Corporate and Commercial Law
How We Can Help
As a business owner of a small, medium or large business you want to be sure that your Corporate and Commercial legal team can assist you across all aspects of your business, whether that’s selling your business, entering into a complex commercial contract or raising capital to expand your business.
Many lawyers know the law, but don’t understand business, so whilst they can advise you on the legalities of your issue they may not have a full understanding of what it takes to keep your business operating and that’s where KPA’s commercial legal team is different. Taking the time to understand your business, it’s wins and challenges, needs and future plans allows KPA’s commercial legal team to provide you with the right structures to ensure a successful outcome for your current legal issue as well as ensuring your successful future.
A successful business should reward you for the risk you take and give you a return when you decide to exit, at KPA we understand the entire business life cycle and can advise you at any stage of your business. Read more about our wide ranging commercial legal services below or book a free 15 minute call about your specific needs with one of our lawyers using the Book a Call button.
SMALL MEDIUM ENTERPRISE (sme’s)
As a small to medium business you are the backbone of the Australian economy, whether you operate in manufacturing, hospitality, professional services or sports and entertainment, your business contributes jobs, revenue and services to all Australians.
From sole traders to multi-million dollar businesses, every Australian business needs to meet it’s legal obligations. Understanding the duties you have as a director, setting up corporate structures that are beneficial to you and your business or restructuring your business when needed are all part of the business landscape and that’s when you need professional, affordable legal services like ours.
Rather than slowing your business down when a legal issue needs to be sorted, our commercial team acts as part of your business, working alongside your existing advisors, directors and employees so you get the right answer quickly and efficiently.
The 2026 federal budget announced tax changes that are likely to have a significant impact on small and medium business enterprises, including their structuring, asset holding and taxation. KPA Lawyers can take you through those matters now, in preparation for the capital gains tax changes effective from 1 July 2027 and the foreshadowed changes to the taxation of trusts effective 1 July 2028.
What We do
- Structure reviews
- Set up of companies and trusts
- Reserved matter and decision-making provisions
- Trust deed reviews and updates
- Related party secure loan agreements and Division 7A Loan Agreements
- Restructures and rollovers
- Business succession planning
- Advising on directors duties, responsibilites and conduct
Commercial Contracts
When running a business, very little happens without first signing a contract. Whether you are taking on a new supplier, entering into a joint venture, or sending out your standard terms, these agreements impact your revenue, shape your relationships and determine how much risk you carry.
No matter how small the decision may seem, entering a contract matters. It is not just paperwork that is signed as a formality so the real work can begin, it is a set of promises you are committing your businesses to. Failing to understand your obligations after signing – like missing a key delivery deadline or falling short of an agreed milestones may give the other party the right to walk away. Just as easily, you might assume a clause covers you when something goes wrong, only to find out that it doesn’t do what you think it did. These are only some of the things that you should understand before you sign or send out a contract, so you can manage your business relationships and make decisions accordingly.
At KPA, we understand that businesses move quickly and sometimes engaging a lawyer can feel like a speed bump when you need an answer today. Rather than slowing your business down when something needs to be actioned, our commercial team acts as part of your business working alongside your existing team and advisors so you get the right answer quickly and can move forward with confidence.
No matter the size of business, we negotiate, draft, review and advise on the contracts your business relies on day to day. Whether you need urgent contract advice on whether you can terminate an agreement or want a legal partner for a milestone event like an acquisition or negotiating a major supplier distribution agreement, KPA Lawyers can help.
What we do
- Standard-form terms and conditions for consumers and websites
- Business to business terms and conditions of supply
- Tender packages and procurement documentation
- Template-suite development and contracting processes
- Joint ventures
- Franchise agreements and franchisee documentation
- Commercial and retail leasing and licensing
- Supply, distribution, agency and reseller arrangements
- Services agreements
- Employment contracts and independent contractor contracts
- Credit Applications
Competition and Trade
For many business owners, growth often means doing something for the first time – such as buying a complementary business, taking on a distributor or agreeing to acquire a competitor. Whilst these may on the surface seem like commercial decisions, it is important to find a legal partner that can guide you through any competition and regulatory challenges that can arise.
On 1 January 2026, Australia’s mergers rules under the Competition and Consumer Act 2010 (Cth) changed significantly. Certain acquisitions must now be notified to the ACCC and cleared before they can complete, with mandatory thresholds, fixed timelines, and consequences for non-notification that can go as far as unwinding the deal.
