Selling a Business Lawyers in Melbourne

You have spent years building the business. Selling it well comes down to a handful of documents: the offer, the contract, the lease and the promises you make about what you are handing over. Get those right and the deal you agreed is the deal that settles.

Hendersons Legal is a Melbourne law firm established in 2001, and our business lawyers act for owners selling established Victorian businesses, from family companies to owner-run firms with staff, a lease and years of customer contracts. If you are looking for a lawyer for selling a business in Melbourne, this page walks through what we look at, in the order it usually comes up.

We act for buyers too, but their worries are different, so this page is written for sellers. If you are on the other side of the deal, see our page on buying a business. Our principal, David Henderson, has nearly 40 years’ experience.

Start before the business goes on the market

A buyer’s adviser will go through your records line by line. It is much better to find the gaps yourself, while there is still time to fix them. Before you list, we usually look at:

• your company records and share register, and who has authority to sign the sale
• whether your constitution or a shareholders agreement needs the other owners to approve a sale (if co-owners disagree about selling, our shareholder disputes lawyers can help)
• customer, supplier and finance contracts that need the other side’s consent when ownership changes
• your lease, any options to renew and any personal guarantee you signed
• employment contracts, the award or agreement that applies, and current leave balances
• who actually holds the business name, trade marks, domain names and social media accounts, because they are sometimes in a former partner’s or a relative’s name

Your accountant looks after the valuation and how the numbers are presented. Our job is to make sure the legal documents behind those numbers stand up when the buyer’s lawyer reads them.

When the offer arrives, slow down

Most sales start with an offer, an expression of interest or heads of agreement, often sent through a broker. It can look like a formality. It may not be one. Depending on its terms and the circumstances, an offer or heads of agreement can be binding, even if it says a formal contract will follow.

So send it to us before you sign. We read it with four questions in mind. How and when are you paid, and is any part of the price held back or tied to how the business performs later? What exactly is included? Which conditions let the buyer walk away? And are you stopped from talking to other buyers, and for how long?

The contract of sale and the promises you make

There is no single contract that every business sale in Victoria must use. You might be handed a standard form contract, a broker’s template or a document the buyer’s lawyer has drafted. Whichever it is, these are the parts that matter most to a seller.

Warranties

Warranties are promises about the business: its finances, assets, contracts, staff and any disputes. If one turns out to be untrue, the buyer may be able to claim against you after settlement. We check each warranty against what you actually know, and push back on any that go further than they should.

Disclosure

The Australian Consumer Law prohibits misleading or deceptive conduct in trade or commerce. That can reach what you say about turnover, profit and customers, and it can include leaving out something that makes what you did say misleading. We help you decide what to disclose and how to record it, so there is a paper trail if a buyer later says they were misled.

The section 52 statement for smaller sales

If the goodwill, plant, equipment and fittings together sell for $450,000 or less (not counting any liquor licence), section 52 of the Estate Agents Act 1980 (Vic) requires the seller to give the buyer a signed statement about the business before the buyer signs the contract or pays a deposit. Consumer Affairs Victoria’s form warns that if the statement is incomplete or inaccurate, the buyer may be able to avoid the contract within three months of signing, as long as they have not taken possession. It is worth preparing carefully with your accountant. If land is part of the sale, a section 32 vendor statement under the Sale of Land Act 1962 (Vic) is needed as well.

Adjustments

Stock, prepaid income, rent, outgoings and staff leave are usually adjusted at settlement. Small errors add up quickly, so we check every calculation.

The lease, your staff and the restraint clause

Handing over the lease

Most buyers need the premises, so landlord consent often sets the timetable for the whole sale. If your premises are retail premises under the Retail Leases Act 2003 (Vic) (broadly, premises used mainly to sell or hire goods or to provide retail services), the Act sets out the steps. You give the buyer a copy of your disclosure statement and tell them about any changes you know of. Your request to the landlord must be in writing and include information about the buyer’s financial resources and business experience. If you are selling an ongoing business, you must also give the buyer three years of business records.

