Corporate & Commercial
Contracts, structures and governance for businesses that need the paperwork to hold when something goes wrong.
Mergers & Acquisitions
Buying or selling a business, from the term sheet and due diligence through to completion and the restraints that follow.
Litigation & Dispute Resolution
Commercial disputes in the NSW, ACT and Federal courts, resolved early where that is possible and run properly where it is not.
Technology and Software
Your product scales digitally. Your contracts have to scale with it.
The track record
Judgments and tribunal outcomes, transactions completed, appointments taken, and the conversations we are part of in Australia and in Germany.
Germany
A German desk for businesses moving between Australia and the German-speaking market.
Singapore
Singapore law where it governs the contract, and the arbitral seat that carries much of the region’s work.
Germany
We act for German-speaking businesses operating in Australia, and for Australian businesses operating in Germany.
An Australian commercial law firm with offices in Sydney, Canberra and Frankfurt am Main. We advise German-speaking businesses on Australian law and Australian businesses on the German-speaking market, in German and English.
Sydney · Canberra · Frankfurt a.M.
Offices
German and English
Working languages
2007
Practising in Australia since
Australian and German law
What we advise on here
Which way the work runs
The work runs in both directions. These are the situations it starts from.
Whether a German-speaking business is arriving in Australia or an Australian business is going the other way, the work begins as a commercial decision and becomes a legal one at the same points. Scroll for the situations we are most often called on.
Into Australia
Incorporating an Australian subsidiary
Entity, constitution and the resident director requirement, then the shareholder arrangements between the German parent and the new company.
Out of Australia
Establishing in the German-speaking market
The Australian side of the structure and the group contracts, with the questions of German law answered from Frankfurt.
Into Australia
Acquiring an Australian business
Due diligence, the sale agreement and the warranties, and the foreign investment position where the Foreign Acquisitions and Takeovers Act 1975 (Cth) applies.
Out of Australia
Appointing a European distributor
Distribution and agency terms drafted against the law that will govern them, including the termination and compensation provisions that differ from Australian practice.
Into Australia
Appointing an Australian distributor or agent
Terms of trade, the distribution agreement, and the provisions of the Competition and Consumer Act 2010 (Cth) that apply to both.
Into Australia
Employing the first Australian staff
Contracts written against the National Employment Standards and the modern award covering the role, with the superannuation and payroll registrations that go with them.
Both directions
A contract dispute across the two jurisdictions
Where the forum clause sends the dispute, and whether the resulting judgment or award can be enforced against the assets worth pursuing.
Both directions
A group restructure or an intra-group transfer
Sequenced with the accountant, because the tax analysis usually has to be settled before the documents are drafted.
Before you start
What a German business encounters in Australia
The questions below arrive in most first meetings, in roughly this order. Each answer states the general position and is not advice on a particular transaction. Where a threshold is indexed or a regime is under review, the current position has to be confirmed at the time.
01
Most German groups incorporate an Australian proprietary company. A branch is available, but it requires the German company itself to be registered as a foreign company under the Corporations Act 2001 (Cth), which brings the parent’s own affairs within Australian disclosure obligations. A distributor avoids both and gives away control of the customer relationship.
02
The company, and in defined circumstances the directors themselves. Two Australian rules surprise German boards: a director who lets the company incur a debt while it is insolvent is personally exposed under the Corporations Act 2001 (Cth), and unpaid PAYG withholding, GST and superannuation charge can be recovered from the directors under the Taxation Administration Act 1953 (Cth).
03
It depends on what is being acquired more than on what is being paid for it. The Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) treats land, agribusiness, media and national security business differently from an ordinary business acquisition, and some acquisitions require approval at any value.
04
It overrides them. Australian employment sits on the National Employment Standards under the Fair Work Act 2009 (Cth) and, for most roles, a modern award that applies whatever the contract says. A German template contract executed here is usually incomplete.
