Most legal problems do not start as legal problems.
They start as a document that was signed years ago and never looked at again – a shareholder agreement, a supply contract, a lease, a contractor arrangement. It works fine until the business changes. New owners. New products. New premises. A sale. A dispute.
At MST Lawyers’ recent webinar, five Principals set out what they are seeing across contracts, brand protection, leasing, disputes and employment law. Different areas of law, one consistent theme: a gap in one part of a business rarely stays there.
Key takeaways
- Structures and contracts drafted when a business started often no longer match how it operates – and gaps usually surface during a sale.
- Registering a business name does not give you ownership of a brand.
- A lease can determine whether you can rebrand, expand or sell – check it before you decide, not after.
- What you write and what you keep in the early days of a dispute shapes the outcome long before court.
- Payday Super, psychosocial hazards and flexible work all now require documented process, not just a policy.
1. Contracts and structures: do they still fit the business?
Raynia Theodore, Principal in Corporate Advisory, Commercial and Franchising, asked a question that applies to almost every established business: do the documents put in place at the start still support the business today?
Her main points:
- Structure should evolve. Raynia described a franchise network that held everything – IP, trade marks, franchise agreements, leases – in a single company. When it lost an arbitration with an overseas master franchisee, the company was wound up and the network sold. Separate entities may have saved the Australian operations. At the other extreme, a retail client with 45 stores spread across different companies made its own sale process far harder than it needed to be.
- Watch the trust reforms. The Government has announced a 30 per cent minimum tax on the taxable income of discretionary trusts from 1 July 2028, with restructuring rollover relief proposed from 1 July 2027. It is not yet law, but restructuring takes time – start the conversation with your advisers now.
- Treat governing documents as a corporate prenup. Shareholder and unitholder agreements should deal with roles, decisions, valuation and exit. The time to build an exit strategy is before anyone wants to leave. Without one, the alternatives can be oppression proceedings or a winding-up application.
- Get supply arrangements in writing. A handshake offers little protection when a supplier goes under or is sold. And a contract from a larger counterparty is not automatically non-negotiable.
- Check your terms and your security. Standard-form consumer and small business contracts should be reviewed for unfair contract terms – significant penalties have applied since November 2023. And a retention-of-title clause may be worth little if the security interest was never registered on the PPSR.
- Sale-readiness is ongoing. Due diligence exposes gaps. Raynia gave real examples: a missed wage increase that cost a vendor around $200,000, and customer contracts with change-of-control clauses that let customers walk away.
Watch Raynia Theodore’s presentation: Are your business contracts and structures still fit for purpose?
More on MST Lawyers’ corporate and commercial services
2. Brand: do you own what you rely on?
Louise Wolf, Principal, focused on the gap between using a name and legally protecting it.
Her three recurring gaps:
- Assuming a business name means ownership. ASIC and IP Australia do different jobs. A registered company or business name gives you nothing like the monopoly a trade mark does. One client operated 20 years without registering – by the time they applied, similar marks had appeared and much of the historical evidence needed to prove earlier use had been lost in a computer system change.
- Assuming registration is the finish line. Classes need to keep matching what the business actually sells. The application must be filed in the correct entity – a mistake at the outset cannot be fixed by assigning later. And keep track of which company owns what: if the owning entity is deregistered, the trade mark becomes very difficult to recover.
- Unclear ownership of agency and AI-generated content. Paying an agency to design a logo does not automatically mean you own it. AI adds another layer – whether the output is too close to someone else’s mark, whether you can prove ownership, and what confidential information staff have fed into the platform.
Two cases made the wider point. In the Bed Bath N’ Table dispute, the High Court found no trade mark infringement but did find misleading and deceptive conduct – so a clear trade mark search is not the whole answer. In Zip Co and Firstmac, prior knowledge of an existing mark weighed heavily against a defence of honest and concurrent use.
Louise’s framework: clear before launch, control through correct ownership and agreements, monitor for misuse and change. And on evidence of use: use it and take pictures, or you may lose it.
Watch Louise Wolf’s presentation: Brand and business asset protection
More on trade marks and intellectual property.
3. Leasing: will it support your next move?
Evelyn Marcou, Principal in Property and Leasing, challenged the idea that a lease is just the document that lets you occupy premises. For most businesses it is a core asset.
Her main points:
- Occupancy costs are under real pressure. Land tax in particular is driving activity, with VCAT dealing with a wave of tenants arguing their leases are retail leases. Do not assume the label in the lease settles the question.
- Look at the lease before you make the decision, not after. Businesses decide to rebrand, sell or expand and only then ask what the lease permits. That is the wrong order.
