Business Structures & Restructuring

The right business structures can facilitate business growth, protect assets, limit or isolate commercial risks and facilitate tax minimisation strategies.

Having the right business structure will facilitate business growth and effective tax planning, and maximise protection of your business and personal assets in the event of insolvency.

Our experienced Business & Company Lawyers assist clients understand and manage the fine balance between asset protection, tax minimisation and commercial considerations to achieve the best structure for their business and commercial objectives initially and when circumstances change.

How We Help

Our team of Business & Company Lawyers have extensive experience dealing with a wide range of structuring and restructuring matters including:
  • Advice in relation to business structuring options, considerations and best business structures

  • Incorporation of Companies and preparation of Shareholders Agreements

  • Establishing Partnerships and preparation of Partnership Agreements

  • Establishing Family Discretionary Trust and Unit Trusts

  • Advice in relation to restructuring of businesses and preparation of Restructuring Deeds, Asset Sale Deeds, Asset Licence Deeds and Intellectual Property Licence Deeds

  • Tax advice, including Small Business Rollover Relief, Capital Gains Tax, GST and Transfer Duty

  • Crowd-sourced Funding (crowdfunding) advice and related Agreements

What is Business Structuring?

Business structuring, at the highest level, relates to legal ownership of a business. Businesses can be carried on by:

  • an Individual; as a sole trader,
  • a Company; controlled by Directors and owned by Shareholders,
  • a Discretionary Trust or Unit Trust; controlled by a Trustee, or
  • a Partnership of individuals, companies and/or trusts.

When structures involve a Company or Unit Trust, further structuring considerations arise in relation to how the Shares or Units should be owned.

Structuring and restructuring considerations and asset protection strategies are also relevant for isolating assets from commercial risks when a business:

  • carries on more than 1 business or enterprise,
  • has a Trade Mark(s) or other intellectual property of vital importance and value,
  • owns plant or equipment of significant value,
  • has large cash reserves from past profits,
  • is planning to acquire a new business or merge with a competitor, and
  • is planning to expand into a new location or jurisdiction.

Structuring Considerations

There is no standard structure correct for every business.

Asset protection and tax planning are typically the primary concerns when considering the best business structure for a business.

When establishing a business, the best structure will depend upon several factors, including:

  • the financial positions and personal situations of the business owners,
  • owners’ short-term and long-term objectives,
  • the number of business owners; and whether additional owners are to be anticipated,
  • the degree of risk attaching to business activities,
  • the expected profitability of the business,
  • how the business and owners will be taxed on trading profits and/or capital gains on the sale of the business or Shares or Units, and
  • the industry in which the business will operate.

Getting your structuring right (including associated structuring agreements) at the earliest possible stage can have major benefits especially if the business fails and becomes insolvent.


Business restructuring relates to the transition from one structure to one or more other structures.

While ideally a good business structure will be set up from the start, this does not always occur and, even when best structures are initially established, businesses’ circumstances can change such that the initial business structure is no longer suitable.

The primary considerations for business restructuring are again asset protection and tax planning; however, the restructure may also be prompted by a change of circumstances such as insolvency, a proposed transaction or merger, succession plan or other opportunity.

Legal and tax advice should always be obtained before effecting any restructure to ensure that transactions or agreements relating to the restructure:

  • satisfy applicable requirements under the Corporations Act,
  • are commercial and unlikely to be challenged in future by any existing or future owner/shareholder or Liquidator,
  • will satisfy eligibility requirements for any applicable Small Business Restructure Rollover relief or other Capital Gains Tax exemption,
  • will preserve available Capital Gains Tax exemptions or discounts for future disposals of business interests, where possible, and
  • do not trigger any unexpected liability for Capital Gains Tax, GST or Transfer Duty.

Businesses that proactively
address legal issues are more resilient, better prepared
and more profitable.

Understand your Top 5 Legal Priorities

Complete our 10-Minute Questionnaire and receive a free 40-Minute consultation with an experienced Commercial Lawyer to review your Top 5 Legal Priorities.


Insolvency & Restructuring

If you suspect that your business is or may become insolvent, download our Safe Harbour Guide and contact us today to consider your options and to begin formulating a restricting plan.

Safe Harbour Guide

What Company Directors who suspect insolvency should do to avoid personal liability for Insolvent Trading.

You amazed us with your energy and knowledge, you are a champion.

“I would like to thank you and your team for assisting myself and Andrew with the restructure.

After working with others it is refreshing to have you on our side. Thanks also from all our staff for assisting in securing their future.”

Paul Barwick
MCA Engineering

Finally I have found a law firm who me and my family will be using for many years to come.

“Sam and the team at Roberts Crosbie Mortensen assisted me with a very complex business case. They are leagues ahead of any other law firm I have used in the past. Their attention to detail and professional prompt response to every item raised was a real stand out. The team keep you fully informed at all times in simple to understand language highlighting pros and cons of every decision that needs to be made.”

Paul C

Sam and his team were great in helping us set up our business.

“They offered practical advice and were very responsive with answering questions and documentation.”

Luan Atkinson

I can confidently recommend Roberts Crosbie Mortensen before any other.