05
An Australian Company Number is issued on incorporation, followed by an Australian Business Number, registration for GST once turnover reaches the registration threshold, a tax file number, and PAYG withholding registration before the first payroll. Part of that is legal work and part of it is the accountant’s.
06
Three, reliably: terms excluding or limiting the consumer guarantees, unfair terms in standard form contracts, and liability caps drafted against German law that Australian law reads differently.
07
Only if it is registered. A retention of title clause is a security interest under the Personal Property Securities Act 2009 (Cth), whatever the contract calls it, and an unregistered one fails at the moment it is needed: on the customer’s administration or winding up the interest vests in the customer, and the supplier ranks as an unsecured creditor for goods it believed it still owned.
08
Earlier than most German groups expect. The Privacy Act 1988 (Cth) can apply to a foreign business with an Australian link even where the data is held offshore, and the small business exemption is narrower than it appears and is under active reform.
09
Wherever the contract says. A foreign judgment and a foreign arbitral award are enforced in Australia through entirely different machinery, so the forum clause is a commercial decision and not boilerplate.
01 / 09
Subsidiary, branch or distributor?
Most German groups incorporate an Australian proprietary company. A branch is available, but it requires the German company itself to be registered as a foreign company under the Corporations Act 2001 (Cth), which brings the parent’s own affairs within Australian disclosure obligations. A distributor avoids both and gives away control of the customer relationship.
The difference between the three is liability and disclosure. A subsidiary is a separate legal person, so the parent’s exposure is limited to what it has invested and what it has guaranteed. A registered foreign company is the German company itself trading in Australia, and it must lodge its own balance sheet, profit and loss statement and cash flow statement with ASIC every year, in the form its German accounts already take. Most boards do not expect the parent’s accounts to become an Australian public record.
One expectation is worth correcting while the structure is still open. A small proprietary company controlled by a foreign company must generally prepare and lodge audited financial statements, unless it is consolidated into accounts already lodged with ASIC or relief is obtained. The small-company exemptions a German group is used to do not travel with size here, so the subsidiary’s own numbers are less private than the choice between the three suggests.
One requirement catches most inbound groups. A proprietary company must have at least one director who ordinarily resides in Australia. That is the appointment of a person, carrying the duties that attach to the office, and it should be settled before the structure is finalised. What those duties weigh is the next question.
Worth reading first
Related expertise
02 / 09
Who is personally liable if it goes wrong?
The company, and in defined circumstances the directors themselves. Two Australian rules surprise German boards: a director who lets the company incur a debt while it is insolvent is personally exposed under the Corporations Act 2001 (Cth), and unpaid PAYG withholding, GST and superannuation charge can be recovered from the directors under the Taxation Administration Act 1953 (Cth).
The tax liability is the one to plan around, because it reaches every director, including those resident in Germany who never set foot here. Appointing an administrator or winding the company up remits the penalty only where the company reported on time. Where withholding went unreported for three months after its due day, or the superannuation charge was not lodged by its due day, the penalty stands and the directors pay it.
Insolvent trading is a separate rule and turns on the state of the company at the moment a debt is incurred. A group used to the protection a GmbH gives its Geschaeftsfuehrer should assume less of it here, and should give the Australian board real monthly reporting instead of a quarterly summary.
One piece of this is purely administrative and still stops timetables. Every director must hold a director identification number, and the requirement bites before the appointment and not after it, so it belongs at the front of the plan and not at the incorporation step.
Related expertise
03 / 09
Does foreign investment approval apply to this?
It depends on what is being acquired more than on what is being paid for it. The Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) treats land, agribusiness, media and national security business differently from an ordinary business acquisition, and some acquisitions require approval at any value.
Australia applies a higher threshold to investors from certain free trade agreement partners, and Germany is not one of them. A German acquirer is measured against the general threshold, so a substantial interest of 20 per cent or more in an Australian entity is notifiable above $347 million, where an investor from an agreement country is not caught until $1,498 million. Those are the figures from 1 January 2026 and they are indexed every January.
