Where a judgement debt is greater than $4,000, the judgment creditor may issue a statutory demand on the company, and if the company fails to pay, the company will be presumed to be insolvent.  A liquidator may be appointed to the company to pay creditors from any funds available. Our lawyers can help you navigate the complex and serious legal processes associated with bankruptcy and insolvency.

Writ for Levy of Property

Our lawyers can apply for a writ for levy of property if required. This is an order made by the court and entitles the NSW sheriff to seize and sell property owned by the debtor to pay the judgment debt. This can include money, goods or personal property of the debtor and, where the judgement debt is greater than $10,000, real estate.

1300 152 993

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Trust Law

Our team of trust lawyers are highly experienced in establishing and maintaining commercially advantageous trust structures.

A trust exists where a person owns property or legal rights on behalf of another person. Broadly speaking, there are two types of trusts: express and non-express trusts. Express trusts are established by a written document, typically a trust deed, and set out the trust fund’s objectives, beneficiaries, trustee and appointer and the method of distribution of income and assets. The trust lawyers at BSM are highly experienced in meticulously drafting trust deeds. These include:

Discretionary Trusts

Discretionary trusts are established using a trust deed and comply with the requirements of a trust, which is that there must be a trustee, a beneficiary and trust property. They allow the trustee to distribute money or other trust property to beneficiaries at the discretion of the trustee.

Family Trusts

A type of discretionary trust used by families to hold family assets (e.g. a property or family business) where the family members are beneficiaries. There are advantages to this kind of trust, including asset protection, tax advantages and beneficiary income. Disadvantages include the expenses involved and the liability of trustees.

Unit Trusts

A trust that is typically used to pool funds for investments, sometimes used by superannuation funds. It is distinct from a discretionary trust in that each beneficiary is required to own a specific number of units, and the ownership of trust assets and the way trust income is distributed are both determined by the number of units held. Because of this, it is usually preferred by groups of investors who are little known to one another or not part of a family.  Unit trusts are an effective trust for the ownership of real property.

Testamentory Trusts

A trust established under a will (separate from the trust for the deceased estate). Typically a type of discretionary trust and established in a will for the benefit of family members, especially children under 18.

In contrast to express trusts, there are also non-express trusts which are formed by operation of the law and do not have a written document or deed. These include:

Resulting Trusts

An uncommon form of trust that might arise if there is a dispute over property ownership where payment for property has not yet been transferred to the payee.

Constructive Trusts

An implied trust in which one party retains property in the name of one or more beneficiaries while acting as the nominal owner. It may arise where a party seeks to recover funds or property that they have contributed to.Muschinski v Dodds [1985] HCA 78 is a famous Australian case that imposed a constructive trust where it would be unconscionable for a legal owner of property to deny the beneficial interest of another, in this case the other made contributions to the property in the form of payment of the price of the property.

Bankruptcy Law

The bankruptcy lawyers at BSM have vast experience in bankruptcy law advising and advocating for both debtors and creditors. We can assist with developing a strategy to deal with your bankruptcy issues. Our team remains up-to-date with recent changes and can help you navigate the legal system in what can be a stressful time.

Bankruptcy is a legal process where the debtor is declared unable to pay their debts. It is legislated by the Bankruptcy Act 1966 (Cth) and applies to individuals (as opposed to insolvency which applies to companies).

There are two kinds of processes when it comes to bankruptcy: voluntary and involuntary. When bankruptcy is instigated by the debtor, it is said to be voluntary. In contrast, involuntary bankruptcy occurs when a creditor who is owed money by the debtor instigates the bankruptcy process. Our lawyers are knowledgeable about the nuanced legal processes involved with each.

A trustee is appointed after someone is declared bankrupt to take charge of the bankrupt’s estate, including assets and income, and secure and distribute the estate for the benefit of the creditor/s. The trustee’s job is to recover, realise, and distribute divisible property among the creditors who are entitled to claim and who have lodged proofs of debt. The trustee is vested with the ownership of the bankrupt’s estate.

If you are served with a bankruptcy notice, you should obtain urgent legal advice as you have just 21 days to either comply with the notice or make an application to the court to have it set aside. Failure to do so will result in an act of involuntary bankruptcy.

Our team has extensive experience in bankruptcy and insolvency law, acting for individuals, small and listed companies and banks and mortgagees to wind up or bankrupt defaulting debtors.

Property Law

Our experienced property solicitors are committed to providing premium and cost-effective legal services for all property matters. We represent homeowners, builders, and developers, providing advice about property disputes and negotiating and drafting the appropriate documents for residential and commercial property developments – including Option Agreements, Finance and Construction Agreements and Development Agreements.

Property disputes are unfortunately common and can arise in a variety of contexts and in relation to various kinds of property – from disputes between individuals who own property together (e.g. forced sale or partition of property, section 66G of the Conveyancing Act 1919 (NSW)) to disputes concerning off the plan purchases, disputes regarding easements, to construction work disputes. Early engagement of a lawyer can mitigate the potential for disputes as we can draft, review and amend property contracts prior to signing. If a dispute does occur, we can advise you of the relevant legislation, provide options and professionally represent you in alternative dispute resolution or in court.

1300 152 993

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Frequently Asked Questions

Our Locations

Sutherland

Suite 2
9-15 East Parade
Sutherland 2232

Parramatta

Level 14 Suite 2/3 Parramatta Square, Macquarie St,
Parramatta, NSW 2150.

Wollongong

Level 1, Suite 1
90 Market Street
Wollongong NSW 2500

Sydney CBD

MLC Centre
Level 57, 19-29 Martin Place
Sydney NSW 2000