Taking on a commercial lease represents one of the most significant financial commitments your business will make. Whether you’re opening your first café in Fitzroy, expanding your retail presence along Chapel Street, or securing office space in the CBD, the lease agreement you sign will shape your business operations for years to come. Yet many Melbourne business owners approach this critical decision without proper legal guidance, viewing legal fees as an unnecessary expense rather than a strategic investment. The reality is quite different. Engaging a skilled commercial lease lawyer in Melbourne before you sign isn’t simply about reviewing clauses. It’s about understanding the commercial implications of every obligation, protecting your business from substantial financial exposure, and establishing a trusted legal relationship that will serve your enterprise as it grows. This article explores why local legal expertise matters for commercial leases and what’s truly at stake when you proceed without it. Beyond statutory knowledge, local lawyers understand the commercial realities that shape Melbourne’s leasing landscape. They recognise typical lease structures in various suburbs, know standard market terms for different property types, and can identify when proposed lease conditions fall outside normal commercial parameters. Why a Local Lawyer Matters for Melbourne Commercial Leases Commercial leasing in Victoria operates under distinct legislative frameworks that differ meaningfully from other Australian jurisdictions. The Retail Leases Act 2003 (Vic) governs retail tenancies, imposing specific disclosure requirements, rent review mechanisms, and dispute resolution processes that don’t apply in other states. A lawyer practising in Melbourne brings intimate knowledge of these Victorian provisions alongside practical understanding of how local councils, building regulations, and commercial property markets operate across different Melbourne precincts. This expertise is crucial for any business owner. Beyond statutory knowledge, local lawyers understand the commercial realities that shape Melbourne’s leasing landscape. They recognise typical lease structures in various suburbs, know standard market terms for different property types, and can identify when proposed lease conditions fall outside normal commercial parameters. This contextual understanding proves invaluable when negotiating lease terms or assessing whether you’re being offered reasonable conditions. A lawyer unfamiliar with Melbourne’s commercial property market simply cannot provide this level of informed guidance. Speak With a Commercial Lease Lawyer in Melbourne Whether you are negotiating a new lease, reviewing lease terms, dealing with a dispute or preparing to renew your premises, getting legal advice early can help protect your business and minimise costly problems. Speak with a commercial lease lawyer in Melbourne about your situation. Need Commercial Lease Lawyers Melbourne Businesses Trust? Whether you are negotiating a new commercial lease, renewing an existing lease, reviewing lease terms before signing, purchasing a business with leased premises, assigning a lease, or dealing with a lease dispute, obtaining legal advice early can help protect your business from unnecessary risk and costly mistakes. Commercial leases often contain complex provisions relating to rent reviews, outgoings, make good obligations, assignment rights, renewal options and landlord obligations. Understanding these terms before committing to a lease can significantly reduce future legal and financial exposure. Our Commercial Lease Lawyers Melbourne assist business owners, tenants, landlords, franchisees and franchisors with commercial lease reviews, negotiations, renewals, assignments, disputes and ongoing lease advice throughout Melbourne and Victoria. Learn more about our Commercial Lease Lawyers Melbourne and how we can help protect your commercial interests. Key Legal Points to Understand The True Cost of Lease Obligations Commercial leases create binding obligations that extend well beyond monthly rent payments. Most commercial tenants commit to outgoings (costs for rates, insurance, maintenance, and building management) that can represent 30 to 40 percent of your base rent. Without careful review, you might agree to uncapped outgoings, leaving your business exposed to unpredictable cost increases. You’ll likely face make-good obligations requiring you to restore premises to original condition at lease end, potentially costing tens of thousands of dollars. Personal guarantees commonly requested by landlords mean your personal assets remain at risk if your business encounters difficulties. Legislative Protections You Might Not Receive Victorian retail lease legislation provides meaningful protections, but only if your lease qualifies as a retail premises under the Act. Many business owners mistakenly assume they have statutory protections when their lease actually falls outside the Act’s scope. A commercial lease lawyer can determine whether you’re entitled to mandatory disclosure statements and other protections. Operating without these safeguards significantly increases your commercial risk. The Complexity of Lease Negotiations Landlords typically present lease agreements on their standard terms, which naturally favour their interests. These documents often run to 50 to 100 pages of dense legal provisions covering everything from permitted use and trading hours to redevelopment rights and dispute resolution. Without legal guidance, you’re unlikely to recognise which clauses warrant negotiation, which terms expose you to unacceptable risk, and where market practice suggests better conditions should apply. This information asymmetry places you at a substantial disadvantage. Practical Guidance for Protecting Your Business The financial consequences of proceeding without legal advice can prove severe. Consider a Melbourne retailer who signed a five-year lease without legal review, only to discover the permitted use clause prevented them from adapting their business model when market conditions changed. Unable to sublease or assign the lease under its restrictive terms, they remained liable for rent on premises they couldn’t profitably occupy. This situation cost them over $180,000 across the remaining lease term. Another common scenario involves make-good obligations. A South Yarra café owner who completed extensive fitout work discovered too late that their lease required full restoration to bare shell condition. The make-good cost exceeded $85,000, far beyond what they’d budgeted for lease exit. Proper legal advice at lease commencement would have identified this risk and either negotiated different terms or ensured adequate financial planning. Timing of Legal Engagement The timing of legal engagement matters considerably. Lawyers can add most value before you’ve committed to terms, when negotiation remains possible. Once you’ve signed a letter of intent or agreed to lease heads, your negotiating position weakens substantially. Engaging legal advice early means you’ll understand the full commercial picture before making binding commitments. This allows you to negotiate from an informed position or, when appropriate, walk away from unsuitable opportunities. Building Your Legal Relationship from Day One Your commercial lease represents just one aspect of your business’s legal landscape. As your enterprise develops, you’ll likely need legal guidance on employment matters, commercial contracts, intellectual property protection, regulatory compliance, and business structure. Establishing a relationship with a trusted commercial lawyer from the outset means you’ll have someone who understands your business, knows your risk appetite, and can provide contextually appropriate advice as new issues arise. This ongoing relationship delivers value beyond individual transactions. A lawyer who understands your business can identify potential issues before they crystallise into problems. They can structure arrangements to support your commercial objectives and provide guidance calibrated to your specific circumstances rather than generic advice. The commercial lease that brings you together often marks the beginning of a legal relationship that supports your business throughout its growth trajectory. How We Can Help At Whelan Lawyers, we work extensively with Melbourne businesses navigating commercial and retail lease agreements. We provide clear guidance on lease terms, negotiate conditions that align with your commercial objectives, and ensure you understand the obligations you’re accepting. Our approach focuses on practical commercial outcomes rather than unnecessary complexity, helping you make informed decisions about your business premises. If you’re considering a commercial lease in Melbourne or need guidance on an existing lease arrangement, we’d welcome the opportunity to discuss how we can support your business interests. Frequently Asked Questions Question: How much does it typically cost to have a commercial lease reviewed by a lawyer in Melbourne? Answer: Legal fees for commercial lease reviews generally range from $1,500 to $4,000 (ex GST) depending on lease complexity, the extent of negotiation required, and whether the lease falls under the Retail Leases Act 2003. This investment typically proves considerably less expensive than the financial consequences of unfavourable lease terms discovered too late. We provide transparent fee estimates before commencing work, ensuring you understand costs upfront. Question: I’ve already signed a letter of intent. Is it too late to get legal advice? Answer: Depending on how the letter of intent is structured, it can create binding obligations. Legal advice remains valuable even at this stage. A lawyer can review what you’ve committed to, identify any conditions that might allow renegotiation, and ensure the formal lease agreement accurately reflects the terms you’ve agreed upon. Early engagement always proves preferable, but seeking advice after signing preliminary documents is certainly better than proceeding to formal lease execution without guidance. Question: Do I really need a lawyer if I’m leasing from a reputable landlord or through a property agent? Answer: Professional landlords and property agents naturally protect their own interests, which don’t necessarily align with yours. Even reputable parties will present lease terms favouring their position. That’s simply sound business practice from their perspective. You need someone reviewing the arrangement from your commercial standpoint, identifying risks specific to your circumstances, and ensuring terms support rather than hinder your business objectives. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters.