Below the headline the exceptions decide most matters. Agribusiness is notifiable above $75 million cumulative on an interest of 10 per cent. An Australian media business and a national security business are notifiable at any value, as are mining and production tenements. Incorporating a new Australian company and funding it is not a notifiable action for a private investor at all.
One structuring point is worth taking before a deal is signed. The threshold follows the entity that actually acquires, so a German group buying through a subsidiary incorporated in an agreement country is measured against that country’s threshold, and a group from an agreement country buying through a German subsidiary loses the higher figure.
Land deserves its own line, because the general threshold does not reach it. Vacant commercial land is notifiable at any value, so a group buying a site for a plant or a warehouse needs approval whatever it pays. And an interest in Australian land includes a lease whose term, counting options, is reasonably likely to exceed five years, so the new subsidiary signing an ordinary ten-year warehouse lease can be inside the regime, and inside the register obligation that goes with it.
Approval is also not the end of it. A foreign person who acquires an interest in Australian land must notify the Register of Foreign Ownership of Australian Assets within 30 days of the acquisition, whatever the value and whether or not approval was required, and a notifiable or significant action in an Australian entity or business carries its own notice. The notice costs nothing and failing to give it is a civil penalty. Where approval was given, any conditions attached to it continue to bind.
On timing, the Treasurer has 30 days to decide once the notice is given and 10 days after that to communicate the decision, and the period can be extended at the applicant’s request or by the Treasurer. The trap is that the notice counts as given only once the application fee is paid, so it is the fee and not the filing that starts the clock. A settlement date written against the filing date is written against the wrong event.
Related expertise
04 / 09
What does the award system do to our employment contracts?
It overrides them. Australian employment sits on the National Employment Standards under the Fair Work Act 2009 (Cth) and, for most roles, a modern award that applies whatever the contract says. A German template contract executed here is usually incomplete.
A modern award sets minimum rates, penalty rates, overtime, allowances, span of hours and a classification structure. Coverage is determined by the work and the industry, not by what the parties agreed, so a salary comfortably above the base rate can still fall short once overtime and penalties are counted. This is the most common employment problem we see on inbound files.
Superannuation is separate and cannot be contracted out of. The guarantee rate is 12 per cent of ordinary time earnings, and the Act sets a flat 12, so the annual step-up that most older guidance describes has finished.
Workers compensation insurance is separate again, runs state by state, and must be in place before the first employee starts. It is the one cover that is not a commercial decision.
Since 1 July 2026 it is also paid differently. Contributions must reach the employee’s fund within seven business days of each payday, in place of the quarterly cycle that applied until then. A group building an Australian payroll now should build to that rule, because a great deal of published guidance still describes the old one.
Worth reading first
Related expertise
05 / 09
Which registrations do we need before we can invoice?
An Australian Company Number is issued on incorporation, followed by an Australian Business Number, registration for GST once turnover reaches the registration threshold, a tax file number, and PAYG withholding registration before the first payroll. Part of that is legal work and part of it is the accountant’s.
The order matters. An entity cannot charge GST before it is registered, so an invoice issued too early must be credited and reissued.
Boettcher Law attends to the incorporation, the constitution, the shareholder arrangements and the trading contracts. The tax registrations, the GST position and the structuring advice that determines them belong with an accountant.
Related expertise
06 / 09
Which terms in our standard contract will not hold here?
Three, reliably: terms excluding or limiting the consumer guarantees, unfair terms in standard form contracts, and liability caps drafted against German law that Australian law reads differently.
The Australian Consumer Law, in schedule 2 to the Competition and Consumer Act 2010 (Cth), implies guarantees into supplies of goods and services which cannot be excluded. A clause purporting to exclude them is ineffective, and asserting it to a customer can itself be a contravention.
The unfair contract terms regime applies to standard form contracts with small businesses as well as with consumers, and since the 2023 amendments a term found unfair carries consequences beyond being void. A standard set of terms should be reviewed against the regime before it is issued.
