Business and commercial transactions

Dan acts for business owners and corporate clients on transactions within the business itself as well as on their engagements with third parties and investors.

Within the business, this includes structuring and restructuring, shareholder and unitholder agreements, partnership agreements, the admission and exit of shareholders and partners, buy and sell arrangements, and amendments to constitutions and trust deeds.

Externally, Dan advises on the sale and purchase of businesses and business assets, investment and capital raising arrangements, joint ventures, supply, distribution and services agreements, licensing, confidentiality agreements and heads of agreement, together with the general commercial contracting that a business encounters day to day.

Commercial contracts

Dan drafts, reviews and negotiates commercial contracts of all kinds, and prefers to draft an agreement that reflects how the parties actually intend to deal with one another rather than adapt a precedent that does not fit. That work includes:

• supply, manufacturing, distribution, agency and reseller agreements
• services agreements, consultancy agreements and terms and conditions of trade
• licence agreements, including intellectual property, software and technology licences
• confidentiality agreements, non-disclosure deeds and intellectual property assignment deeds
• joint venture, collaboration and co-development agreements
• website terms of use, online terms of sale and privacy policies
• employment and contractor agreements, including confidentiality, restraint and intellectual property provisions
• guarantees, security arrangements and registrations on the Personal Property Securities Register

Dan advises on the operation of the Australian Consumer Law, including the unfair contract terms regime and the consumer guarantees, so that the agreements he prepares remain enforceable in practice as well as on their face.

Property law and conveyancing

Dan practises in all areas of property law and acts on conveyancing transactions of every description, for buyers and for sellers, from a first home through to the acquisition of a commercial portfolio or a grazing aggregation. That work includes:

• residential, rural, commercial and industrial conveyancing, including sales, purchases, options, put and call options, and off the plan contracts
• the preparation, review and negotiation of contracts for sale, and advice on the disclosure requirements and the vendor and purchaser warranties
• transfers of land, including transfers between family members, transfers to and from companies, trusts and self managed superannuation funds, transfers giving effect to a restructure or a succession plan, transfers on the break up of a marriage or de facto relationship, and transmission applications and transfers from a deceased estate
• the preparation of mortgage documents, loan agreements, guarantees and security documents, including vendor finance arrangements, second mortgages, discharges of mortgage, and registrations on the Personal Property Securities Register
• easements, rights of carriageway, covenants, positive covenants and restrictions on the use of land, and their creation, variation and release
• caveats, priority notices, and dealings with the New South Wales Land Registry Services, including the resolution of title defects
• strata and community title, subdivision, consolidation and development
• co-ownership disputes, including applications for the appointment of trustees for sale, adverse possession and boundary rectification

Dan also advises on all aspects of property law more generally, including the questions that arise before a transaction is contemplated and after it has settled, and he is content to be asked a short question as readily as to be retained on a whole matter.

Rural property and agribusiness

Dan acts for farming families, graziers and rural enterprises throughout New South Wales, including at Tamworth, Manilla, Barraba, Quirindi, Walcha, Armidale, Narrabri and Moree, and across the North West. He has acted on rural conveyancing transactions of every kind and advises on all aspects of the conveyance of farming property, including:

• the sale and purchase of grazing, cropping and mixed farming country
• water access licences, entitlements and allocations, bore and river water, and irrigation infrastructure
• easements, rights of carriageway, access and boundary issues
• the treatment of infrastructure, improvements, fixtures, plant, stock and equipment on transfer
• Crown land, leasehold and conversion to freehold title
• subdivision, consolidation and boundary adjustment
• the goods and services tax treatment of farming land and going concern sales

Dan also advises on the arrangements that govern how rural land is used and occupied, including farm leases, share farming agreements, agistment arrangements, and agreements affecting infrastructure on rural land.