Introduction If financial due diligence tests whether the opportunity adds up, the franchise agreement tests what you are actually agreeing to. Around that agreement the Code builds a framework of protections, and within it sit a handful of clauses that will shape your market and your margins for the life of the relationship. Both deserve closer reading than they usually receive. Disclosure, Cooling-off and Good Faith The Code provides protections that operate around the agreement. You are entitled to the disclosure document at least 14 days before signing or paying, a period the new Code now calls the “consideration period”. After you enter the agreement, you have a cooling-off period of 14 days during which you may terminate, with the franchisor required to repay the monies you have paid, less its reasonable expenses. An obligation of good faith applies to both you and the franchisor throughout the relationship, informing how each party exercises its rights. Good faith does not require either party to act against its own commercial interests, but it constrains how rights are exercised, and it gives you a standard against which to measure the franchisor’s conduct once the relationship is underway. These are not optional courtesies; they are legal entitlements, and a franchisor’s attitude toward them is itself informative. A franchisor who treats the 14-day period as an obstacle, or who bristles at questions, is telling you something about how the relationship will run. The Franchise Agreement Clauses That Carry the Most Weight Within the agreement, certain clauses warrant particular attention for their commercial consequences. The term and renewal provisions determine how long your investment has to run and on what basis it may continue. The fee provisions determine the cost of operating. The supply and pricing provisions determine your margins. The territory provisions determine your market. The transfer, termination and restraint provisions determine what happens when the relationship ends. An experienced franchise lawyer will read these against what is normal in the relevant sector and tell you where the terms depart from it, and whether the protections offered are adequate for the investment you are making. Protect your market and your margins. Ensure your supply arrangements and territory rights offer genuine protection under the Franchising Code of Conduct. Connect with our franchise lawyers to review your agreement today. What “Territory” Actually Means Franchise agreements vary widely in the protection they give over a geographic area or customer base. Some grant a genuinely exclusive territory within which the franchisor will not appoint another operator. Others offer only an area of primary responsibility, or a marketing zone, that falls well short of true exclusivity. None of these is inherently good or bad; what matters is that you understand precisely what you are granted, and what you are not, and that your revenue plan reflects it. A territory defined on a map may still leave you exposed if the franchisor reserves online sales, direct-to-consumer channels, or sales through other formats within your area. Where the agreement permits the franchisor to compete with you through such channels, your projections must account for it. If the provisions read as vague or heavily qualified, ask the franchisor to confirm the position in writing before you proceed. A clear written answer is something you can plan around; an ambiguous one is not. Supply: Who You Must Buy From, and on What Terms Most systems impose some control over what franchisees buy and from whom. These controls sit on a spectrum. At one end is mandatory or exclusive supply, where you must purchase specified goods or services from a single nominated supplier with no alternative. This is the most restrictive model and the one most likely to affect your margins. In the middle sit approved supplier lists, where you choose among pre-approved suppliers and new suppliers can usually apply for approval against defined criteria. At the other end are preferred supplier lists, where you are encouraged but not required to use nominated suppliers and retain freedom to source elsewhere. The commercial rationale for control is legitimate: mandatory supply protects brand consistency, enables volume pricing that individual franchisees could not achieve alone, and allows quality control through a single supply chain. But the more restrictive the arrangement, the greater its potential impact on your margins, so it pays to understand where your system sits, and to factor any supplier margin into the numbers from the start. The trade-off here is regulatory as much as commercial: the more restrictive the supply arrangement, the greater the scrutiny that attaches to it and the more the franchisor must be able to justify. For you as the buyer, the practical task is narrower. Establish exactly which inputs are controlled, whether the prices you will pay are competitive with the open market, and whether any rebate or margin the franchisor earns on your purchases has been disclosed. Supply arrangements that look ordinary on the page can determine whether the business is viable, which is why they belong in your financial model rather than in a footnote to it. The agreement is where the commercial reality of the system is written down, and the Code is the framework that makes some of its terms disclosed, time-bound or subject to good faith. Read together, they tell you what you are committing to and what protections you can rely on. The most consequential terms (term and renewal, fees, supply, territory and the provisions governing exit) reward close reading before signing, when you still have the leverage of a buyer deciding whether to proceed, rather than afterwards, when you do not. This article forms part of Whelan Lawyers’ series for prospective franchisees, drawn from the firm’s guide Your Guide to Buying a Franchise: How to evaluate the opportunity before you commit. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners. Disclaimer: This article has been prepared by Whelan Lawyers as general information for those considering the purchase of a franchise. It is not legal advice and is not a substitute for advice tailored to your specific circumstances. Where particular circumstances apply, such as industry-specific licensing or the purchase of an existing franchised outlet, you should obtain advice from an experienced franchise lawyer.

Introduction By the time most Melbourne business owners begin searching for business litigation lawyers, the dispute has already cost them something. A customer has stopped paying and stopped answering. A supplier has walked away from an agreement nobody properly documented. A former partner is asserting an entitlement that was never put in writing. The question at that point is seldom whether a legal issue exists. It is whether the response will be proportionate to what is at stake, quick enough to preserve leverage, and affordable enough to make the result worth pursuing. This guide is for directors, founders and business owners weighing that decision. It explains how a Victorian civil dispute unfolds, which court or tribunal is likely to hear your matter, what the process realistically costs, and how to assess a firm before you commit. It also sets out where a boutique practice differs from a large commercial firm, because that difference determines who does the work on your file and what you pay for it. What do business litigation lawyers in Melbourne do? Commercial lawyers advise companies on commercial disputes and, where a dispute cannot be resolved by agreement, conduct proceedings in the Victorian courts, VCAT or the federal courts. Typical work includes contract and supply disputes, unpaid debts, shareholder and partnership conflicts, franchise disputes, construction claims and restraint of trade matters. Most of the role sits before court: assessing the strength of a claim, preserving evidence, issuing demands and negotiating a resolution. Why choosing the right business litigation lawyers in Melbourne matters more than most companies expect The visible cost of a dispute is the legal bill. The larger cost sits elsewhere: management hours diverted into reconstructing events, working capital tied up in an unpaid debt, and decisions deferred while the matter drags. A capable litigation lawyer is measured less by appetite for a courtroom than by the ability to resolve the commercial problem for the smallest expenditure of all three. Victorian civil litigation is also more tightly governed than many business owners realise. The Civil Procedure Act 2010 (Vic) imposes overarching obligations on the parties and on their lawyers. Claims and defences must have a proper basis. Parties must use reasonable endeavours to resolve the dispute, narrow the issues under, keep costs reasonable and proportionate, and minimise delay. Where these obligations are contravened, the court can make orders it considers appropriate, including costs orders against a practitioner personally. A firm that files an aggressive claim without testing its foundations is not serving your interests. It is exposing you to an adverse costs risk that arrives long after the initial enthusiasm has faded. The right adviser tests the weaknesses of your position at the outset, in writing. Facing a live commercial dispute? Whelan Lawyers acts for Melbourne businesses in contract, franchise, shareholder, construction and debt recovery disputes, with senior handling from the first call. Learn more about our disputes and litigation services or arrange a complimentary initial consultation. Key legal points to understand before you engage business litigation lawyers in Melbourne Timing is usually decided long before the merits are Most claims founded on simple contract or in tort must be brought within six years of the date the cause of action accrued, under section 5(1)(a) of the Limitation of Actions Act 1958 (Vic). That period sounds generous until you notice how many commercial regimes run far shorter. Security of payment regimes in construction operate on timeframes measured in days, and contracts routinely impose their own notification windows, with franchise and building agreements frequently requiring notice of dispute before a proceeding can begin. Delay is the most common way a business quietly loses options it did not know it had. The forum you choose drives the cost more than the merits do In Victoria, the Magistrates’ Court hears civil claims up to $100,000. The County Court has unlimited civil jurisdiction and generally takes matters above that threshold. The Supreme Court also has unlimited jurisdiction and hears the most substantial and complex commercial claims, with its Commercial Court running judge-managed lists covering contract disputes, misleading or deceptive conduct under the Australian Consumer Law, proceedings under the Corporations Act 2001 (Cth), and construction matters. VCAT handles retail lease and domestic building disputes. Filing in a higher court than the claim warrants can attract adverse costs consequences, so forum selection is a commercial decision, not an administrative one. What litigation actually costs, and what you can realistically recover A successful party ordinarily recovers costs from the losing party, but recovery is assessed on a court scale and commonly falls well short of what was actually spent. Indemnity costs are exceptional and usually follow unreasonable conduct or a rejected offer that should have been accepted, which is why offers of compromise and Calderbank offers are strategic instruments rather than paperwork. Under the Legal Profession Uniform Law, a practice must give written costs disclosure where total legal costs are likely to exceed $750, although certain commercial and government clients fall outside that requirement. Either way, insist on a written estimate broken down by stage before instructing anyone. Most commercial disputes settle, so the strategy matters more than the appetite for trial The overwhelming majority of business disputes in Victoria resolve before judgment. That should shape the advice you receive from the outset. Evidence is organised early not because a trial is likely, but because a well-documented position produces a better settlement. Practical guidance: how to assess business litigation lawyers before you engage A few questions separate a firm that will serve your business from one that will simply process it. Ask who will personally conduct the matter, and whether that person will still be attending directions hearings in eight months. Ask for a stage-based estimate rather than an hourly rate. Ask what the weakest part of your case is, and treat an adviser who cannot name one as a warning. Then ask what a commercially acceptable outcome looks like, as distinct from a legal victory, because those are frequently different things and only one pays for itself. Finally, ask what you should be doing today to preserve evidence, since the material that decides a dispute is usually created long before anyone contemplates one. Before the first meeting, gather the contract, the correspondence trail in full rather than the parts that favour you, invoices and payment records, and a plain chronology of events. That preparation alone shortens the advisory stage and reduces what you pay for it. For sector-specific disputes, see our pages on commercial disputes, shareholder disputes and construction law set out how each type of matter typically runs. How we can help Whelan Lawyers was built as a deliberate alternative to the large commercial firm model. Many have been through it: engaged by a partner, handed to a junior, billed at a rate bearing no relationship to the value at stake. Our Principal, Neda Whelan, spent years as in-house General Counsel to national networks including Jim’s Group and Clark Rubber. She has sat on the client side of exactly that invoice, and understands what a dispute does to a business rather than merely to a file. Frequently asked questions When should a Melbourne business engage a litigation lawyer? As soon as a dispute becomes reasonably likely, rather than once proceedings are threatened. Early advice preserves options that later close, including contractual notice requirements, limitation periods and evidence that becomes harder to gather. Engaging a lawyer at the letter of demand stage often resolves the matter without a proceeding, at a fraction of the cost. How much do business litigation