Worth reading first
Related expertise
07 / 09
We supply on retention of title. Does that hold here?
Only if it is registered. A retention of title clause is a security interest under the Personal Property Securities Act 2009 (Cth), whatever the contract calls it, and an unregistered one fails at the moment it is needed: on the customer’s administration or winding up the interest vests in the customer, and the supplier ranks as an unsecured creditor for goods it believed it still owned.
This is the German standard term that fails hardest in Australia. Eigentumsvorbehalt in its simple, extended and prolonged forms is caught, and so is consignment stock, because the Act looks at the substance of the transaction and not at who holds title to the goods.
The timing is unforgiving and cannot be repaired afterwards. For inventory the registration must be in place by the time the customer takes possession. For collateral that is not inventory there is a window of 15 business days after possession. Miss it and the clause survives as a term of the contract while losing the priority that was the point of having it.
The same register is why a German parent funding its Australian subsidiary by loan should take security and register it, so that intercompany debt does not sit unsecured behind the bank.
Worth reading first
Related expertise
08 / 09
When does Australian privacy law reach us?
Earlier than most German groups expect. The Privacy Act 1988 (Cth) can apply to a foreign business with an Australian link even where the data is held offshore, and the small business exemption is narrower than it appears and is under active reform.
The link is not a fine question in most cases. An Australian subsidiary has one, and so does a foreign company that carries on business here, whoever holds the data and wherever the servers sit.
Compliance with the GDPR covers much of the ground, but the two regimes are not the same and the differences are specific. Direct marketing, cross-border disclosure and the notifiable data breach scheme are where a German compliance programme most often needs work.
The small business exemption is a live policy question, and a structure built on it should be built in that knowledge. We have written on the European side of this at length.
Worth reading first
Related expertise
09 / 09
Where would a dispute be heard, and could we enforce?
Wherever the contract says. A foreign judgment and a foreign arbitral award are enforced in Australia through entirely different machinery, so the forum clause is a commercial decision and not boilerplate.
An arbitral award made abroad is enforced under the International Arbitration Act 1974 (Cth), which gives effect to the New York Convention. The award binds the parties, it is enforced as though it were a judgment of the court, and the court may refuse enforcement only on the grounds the Act itself sets out.
A German court judgment travels a different road, and which road depends on the court. Germany is a listed country under the Foreign Judgments Regulations 1992, so a final money judgment of the Bundesgerichtshof, an Oberlandesgericht, the Bayerisches Oberstes Landesgericht or a Landgericht can be registered in an Australian court, and the application to register it must be made within six years.
The gap is the Amtsgericht. The Regulations extend the scheme to certain inferior courts of the United Kingdom, Canada, Switzerland and Poland, and not to Germany’s, so an Amtsgericht judgment falls outside registration and has to be enforced at common law, which is slower and costs more. A good deal of German commercial litigation starts there, which is why the point belongs in the contract negotiation and not in the enforcement.
So the forum should be settled while the deal is friendly, drafted properly, and chosen so that the resulting judgment or award can be enforced against the assets that would be pursued. A clause naming a German court is a different plan from an arbitration clause, and should be a deliberate choice.
Related expertise
How the work runs
How an engagement begins, and what the first month involves
01
A first conversation, at our cost
Describe the commercial objective. The first conversation is not charged, and it is usually enough for us to say whether the work is straightforward, whether an accountant should go first, and what it will cost.
02
A scope and a figure, in writing
A costs agreement setting out the work, who does it and what it costs. Where the scope is genuinely fixed, so is the fee. Where it is not, we identify what would move it, and you are told before it moves.
03
The structure, then the documents
Entity, directors and constitution first, because what follows depends on them. Then the contracts the business trades on: employment, supply or distribution, terms of trade, and a lease if premises are taken, which is itself worth testing against the foreign investment rules before it is signed.
04
One person who knows the file
A principal runs the matter and stays on it. The matter is not passed down a chain, and the person you meet at the start is the person you deal with when something goes wrong at nine in the evening Frankfurt time.