Duty and Revenue NSW

Duty determines whether a transaction is affordable, and it is frequently the reason a transfer that makes obvious sense to a family cannot proceed in the form first proposed. Dan advises on and engages with the duties legislation of New South Wales as a routine part of his property, business and succession planning practice, and prefers to be consulted before a transaction is documented rather than after an assessment has issued.

That work includes transfer duty on the transfer of land and of other dutiable property, duty on the transfer of business assets and on the sale of a business, landholder duty on the acquisition of interests in landholding companies and unit trusts, surcharge purchaser duty, and the duty consequences of a proposed restructure before it is implemented.

Dan has particular experience with the exemption for transfers of primary production land between family members under section 274 of the Duties Act 1997 (NSW), commonly described as the intergenerational transfer exemption. He advises on and prepares applications to Revenue NSW for the exemption, including in respect of:

• whether the land is used for primary production carried on for a significant commercial purpose, both before and after the transfer
• whether the transferor and the transferee fall within the family relationships to which the exemption extends
• transfers to and from companies, trusts and self managed superannuation funds, and the control and holding requirements that apply to them
• leases and assignments of leases of primary production land, to which the exemption also extends
• the evidence Revenue NSW requires in support of an application, and the assembly of that material
• the interaction of the exemption with the capital gains tax small business concessions, the primary production land tax exemption, and the wider succession plan

Dan also advises on the other exemptions and concessions available under the duties legislation, including transfers from a deceased estate in conformity with a will, transfers made under family law orders and binding financial agreements, changes of trustee, and corporate reconstruction relief.

Leasing

Dan advises both landlords and tenants in respect of commercial, retail, industrial and rural leasing. His work includes agreements for lease, new leases, assignments and subleases, options and renewals, rent reviews, make good and repair obligations, incentive arrangements, surrenders and terminations, and disputes arising under the Retail Leases Act 1994 (NSW).

Intellectual property

Dan practises widely in intellectual property law and acts for clients across Australia, from sole traders and family enterprises registering a first brand through to established businesses managing a portfolio of marks across several entities and jurisdictions.

Dan’s trade mark practice includes:

• availability and clearance searching, and advice on whether a proposed brand, name or logo can be registered and used
• the preparation, filing and prosecution of trade mark applications with IP Australia, including the selection of classes and the drafting of specifications of goods and services
• responding to adverse examination reports, and applications to overcome citation and distinctiveness objections
• trade mark licensing, assignment and authorised user arrangements, including within family and corporate groups
• infringement, passing off and misleading or deceptive conduct, and the response to letters of demand

Beyond trade marks, Dan advises on copyright and moral rights, confidential information and trade secrets, business and company names, domain names, and the ownership of intellectual property created by employees and contractors. He also advises on the treatment of intellectual property in commercial transactions, including the identification, warranty and assignment of intellectual property on the sale of a business, and the licensing of intellectual property between related entities as part of a broader structuring or succession plan.

Succession planning

Dan has a particular interest in succession planning and prefers to work with clients well before the transition they are planning for, when there are still options available to them.

For farming families, Dan advises on intergenerational transfer and farm succession. That work turns on questions that are as much about the family as the law: how to provide for the child who has stayed on the land while treating the children who left fairly, how to pass control of an enterprise held across a company, a trust and personal names, and how to do so without a tax or stamp duty consequence that forces a sale. Dan advises on family agreements, restructuring, the transfer or leasing of land between generations, and the alignment of those arrangements with wills, testamentary trusts, superannuation death benefit nominations and estate planning generally.

For corporate and commercial clients, Dan advises on business succession and continuity, including buy and sell arrangements, shareholder exit strategies, the control of companies and trusts on death, retirement or incapacity, key person and insurance funded arrangements, and the orderly transfer of ownership and management to the next generation or to a third party.