lawyers in Melbourne cost? Cost depends far more on the forum and the conduct of the other side than on the hourly rate. A letter of demand and short negotiation is typically a modest fixed engagement. A defended Magistrates’ Court proceeding costs materially less than a County Court matter, which costs less again than a Supreme Court proceeding. Ask for a written estimate by stage, and remember that a successful party recovers only part of what it spends. Which court will hear my business dispute in Victoria? Claims up to $100,000 are generally heard in the Magistrates’ Court. Claims above that threshold are usually issued in the County Court, which has unlimited civil jurisdiction. Substantial or complex commercial claims are commonly brought in the Supreme Court, whose Commercial Court runs judge-managed lists for corporations, insurance, intellectual property and construction matters. Retail lease and domestic building disputes generally go to VCAT. How long does a commercial dispute take to resolve in Victoria? A matter resolved through correspondence and negotiation can conclude within weeks. A mediated settlement after proceedings are issued commonly takes six to twelve months. A defended matter running to trial in the County or Supreme Court frequently takes eighteen months to three years, depending on the evidence and the number of parties. Most settle well before that point. Can a business dispute be resolved without going to court? Yes, and most are. The majority of Victorian commercial disputes resolve through a letter of demand, negotiation, mediation or a judicial resolution conference rather than a judgment. The Civil Procedure Act 2010 (Vic) requires parties to use reasonable endeavours to resolve a dispute, so genuine attempts at settlement are an obligation rather than a courtesy. Do I need a barrister as well as a solicitor for a business dispute? Not always. A solicitor conducts the matter, gathers evidence and negotiates, and can appear in many interlocutory and lower court hearings. Counsel is typically briefed for contested trials, complex applications and difficult questions of law, or for an independent view on prospects. Briefing counsel early on an uncertain point often saves money by narrowing the issues before costs accumulate. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction Most people who come to see me about buying a franchise have already read a great deal of marketing material and very little law. The first legal document they receive, often without much ceremony, is the franchise information statement. It usually arrives by email, it is short, and it is easy to set aside alongside the brochures. The franchise information statement is the only document in the entire acquisition process written by the regulator rather than by the party selling you the business. Everything else you are given, from the disclosure document to the franchise agreement itself, is prepared by the franchisor. I spent years as General Counsel inside national franchise networks, which means I have sat on the side of the table that issues these statements as well as the side that receives them. This article explains what the statement is, when a franchisor must give it to you, and what it contains. Why the franchise information statement matters Australian franchising law begins from a candid premise, which is that the parties to a franchise agreement do not hold the same information. The franchisor knows how the system performs, which sites have struggled, how many franchisees left last year and why. The buyer only knows what they have been told. The Competition and Consumer (Industry Codes – Franchising) Regulations 2024, addresses that gap through a sequence of mandatory disclosures. The information statement sits at the very front of that sequence. The Code requires the statement to reach a prospective franchisee before the persuasive documents do, at the moment when interest has been expressed but nothing has been committed. It is the regulator speaking to a buyer who has not yet spent money, signed a confidentiality deed, or grown attached to a particular site. In my experience that timing does more work than the content of the statement itself. Key legal points to understand When the statement must be given, and in what order Section 22 of the Code requires a franchisor to give the information statement to a prospective franchisee as soon as practicable after that person formally applies or expresses an interest in acquiring a franchised business, and in any event no later than seven days after they do so. The ACCC guidance on the information statement also makes the ordering explicit, which is that the statement must be given before any other document about the franchise. That ordering requirement is the one franchisors most often trip over. A network that emails its disclosure document and a draft agreement with the information statement added in for the first time, has not complied with the Code and breached the sequencing limb. Do note, however, that the obligation does not apply where an existing agreement is simply being renewed or extended. What the statement actually contains The statement is published by the ACCC and is not a document the franchisor drafts or may alter. It explains in plain language what franchising is and what the commercial risks of owning a franchised business are, sets out the research and preparatory tasks a prospective franchisee should complete, and lists the questions worth asking before entering a franchise agreement. The first page of the prescribed disclosure document reinforces the connection, directing the reader to consider the disclosure document together with the information statement they have already received. Read properly, it is a due diligence agenda issued by the regulator. Most buyers read it as a formality. The buyers who do best treat the questions in it as items to be answered in writing by the franchisor. What the statement deliberately leaves out Here is the limitation that matters. The franchise information statement is generic. It is the same document for a coffee franchise in Richmond and a national trade services network, and it says nothing whatsoever about the system you are actually considering. It will not tell you whether this franchisor is solvent, whether your proposed territory is protected, what happens to your investment at the end of the term, whether the restraint of trade clause will keep you out of your own industry, or how the lease and the franchise agreement interact if one of them fails. Those answers live in the disclosure document, the franchise agreement and the ancillary documents, which together commonly run past a hundred pages. Our guide to the Franchising Code disclosure document requirements covers what that second layer must contain, and our note on franchise financial due diligence deals with the numbers behind it. The information statement tells you that risk exists. It cannot tell you where yours sits. What this means for franchisors For franchisors, the exposure is real and easily avoided. The obligation to provide the information statement is a civil penalty provision, carrying a maximum of 600 penalty units per contravention for a body corporate, which in current terms runs into the hundreds of thousands of dollars. One further point deserves attention, because I have seen this still hanging around in a few franchise document packs. The Key Facts Sheet does not exist under the 2024 Code. Its content was absorbed into the Franchise Disclosure Register profile. Any franchisor process, checklist or website page still referring to a Key Facts Sheet as a current obligation is describing law that no longer applies and should be reviewed. Practical guidance and next steps If you have received a franchise information statement, note the date. It marks the formal beginning of your due diligence period, and the sequence of documents that follows is itself evidence of how carefully the network handles compliance. If you were asked to sign a confidentiality deed or pay a deposit before the statement arrived, that is worth raising early, and it tells you something about the system beyond the immediate breach. Work through the questions in the statement and put them to the franchisor in writing. Written answers are useful in themselves and revealing in their absence. Then move to the documents that carry real consequence, because the disclosure document, the franchise agreement and the lease (where applicable) are where your money is committed. You are entitled to a waiting period of at least 14 days before signing or paying non-refundable money. If you are a franchisor, audit the first 48 hours of your enquiry process. In most networks the compliance gap is not a drafting problem but a workflow one, sitting with whoever answers the first email. How we can help At Whelan Lawyers, franchise matters are handled by a senior practitioner from beginning to end. There are no junior hand-offs and no template reviews. Having previously served as General Counsel to national franchise networks, Neda Whelan brings the perspective of someone who has drafted these systems as well as challenged them, which tends to make for faster and more commercially useful advice. We advise prospective franchisees across franchising law, including disclosure document review and franchise business sales and purchases. If you have received an information statement and want to know what the rest of the documents actually commit you to, get in touch and we will review them with you before you sign, not after. Frequently asked questions Is the franchise information statement the same as the disclosure document? No. They are separate documents with different authors and different purposes. The information statement is a short, generic guide published by the ACCC and given at the enquiry stage. The disclosure document is prepared by the franchisor in the form prescribed by the Code, is specific to that system, and must be given at least 14 days before you sign or pay non-refundable money. What happens if a franchisor does not give me the information statement? Failure to provide the information statement, or providing it after other franchise documents, contravenes the Code and exposes the franchisor to a civil penalty of up to 600 penalty units per contravention. You can report the conduct to the ACCC. In practice the more immediate significance for a buyer is what the failure suggests about the network’s wider compliance discipline. Do I need an information statement if I am renewing my existing franchise? No. The obligation in section 22 of the Code does not apply where a franchise agreement is being renewed or extended. Other disclosure obligations continue to apply on renewal, so renewal is not a document free process, and it remains worth reviewing what has changed in the system since you first signed. Does receiving the information statement start the 14 day waiting period? No. The 14 day period runs from the day the franchisor gives you the disclosure document, the proposed franchise agreement and a copy of the Code. The information statement comes earlier and does not start that clock. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction When clients weigh up a franchise, their first instinct is to send the paperwork to the commercial lawyer they already know and trust. That is reasonable. A capable commercial lawyer can read a contract, negotiate a lease and set up a company without difficulty. Franchising, though, sits inside its own regulatory world, and the gap between general commercial competence and a genuine franchise expert is where costly mistakes take root. After years as in-house counsel inside national franchise networks, and now advising both franchisors and franchisees, I have watched a well-meaning generalist miss things the Franchising Code treats as non-negotiable. This article explains what a generalist overlooks and how to judge whether your adviser truly understands the field. Why this topic matters Franchising is not commercial contracting with a brand attached. It is governed by a mandatory industry code under the Competition and Consumer Act 2010, remade as the Competition and Consumer (Industry Codes – Franchising) Regulations 2024. Its obligations do not appear in an ordinary commercial agreement and cannot be negotiated away. A lawyer who reads a franchise agreement as they would a supply contract is reading the wrong map. The consequences are real: a breach of the good faith obligation alone carries a civil penalty of up to 600 penalty units per contravention, which for a company can run into the hundreds of thousands of dollars. What a franchise expert sees that a generalist misses The difference is rarely about diligence. It is about knowing where franchising keeps its risks. The disclosure regime is technical and time-bound A franchisor must provide a disclosure document, an information statement and the agreement, and set periods must pass before signing and before any money changes hands. These periods have long been part of the Code, so the risk is not that they are new but that a generalist may not look for them, or may not see how a defective disclosure document undermines the whole transaction. The clauses that matter are not the ones that look important Much of what protects a franchisee sits in provisions a commercial eye can skim past. Under the current Code, a franchisor generally cannot rely on a post-term restraint where the agreement was not renewed or extended in defined circumstances, yet I still see restraints drafted as though that limit did not exist. Marketing funds, unilateral variation rights and the mechanics of transfer and termination each carry rules a general review will not surface. Our franchising lawyers work through them as a matter of course. Good faith is a live, enforceable obligation Both parties owe a statutory duty to act in good faith across the life of the relationship, not just at signing. Advising on a franchise without accounting for how that duty shapes conduct, disputes and exit is advising on an incomplete picture. Considering a franchise, or reviewing arrangements you already hold? Our franchising team brings both a franchisor and a franchisee perspective to every agreement we advise on. Practical guidance for choosing an adviser If you are choosing who should review your franchise arrangements, a few questions tell you a great deal. Ask how often the person advises on franchising specifically, not