Since the changes, our M&A team has already advised a number of businesses across merger clearance, ACCC investigations and section 155 notices, cartel conduct, misuse of market power, exclusive dealing, resale price maintenance, and the broader Australian Consumer Law obligations.
See our team in action – read about one of the recent transactions we advised on here.
What We do
- Mandatory ACCC merger notification (post-1 January 2026)
- Pre-transaction competition risk assessment
- Misleading or deceptive conduct under the ACL
- Federal Court competition and consumer law litigation
- Exclusive dealing and vertical restraints
Shareholder and Unitholder Agreements
Shareholders agreements (for companies) and unitholders agreements (for unit trusts) set the rules between owners, how decisions get made, how equity moves, what happens on exit and how disputes get resolved.
It is very common for a business to start without one, and it rarely feels like a priority when everyone is getting along. While a business can run without one of these agreements, the moment something complicated happens (new investor, founder exit, deadlock, sale, fall-out), the absence of a proper agreement has the potential to become an expensive problem.
A shareholders or unitholders agreement is what you can rely on to keep others accountable. These can be bespoke agreements that set out what each owner is expected to contribute, what happens if they stop, and how someone can be bought out (including mechanics that determine the value of shares/units – good and bad leaver clauses).
These types of agreements also matter when you are considering outside investment. Oncoming investors will want to know want to know the rights they have, including information rights and what protects them from being diluted.
Our experienced commercial team draft and advise on shareholders and unitholders on agreements at every stage – from establishment, new round, investor admission, and deed of accession on a founder exit. We also recommend revisiting any existing agreement you may have every few years as what was once captured may no longer be appropriate for your business’s current needs.
Business owners will often put these agreements off because the conversation feels difficult, not because they think it does not matter. From experience, it is a far easier discussion to have now before something goes wrong and it is too late. If you are in business with others and have no agreement in place, or the one you currently have has not been looked at in years, book a confidential call with one of our commercial team to talk through what your business needs.
What We do
- Shareholders agreements – drafting, review, negotiation
- Unitholders agreements – drafting, review, negotiation
- Reserved matter and decision-making provisions
- Pre-emptive, drag-along and tag-along provisions
- Deadlock mechanisms and dispute-resolution clauses
- Exit, buy-out and forced-sale provisions
- Founder vesting and reverse vesting arrangements
- Onboarding new owners (deeds of accession and variation)
INTELLECTUAL PROPERTY (ip)
Your businesses’ IP is what separates you from your competitors. Your IP can cover a range of things – such as your brand, your product design, or the proprietary processes behind how you make your product.
Plenty of owners assume the logo their designer made belongs to them or that a process built in-house is simply protected because nobody outside the business knows about it. These are the assumptions that come back to bite you and usually come at the worst possible time (i.e. when a competitor launches a suspiciously familiar brand, when a supplier or former employee walks away with your processes, or when you are midway through selling your business and the buyer’s lawyer asks what IP you actually own).
Rather than finding out the hard way, our commercial team works alongside you to identify the IP in your business to ensure it is protected and where there is an opportunity, to commercialise it through licensing and collaboration.
If you are concerned about your contracts and staff arrangements not properly documenting who owns what or a competitor has started imitating what you have built, act sooner rather than later. These problems only get more difficult and more expensive the longer they sit.
Whatever your situation, our commercial team can help you today. Book a call with one of our lawyers and we will work closely with you to maximise your business’s IP and make sure it is protected.
What We do
- Trademarks and Copyright
- IP development and protection strategy
- IP commercialisation
- Licensing and collaboration arrangements
- Searching and the registration of trademarks
- Enforcement and litigation
- Court representation
Capital Markets and Capital Raisings
Raising capital is one of the most important steps a business takes through its growth journey. It is the point in time where you begin to invite other people into something that you have built.
The prospect of raising capital is an exciting time and it is a sign that your business is growing. It can also mean that there is real opportunity in front of you and that there are others who believe enough in you and your business to put money behind it. While it is easy to get caught up in the emotion of your business doing well, it is worth remembering that when people provide money as an investment, that money is tied to an obligation to deliver on what you have told them. This can include the business plan you have presented, the milestones you have set and any returns you have suggested that could be achievable. It is a significant undertaking and you need to ensure that you are protected.
Many founders also think a raise is all about how much money was raised and the total valuation. While that does matter, the rights you are handing over and how much control you keep are equally as important. In the excitement of money arriving and the pressure to put it to work chasing the opportunities in front of you, it is all too common for founders to give away more than they meant to, diluting themselves too far in the process. These are outcomes worth thinking through before you agree to anything.
