Commercial Law Lawyers Scarborough

A trading business looks like a fixed thing: a shopfront, a shed, a berth-side workshop, a sign that has been there for years. Around the boat harbour none of that is freehold. Scarborough Boat Harbour is a Queensland state boat harbour owned and managed by the Department of Transport and Main Roads, so what lets a business trade there is a right to occupy granted by or under a government lessor.

The goodwill, the plant and the stock can transfer cleanly while the right to stay where the business is depends on a document neither party to the sale created, and on somebody else's decision. Due diligence has to establish what the document actually is — a lease, a sublease or a licence — what it permits, how long it has to run, and whose consent an assignment needs, because a lease of land engages the Queensland consent regime while a bare licence generally does not.

ABS 2021 Census recorded 38.0% of occupied private dwellings in Scarborough as owned outright, the highest of the five Redcliffe peninsula localities in this series, and 29.5% rented, the lowest of the five. That is residential dwelling data about where people live. It says nothing about the tenure of business premises and nothing about any individual reader.

The tenure that decides a business sale is the tenure of the premises the business trades from, and around the boat harbour that is not freehold at all. An owner who has never had a mortgage discussion about their home in years can arrive at a sale assuming the premises simply come with it.

Consent reads like paperwork rather than a decision, so it gets pushed to the settlement checklist. In Queensland it is a regulated request. Under the Property Law Act 2023 (Qld) the lessor must not unreasonably withhold consent and must give a written decision notice within one month after receiving full particulars of the proposal, stating reasons for any conditions or for a refusal.

The Act does not say consent must be given, only that it must not be unreasonably withheld, so no one can tell a seller the assignment will be approved. If the lessee believes consent has been unreasonably withheld, that a condition is unreasonable, unnecessary or onerous, or receives no decision notice, the lessee may apply to the court. The regime commenced on 1 August 2025 and applies to dealings after commencement even under leases entered into before it.

Government guidance describes an asset sale as the buyer purchasing named assets, with the business entity and the debts around those items remaining with the seller, and a share sale as the buyer taking the entity itself along with all of its rights and obligations. That distinction is usually reduced in conversation to a shortcut: assets equal a clean slate.

The shortcut is wrong. Employee entitlements on a transfer of business, security interests registered over the plant and the lessor's consent to any assignment all cut across it, so an asset buyer can still inherit real obligations. In a share sale the buyer also takes the history it did not find, and a share transfer must be notified to ASIC within 28 days.

Vehicles, boatyard plant, cold rooms, fit-out and workshop gear are routinely financed, and the finance is registered against the seller rather than the item's appearance. Under the Personal Property Securities Act 2009 (Cth) a person takes personal property free of a security interest only if that interest is unperfected.

A buyer who has paid the seller in full can still have the gear repossessed by a financier holding a registered security interest. That is a Commonwealth regime, and the search is what tells you what is pledged and to whom; the resulting certificate is the buyer's proof of what was checked and when.

Under the Fair Work Act 2009 (Cth) a transfer of business can occur where an employee's employment with the old employer ends, the employee becomes employed by the new employer within 3 months doing the same or substantially the same work, and there is a connection between the two employers such as a transfer of assets. Service with the old employer then generally counts as service with the new employer.

Where the buyer is not an associated entity of the seller, the Act allows the buyer to decide not to recognise prior service for annual leave and redundancy pay, and to exclude prior service from the unfair dismissal minimum employment period only if it told the employee in writing before the new employment started. The written notice is the step most often missed, and it cannot be given afterwards.