on commercial matters generally. Ask whether they will review the disclosure document and register listing alongside the agreement. Ask how they approach good faith and the Code’s limits on restraint and termination. A generalist will often say honestly that franchising is not their main area, and that candour is worth more than a confident review that misses the regime. Getting this wrong is not a redraft; it is a five or seven year commitment on terms you did not fully understand. How we can help Franchising has sat at the centre of my work for a long time, first inside major national networks as in-house counsel and now advising businesses on both sides of the agreement. I read a franchise arrangement the way the Code intends, with an eye to disclosure, good faith, marketing funds, restraint and exit. If you are buying a franchise, granting one or working through a network dispute, our Franchising Law team can help you understand your position before you commit. Frequently asked questions Can my regular commercial lawyer review my franchise agreement? They can, but franchising is governed by a mandatory code with obligations absent from ordinary commercial contracts. Unless your lawyer advises on franchising regularly, risks in the disclosure document, restraint and termination provisions can be missed. Have the arrangement reviewed by someone who works in this area. What is the Franchising Code of Conduct? It is a mandatory industry code under the Competition and Consumer Act 2010, remade as the Competition and Consumer (Industry Codes – Franchising) Regulations 2024. It governs disclosure, good faith, dispute resolution, restraint and termination, and applies whether or not your agreement mentions it. What happens if a franchisor breaches the Code? Many provisions carry civil penalties. A breach of the good faith obligation can attract up to 600 penalty units per contravention, a six-figure penalty for a company, and the ACCC actively enforces the Code. Franchisees may also have dispute resolution and other remedies. When should I get franchising advice? Before you sign, and ideally before you pay anything or commit to a site. The Code builds in periods that must pass before signing, and early advice lets you use that time to understand the disclosure document and negotiate where you can. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction If you’ve ever searched for help franchising your business, you’ve likely encountered many different consultants, with some promising that the whole process is straightforward, affordable, and painless. “Franchising made easy” is a compelling pitch, especially for ambitious business owners in Sydney and Melbourne who see franchising as the next logical step in their growth story. The problem is that franchising is not easy, and those who tell you otherwise are often selling something that becomes far more expensive over time, with increased risk, than their initial fee suggests. This article is for business owners who are serious about franchising the right way. We outline what the law actually requires, where the risks lie, and why qualified legal advice is not optional when your business model, your brand, and your financial future are on the line. If you take the risk of engaging the wrong “franchising consultant”, the foundations for failure can be set from the very beginning. Why the “Franchising is Easy” Promise Is Dangerous Franchising in Australia is a heavily regulated industry. The Franchising Code of Conduct, a mandatory industry code under Schedule 1 of the Competition and Consumer Act 2010 (Cth), imposes strict obligations on franchisors before, during, and after entering into a franchise relationship. The Australian Competition and Consumer Commission (ACCC) actively enforces compliance, and the penalties for getting it wrong, including fines, contract voidance, and protracted litigation, are very real. Non-lawyer franchise consultants, business brokers, and online template services operate in a space where they can charge for documents that look authoritative but carry none of the legal weight they imply. They cannot advise you on your legal obligations. They cannot stand behind their work when something goes wrong. And when something does go wrong, the costs invariably fall on you. The “We Work With Lawyers” Claim One of the more persuasive elements of the franchise consultant sales pitch is the claim that they work alongside, or have access to, a network of lawyers who will handle the legal side of things. It sounds reassuring. However, in most cases, it is not what it appears to be. Consider what that arrangement actually implies. A franchise lawyer or law firm of genuine standing has built its reputation on the quality of its legal advice and the protection it provides to clients. Partnering formally with a consultant whose value proposition is that franchising is simple and inexpensive would fundamentally undermine that credibility. No experienced franchise lawyer with a serious practice has an incentive to attach their name to a service model built on minimising the very complexity they are trained to navigate. The economics simply do not align. What these consultants typically mean when they claim lawyer connections is something far more casual: a referral arrangement, a name on a list, or a previous working relationship with a legal practitioner who may or may not have current franchise law experience. In some cases, the “legal review” offered through a consultant’s network amounts to filling in a standard template document by someone unfamiliar with your specific circumstances. If a consultant suggests they have lawyers on hand to support you, the right response is to ask those lawyers directly whether they act for you, what their specific experience in franchise law is (this one also applies to consultants), the level of involvement that lawyer will have, what the handover of information gathered looks like and whether they pay a commission or referral fee to the franchise consultant that has referred you. The answers are often illuminating. The Faceless Track Record Reputation in professional services is something you should be able to verify independently. Before you engage anyone to help franchise your business, look closely at how they present themselves to the public. A legitimate adviser has a physical business address, a genuine public profile, and a track record that exists somewhere other than their own marketing. Be cautious of any consultant who has no business address you can locate, no Google Business Profile (formerly Google My Business), and no independent third-party reviews, but who instead offers a long list of anonymous testimonials published only on their own website. Self-published praise that no one can trace is not social proof; it is copy. Where there is no full name, no business, and no way to contact the person supposedly quoted, there is no way to test whether the endorsement is real, whether it relates to franchising at all, or whether it reflects a good outcome. This matters for the same reason the rest of this article does: accountability. A consultant who cannot be found, cannot be reviewed on a platform they do not control, and cannot point to a verifiable record is a consultant who will be difficult to hold responsible when something goes wrong. Genuine advisers are willing to be seen, named, and reviewed publicly. Ask for verifiable references, check whether the business has a real registered presence, and treat a wall of faceless reviews as what it usually is: another red flag. Key Legal Requirements Franchise Consultants Often Gloss Over The Disclosure Document Before entering into a franchise agreement, franchisors are legally required to provide prospective franchisees with a disclosure document in the prescribed form under the Franchising Code of Conduct. This document must be provided at least 14 days before any agreement is signed or any money is paid. The disclosure document contains detailed information about the franchisor’s business history, the financial performance of existing franchises, any current or prior litigation, and the key terms of the franchise arrangement. Getting this document wrong, or failing to provide it at all, can render the franchise agreement unenforceable and expose the franchisor to significant liability. The Franchise Agreement A franchise agreement is one of the most consequential commercial documents a business owner will ever sign or issue. It governs the entire relationship between franchisor and franchisee, including territory rights, intellectual property licences, marketing obligations, renewal and termination rights, and dispute resolution processes. Template agreements purchased from online providers or drafted by unqualified consultants routinely fail to reflect the specific commercial realities of the business, comply with current Code requirements, or adequately protect the franchisor’s intellectual property and brand standards. The consequences of a poorly drafted agreement become painfully apparent only when the relationship breaks down. Ongoing Compliance Obligations Franchising is not a set-and-forget arrangement. Franchisors must update their disclosure documents annually within four months of the end of each financial year and provide updated documents to franchisees who are renewing or extending their agreements. Marketing fund obligations must be met, franchisee cooling-off rights must be observed, and dispute resolution processes must be followed precisely. Consultants who helped you establish the system will not be around to ensure you remain compliant as the law evolves. Practical Guidance for Prospective Franchisors and Franchisees Whether you are a business owner considering franchising your model or an individual evaluating a franchise opportunity, the first step is to engage a lawyer with genuine experience in franchise law before signing or issuing anything. This is not a formality; it is a commercial necessity. For prospective franchisors, this means having your franchise agreement and disclosure document drafted or comprehensively reviewed by a lawyer who understands the Franchising Code of Conduct in detail. It means having a clear system operations manual that your franchisees can actually follow, and ensuring your intellectual property is properly protected under the Trade Marks Act 1995 (Cth) before your brand is licensed to others. For prospective franchisees, it means having the franchise agreement independently reviewed before you commit, understanding exactly what you are buying, what the true cost of entry is, what your ongoing obligations are, and what recourse you have if the relationship deteriorates. If you are unsure whether the disclosure document you have received complies with the Code, or whether the terms being offered are reasonable, that uncertainty is precisely the reason to seek legal advice. Both parties should be deeply cautious of any consultant or service provider who discourages legal review, minimises the complexity of the Code, or suggests that a standard template is sufficient for your circumstances. These are not helpful shortcuts; they are risk factors and usually end in costly disputes. How We Can Help At Whelan Lawyers, we work with business owners across Melbourne, Sydney, and beyond who are navigating the franchise landscape. Our approach is practical and commercial: we help clients understand what franchising genuinely involves, ensure their documentation is legally sound and Code-compliant, and position them to build or enter franchise relationships with clarity and confidence. If you are considering franchising your business or evaluating a franchise opportunity, we invite you to speak with us directly. You can reach our team at our contact page or visit our Franchising Services to learn more about how we assist clients at every stage of the franchise journey. Frequently Asked Questions Do I need a lawyer to set up a franchise in Australia? Legally, there is no formal requirement to engage a lawyer to create a franchise system. However, the Franchising Code of Conduct imposes extensive obligations on franchisors that carry significant legal consequences if not met. Because the Code is a prescribed mandatory industry code under Commonwealth legislation, and because non-compliance can result in financial penalties, unenforceable agreements, and ACCC investigations, attempting to establish a franchise without qualified legal assistance is a considerable commercial risk. Most experienced business advisers would strongly recommend it. Can I use a template franchise agreement? Template agreements are rarely adequate for a live franchise arrangement. The Franchising Code of Conduct requires franchise agreements to address specific matters, and the commercial terms that govern your relationship with franchisees need to reflect the particular nature of your business, your brand, and your operating model. A template cannot account for those specifics. More significantly, a template cannot be updated to reflect legislative changes or ACCC guidance over time. If a dispute arises, a poorly drafted template may leave you with limited protection and significant exposure. What is the Franchising Code of Conduct and does it apply to me? The Franchising Code of Conduct is a mandatory industry code that applies to all franchise agreements entered into in Australia, regardless of where the franchisor or franchisee is based. It is prescribed under the Competition and Consumer Act 2010 (Cth) and is enforced by the ACCC. If your arrangement involves granting another party the right to operate a business under your system or brand in exchange for a fee, it is very likely that the Code applies to you. If you are unsure whether your arrangement constitutes a franchise, that question alone warrants legal advice. What happens if I sign a franchise agreement without legal advice? Signing a franchise agreement without independent legal advice is a significant risk for both franchisors and franchisees. As a franchisor, you may unknowingly issue documents that do not comply with the Code, exposing you to penalties and potential claims by franchisees. As a franchisee, you may commit to terms that are unfavourable, unclear, or unenforceable without understanding your rights. In either case, legal costs incurred after a dispute arises almost always exceed what qualified legal advice would have cost at the outset. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters.

