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Buying business in NSW

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In New South Wales, the process of buying a business involves a number of steps and each steps requires careful consideration to ensure that the ownership of the business is successfully transferred. In this article, we will explain the number of steps involved in the process of buying a business.

Determine the value of estate

If the value of the estate is less than $50,000, then it is classified as a small estate. If you are the executor of a small estate, chances are you may not need to apply for a Grant of Probate to access the deceased’s assets. In this event, you shall contact the deceased’s bank or other financial institution to find out whether they require a Grant a Probate to release fund.
If you believe you do not need to apply for a Grant of Probate, before you proceed to distribute the deceased’s asset, you shall contact a solicitor or the Supreme Court Registry Probate Division on (02) 9230 8111 to confirm this.

Exchange of contract

The vendor (or the vendor’s lawyer) will provide you with a formal Contract of Sale. In New South Wales, usually a Standard Contract for the Sale of Business is used for the purchase of business. This contract contains extensive clauses that cover all legal requirement under Australian Law. However, depending on the special nature of different business, the contract may include special conditions in addition to the Standard Contract for Sale of Business.
At this stage, you may negotiate with the vendor if there is terms or conditions in the contract that you do not agree with. After all the negotiations and the contract terms have been settled, you and the vendor may proceed to the signing and the exchange of contracts. At the time of contract exchange, the vendor will usually require you to pay deposit (normally 10% of the agreed purchase price).

Pre-settlement

During this stage, you will be required to fulfil a range of obligations outlined in your contract of sale. These may include the obligations in the standard condition as well as those contained in the special condition. Some usually obligations are as follows:

  • Obtain finance (if required) to complete the purchase;
  • Getting the lessor’s consent to transfer the lease from the vendor to you; and
  • Procure the transfer the transfer of any other license, agreement if provided by the contract of sale.

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Settlement

At settlement you will be required pay the balance of the purchase price to the vendor and in exchange the vendor will pass you the ownership of the business. Upon settlement, you may also receive a range of document which pass the ownership rights to you such as the share transfer or share certificate (if the purchase is by way of share transfer).

Post settlement

After settlement of the purchase of business, you must take all necessary steps to ensure that any all license or agreement (if they are to be takeover from the vendor) has been appropriately transferred.

You will also be liable for the stamp duty and it shall be paid within 3 months from the date of exchange contract.

Application for a Grant of Probate

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In NSW, if you are named as the executor in someone’s will, before you can start dealing with the deceased’s assets, you may need to apply for a Grant of Probate. In this article, we will explain the number of steps which will involve in the application for a Grant of Probate.

Determine the value of estate

If the value of the estate is less than $50,000, then it is classified as a small estate. If you are the executor of a small estate, chances are you may not need to apply for a Grant of Probate to access the deceased’s assets. In this event, you shall contact the deceased’s bank or other financial institution to find out whether they require a Grant a Probate to release fund.
If you believe you do not need to apply for a Grant of Probate, before you proceed to distribute the deceased’s asset, you shall contact a solicitor or the Supreme Court Registry Probate Division on (02) 9230 8111 to confirm this.

Grant of Probate

To make an application for a Grant of Probate, you must ensure that you are named as the executor in the Will and only if the original will is available and we set out below the number of steps involved in an application for a Grant of Probate:

  • Place a notice in a newspaper in the local area where the deceased lived or a Sydney daily newspaper if there is no local newspaper. This notice is called a Notice of Intended Application for Probate (or Form 9).
  • The purpose of this notice is to inform any person who has claims over the estate (eg, a person to whom the deceased owed money) to come forward and notify you so that they can be included in the probate application. Once the notice is published, you have to wait 14 days before to file the application for a Grant of Probate.
  • You must know the complete financial details of the estate. To do this, we suggest that you send letters to the deceased’s bank and other financial institution (including superannuation funds) of the deceased and inform them that the person has passed away. In your letter, you must include a certified copy of the death certificate, a certified copy of your identification and the Will.
  • The financial institution may inform you the funds available or if there is any amount owing, the debt that is required to be paid back. If there is any debt that needs to be paid immediately, you may ask the financial institution if it is willing to wait the debt or if not if it can be paid out of the estate (after probate is granted).
  • 14 days after the Notice of Intended Application was published in the newspaper you can apply for a Grant of Probate. To complete your application you must file the original plus two copies of the following:
    • Summons for Probate (Form 111 UCPR);
    • Draft grant (Form 112 UCPR)
    • Affidavit of executor (Form 97 SCR).
      In the affidavit, you must attach the following documents:
      • The original will;
      • The original Death Certificate;
      • The tear sheet (or clipping) from the newspaper of the Notice of Intended Application;
      • Inventory of assets (Form 96 SCR);
      • Certified copy of the executor’s driver licence or other form of identification; and
      • If the primary or joint executor is not willing or not able to act, a Form 94 SCR – renunciation of executor.
    • A stamped self-addressed envelope; and
    • Payment of the relevant court fee. (you may check the appropriate filing fee from the supreme court website). The fee can be paid by bank cheque, money order or credit/debit card in person).
  • If all your documents are in order, the grant will be made and be returned in the stamped self-addressed envelope that you provided. It usually take around 5 working days if the grant can be made. However, if the court finds any problems with the application and require any changes or further documentations, the court will send you a Probate Requisition Sheet that sets out the deficiencies. You will need to comply with the requisition before the court can make a decision to grant the probate.

