A Business Sale Agreement is a legally binding contract between the seller and buyer of a business that sets out the terms and conditions for the transfer of ownership of the business and its assets. In Australia, the sale of a business is one of the most significant commercial transactions a person or company can undertake, and a properly drafted Business Sale Agreement is essential to protect both parties.

Under Australian law, a Business Sale Agreement will typically cover the identification of the assets being sold (including goodwill, stock, plant and equipment, intellectual property, contracts, and licences), the purchase price and how it is allocated across those assets, the settlement date and process, representations and warranties given by the seller, employee transfer arrangements under the Fair Work Act 2009 (Cth), restraint of trade obligations on the seller, and the GST treatment of the sale.

One of the most important considerations in any Australian business sale is whether the transaction qualifies as a GST-free supply of a going concern under section 38-325 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Where both the seller and buyer are GST-registered and the sale includes all things necessary for the continued operation of the business, no GST is payable on the purchase price — a significant saving of 10% of the purchase price.

Goodwill is often the most valuable asset being purchased in a business sale. It represents the accumulated reputation, customer relationships, supplier relationships, and brand recognition built up by the business over time. Australian courts have consistently recognised goodwill as a property right that can be bought and sold, and a Business Sale Agreement should always include specific provisions dealing with the allocation of value to goodwill, the seller's obligation to assist in the transfer of goodwill to the buyer, and restraint of trade obligations to prevent the seller from competing with the business after settlement.

This template is governed by Australian federal and state law and is suitable for use in all Australian states and territories including New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory.

A Business Sale Agreement is required whenever a business (or its assets) is being sold from one party to another as a going concern in Australia. It is appropriate for the sale of any type of business, including retail businesses, cafes, restaurants, professional practices, trade businesses, service businesses, and online businesses.

You need a Business Sale Agreement when you are: selling a small or medium business that you have built and wish to realise the value of; buying an established business rather than starting from scratch; retiring and passing on your business to a buyer; selling a business as part of an estate administration; or acquiring business assets from a company in administration or liquidation.

A Business Sale Agreement is particularly important — and legally required — where the transaction involves the transfer of employees, the assignment of commercial leases, the novation of material contracts, or the transfer of licences and permits that require regulatory consent. In these cases, the agreement must address the process for obtaining the necessary third-party consents before or at settlement.

The agreement is also critical where the parties have agreed to a due diligence period — a period during which the buyer investigates the business before committing to proceed to settlement. A properly drafted due diligence clause protects both parties: it gives the buyer the right to withdraw if the business does not meet their expectations, while giving the seller certainty that the buyer cannot delay settlement indefinitely.

Before signing any Business Sale Agreement, both the seller and the buyer should seek independent legal advice from a solicitor experienced in commercial transactions, as well as accounting advice from a registered tax agent regarding the income tax, CGT, and GST implications of the transaction.

A comprehensive Australian Business Sale Agreement should include several essential provisions.

The identification of assets clause defines precisely what is being sold. This is critical because the buyer needs certainty about what they are purchasing, and the seller needs certainty about what they are giving up. The agreement should include schedules listing the plant and equipment, stock, and intellectual property being transferred.

The purchase price and allocation clause sets out the total amount payable and how it is allocated across the different asset classes — goodwill, stock, plant and equipment, and any other assets. The allocation has significant income tax and CGT implications for both the seller and buyer, particularly in relation to the seller's CGT small business concessions under Division 152 of the Income Tax Assessment Act 1997 (Cth).

The GST clause is essential in every Australian business sale and must clearly state whether the parties intend the supply to be GST-free under section 38-325 of the GST Act, and what happens if the ATO subsequently determines that GST is payable.

The employee transfer clause must address the requirements of the Fair Work Act 2009 (Cth), including recognition of accrued entitlements, treatment of transferable instruments, and obligations around notice and information to employees.

The seller's warranties are representations about the accuracy of the financial information, the seller's title to the assets, the absence of undisclosed liabilities, and the ongoing compliance of the business with applicable laws. Warranty claims are subject to a limitation period, typically 12 to 24 months after settlement.

The restraint of trade clause prevents the seller from competing with the business after settlement, protecting the value of the goodwill purchased by the buyer. The restraint must be reasonable in scope, duration, and geographic area to be enforceable under Australian law.