Introduction Buying a franchise is, for most people, among the largest financial commitments they will ever make, and it is usually a decision reached with enthusiasm already formed. By the time you begin evaluating a system in earnest, you have generally decided the opportunity is attractive. The steps to buy a franchise are not there to displace that enthusiasm but to test it. This roadmap sets out the sequence a careful buyer follows, from the first honest question about whether franchising suits you, through the research, the numbers and the agreement, to the point of signing. It draws together our series for prospective franchisees, with each stage linking to a fuller treatment. Why the Order of the Steps Matters Australian franchising operates under a comprehensive regime, governed primarily by the Competition and Consumer (Industry Codes – Franchising) Regulations 2024, a mandatory industry code with the force of law that the Australian Competition and Consumer Commission enforces. Much of the information you need is information the franchisor must give you by law: the disclosure you receive, the time you are allowed before signing, your cooling-off right, and the obligation of good faith. Those protections are most useful to a buyer who understands them and works through the evaluation in order. Step 1: Decide Whether Franchising Suits You, and What You Are Buying Two threshold questions deserve an honest answer at the outset. The first is temperamental. You will own your business and carry its risk, yet operate it within a system that belongs to someone else, on terms you do not set. Those who do well embrace that arrangement rather than merely tolerating it; if your instinct is to improve the model rather than follow it, building your own business may be the more honest path. The second question concerns the asset. You are not acquiring a business outright, but a licence to use the franchisor’s brand and systems for a defined period. When the term ends, the licence ends with it, and the goodwill you build usually attaches to the system rather than to you. We explore both questions in Part 1 of our series. Test the opportunity before you commit Before you sign, make sure the system and the agreement are the right commercial and legal fit. Learn how our franchising law team can guide your due diligence and review your agreement for compliance with the Code. Step 2: Research the System Before You Commit Anything Good due diligence begins earlier than most buyers realise, and the true starting point is free and public. The Franchise Disclosure Register, hosted by the Australian Government and administered by the ACCC, records key information about each franchisor operating in Australia, and you can search it at franchisedisclosure.gov.au before you speak to anyone. Absence from the Register, or a profile plainly out of date, is a warning sign. Once discussions become serious, the Code entitles you to a disclosure document at least 14 days before you sign or make a non-refundable payment, and it rewards close reading. The franchisees already in the network, both current and former, will then tell you whether the support promised at the sales stage matches what is delivered. Part 2 sets out how to work these three sources in order. Step 3: Build Honest Numbers Every franchisor presents its system in the best light, and your task is to translate that optimism into numbers that reflect your situation, your site and your appetite for risk. Where earnings figures are offered, ask what sits behind them, since benchmarks from comparable outlets are worth more than a confident forecast, and network averages conceal the spread between the strongest and weakest sites. Build a full model of the upfront and ongoing costs, including a market salary for your own labour, then stress-test it against a weaker year. Since 1 November 2025 the Code has also required that an agreement give you a reasonable opportunity to earn a return during the term on any investment the franchisor requires. Part 3 works through the model in detail. Step 4: Read the Agreement and the Code Together The franchise agreement records what you are agreeing to, and the Code builds a framework of protections around it. A handful of clauses carry most of the commercial weight: term and renewal set how long your investment runs; the fees set your cost of operating; supply and pricing set your margins; territory sets your market; and transfer, termination and restraint set what happens at the end. Understand exactly what your territory grants and what it does not, since a map may still leave you exposed if the franchisor reserves online or direct sales within it, and understand the supply terms, which can decide whether the business is viable. Our franchising law team can read these against what is normal in your sector, as Part 4 explains. Step 5: Check the Exposures Buyers Overlook Three exposures sit slightly out of view and can each reshape the economics of the deal. The first is the premises: where the franchise trades from a fixed site, establish who holds the lease and whether the lease term and the agreement term line up, since a mismatch is a trap in either direction, and our commercial and retail leasing team can review how the two interact. The second is capital expenditure the franchisor can require after you sign, including a possible second fit-out at renewal, so project the full capital horizon over the term. The third is the exit: understand your renewal rights, the cost of selling, and any post-term restraint, which the Code now limits where an agreement simply expires and is not renewed, provided certain conditions are met. Read the exit before you sign. Part 5 covers all three. Step 6: Take Independent Advice and Commit With Clarity The agreement will record that you had the opportunity to obtain independent legal and financial advice, and that opportunity deserves to be treated as substantive rather than a formality. An experienced franchise lawyer identifies the clauses that matter most for you, compares the terms against sector norms, advises whether the protections are adequate, and confirms that the disclosure document and agreement comply with the Code. Even where the core terms will not move, it is worth asking the franchisor to confirm an ambiguous point in writing. A problem found before signing can be negotiated or planned around; the same problem found afterwards is simply a cost you carry. Part 6 explains how to commit with clarity. How We Can Help No amount of preparation removes all risk, but it changes the character of the risk you accept: you commit knowing what you are buying, what it will cost, and how you intend to grow and eventually leave. Our franchising law team brings a perspective shaped by senior in-house roles inside major national networks, so we read a franchise agreement as the franchisor’s own advisers do and act wholly in your interest. We can guide your due diligence, review the disclosure document and agreement against the Code, and provide the independent advice the agreement assumes you will take, drawing on our broader commercial law practice where the deal calls for it. If you are working through the steps to buy a franchise, contact our team to arrange a conversation. Frequently Asked Questions What are the main steps to buy a franchise in Australia? Decide whether franchising and the system suit you; research the franchisor through the Franchise Disclosure Register, the disclosure document and the existing network; build and stress-test honest numbers; read the agreement and the Franchising Code together; check the premises, capital and exit exposures; and take independent legal and financial advice before you sign. How long must a franchisor give me before I sign? Under the Franchising Code you are entitled to the disclosure document at least 14 days before you enter the agreement or make a non-refundable payment, a period the 2024 Regulations call the consideration period. After signing, you also have a 14-day cooling-off period during which you may terminate and recover the monies paid, less the franchisor’s reasonable expenses. Do I really need a lawyer to buy a franchise? There is no legal requirement, but the agreement will record that you had the opportunity to take independent advice, and the cost is modest against the size of the commitment. A franchise lawyer identifies the clauses that carry the most commercial weight, checks compliance with the Code, and flags problems while you still have the leverage of a buyer deciding whether to proceed. What is the Franchise Disclosure Register? It is a free, public register hosted by the Australian Government and administered by the ACCC, on which franchisors operating in Australia must maintain a profile. You can search it at franchisedisclosure.gov.au to compare systems and run a basic compliance check before contacting anyone. Because the information is supplied by franchisors and is not verified, treat it as a research tool rather than a guarantee. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies with individual circumstances, and you should obtain advice tailored to your particular situation from an experienced franchise lawyer before making decisions about buying a franchise. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction Building a franchise network is one of the most ambitious things a Melbourne business owner can undertake. You are no longer simply selling a product or a service. You are licensing a system, a brand, and a set of standards to independent operators who will carry your name into markets you may never personally visit. That ambition brings a corresponding weight of legal responsibility, and it is here that a capable franchise solicitor in Melbourne becomes indispensable. This article explains what a franchise solicitor actually does, why the role matters so much for franchisors, and how the right legal guidance protects the value you have worked to build. If you are establishing, expanding, or refining a franchise system, understanding this relationship early will spare you considerable difficulty later. Why this topic matters Franchising in Australia operates within one of the most closely regulated commercial frameworks in the country. The Franchising Code of Conduct, a mandatory industry code made under the Competition and Consumer Act 2010, governs almost every stage of the franchise relationship, from the information you must disclose before an agreement is signed to the way disputes are managed and agreements are brought to an end. A new Code took effect on 1 April 2025, with a further set of obligations applying from 1 November 2025, and the Australian Competition and Consumer Commission has made clear that compliance is not a matter of choice. Franchisors who fall short face civil penalties, reputational harm, and the very real prospect of unenforceable agreements. For a franchisor, the stakes are magnified because a single template error is never an isolated problem. It repeats across every agreement in the network. A disclosure omission or a prohibited contract term does not simply expose you to one dispute; it exposes you to the same dispute with every franchisee who signed the same document. This is precisely why the involvement of a franchise solicitor is a commercial safeguard rather than a mere formality. Establishing or reviewing a franchise system? Speak to our Franchise Solicitors in Melbourne Our franchising lawyers in Melbourne advise franchisors on Code compliance, agreements and disclosure. Learn more about our franchising law services and franchise compliance advice for franchisors, or arrange a complimentary initial consultation. Key legal points to understand A franchise solicitor does far more than prepare paperwork. The role spans the entire lifecycle of a franchise system, and understanding its dimensions helps explain why the right adviser is so valuable. Drafting and maintaining compliant franchise documents At the foundation of every franchise system sit the franchise agreement and the disclosure document. These are not documents you can safely borrow from a competitor or adapt from a template found online. They must reflect the current Code, your particular business model, and the commercial arrangements unique to your network. Following the changes that commenced on 1 November 2025, franchisors were required to update their agreement templates and disclosure documents, including new provisions concerning significant capital expenditure and a franchisee’s reasonable opportunity to earn a return on investment. A franchise solicitor makes certain these documents are both legally sound and commercially workable. Managing disclosure and pre-contract obligations The Code imposes strict timing and content requirements on what a franchisor must disclose, and when. Getting the disclosure process wrong can leave an agreement vulnerable and expose the franchisor to penalty. A solicitor manages this process so that each prospective franchisee receives the correct information within the required period, and so that your records demonstrate compliance if the ACCC or a franchisee later asks questions. Preventing and resolving disputes Even well-run networks encounter friction. Disagreements over territory, renewal, fees, or alleged breaches can escalate quickly and expensively. An experienced franchise solicitor addresses these matters early, often through negotiation or mediation, before they harden into litigation. Good faith is a legal obligation under the Code, and the way a franchisor conducts itself during a dispute carries genuine legal consequence. Protecting brand and system integrity Your brand, your operating systems, and your intellectual property are the assets that make a franchise worth buying. A franchise solicitor structures the licensing, restraint, and confidentiality arrangements that keep those assets protected, and ensures any restraints comply with the Code’s evolving limits, including the restrictions on restraint of trade clauses that now apply when an agreement expires and a franchisee seeks to renew. Practical guidance and next steps If you are a franchisor, a few principles will help you get the most from the relationship with your solicitor. Engage legal guidance before you finalise your model, not after a problem emerges, because prevention is far cheaper than cure in franchising. Treat your franchise documents as living instruments that require review whenever the Code changes or your business evolves, rather than as a one-off cost. Keep clear records of every