At KPA, we understand that capital raises run on timetables and that seasoned investors do not wait. We advise founders and established businesses alike, working as an extension of the business, alongside other directors and advisors so that the conversations keep moving and you get proper advice. Our commercial lawyers can also prepare and negotiate the relevant documentation, taking you through how to raise capital properly, including complying with your disclosure obligations and meeting regulatory requirements under both ASIC and the ASX.
Whether you are looking to bring in your first outside investor, give options to the team who helped build the business, or prepare to list, this is the point in time where you need seasoned legal advisors making sure your interests are considered and managed. The earlier we are involved, the better we are able to advocate for your interests.
if a capital raise is on your horizon, book an initial call with our commercial team using the button below.
What we do
- Equity capital raisings: IPOs, placements, rights and bonus issues
- Debt capital raisings: bond issues and note programs
- Hybrid instruments, stapled securities and structured products
- Securitisations and derivative transactions
- Schemes of arrangement and regulated capital transactions
- Capital management: buy-backs, capital reductions and sale facilities
- Due diligence on issuers, vendors and target businesses
- Drafting underwriting agreements and PDSs
- Engagement with ASIC, ASX and other market regulators
- Coordination with financial advisers, accountants and tax specialists
- Employee share option plans (ESOP)
MERGERS AND ACQUISITIONS
Whether you are selling the business you have spent decades building, buying a competitor to grow, or buying out a partner who is ready to move on, these are the types of commercial decisions that most business owners make once or twice in a lifetime. There is no second attempt at getting them right.
The size of the transaction makes less difference than people expect. From a small owner-operated business through to a multi-million dollar sale, almost every transaction follows the same process and has to meet the same legal requirements. A smaller deal does not mean fewer obligations.
Rather than slowing the deal down, our commercially minded M&A team works as an extension of your business alongside your existing advisors and directors so that you can get the right answer quickly. Our team will flag any material issues at each stage and can assist you from drafting the initial NDAs and running due diligence through to negotiating the contract of sale and managing any settlement and completion obligations. You will get our guidance at every step so your interests stay protected while you make the important commercial decisions.
For those looking to sell: to command the best price for your business it needs to stand up to a purchaser’s scrutiny and that means presenting it properly. You will be in a far better position to negotiate if you take the time to organise your contracts, leases, and employee records before you go to market, rather than piecing documents together in the middle of due diligence.
For those looking to buy: you need to find any material issues during due diligence, and not a year after paying for the business. Our team has vast experience in conducting legal due diligence, separating the commercial matters for you to consider and flagging any material legal issues that are relevant to the transaction. As part of this process, we look for things that can change the value of the business such as contracts that cannot be transferred, important leases that are near expiry and uncovering any undisclosed liabilities. What you find during this stage is what tells you whether to negotiate the price, change the terms of the contract, or walk away.
If you are considering buying or selling a business, even where the transaction is still in its infancy, KPA lawyers can help you get it right the first time.
See our M&A team in action – read about a recent transaction we advised on.
What we do
- Confidentiality and non-disclosure agreements
- Legal due diligence
- Business purchases and sales
- Share and Unit sales and purchases
- Share subscription agreements
- Vendor Loan Agreements and General Security Deeds
- Corporations Act Compliance (Whitewash)
- Venture Capital investment transactions
- Employee Share Schemes and Option plans
Franchising
A franchise system only works when both sides understand what they have signed up to. A franchisor owns the business model, the brand and its trademarks and licenses – alongside the reputation it has built. Meanwhile a franchisee is often putting their savings on the line and signing personal guarantees to run a business someone else has designed. A successful franchise is built on having successful franchisees.
With around 1,300 franchise systems and close to 100,000 outlets, Australia is one of the most franchised countries per head of population in the world, and also runs one of the most heavily regulated franchise environments. Not only is compliance with the Franchising Code of Conduct (the Code) mandatory, penalties for non-compliance can be severe.
As a franchisor, your suite of documents is your franchise system. Disclosure documents, franchise agreements, and operation manuals all need to comply with the Code and they should be reviewed together every two to three years given how often it changes. We work with our franchisor clients to keep them up to date with what is required so any compliance issues are managed.
