Commercial & Corporate
Buying or selling a business
A small business can be sold in two ways: as a sale of its assets (the equipment, stock, goodwill, lease and business name), or as a sale of the shares in the company that owns it. Sun Lawyers acts for buyers and sellers of cafés, restaurants, shops and other small businesses, from the first offer through to settlement. We work in English, Mandarin and Cantonese.
Book a consultationWhen you need this
- You are about to pay a deposit or sign a heads of agreement.
- The lease has to be transferred to the buyer.
- Staff are staying on with the new owner.
- Equipment or vehicles may be under finance.
- A licence or approval has to be transferred with the business.
- You want to stop the seller opening a competing business nearby.
What we do
- Draft or review the sale contract, including the conditions that must be met before settlement and when the deposit is refunded.
- Check the lease, the Personal Property Securities Register (PPSR), licences, key contracts and employee entitlements.
- Handle the assignment of the lease and, for sellers, seek the release of any personal guarantee.
- Prepare the adjustments at settlement.
- Draft or review the restraint of trade clause and the handover arrangements.
Points worth knowing
- In an asset sale the buyer takes the assets listed in the contract, and the seller's company keeps most of its own history and liabilities. Employee entitlements that move with transferring staff are an exception, covered below. In a share sale the buyer takes the company with everything in it, including liabilities the buyer may not know about.
- The PPSR shows whether a financier or supplier has registered a security interest over equipment, vehicles or stock. Anything registered should be paid out and released by the seller before settlement.
- A lease can usually be transferred only with the landlord's consent. For retail leases in NSW, the Retail Leases Act 1994 (NSW) limits the grounds on which the landlord can refuse and gives the landlord 28 days to decide.
- When staff move to the buyer with the business, their earlier service generally counts as service with the new employer. A buyer that is not an associated entity of the seller may decide not to recognise that service for annual leave and redundancy pay. Where it is not recognised, the seller pays out untaken annual leave when the employment with the seller ends, and may also have to pay redundancy pay.
- In NSW a restraint of trade is valid to the extent that it is not against public policy. A restraint should go no further than is reasonably needed to protect the goodwill the buyer has paid for.
- The tax and GST treatment of the sale should be confirmed with your accountant before the contract is signed.
How we work
- 01
A first conversation in English, Mandarin or Cantonese about the business, the price and where the negotiations have reached.
- 02
Before any work starts, we confirm the scope of work and our fees in writing.
- 03
We prepare or review the contract, carry out the checks, and work with the other side, the landlord and your accountant through to settlement.
Common questions
The seller wants a deposit now and says the contract can follow. Is that a problem?
Yes. A deposit should be paid only under written terms that say when it must be refunded, for example if the landlord does not consent to the transfer of the lease, a licence cannot be transferred, or finance is not approved.
Should I buy the business assets or the company's shares?
For a buyer, an asset sale is usually the safer structure, because the seller's company and most of its past liabilities stay with the seller. There can be reasons to buy the shares instead, such as contracts or licences that cannot be transferred. We advise on the structure before any document is signed.
I am the seller. What happens to my personal guarantee on the lease?
It does not end automatically when the business is sold. For a retail lease, the release depends on steps the Retail Leases Act requires before the assignment. Otherwise it depends on the landlord agreeing in writing. We deal with this as part of the lease assignment.
Related reading
Related legal services
Shareholders' agreements and investing in a company
Commercial and retail leases in NSW
Loan agreements and personal guarantees
Debt recovery and statutory demands
Shareholder and business partner disputes
Commercial contracts
Franchising
Building and construction disputes
Mediation and dispute resolution
Court representation
This page is general information about the law applying in New South Wales and is not legal advice. Please contact us about your own situation.
Last updated: October 2026