disclosure and every material communication with franchisees, since documentation is often what determines the outcome of a dispute. And be candid with your solicitor about how your network actually operates, because the soundest advice is grounded in commercial reality rather than assumption. A common and costly mistake is to view legal advice as a compliance expense to be minimised. In franchising, the opposite holds true. The franchisors who invest in getting their structure right from the outset are the ones who scale with confidence, attract quality franchisees, and avoid the disputes that quietly erode margin and reputation. How we can help At Whelan Lawyers, we advise emerging and established franchisors across Melbourne and Victoria on every stage of the franchise lifecycle. Our work spans franchise agreements and disclosure documents, Code compliance, franchise sales and purchases, and the disputes that occasionally arise despite everyone’s best efforts. We approach each matter commercially, because legal advice only serves you when it supports the business you are trying to build. If you are establishing a franchise system or reviewing an existing one, we would welcome the opportunity to help. About the author I am Neda Whelan, Founder and Principal of Whelan Lawyers. Before returning to private practice, I spent much of my career inside the businesses I now advise, serving as General Counsel for major national franchise networks including Jim’s Group and Clark Rubber. That experience shaped how I approach franchising law. I have sat on the other side of the desk, responsible not only for legal compliance but for the commercial consequences of every decision, the pressure of a network that has to keep trading, and the disputes that arrive without warning. When I advise a franchisor today, I do so with a working understanding of what it means to run a franchise system from the inside, rather than merely to comment on it from the outside. That perspective is, I believe, what a franchisor should look for in a franchise solicitor: someone who understands the law thoroughly, and understands the business it governs just as well. Frequently asked questions What is the difference between a franchise solicitor and a general commercial lawyer? A franchise solicitor brings focused knowledge of the Franchising Code of Conduct and the particular commercial dynamics of franchise networks. A general commercial lawyer can assist with contracts, but franchising involves a distinct regulatory framework, mandatory disclosure obligations, and specific rules on matters such as termination, renewal, and dispute resolution. Engaging a solicitor with genuine franchising experience reduces the risk of a compliance gap that could affect every agreement in your network. Do I need a franchise solicitor if I only have a small number of franchisees? Yes. The Code applies regardless of the size of your network, and the obligations on disclosure, agreement content, and good faith conduct are the same for a two-site system as for a national brand. Getting the legal foundations right early, while your network is small, is far easier and less costly than correcting errors once they have been replicated across many agreements. How often should franchise agreements and disclosure documents be reviewed? At a minimum, your documents should be reviewed whenever the Franchising Code changes, as it did on 1 April 2025 and again on 1 November 2025, and whenever your business model, fees, or operational requirements change. Many franchisors also conduct an annual review, since the Code generally requires disclosure documents to be updated each financial year. What are the risks of using a template franchise agreement? Considerable. A template cannot account for the current state of the Code, your specific business model, or the commercial arrangements unique to your network. Templates frequently omit required disclosures or include terms the Code now prohibits, which can render provisions unenforceable and expose the franchisor to civil penalties. A properly drafted agreement, prepared by a franchise solicitor, is a far sounder foundation for a growing network. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction Every franchise sold in Australia begins with the same legal document. Before a dollar changes hands or a franchise agreement is signed, the franchisor must give the prospective franchisee a disclosure document that meets precise content and format rules. Understanding the franchising code of conduct disclosure document requirements is not a compliance afterthought. It sits at the centre of how the Competition and Consumer (Industry Codes, Franchising) Regulations 2024 protects franchisees, and it is one of the areas where franchisors carry the most consequential civil penalty exposure in Australian commercial regulation. The current Code commenced on 1 April 2025 and replaced the 2014 Regulation. It sets out in Schedule 1 exactly what a disclosure document must contain, and several requirements changed materially in the reforms. This guide sets out what the Code requires, what genuinely changed and what stayed the same, and the practical steps franchisors should take to keep a disclosure document compliant. It is written for franchisors, franchise system managers and advisors preparing or reviewing a disclosure document under the current Code. Why The Franchising Code of Conduct Disclosure Document Requirements Matter Under the Franchising Code A disclosure document exists to give a prospective franchisee the information needed to make an informed decision before committing capital, signing a lease, and often resigning from other employment. Get the content wrong, and the consequences land on the franchisor, not the franchisee. Under section 34 of the Code, failing to disclose materially relevant facts can attract civil penalties starting at ten million dollars for corporations. Other substantive breaches of the disclosure regime attract penalties of up to 600 penalty units per contravention, and the reforms significantly increased this exposure compared to the previous Code. Beyond the financial penalties, an incomplete or non-compliant disclosure document can weaken a franchisor's position in a dispute and undermine the trust a franchise network depends on to grow. For a franchisor expanding its network, a disclosure document that is complete, current and correctly formatted under Schedule 1 is one of the highest-value compliance tasks in the business. Key Legal Points to Understand What a Disclosure Document Must Contain Section 20 of the Code requires every disclosure document to follow the format and content set out in Schedule 1. In broad terms, this covers the franchisor's business background and that of its officers, including business experience and any relevant litigation or bankruptcy history. It requires details of the franchise system itself, including intellectual property and site or territory arrangements. It requires a full breakdown of establishment costs, ongoing fees and other payments, along with the terms of any supply arrangements and restrictions on where a franchisee can buy goods or services. It requires disclosure of specific purpose funds, commonly marketing or cooperative funds, including who contributes, who controls the fund, and how it is audited, and information about the circumstances in which the agreement can end, including termination, non-renewal and transfer. None of these categories are new. What has changed is the detail the Code now demands within several of them. The 2025 Reforms to Disclosure Document Content It is worth being precise about what genuinely changed, because not every requirement is new. The obligation to prepare a disclosure document, and its general subject matter, are long-standing features of Australian franchising regulation. The current Code removed the separate key facts sheet altogether, folding its content directly into the disclosure document rather than requiring two documents with overlapping information. From 1 November 2025, disclosure documents created after that date must also include new detail under Schedule 1 about any significant capital expenditure a franchisee may be required to undertake during the term of the agreement, including the rationale for it, and expanded information about specific purpose funds. Disclosure documents created before 1 November 2025 are not required to include the significant capital expenditure detail until they are next updated, which gives franchisors a defined transition window rather than an immediate obligation. When the Disclosure Document Must Be Given The 14-day rule is one of the oldest and most settled features of the Code. A franchisor must give a prospective franchisee a copy of the disclosure document at least 14 days before the franchise agreement is signed or any non-refundable payment is made. Existing franchisees can request an updated copy once every 12 months in writing, and the franchisor must provide it within two months. Separately, franchisors must update their disclosure document annually, generally within four months of the first day of their financial year, and must also update it outside that cycle whenever a significant change occurs. Where a materially relevant fact arises, such as certain legal proceedings, the franchisor's obligation to notify franchisees operates on its own timeframe rather than the annual cycle, which is a distinct duty covered in our guide to ongoing disclosure obligations under the Code. The Solvency Statement Requirement Every disclosure document must include information about the franchisor's solvency. This takes the form of a signed statement, given by at least one director, setting out the director's opinion on whether the franchisor will be able to pay its debts as they fall due. It must be supported by financial reports for the past two financial years or an independent audit report prepared by a registered company auditor, and different reporting applies if the franchisor was insolvent at any point in the preceding two years. This requirement gives prospective franchisees a genuine window into the financial stability of the network they are considering joining, and it is one of the more heavily scrutinised sections of any disclosure document during due diligence. Practical Guidance for Franchisors The practical task is less about understanding the law in the abstract and more about auditing what currently sits in the disclosure document against what Schedule 1 now requires. Start by confirming whether the document still contains a standalone key facts sheet or references to one, since that structure no longer reflects the current Code. Review the significant capital expenditure and specific purpose fund sections ahead of the 1 November 2025 transition date, even if the immediate obligation does not yet apply, so the next annual update is not a scramble. Confirm the solvency statement is current and signed, and that supporting financial material genuinely reflects the franchisor's position rather than a figure carried over from an earlier version. Keep every disclosure document and its supporting materials for at least six years, as the Code requires regardless of whether the franchisee relationship continues. Avoid treating disclosure as a one-off task completed at system launch. A document that has not been reviewed since the franchise system was first established is one of the most common sources of exposure identified in a compliance audit, and considerably cheaper to correct before a dispute or regulatory inquiry than during one. How Whelan Lawyers Can Help Preparing a disclosure document that satisfies Schedule 1 requires more than a template. It requires an understanding of how the Code interacts with the franchise agreement, the specific purpose fund arrangements, and the commercial realities of the network being disclosed. Neda Whelan brings that perspective from her time as in-house General Counsel at Jim's Group and Clark Rubber, combined with private practice experience advising franchisors on Franchising Code compliance. Whelan Lawyers works with Melbourne franchisors to review and prepare disclosure documents, close compliance gaps ahead of key transition dates, and manage the broader obligations that sit alongside them. If your disclosure document has not been reviewed against the current Code, our team is a practical next step before it becomes a problem. Frequently Asked Questions What is a disclosure document under the Franchising Code of Conduct? A disclosure document is a document a franchisor must give to prospective and current franchisees, setting out prescribed information about the franchisor, the franchise system, costs and the terms of the franchise, in the format required by Schedule 1 of the Code. It must be given at least 14 days before a franchise agreement is signed. Is the key facts sheet still required in Australia? No. The current Code, which commenced on 1 April 2025, removed the key facts sheet as a separate document. The information it used to contain is now incorporated directly into the disclosure document itself. How often must a franchisor update its disclosure document? Generally within four months of the first day of the franchisor's financial year. A franchisor must also update the document outside that cycle if a significant change occurs, and must notify franchisees of certain materially relevant facts as they arise, separately from the annual update. What happens if a disclosure document does not meet the Code's requirements? Franchisors can face significant civil penalties, including penalties starting at ten million dollars for failing to disclose materially relevant facts, and the document's deficiencies can weaken the franchisor's position in a later dispute with a franchisee. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction For franchisees and franchisors operating across Melbourne, a franchise dispute can arrive without warning and escalate with surprising speed. Whether the tension stems from a disagreement over territory rights, alleged breaches of the franchise agreement, disclosure failures, or conflict around renewal terms, the instinct for many parties is to pursue an immediate legal resolution through the courts. Yet the most experienced franchise dispute lawyers in Melbourne will tell you something that often surprises their clients: litigation is rarely the best first move, and in most cases, it should be a genuine last resort. The reason is not philosophical. It is commercial. Franchise relationships are built on ongoing interdependence, and the cost of dismantling that relationship through adversarial litigation frequently outweighs whatever outcome a court might deliver. Understanding why skilled franchise mediation lawyers in Melbourne are predisposed toward commercial resolution, and why engaging them early in a dispute is so important, can mean the difference between a resolution that works and a protracted legal contest that drains resources and damages both parties for years. Why Commercial Mediation Matters More Than You Might Think Franchise disputes occupy a distinctive space in commercial law. Unlike a straightforward contract disagreement between two unrelated businesses, a franchise relationship involves interdependency, brand alignment, operational obligations, and often a wider network of franchisees whose commercial interests may be affected by the outcome of any dispute. Litigation in this context does not simply resolve a grievance. It can unravel a business model, damage a brand, and create ripple effects throughout an entire franchise system. Commercial mediation offers an alternative that courts simply cannot provide: the ability to craft a resolution tailored to the ongoing commercial reality of both parties. A skilled franchise mediation lawyer in Melbourne understands that the objective is rarely to win on every legal point, but to reach an outcome that allows a business to continue operating, a relationship to be preserved or concluded cleanly, and commercial certainty to be restored as efficiently as possible. There is also the matter of cost and confidentiality. Franchise litigation in Victoria can be protracted and expensive, particularly when disputes engage the disclosure obligations or conduct provisions of the Franchising Code of Conduct. Mediation, by contrast, is a structured process that offers confidentiality, flexibility, and far greater control over timing and outcome. For Melbourne businesses operating on tight margins or navigating critical growth phases, that distinction carries real commercial weight. Key Legal Points to Understand Understanding the legal framework that governs franchise disputes in Australia is essential context before any party considers their options. The Franchising Code of Conduct, a mandatory industry code under the Competition and Consumer Act 2010, contains specific provisions that regulate how disputes must be managed before either party can pursue formal legal proceedings. Importantly, these provisions are not merely procedural formalities: they carry legal consequences for parties who fail to comply with them. The Mandatory Dispute Resolution Process Under the Code Under the Franchising Code of Conduct, franchisees and franchisors are required to follow a prescribed internal dispute resolution process before escalating to external forums. This typically involves a formal written notice of dispute, a good faith obligation to attempt resolution, and a defined period during which both parties must engage in mediation if the internal process does not succeed. The Office of the Franchising Mediation Adviser plays a formal role in facilitating that process, and a party's failure to engage genuinely in mediation can have adverse legal consequences, including in relation to costs if litigation eventually follows. This procedural framework is precisely why having an experienced franchise lawyer in Melbourne involved from the moment a dispute arises is so important. Navigating the Code's requirements whilst simultaneously managing the commercial and relational dimensions of a live dispute requires a depth of familiarity with franchising law that a generalist commercial lawyer is unlikely to possess. The Risk of Acting Without Early Legal Franchise Dispute Lawyer Guidance For franchisees in particular, the period immediately following a dispute notice is fraught with risk. Statements made without legal guidance, premature concessions, or a failure to properly document a grievance can all compromise a party's legal position before mediation has even commenced. Franchisors face their own exposure: responses that are inconsistent with their Code obligations, or that could later be characterised as unconscionable conduct under the Australian Consumer Law, can significantly alter the legal landscape of any subsequent proceeding. Early involvement of a franchise lawyer is not simply a precaution. It is a strategic advantage that shapes every element of what follows. The way a dispute is framed, documented, and communicated in its earliest stages determines the trajectory of the entire resolution process, and experienced franchise mediation lawyers in Melbourne understand this from the first instruction. Practical Guidance for Melbourne Franchisees and Franchisors If you are a franchisee or franchisor in Melbourne and you sense that a dispute may be developing, even before any formal notice has been issued, there are several disciplines that experienced franchise lawyers consistently recommend. Seek legal advice before taking any action. Even an informal response to a franchisor's concern, or a communication directed at a franchisee network, can carry legal significance. A franchise lawyer can clarify your obligations and help you engage with the other party without inadvertently compromising your own position. Preserve all relevant documentation from the outset. Franchise agreements, disclosure documents, correspondence, financial records, and operational communications may all become relevant in a mediation or formal dispute resolution process. Organising and securing these records early is a discipline that consistently pays dividends as matters develop. Approach the process with commercial clarity rather than emotional urgency. Effective franchise dispute mediation in Melbourne is not about making demands and waiting for capitulation. It is about understanding what outcome would genuinely allow your business to thrive, and working with a lawyer who can negotiate toward that outcome with skill and strategic patience. Resist the temptation to proceed without dedicated legal support. The Franchising Code of Conduct is a technical legal instrument, and its interaction with the Australian Consumer Law creates a regulatory environment of genuine complexity. A lawyer with a deep focus on franchise law brings commercial insight and legal knowledge that cannot be replicated through general commercial advice, and the difference in outcomes reflects that. How Whelan Lawyers Can Help At Whelan Lawyers, our franchise law practice works with both franchisees and franchisors across Melbourne to navigate disputes with a clear focus on commercial outcomes and efficient resolution. We understand the dynamics of the franchise relationship and the specific obligations imposed by the Franchising Code of Conduct, and we bring that understanding to every matter we are entrusted with. Our approach to franchise dispute mediation is grounded in practical, commercially informed advice. We will help you understand your legal position with clarity, develop a considered strategy for the mediation process, and advocate for your interests in a way that is firm, measured, and focused on an outcome that serves your business. Whether you are facing a formal dispute or simply concerned that one may be developing, early advice is always the most valuable advice. We encourage you to reach out to our franchise mediation lawyers Melbourne team before matters escalate. The earlier we are involved, the more options remain available to you. Frequently Asked Questions Is mediation mandatory in a franchise dispute in Australia? In most cases, yes. The Franchising Code of Conduct requires parties to follow a prescribed dispute resolution process, which includes a formal mediation stage, before either party can pursue litigation. Failure to comply with this process can affect a party's legal standing and may carry cost consequences in any subsequent court proceedings. How early should I involve a franchise lawyer if a dispute is developing? The earlier, the better. The most complex and costly disputes are consistently those where parties acted without legal guidance in the early stages: making admissions, failing to document their position, or responding in ways that later limited their options. Involving a franchise lawyer in Melbourne as soon as you sense a dispute is emerging gives you the strongest possible foundation for resolution, whatever form that ultimately takes. Can mediation produce a final and binding resolution, or does it simply delay litigation? When conducted properly, mediation can produce a legally binding agreement that permanently resolves a franchise dispute. In Melbourne, many franchise disputes are resolved entirely through mediation without any court proceedings ever commencing. The key is engaging a skilled franchise lawyer who understands both the legal merits of the dispute and the commercial dynamics at play, and who can negotiate an agreement that is durable, enforceable, and genuinely workable for both parties. What should I do if I receive a formal dispute notice from my franchisor or franchisee? Contact a franchise lawyer immediately. Do not respond to the notice without legal advice, as your response may form part of the formal record of the dispute. A franchise lawyer will help you understand the timeline imposed by the Franchising Code of Conduct, your obligations during the internal dispute resolution process, and how to position yourself for the best possible outcome in any mediation that follows. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction Every business experiences a tight month. A large client pays late, or a supplier tightens terms without warning. For most companies these are temporary pressures that resolve within weeks. For others they are the first visible sign of something more serious. Understanding what is insolvency in Australia, and knowing precisely where the legal line sits, is one of the more consequential pieces of knowledge a director can hold, because the Corporations Act 2001 (Cth) does not wait for a company to fail before imposing duties on the people running it. The moment a company can no longer pay its debts as and when they fall due, a distinct set of legal obligations activates, regardless of whether anyone has formally declared the business insolvent. This guide sets out the legal test for insolvency, the warning signs directors should never dismiss, and the protections and pathways available under Australian law when a business comes under financial pressure. It is written for Victorian business owners who want clarity before they need a lawyer, not after. Why Understanding Insolvency Matters for Australian Businesses Insolvency is not simply a finance term reserved for accountants and liquidators. Under the Corporations Act, a director's exposure to personal liability can begin well before a company formally enters external administration. Section 588G imposes a positive duty on directors to prevent their company from incurring debts while insolvent, and breaching that duty can result in personal liability for the debts concerned, civil penalties, and in serious cases, disqualification from managing companies. This is not a theoretical risk. ASIC's own figures show that more than 13,400 companies entered external administration in the eleven months to 31 May 2025, an increase of 34.2 per cent on the same period the previous year. Construction, together with accommodation and food services, has consistently accounted for the largest share of company failures nationally in recent years. Most appointments are director initiated, which reflects a simple commercial reality: directors who understand the legal test for insolvency and act early keep far more control over the outcome than those who wait for a creditor, or the Australian Taxation Office, to act for them. Key Legal Points to Understand The Legal Test for Insolvency Australian law defines insolvency in section 95A of the Corporations Act 2001 (Cth) in deceptively simple terms. A company is solvent if it can pay all of its debts as and when they become due and payable, and it is insolvent if it cannot. Courts apply this through the cash flow test, examining whether a company has access to sufficient funds, including through realisable assets or available credit, to meet its obligations as they fall due. A balance sheet showing assets in excess of liabilities does not automatically mean a company is solvent, and a temporary shortage of cash does not automatically mean it is insolvent. The courts have described genuine insolvency as an endemic shortage of working capital rather than a passing difficulty, so the assessment always turns on the full commercial picture, not a single number. Directors carry legal exposure long before a company reaches crisis point. Our corporate law team advises Melbourne business owners on solvency risk, governance and structuring, well before pressure narrows the options available. Warning Signs a Business May Be Insolvent Insolvency rarely arrives without warning. Common indicators include ongoing trading losses, repeated difficulty meeting supplier payment terms, heavy reliance on one or two customers to fund daily operations, mounting arrears with the Australian Taxation Office, and creditors moving from standard trading terms to cash on delivery. A pattern of dishonoured payments, informal arrangements to defer supplier invoices, or a statutory demand landing in the company's mail are late stage signals rather than early ones. Directors who wait until a winding up application appears have generally missed the window in which the widest range of options remained available. Reviewing management accounts regularly and seeking advice at the first sign of sustained pressure, rather than the fifth, gives a business its best chance of a controlled outcome. The Duty to Prevent Insolvent Trading Section 588G of the Corporations Act requires directors to prevent a company from incurring new debts once there are reasonable grounds to suspect insolvency. A breach exposes directors to personal liability for the resulting debts, and in cases involving dishonesty, criminal liability. This duty applies from the point suspicion reasonably arises, not from the point insolvency is confirmed, which is why early legal advice carries such weight. Directors sometimes assume that trading on in good faith, hoping conditions improve, provides some protection. It does not, unless the director can point to specific and documented steps taken to address the position, which