If you are considering buying a franchise, the disclosure document exists for your benefit and many sign it without properly understanding what it contains. Common things to look out for include – territory rights, renewal terms, what happens when you want to sell the business, and what the franchisor can change about the system without needing your prior agreement. We make sure any franchisee we act for understands exactly what they are signing and ensure it is the right system for them.
Whether you are building a franchise system, ensuring compliance or weighing up whether to join one. Talk to our commercial team booking by booking a free 15 minute consult below.
What we do
- Franchise document suites, including agreements, disclosure, and manuals
- Franchising Code of Conduct compliance and refresh
- Australian Consumer Law and Privacy Act compliance
- Mergers and acquisitions of franchise systems
- Due diligence on franchise systems and brands
- Property and leasing for franchise networks
- Trademark and IP management for franchise brands
- Fair Work accessorial liability advice for franchisors
- Technology, data and cybersecurity arrangements
- Franchise dispute resolution, mediation and litigation
Unfair Contract Terms
It is common practice for businesses to use standard form contracts, often presented to the other side on a take it or leave it basis, with little to no room to negotiate. Under Australian Consumer Law and the ASIC Act, the unfair contract terms (UCT) regime applies to these contracts where they have entered into with consumers or small businesses. Since the 2023 reforms, terms that incorporate unilateral variation rights, sweeping termination rights, or one-sided indemnities may not only be unenforceable but may result in penalties against the business seeking to rely on them.
If your business issues standard form contracts, a term will be judged to be unfair against the three part statutory test (1) does it cause a significant imbalance between the parties? (2) is it reasonably necessary to protect your legitimate business interests? and (3) does it cause detriment if relied on? We regularly assist our business clients in reviewing their contracts against those tests to identify whether your business is exposed and what amendments are needed to ensure they are compliant.
If you have signed a standard form contract and the other side is now relying on a term that seems heavily one-sided, the fact that you have signed does not automatically make it enforceable. Under the unfair contract terms that clause (or clauses) could be void, and before you comply with something you had no ability to negotiate, it is worth finding out whether it was enforceable at all.
If you are looking to review your own business’s contracts or questioning someone else’s. Contact our commercial team today.
What we do
- Standard-form contract identification and analysis
- Unfair-term identification and risk assessment
- UCT compliance reviews and contract-suite refresh
- Advice on UCT obligations under the Australian Consumer Law
- Advice on the ASIC Act UCT regime for financial services
- Prosecution and defence of unfair contract term proceedings
- Board reporting on UCT exposure
Foreign Investment and Trade (FIRB)
If you are investing into Australia from overseas or selling your business to an offshore buyer, FIRB approval can determine whether the transaction completes at all. Because it sits somewhat outside the transaction itself, it can be overlooked by those focused on getting the deal done – but is no formality, and where approval is required it has to be obtained. To bypass it, or simply missing the fact that it applies, is one of the very few mistakes that can force an entire transaction to be unwound, even after settlement.
Where a foreign person, including an offshore company intends to acquire an Australian business, or shares in an Australian company, or takes an interest in an Australian business or land (which may include an interest in a lease), approval may be required under the Foreign Acquisitions and Takeovers Act 1975 (Cth). Monetary thresholds apply and vary by sector and investor, with some acquisitions requiring notification regardless of value.
If you are looking to invest into Australia, the question is not only whether FIRB approval is required but what it does to your timeline. It is important to note that approval can take time and conditions may be attached to approval. Should you look to complete a transaction without the required approval, it can attract penalties and be unwound. The earlier you find out whether FIRB applies, the more room you have to plan around it.
If you are selling to an offshore buyer, the application is not yours to make but your settlement depends on someone else getting it approved, putting your timeline in their hands. Before you go too far into a sale process, it is worth seeing whether the buyer is a foreign person, including being an Australian company with offshore shareholders. If they are considered to be foreign, the contract should deal with FIRB properly, including what the buyer has to do to progress the application, and what happens if approval does not go through.
We assist our clients with a path through the FIRB approval process, including the notification assessment, and preparation and lodgement of FIRB applications. Get in contact with one of commercial lawyers to find out if what you are planning requires FIRB approval.
What we do
- FIRB applications and foreign investment approvals
- Inbound investment by foreign clients into Australia
- Outbound investment by Australian clients offshore
- Cross-border joint ventures and collaboration agreements
- International distribution, licensing and agency arrangements
- Foreign-purchaser duty surcharge advice
- Coordination with overseas counsel on multi-jurisdictional deals
Privacy and Data Protection
It should come as no surprise that every business holds some form of personal information. Common examples include – customer contact details and payment record, employee files and health information, references from a recruitment process, or even footage from a security camera. However, what does surprise many is how much of the law applies to them and how early it can apply. From the moment you collect any personal information about someone, the responsibility for what happens to this information sits with you, along with a set of obligations for managing it appropriately.