The landlord can only refuse consent on the grounds the Act allows, such as a use the lease does not permit or doubts about the buyer’s finances or experience. If you have done your part and the landlord gives no written answer within 28 days, consent is treated as given. And if you give the landlord and the buyer a new disclosure statement that is not false, misleading or materially incomplete, you and any guarantors are released from the lease once it is assigned. That release is worth protecting, so we make sure each step is done properly.

If your lease is not a retail lease, its own terms and the general law decide what happens, so we read the assignment clause closely. Our commercial leasing lawyers can deal with the landlord for you.

Your staff

In an asset sale, employees the buyer takes on move from your employment to theirs. Under the Fair Work Act 2009 (Cth), employees who move across in a transfer of business generally keep their service for many entitlements. Whether accrued annual leave and redundancy pay go with them or are paid out by you depends on how the deal is structured, so the contract needs to say who pays what. Staff who are not moving across may need notice or pay in lieu.

Long service leave works differently in Victoria. Victorian Government guidance on the Long Service Leave Act 2018 (Vic) says that when a business is sold and an employee stays on, the new owner becomes responsible for their long service leave, including the years they worked for you, and a sale contract cannot validly exclude that entitlement. The price adjustment should reflect it. Our employment lawyers can help with the staff side of the sale.

The restraint clause

A buyer will usually want you to stay out of the market, and away from the customers and staff, for a set time and area. That is fair enough, because goodwill is a large part of what they are paying for. But a restraint given on the sale of a business is generally only enforceable if it goes no further than reasonably needed to protect what the buyer paid for. We look at how long it runs, where it applies and what it stops you doing, so you know what you are free to do afterwards.

You may have read about the federal government’s plan to ban non-compete clauses. In September 2026 Treasury released an exposure draft Bill aimed at non-competes for low and middle-income workers, and consultation closed on 2 October 2026. It is a draft, not law. Its explanatory material says restraints in a sale of business agreement are not caught, because they protect the goodwill being sold. That could change before a Bill goes to Parliament, so we check the position when your contract is drafted.

Share sale or asset sale?

In a share sale, the buyer takes over your company, so its contracts, lease, employees and liabilities stay with it. Some contracts still have change-of-control clauses that need the other party’s consent. In an asset sale, the buyer picks the assets and contracts it wants, and each contract and the lease must be assigned or replaced, often with the other party’s consent. Tax usually drives the choice, along with risk and what the buyer will accept, so bring your accountant in early. We explain the legal side of each option.

Settlement and the handover

Settlement is when the price is paid and the business changes hands. Before the day, we check that the conditions are met, the consents are signed and the adjustments are agreed. If the buyer is keeping your business name, you start the transfer with ASIC, which issues a transfer number the buyer uses to register the name. A trade mark passes under a signed assignment, which is then recorded with IP Australia.

When to call a business sale lawyer in Melbourne

• A broker or buyer has sent you an offer or heads of agreement.
• The buyer’s lawyer has sent a draft contract with a long list of warranties.
• The landlord is slow to answer, or is asking for things the Act may not allow.
• A buyer has raised a complaint after settlement. Warranty and disclosure claims need prompt advice, and our litigation lawyers act in these disputes.
• The sale is part of your retirement plans, which makes it a good time to update your will and power of attorney.

This page is general information, not legal advice. Every sale is different, so tell us about yours.

Questions sellers ask us

How it works

1. Call (03) 9629 2211 or fill in our online enquiry form. Tell us where the sale is up to and send whatever you have so far, such as the broker’s offer, a draft contract or the lease.
2. We clarify your instructions and take a first look at the documents.
3. We send you a costs agreement and disclosure statement setting out the scope of the work and our fees.
4. Once you accept, we start work and keep you posted as the sale moves towards settlement.