The boundary
Where our work stops and an accountant's begins
We are lawyers. We advise on the entity, the constitution, the shareholder arrangements, the employment and commercial contracts, the property, the regulatory questions and the disputes. This is work the firm does regularly for German-speaking clients, and we say so directly.
We do not advise on tax. The choice between a subsidiary and a branch has a tax answer as well as a legal one; thin capitalisation and transfer pricing shape how the Australian entity is funded; and the GST and withholding positions belong with an accountant. On a restructure, a share transfer or a capital raise, the numbers are usually required before the documents are drafted, and we sequence the work accordingly.
The firm is a member of the German Professional Services Alliance and works with Accru Felsers on accounting and tax. We can make the introduction, and on an inbound structuring question we would usually suggest doing so first. Naming the boundary is not giving work away; it is the difference between a scope that can be relied on and one that leaves a hole.
Related expertise
The areas of law this work draws on
Worth reading first
Our writing on the questions above
Who you would work with
The people who would run it
Fabian Hoffmann
Principal
Corporate, commercial and cross-border work, and the German-speaking client base. Admitted in the Australian Capital Territory as a barrister and solicitor, and appears without counsel. Works in German and English.
Dominik Schumann
Frankfurt am Main
The German end of the corridor. A question of German law is answered from Germany, by German lawyers, and not reasoned toward from Australia.
Questions people ask
The short ones
Can you advise us in German?
Yes, in writing and in conference. Correspondence on a German-speaking matter is normally in German. The documents themselves are usually in English, because they are governed by Australian law and may have to be read by an Australian court.
Do we need an Australian resident director?
An Australian proprietary company must have at least one director who ordinarily resides in Australia. It is a real appointment carrying the duties of the office, so who fills it should be settled early.
How long does it take to be trading?
Incorporation is quick. The timetable is set by the decisions before it, being the structure, the director and the funding, and by the registrations after it. A group that has made those decisions is usually trading within weeks.
Can you act if we already have Australian lawyers?
Yes, and it is common on a discrete question or a second opinion. Where we agree with the advice already given, we say so; a second opinion that manufactures a disagreement is worth nothing.
Do you act for Austrian and Swiss businesses?
Yes. The Australian law questions are the same and the working language is the same. Where a question turns on Austrian or Swiss law, we say so and instruct counsel there.
Do we need to be in Australia to instruct you?
No. The first conversation, the costs agreement, the advice and the documents all run by video and email, and under the Corporations Act 2001 (Cth) an Australian company can execute a document, including a deed, electronically. Where a signature has to be witnessed, or a property transaction needs verification of identity, we say so before it arises. And where someone really should be in the room, it is often easier for that to be Frankfurt.
Can we send our German staff to work here?
Not on a visitor visa. Short technical work still needs a visa carrying work rights, and the Australian entity has its own exposure under the Migration Act 1958 (Cth) if it allows someone to work in breach of a visa condition. Migration is its own field and we say when it is needed instead of absorbing it into a legal scope.
We have an EU trade mark. Is that enough here?
No. Trade mark rights are territorial and an Australian right comes from an Australian registration, filed directly or by designating Australia under the Madrid Protocol. File before the distributor is appointed: a distributor or a squatter registering the principal’s own mark is the common entry dispute and it is slow and expensive to undo.
What does a first opinion cost?
The first conversation is not charged. Beyond that, a scope and a figure are given in writing before the work starts, and on a genuinely fixed scope a fixed fee, so the risk of an overrun sits with the firm.
Tell us what you are trying to do in Australia
A short description of the commercial plan is enough to begin. We will set out what is involved, what it costs, and whether your accountant should go first. In German or in English.
Please note
A situation not listed here is usually a variation on one of them.
Each answer above states the general position and none of it is advice on a particular transaction. The monetary figures are those applying from 1 January 2026 and are indexed every January, so we confirm the current figure for the transaction in front of us.
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