Divorce Procedural

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In Australia getting a divorce is not a simple process. In this article, we will explain the number of steps which will involve in the application of divorce in Australia.

Before you apply:

In all states of Australia (with the exception of Western Australia), you must apply for divorce through filing an application in the Federal Circuit Court of Australia. Before your application can be accepted, there are certain criteria that you must satisfy the Court that it has jurisdiction to rule on your divorce matter. In a summary, you must prove to the Court that either you or your spouse:

  • regard Australia as their home and intend to live in Australia indefinitely; or
  • be an Australian citizen by birth, descent or by grant of Australian citizenship; or
  • live in Australia and have done so for the 12 months immediately before filing for divorce.

Please note that it does not matter where you got married whether in the Australia or not, you may apply for divorce in Australia so long as you and your spouse are legally married and satisfy the above jurisdictional criteria.

Separation:

In Australia, you must have been separated for a continuous period of at least 12 months immediately before you applying for divorce.

If you and your spouse separated but remained living under the same roof (or was living under the same roof for any period which count towards your period of separation), you may need to provide additional evidence to satisfy the Court that you and your spouse and have genuinely separated. In this circumstances, we suggest you first seek legal advice before applying for divorce.

If at the time of your application, it was within two years from the date of your marriage, you and your spouse will be required to attend relationship counselling and obtain a certificate signed by a certified counsellor.

Applying for divorce:

You can apply for the divorce by yourself only or jointly with your spouse. In either of these situations, you will need to complete the Application for Divorce which can be download from the Federal Circuit Court of Australia website. After you and /or your spouse fill in the relevant field, you and/or your spouse are required to sign the application before a qualified witness, such as a Justice of Peace, a medical practitioner or a lawyer.
Once you complete the Application for Divorce, you will need to file it at a registry of the Federal Circuit Court of Australia which can be found here. You will also be charged a Court filing fee which can also be found on the Federal Circuit Court of Australia website.

Service of divorce application:

Once your Application for Divorce is filed, you need to serve a copy of the application on your spouse. However, this requirement only applies when you are applying for divorce by yourself and not in the situation where the application is lodged jointly by you and your spouse.
If service is required, you may service the application by personal service (ie, delivering it to your spouse in person) or by post. You may find more information on the Divorce Service Kit available on the Federal Circuit Court of Australia website. You may also seek legal advice in this respect if you are having any difficulties in completing the service requirement.

Your divorce hearing:

Once your divorce application is filed, you will be given a hearing date which can be found on the cover page of your Application for Divorce.

You must attend the hearing where:

  • you made the Application for Divorce on your own; or
  • if you and your spouse have children under 18 years of age.

If you do not have children under 18 or if you file a joint application with your spouse, you can choose not to attend the divorce hearing.

At the hearing:

You must reach the Court before the designated hearing time. When you arrive, tell the court office your name and your matter so they can note your attendance. You then take a seat in the back of the court room and waiting for your matter to be called.

Once the court office calls your matter, you shall come to the bar table and your divorce hearing will start. During your hearing, the Registrar may ask you some questions based on the information you provided in your Application of Divorce. If you have children under 18 the Registrar may want to know whether there is proper arrangement for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported. 

The outcome:

If the Registrar satisfies that the grounds for divorce have been established and the Application for Divorce is properly served (if required), the Court will grant the divorce in the hearing.

The divorce order will become final one month and one day after the date of hearing and the Divorce Order will be sent to you and your spouse after the order becomes final.