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The most common call we receive after a business sale: a buyer discovers a liability they were not told about or a seller finds that the warranties they gave in the sale agreement are being used to claw back a significant portion of the purchase price. In most cases, the problem was visible before the contract was signed; in the financial statements, in the employee records, in a supplier agreement, or in a registered security interest on the PPSR that a search would have found. The deal looked right. The due diligence was either skipped or rushed. The contract did not include adequate protections.
At Leo Lawyers, we act for buyers and sellers in business sales, acquisitions and disputes across New South Wales. We conduct legal due diligence, advise on the structure of the transaction, draft and negotiate sale of business agreements, and act in post-completion disputes when warranties are breached or representations prove false.
Our business sale and acquisition services cover:
Over 18 Years of Experience in Commercial Law and Business Transactions
“Help you stay ahead with innovative, practical and commercial advice.”
Get legal advice on the structure and the contract before any agreement is signed.
| Factor | Asset Sale | Share Sale |
|---|---|---|
| What transfers | Named assets only; goodwill, plant, stock, IP, contracts (where assignable) | All assets and liabilities of the company; buyer steps into the seller's shoes |
| Liability exposure for buyer | Lower; pre-completion liabilities generally stay with the seller | Higher; buyer inherits all past and present liabilities of the company |
| GST | May be GST-free if structured as a going concern under A New Tax System (Goods and Services Tax) Act 1999 (Cth) | No GST; shares are input-taxed financial supplies |
| Stamp duty (NSW) | Duty applies to the transfer of dutiable property including goodwill and land | No duty on shares in most private companies in NSW from 1 July 2016 |
| Capital gains tax for seller | CGT applies to each asset; small business CGT concessions may apply | CGT on the shares; small business CGT concessions may apply if conditions met |
| Contracts and licences | Must be individually assigned; counterparty consent required for most contracts | Remain with the company; generally no assignment required |
| Employee entitlements | May transfer on transfer of business under Fair Work Act 2009 (Cth) | All employment continues uninterrupted; all entitlements transfer |
| PPSR | Buyer should search for security interests over assets being acquired | Security interests attach to company assets, not the shares; different risk profile |
| Preferred by | Buyers; cleaner liability position | Sellers; simpler, often better tax outcome, no consent requirements |
Due diligence is not a standard checklist exercise. The scope depends on the size and nature of the business. For every acquisition, the following areas must be examined:
(1 to 2 Days)
(Same Day)
(14 to 21 Days)
(5 to 10 Days)
(Ongoing)
(5 to 10 Days)
We act for buyers who need legal due diligence completed before they commit, sellers who need the deal structured and documented to protect their position after completion and parties on both sides of a dispute arising from a business sale where warranties have been breached, or representations have proved false. We work across industries including professional services, retail, technology, hospitality, healthcare and construction.
Book a consultation with Damin Murdock today.
Mr Murdock has obtained over 300 5-Star reviews from satisfied customers.
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