is precisely the gap safe harbour provisions were introduced to address. Safe Harbour Protections for Directors Since 2017, section 588GA of the Corporations Act has given directors a safe harbour from personal liability for insolvent trading where they are developing and implementing a course of action reasonably likely to lead to a better outcome for the company than immediate administration or liquidation. To rely on safe harbour, directors generally need proper financial records, appropriately qualified advice, and active, documented steps toward a genuine restructuring plan, rather than simply continuing to trade as before. It is not a shield for directors who have done nothing, and it will not protect a director who keeps accumulating debts unrelated to the turnaround strategy. It rewards early, informed, and professionally guided advice on insolvency law, taken at the first sign of pressure. What to Do If Your Business Is Facing Insolvency Once a business recognises it may be insolvent, or approaching that position, several formal and informal pathways are available, and the right choice depends heavily on the company's size, debt profile, and prospects for recovery. Voluntary administration allows an independent administrator to take control for a defined period, assess viability, and put a proposal to creditors, giving directors breathing space while options are properly considered. For eligible companies with liabilities under one million dollars, the small business restructuring process under Part 5.3B of the Corporations Act allows directors to remain in control while a restructuring practitioner develops a plan for creditors to vote on, and this pathway has grown sharply in popularity since its introduction. Where recovery is no longer realistic, liquidation winds up the company's affairs, realises its assets, and distributes proceeds to creditors according to a statutory order of priority. Secured creditors also retain a separate right to appoint a receiver over specific assets. Creditors dealing with a distressed counterparty face a parallel set of decisions, from a statutory demand through to recovery action, which our commercial dispute lawyers advise on separately. None of these pathways should be chosen reflexively. The right course depends on whether the business retains genuine trading value, whether creditors will support a restructure, and what personal exposure directors carry, including personal guarantees, which is where commercial judgement and legal advice together produce materially better outcomes than either alone. How Whelan Lawyers Can Help Advising a business through financial distress calls for more than technical knowledge of the Corporations Act. It requires an understanding of how a cash flow crisis actually feels from inside a business, the pressure of payroll deadlines and decisions that need to be made in days rather than months. Neda Whelan brings that perspective from her time as in-house General Counsel at Jim's Group and Clark Rubber, combined with private practice experience advising directors on insolvency law, restructuring options, and personal exposure. Whelan Lawyers works directly with Melbourne business owners to assess their position, explain the options honestly, and act quickly where speed genuinely matters. If your business is under sustained financial pressure, our team is a practical next step before the position narrows further. Frequently Asked Questions What does it mean for a company to be insolvent in Australia? Under section 95A of the Corporations Act 2001 (Cth), a company is insolvent if it cannot pay all of its debts as and when they fall due. Courts assess this primarily through the cash flow test, looking at whether the company has genuine access to funds, not simply whether its assets exceed its liabilities on paper. Is insolvency the same as bankruptcy? No. Bankruptcy applies to individuals under the Bankruptcy Act 1966 (Cth) and is regulated by the Australian Financial Security Authority. Insolvency applies to companies under the Corporations Act and is regulated by ASIC, with a different set of processes, practitioners, and consequences for those involved. Can a company keep trading while insolvent? Generally, no. Directors have a legal duty under section 588G to prevent a company from incurring new debts once they suspect, or ought reasonably to suspect, that the company is insolvent. Continuing to trade without addressing that duty risks personal liability for the debts incurred. What is the difference between voluntary administration and liquidation? Voluntary administration is a temporary process aimed at assessing whether a company can be saved or restructured, giving directors and creditors time to consider options. Liquidation is a final process that winds up the company, realises its assets, and distributes proceeds to creditors before the company is deregistered. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.

Introduction A company rarely calls a corporate lawyer when things are simple. By the time most directors pick up the phone, an investor has asked for governance documents that were never put in place, a co-founder wants to exit and nobody agreed on how that would work, or a compliance obligation has been quietly missed for long enough to matter. I have sat on the inside of that problem as General Counsel for two national networks, and advised on it from private practice both before and since. Getting a company's structure, governance and ownership documents right before a transaction or a dispute is always less disruptive than fixing it under pressure. This is what I would tell a founder or director choosing a corporate lawyer in Melbourne, written by someone who has run the legal function of a growing business rather than only advised one from the outside. Choosing the right adviser matters more than most directors expect, because corporate work sits underneath almost everything else the business does. If you want a sense of what that advice should look like in practice, our Corporate Advisory and Strategic Counsel work is a fair benchmark to measure any firm against. Why the Right Corporate Lawyer Matters More Than You Think Corporate law is not one discipline. It covers how a company is owned, how it is governed, how it raises and allocates capital, and what happens when ownership or control changes hands. A single decision, bringing on an investor, issuing options to a key hire, restructuring before a sale, often pulls on three or four of those threads at once. That breadth is where generalist advice tends to fall short. A shareholders agreement drafted without a workable deadlock mechanism looks fine until two founders stop agreeing on direction, at which point the document meant to resolve the standoff resolves nothing. An employee share scheme set up without proper regard to vesting and tax consequences can create an unwelcome liability years after the shares were issued. A governance framework that exists only on paper offers no real protection when a director's decision is later questioned. Good corporate advice heads off that version of events before it starts. Anyone can draft a shareholders agreement or an option deed. Knowing what tends to go wrong inside a growing company, and building the structure so it holds under pressure, is the part that actually protects you. Our work on shareholder and founder agreements, and on corporate governance and compliance, is built around exactly that discipline. What Business Owners Should Look For A Lawyer Who Actually Structures and Governs Companies Ask how often the firm handles matters like yours: company structuring, a governance framework, a capital raise, an ownership change. Not corporate law in the abstract, but the specific transaction in front of you. Depth shows up in the questions a lawyer asks in the first meeting. Someone who works in company structuring and capital raising every week will flag the issue in your cap table or your board process that you have not thought to raise. Someone who drafts these documents occasionally will take your instructions at face value and miss it. Someone Who Has Run a Business, Not Just Advised One This is the part I care about most, because it shaped how I practise. There is a real gap between a lawyer who has only advised from outside a company and one who has sat inside one and owned the result. In-house, a General Counsel cannot hide behind a letter of advice. You make the governance call, live with it, and explain it to a board that cares about the outcome, not the reasoning behind it. That experience changes the advice you give. You stop listing every theoretical risk and start telling a client which risks actually matter and what you would do in their position. When you are choosing a corporate lawyer, ask whether they have carried that kind of responsibility themselves. It tends to separate advisers who help a board decide from those who only describe the options. Senior Attention, Without the Big-Firm Bill Plenty of directors have paid for a large firm and had the actual drafting done by a junior at close to a partner's rate. For a private company or a scaling SME, that arithmetic rarely holds up. A boutique corporate practice can put a senior lawyer on your structuring or governance work from the first phone call, without a CBD tower's overheads built into the fee. Ask directly who will do the work and what it will cost before you engage anyone. A Firm That Understands Growth, Not Just Compliance Company structuring and governance are not static. A framework built for three founders and no outside capital needs to flex when an investor comes in, when the business takes on its first equity-incentivised hires, or when a sale process starts. A firm that treats governance as a one-off filing exercise will not anticipate that. A firm that understands where the business is heading builds the structure to grow with it, this matters as much for our work on capital raising and equity structuring as it does for employee share schemes and executive incentives. Questions Worth Asking Before You Sign On A first meeting is a two-way interview, so use it that way. Ask how many company structuring, governance or capital raising matters the firm has handled this year. Ask who will actually run your file day to day. Ask whether they can act if a shareholder dispute or a transaction turns contentious, and whether they have done that before rather than just in theory. Ask how they bill. Then pay attention to how they answer. A capable corporate lawyer will not simply recite the Corporations Act back at you. They will ask about your business, your ownership structure and your growth plans first, then tell you which governance gaps are worth closing now and which can wait. If you leave that meeting with a clearer view of your own company, that is the signal worth acting on. How Whelan Lawyers Can Help I started Whelan Lawyers to give directors and founders the advice I wished I had access to when I was in-house: direct, commercially grounded, and senior from the first conversation. You can read more about that background on my profile page. Before founding Whelan Lawyers, I worked in commercial roles at Cummins South Pacific and Lord Commercial Lawyers, then spent years as General Counsel for Clark Rubber and Jim's Group. Running the legal function for large multi-site networks taught me how a governance decision plays out in a real company, where a structuring gap turns into a dispute, and what a board actually needs from its lawyer under pressure. I bring that same lens to every corporate matter. We advise founders, directors and established companies across Melbourne and Victoria on structuring, shareholder and founder agreements, capital raising, governance and compliance, mergers and acquisitions, employee share schemes and corporate advisory more broadly. Your matter is handled by a senior lawyer, not passed down the chain. If you are structuring a company, bringing on an investor, or planning an ownership change, get in touch for a direct conversation about where you stand. Frequently Asked Questions What does a corporate lawyer do? A corporate lawyer advises on how a company is owned, structured and governed. That includes company formation, shareholder and founder agreements, capital raising and equity structuring, director duties and governance compliance, and mergers, acquisitions or business sales. The better ones also help a board decide, not just understand the law behind the decision. How do I choose the best corporate lawyer in Melbourne? Find a firm that handles company structuring, governance and capital raising work regularly, gives you a senior lawyer rather than a junior, and can act if an ownership dispute or transaction becomes contentious. Ask who does the work and how they charge before you commit. Experience gained inside a company as General Counsel, not only in private practice, is a strong sign the advice will be commercially grounded. What is the difference between a corporate lawyer and a commercial lawyer? The two overlap but are not identical. Corporate work centres on company structure, ownership, governance and capital, things like shareholder agreements, capital raising and director duties. Commercial work centres more on contracts, trading relationships and disputes between businesses. Many matters need both, which is why it helps to choose a firm that covers each discipline under one roof rather than splitting your matter across two. Whelan Lawyers has extensive experience in both commercial and corporate law. When should I bring in a corporate lawyer? Earlier than feels necessary, ideally when a company is first structured, before an investor comes on board, or well ahead of any planned sale or ownership change. Governance and structuring advice is far cheaper and more effective before a transaction is underway than once terms are already being negotiated. The exception is a live shareholder dispute, where you should seek advice immediately. Disclaimer: This article provides general information only and is not legal advice. The law is complex and varies based on individual circumstances. You should seek specific legal advice about your particular situation before making any decisions about legal matters. Neda Whelan Neda Whelan is the Founder and Principal of Whelan Lawyers. With over a decade of experience as former General Counsel for major national networks such as Clark Rubber and Jim's Group, she provides practical, commercial-first legal strategies for franchisors and business owners.