Following the Privacy and Other Legislation Amendment Act 2024, the regulator now has stronger enforcement powers and has greater discretion to issued increased penalties on businesses that fail to comply with the changes, including a statutory tort for serious invasions of privacy having been introduced.
With penalties and compliance requirements now ramping up. We help the businesses get the fundamentals right. That means developing privacy policies and collection notices that reflect what you actually do with the information, and data handling practices your staff can follow. We can also assist you in developing breach response plans that set out how to respond if something goes wrong. As part of its wider M&A capability, our commercial team advises on the privacy aspects of a transaction, where personal information is expected to change hands.
Whether you are responding to a privacy breach, reviewing your privacy position for the first time, or working out what applies to you after the recent reforms, KPA Lawyers can take you through an assessment now.
What We do
- Privacy Act compliance, policy drafting and collection notices
- Data-handling procedures and information security standards
- Mandatory data breach notification and incident response
- Direct marketing, Spam Act and workplace surveillance compliance
- Credit reporting under Part IIIA of the Privacy Act
- OAIC engagement and submissions
- Privacy aspects of M&A and cross-border data flows
- Privacy litigation, including the statutory tort
SELF MANAGED SUPER FUNDS (smsf)
A self managed super fund is a private retirement fund that members run for their own benefit, whereas an industry fund is managed professionally on behalf of many members. Both are ways of saving for your retirement.
Say your business has been performing well and you have been renting that premises for a number of years – an SMSF can be an attractive vehicle for buying that freehold, using money within the fund to secure the site you operate from. To do that, your trust deed will need to allow property investment, and borrowing if your fund requires finance. KPA can review your existing deed to confirm those things are permitted, or set one up from scratch so they are, and guide you through the acquisition itself.
Superannuation continues to remain an attractive wealth management structure for Australians. It is likely to become more important still with the announced changes to CGT and the proposed taxation of discretionary trusts. For business owners in particular, the interaction between superannuation and existing structures is worth reviewing well before those changes take effect. KPA can take you through those matters now, in preparation for the capital gains tax changes effective from 1 July 2027 and the foreshadowed changes to the taxation of trusts effective 1 July 2028.
If you have an SMSF and the deed has not been reviewed for a number of years or you are looking to set one up, including to buy commercial property through it – book an initial consult with one of our lawyers using the button below.
What We do
- Establishment of SMSF trust deeds
- Annual review of SMSF trust deeds to ensure their continued compliance
- Acquisition of business freehold premises through SMSFs
Frequently Asked Questions
Disclaimer : The information contained in these FAQS is of a general nature only and does not constitute legal advice. It has been prepared by KPA Lawyers without considering your specific objectives, circumstances or needs, and should not be relied on as a substitute for tailored legal advice.
Why KPA Lawyers for Commercial Law
The firm that puts your outcome first
We combine senior expertise with genuine care, your matter will be handled by an experienced lawyer every step of the way.
Senior COMMERCIAL lawyers on every matter
A senior lawyer is involved at every stage, working alongside our wider team to ensure your matter is handled the right way.
Work with commercially minded lawyers
Many of our commercial lawyers have extensive experience in business and bring a strategic, measured approach to your matter.
Three conveniently located offices
Visit our Sandringham or Mornington offices or meet with us in the Melbourne CBD, whichever location is most convenient for you.
KPA handled our business sale with precision and care. They explained every step clearly and achieved a result we were truly happy with.
Business owner, Melbourne · commercial Law client
Client Stories
What our clients say
Our Team
The CORPORATE AND COMMERCIAL LAW TEAM
You get direct access to senior legal minds who actively steer your strategy, giving you the clarity and financial certainty you need to move forward with confidence.
Erin Varker
PARTNER
Erin heads KPA Lawyers' Commercial division and has been with the firm since her admission to practice. She...
Zaid Mohseni
SPECIAL COUNSEL
Zaid has advised private, corporate and government clients on a wide range of transactions including corporate restructuring, fundraising,...
Nancy D’Arcy
ASSOCIATE
Nancy is a commercial lawyer who works closely with clients to help them complete transactions efficiently and with...