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Katherine Hawes

Principal Solicitor at Aquarius Lawyers

17 years PQE
Sydney, NSW, AU
Profile Activity Network
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    Katherine Hawes answered a question
    0 lawyers agreed | over 8 years ago

    Business registered a similar name to me

    Hi - business registration of a name is not about protecting a name, but rather to assist consumers to identify individuals behind a business name so the purposes of suing them. In order to protect the name you need to trademark or bring an action for passing off. Passing off is using name or symbol to suggest association with a brand or business, when there is not one. Also very similar is not the same as exactly alike. I would suggest that if you which to protect your business name that you investigate trademark.
    Small Business Legal structures VIC AU
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    Katherine Hawes answered a question
    0 lawyers agreed | over 8 years ago

    Legal obligations as franchisee

    Hi - generally there is little room in a franchise agreement to make changes to the method or manner of the operation of the franchise. It may be able to be negotiated with the franchisor. In most cases you will require permission before making any changes. For instance I had one client who set up a facebook page for his franchise not using the corporate colours or style and was made to take it down.
    Small Business Franchising NSW AU
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    Katherine Hawes agreed with Rhys Ryan 's answer on Architecture business structure
    over 8 years ago
    Hi! Your situation is not an unusual one - choosing the right way to structure your business is among the most important a business owner makes. Using a company structure can be advantageous for a successful businesses, particularly for tax purposes. This is because the company tax rate in Australia is 30%. As a partner in a partnership, you are taxed as an individual at the highest marginal rate, which may be more than 30% depending on how much you earn. Therefore, structuring your business as a company can save you a substantial amount of money.

    Aside from tax, partnerships can have other disadvantages compared to companies. Perhaps the major disadvantage is that as a partner you are personally jointly and severally liable with your other partners. This means that should the partnership fail, or one of the other partners incurs a personal debt, your personal assets can be accessed by creditors.

    A company is different as it is a separate legal entity from the people that own it. This means that as a director of and shareholder in a company you will not be liable for the personal debts of the other shareholders and directors. Moreover, companies are generally “limited liability”, which means that absent any misconduct or guarantees by directors or shareholders, creditors are only able to enforce debts against the assets of the company, plus any money unpaid on shares. As a business owner, this means that you can enter into contracts and borrow money without your personal assets being at risk.

    So depending on your circumstances, it may be a good idea to change to a company structure instead. The best thing to do is to get legal advice - this would mean a lawyer would be able to look at your specific situation to help you figure out what would be best.
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    Katherine Hawes answered a question
    1 lawyer agreed | over 8 years ago

    How do I bring on a financial partner in my micro social enterprise in SE Asia?

    There are a number of factors to be considered - the first is jurisdiction. Is it proposed that the law of a State in Australia will cover the agreement? It is important to ensure that the contract is enforceable and complies with the law of the jurisdiction. The second relates to IP and the third to liability.
    Small Business Business contracts 2 KH
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    Katherine Hawes agreed with Law Advisor Research Team 's answer on Online startup - Legal bits and pieces required
    over 8 years ago

    Hi there. Launching a start up can be a complex process, and it is great that you are seeking some assistance to ensure everything is done properly.

    The first part of your question is straightforward. If you would like some terms and conditions drafted for you, you should contact a solicitor who specialises in start up businesses. Solicitors in this area develop standard form terms which are tailored to different scenarios, and will ensure you get the best outcome possible for your business.It is an investment in the future of your startup as it will give you confidence that all the legal documents are in place.


    The second part of your question is more complex. There are some problems you should be aware of that may arise with your plan to transfer property to your wife in order to avoid liability to creditors.

    It is possible that the law will not consider the property to only belong to you in the first place. This is because the law presumes that anyone who has worked towards and supported their spouse in property ownership (ie helping to pay the mortgage, or being a stay at home parent, cooking, cleaning and supporting their spouse) may be entitled to a share of the property even if the property is not in their name. This is what is called a “constructive trust” and it means that transferring it to your wife may not protect your house from the creditors as you will still be deemed by the law to own part of it.
    In addition, there are financial implications to transferring property to another person. The first is that you will have to pay stamp duty on the transfer, which will be calculated on the value of the property. This can be quite costly, so it is something to keep in mind. There are also potentially capital gains tax consequences. Besides, transferring the property may not end up helping you: evenif you transfer your property to someone else, a lender may still require that the house is security to any loan or that the legal owner of the house acts as guarantor for the loan.
    As you probably already know, asset structure and financial planning is a complex issue, so it is important that you contact a solicitor. They will help you figure out what is the best way to protect your assets in the event your start up is unsuccessful. It is important that you know exactly what risks you are taking, and a lawyer can help with this.