“Very happy with every contact I have had with Roberts Crosbie Mortensen, having dealt with a few law firms in Newcastle.”

Professional, efficient and courteous.

“We have used Sam Roberts now on a number of occasions for various legal matters – including some very complex issues. On all occasions Sam and his team have been extremely professional, efficient and courteous.”

Brentwood Skin

I wouldn’t hesitate to recommend them.

“Sam Roberts and the team at Roberts Crosbie Mortensen are the most dynamic and professional law firm that I have worked with. Sam’s asks the right questions to get the process under way in an incredibly efficient manner and they keep you informed, every step of the way. No chasing up required, which is a rarity in professional service outfits.”

Stuart Upward
The Right Person

Sam is extremely knowledgeable about the commercial and legal aspects of generating wealth from people’s greatest asset – their business.

Michael Craddock
More Accredited Specialists in Commercial Litigation than 99% of all law firms in NSW.

Our Business & Company Lawyers

Frequently Asked Questions

What is a Trust?

A Trust is an agreement where a person or entity holds property or assets for the benefit of beneficiaries.

What are the benefits of a Trust?

Benefits of utilising a Trust in your business structure include:

  • greater flexibility in tax planning,
  • protect assets,
  • limit liability, particularly where a corporate trustee is appointed,
  • greater privacy than a company, and
  • flexibility in distributions among beneficiaries.
How do you incorporate a Company?

Once you decide to set up a Company structure, you will first need to consider how to structure your shareholding in the Company. The shareholder(s) can be an individual, another company or a trust structure. Which structure you decide will depend upon your particular circumstances, having regard to the availability of asset protection and tax minimisation strategies.

Secondly, you will need to consider who will be the Director(s), and ultimately have the day-to-day management and control of the Company. Each Director will need to sign a consent to act as Director of the Company.

Your Solicitor can then register the Company with ASIC with your chosen shareholder(s) and Director(s). Upon registration of the Company, you will be provided with an Australian Company Number (ACN) and will need to register for a new ABN and for GST if applicable

How do I incorporate my existing small business?

After you incorporate a Company (see above), your business, including all licenses, assets and other agreements, including any lease, will need to be transferred to that Company. This should be documented by an Asset Sale Deed, or similar agreement.

You should then cancel your old ABN.

You should always seek advice from your Accountant and your Solicitor before proceeding with the incorporation of your small business to make sure the transaction will not be challenged in the future and that you will be entitled to the specific CGT concessions and relief available for this type of restructure.

How do I establish a Family Discretionary Trust?

The establishment of a Family Discretionary Trust (FDT) is done by way of Deed. Prior to the Deed being prepared, you will need to decide who will be the Trustee of the FDT (typically an individual or company), the named beneficiaries, the Appointor (the individual(s) who has the power to appoint and remove the Trustee) and the Settlor (typically your Solicitor, being the person responsible for setting up the trust).

Your Solicitor can then prepare the Deed establishing your FDT, and if acting as Settlor, establish the trust. The Deed will need to be executed by the Trustee and Settlor and nominal Duty of $500.00 paid to Revenue New South Wales.

If utilising the FDT to carry on a business, you will then need to register for an ABN and GST if applicable.

Do I need a Shareholders Agreement?

While you are not legally required to have a Shareholders Agreement, without this comprehensive document the Company (and its Shareholders and Directors) would be controlled by laws which are insufficient to assist with the operation and management of the Company, the protection of Shareholders and resolution of disputes.

We recommend all Companies with two (2) or more Shareholders have a Shareholders Agreement in place. See our article which provides a comprehensive summary of the benefits of having a Shareholders Agreement in place.

What is crowd sourced funding?

Crowd-sourced Funding (crowdfunding) enables eligible companies to raise capital from the general public by collecting a large number of small contributions, typically in exchange for shares in the company.

What companies can utilise crowdfunding to raise capital?

To be eligible for a crowdfunding campaign, a company must:

  1. Be a propriety company.
  2. Have a minimum of two directors and have a majority of its directors (excluding alternate directors) ordinarily residing in Australia.
  3. Have its principal place of business in Australia.
  4. Have less than $25 million in consolidated gross assets (including the assets and revenue of its related parties) and less than $25 million in annual revenue.
  5. Not be listed on a financial market in Australia or overseas (ie not be a public company).
  6. Not have a substantial purpose of investing in other companies, entities or schemes (including its related parties).
What does a crowdfunding offer need to include?

An offer to the public in a crowdfunding campaign must:

  1. Expressly state that the offer is made under the crowdfunding regime.
  2. Be an offer for the issue of new, fully paid ordinary voting shares in the company.
  3. Not be used to raise investment funds for use in other companies.
  4. Must not raise more than $5 million in any 12 month period.
Who is involved in the Crowdfunding process?
  1. The Australian Securities & Investments Commission (ASIC) who is the regulator of the regime.
  2. The company (known as the issuer) that issues the new shares to its new investors (the public).
  3. Investors, being members of the public, who invest money in the issuing company in exchange for shares, also known as shareholders.
  4. The intermediary being a third party company that operates the licensed online platform and is the “gatekeeper” between the issuer and the investors.
  5. The company’s lawyers.
  6. The company’s accountants.