Family law

Dan advises separating couples, whether married or in a de facto relationship, on the arrangements that follow the end of a relationship. His family law practice includes:

• property settlement, including the identification and valuation of the asset pool, contributions and future needs, and superannuation splitting
• property settlements involving farming enterprises, businesses, companies, trusts and self managed superannuation funds, where the structures and the financial disclosure are complex
• financial disclosure, and applications where the other party has failed to disclose
• spousal and de facto maintenance
• parenting arrangements, including parenting plans, consent orders and parenting proceedings
• consent orders and binding financial agreements, both before and during a relationship and on separation
• divorce applications
• proceedings in the Federal Circuit and Family Court of Australia

Dan encourages clients to resolve matters by negotiation, mediation or collaboration wherever that is possible, because an agreement reached between the parties is almost always reached sooner, at less cost, and on better terms than one imposed after a hearing. Where agreement is not possible, Dan conducts the proceedings.

Wills, estates and estate disputes

Dan prepares wills, testamentary trusts, powers of attorney and appointments of enduring guardian, and advises executors and administrators on obtaining probate and letters of administration and on the administration of an estate through to distribution.

Dan also acts in contested estates, for those bringing a claim and for the executors and beneficiaries defending one. That work includes:

• family provision claims under the Succession Act 2006 (NSW), for eligible persons and for estates resisting a claim
• challenges to the validity of a will, including want of testamentary capacity, undue influence, lack of knowledge and approval, and suspicious circumstances
• notional estate applications, and disputes about property held through companies, trusts and superannuation
• disputes between executors and beneficiaries, applications to remove an executor, and the passing of accounts
• informal and missing wills, and applications for statutory wills
• mediation of estate disputes, which resolves the majority of these matters without a hearing

Family provision claims are subject to strict time limits, and a claim must ordinarily be made within 12 months of the date of death. Dan encourages anyone considering a claim, or served with one, to obtain advice promptly.

Guardianship

Dan acts in guardianship and financial management matters before the Guardianship Division of the New South Wales Civil and Administrative Tribunal, including applications for the appointment of a guardian or financial manager, applications to review or revoke an appointment, and disputes about the operation of a power of attorney or an appointment of enduring guardian. This work frequently arises where capacity has been lost before an estate or succession plan was put in place, and it sits closely alongside Dan’s succession planning and estates practice.

Litigation and dispute resolution

Dan acts for individuals, businesses and rural enterprises in disputes in the Local Court, District Court and Supreme Court of New South Wales, and in the tribunals. His work includes contract and commercial disputes, disputes between shareholders, partners and joint venturers, property, boundary, easement and access disputes, retail and commercial lease disputes, building and construction disputes, debt recovery and enforcement, and disputes over the sale of land or a business.

Dan approaches a dispute commercially, and advises at the outset on what the claim is realistically worth, what it will cost to pursue, and what the client stands to recover. Most disputes are better settled than tried, and Dan pursues early resolution through negotiation and mediation, while preparing the matter properly so that the client is not disadvantaged if it does not settle.

Employment law

Dan acts principally for employers, and advises on the relationship from engagement through to its end. That work includes employment contracts and contractor agreements, restraints of trade, confidentiality and intellectual property provisions, modern award and National Employment Standards coverage, employee and contractor characterisation, workplace policies, performance management and disciplinary processes, redundancy and termination, and the response to unfair dismissal, general protections and bullying applications before the Fair Work Commission. Dan also advises on the employment aspects of a business sale, including the transfer of employees and the treatment of accrued entitlements.

Community

Dan lives at Moore Creek, just outside of the Tamworth CBD, with his wife and 2 children. He has practised in the same district since 2012 and regularly travels to meet clients on their properties and at their places of business across Tamworth, Manilla, Barraba, Quirindi, Walcha, Armidale, Narrabri and Moree.

Working with Dan

Dan accepts instructions from a broad range of clients, from individuals and family enterprises through to corporate entities operating across a number of industries and across the country. He strives to provide an approachable resource for client focused, succinct and commercially relevant advice.

To arrange an appointment with Dan, in person at the Tamworth or Manilla office or by telephone or video from anywhere in Australia, telephone (02) 6766 4617 or contact the firm online.