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Raymond James

6 years PQE
Parramatta, NSW, AU
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    Raymond James agreed with Law Advisor Research Team 's answer on Online startup - Legal bits and pieces required
    over 9 years ago

    Hi there. Launching a start up can be a complex process, and it is great that you are seeking some assistance to ensure everything is done properly.

    The first part of your question is straightforward. If you would like some terms and conditions drafted for you, you should contact a solicitor who specialises in start up businesses. Solicitors in this area develop standard form terms which are tailored to different scenarios, and will ensure you get the best outcome possible for your business.It is an investment in the future of your startup as it will give you confidence that all the legal documents are in place.


    The second part of your question is more complex. There are some problems you should be aware of that may arise with your plan to transfer property to your wife in order to avoid liability to creditors.

    It is possible that the law will not consider the property to only belong to you in the first place. This is because the law presumes that anyone who has worked towards and supported their spouse in property ownership (ie helping to pay the mortgage, or being a stay at home parent, cooking, cleaning and supporting their spouse) may be entitled to a share of the property even if the property is not in their name. This is what is called a “constructive trust” and it means that transferring it to your wife may not protect your house from the creditors as you will still be deemed by the law to own part of it.
    In addition, there are financial implications to transferring property to another person. The first is that you will have to pay stamp duty on the transfer, which will be calculated on the value of the property. This can be quite costly, so it is something to keep in mind. There are also potentially capital gains tax consequences. Besides, transferring the property may not end up helping you: evenif you transfer your property to someone else, a lender may still require that the house is security to any loan or that the legal owner of the house acts as guarantor for the loan.
    As you probably already know, asset structure and financial planning is a complex issue, so it is important that you contact a solicitor. They will help you figure out what is the best way to protect your assets in the event your start up is unsuccessful. It is important that you know exactly what risks you are taking, and a lawyer can help with this.


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    Raymond James agreed with Dudley Kneller 's answer on Is a patent with a very broad and all-inclusive description valid & enforceable?
    over 9 years ago

    Hello and thanks for your question. It is helpful to consider whether the product you are looking to develop is patentable right from the word go before you spend too much time and money on the new product. Patent protection is a long lasting and strong intellectual property right once you have it in place. The existing patent owner here seems to have a very broad set of claims some of which may or may not be defensible.


    We would recommend seeking professional advice from a patent attorney specialising in the relevant industry for your product. e.g. technology, engineering, chemistry etc or contacting an intellectual property lawyer. Both will be able to assist you to determine whether the scope of the existing patent has been drawn too broadly and is subject to attack. It will also be helpful to confirm that the product you are seeking to develop does not infringe on the existing or other patent owner's rights (ie conducting a freedom to operate search). Depending on the situation you may be able to negotiate an appropriate licence with the patent owner, develop a product outside the claims and seek your own protection or challenge their patent in some way. Good luck with next steps.