- Permitted use can shrink your buyer pool. A lease limited to a very specific café operation offers far less flexibility on assignment than a broader food or restaurant use.
- Allow time for landlord consent. Approaching a landlord a week before settlement rarely ends well. With multiple sites, every lease, landlord and jurisdiction may be different.
- Make-good is often the biggest exit cost. A proper condition report at the start is what makes it arguable years later.
- Diarise your option dates. For many non-retail leases the obligation sits entirely with the tenant. Miss the window and you may lose the right to stay.
Watch Evelyn Marcou’s presentation: Commercial leases: What businesses need to consider in 2026
More on commercial leasing.
4. Disputes: early decisions matter
Mark Skermer, Principal and Head of Dispute Resolution and Litigation, focused on what happens as commercial relationships deteriorate.
His main points:
- Rights are being enforced faster. Landlords issuing breach notices sooner; more parties looking for a way out of franchise and commercial agreements. Payment defaults and insolvencies remain significant, particularly in construction – and a liquidation can bring preference payment claims behind it.
- Be careful running litigation on AI. Mark has seen a sharp rise in parties who start proceedings themselves, then seek advice weeks out from trial. By then pleadings are filed and expert evidence is in. Unwinding that is far harder than getting it right at the start.
- Preserve the evidence. In three trials over 12 months, the key witness in two was a former employee. Keep phones, emails, file notes and project records while you still have access to them.
- Keep the commercial objective as your north star. Recovering money, exiting an agreement, preserving a relationship and protecting reputation are different goals requiring different strategies.
Four things when a dispute emerges: identify the risk, preserve the evidence, get advice early, stay focused on the commercial objective.
Watch Mark Skermer’s presentation: Commercial disputes: What you do early can change the outcome
More on dispute resolution and litigation.
5. Employment: document your workings
James Sanders, Principal in Employment and Workplace Law, identified five priorities for the rest of 2026 and into 2027.
- Payday Super. In effect since 1 July 2026. Superannuation now moves with each pay cycle rather than quarterly, which means more frequent obligations and more opportunities to get it wrong. Check your payroll system is actually complying.
- Psychosocial hazards. Every state and territory now regulates these. In Victoria, specific regulations have applied since 1 December 2025. A wellbeing policy alone will not demonstrate compliance – you need to show you identified hazards, consulted staff and put practical controls in place.
- Worker classification. A genuine contractor arrangement can drift into something else as roles change. Look past the label: whose business is it, who controls the hours, who controls the work.
- Flexible work. The final answer matters less than the process used to reach it. Employers who genuinely engage with a request, consider alternatives and document their reasoning are in a much stronger position if the decision is challenged. Victorian employers should also continue monitoring the proposed right to work from home. The Bill is still before Parliament, is not yet in force and is now expected to commence on 1 July 2027, although its provisions may change before it is passed.
- More claims, slower resolution. Applications questioning dismissals are rising sharply, and employees can now generate a full application within an hour of being dismissed. Meanwhile some General Protections matters take years to reach a hearing – so you may be defending a decision long after the people involved have left.
James’s message: document and show your workings. And remember a policy no-one has been trained on is not much of a defence.
Watch James Sanders’ presentation: Employment law changes Australian businesses need to watch in 2026
More on employment and workplace law.
The best time to review is when things are calm
The message that ran through all five sessions: do not wait for a sale, a dispute or a crisis to force the review. As Raynia put it in closing, the best time to audit a business is when things are going well and relationships are good. Once you are in the middle of a transaction or a dispute, the gaps are much harder to plug. You do not need to rewrite everything. Identify where the business has changed most since its key documents were signed – and start there.
Do not wait for a sale, dispute or compliance problem to expose the gaps
MST Lawyers advises Australian businesses across corporate and commercial law, franchising, intellectual property, property and leasing, dispute resolution and employment law. Where an issue crosses several of those areas, our teams work together on it. Talk to MST Lawyers about reviewing the legal arrangements that support your business and identifying what needs attention now.
Frequently asked questions
Where should I start if I have not reviewed anything in years? Start where the business has changed most – new owners, new products, new premises, new ways of working – and review the documents attached to that change.
Does the proposed 30 per cent trust tax affect me now? Not yet. It is proposed to start 1 July 2028 and is not yet law. But restructuring takes time, so it is worth understanding your position early.
Is a registered business name enough to protect my brand? No. It does not give you the rights a registered trade mark does, and it does not stop someone else using a similar name in the market.
What is the most common problem found during a business sale? Missing or unsigned agreements, contracts that cannot be assigned, and change-of-control clauses. These can reduce the price or end the deal.
This article is general information only and is not legal advice. Please contact MST Lawyers for advice about your circumstances.
