Sale Of Business As A Going Concern Agreement Template In Australia

Buying or selling a small business can be an exciting milestone - but it can also feel like a legal minefield if you’re not sure what paperwork you actually need.

One of the most common searches we see from business owners is for a sale of business as a going concern agreement template.

And it makes sense: you want something practical, you want to understand what you’re signing, and you want to avoid missing the “one clause” that causes a dispute later.

In this guide, we’ll walk you through what a “sale of business as a going concern” usually means in Australia, what a typical agreement template often covers (and what it can miss), and how to use a template in a safer, more business-minded way.

Because when you’re dealing with a business sale, the goal isn’t just to get the deal done - it’s to make sure the deal holds up after settlement, when money has changed hands and expectations start becoming real.

What Does “Sale Of Business As A Going Concern” Mean In Australia?

In plain English, a sale of business as a going concern usually means you’re selling a business that is still operating - and the buyer is taking it over in a way that allows it to keep operating immediately after settlement.

Instead of selling “bits and pieces” of a business (like equipment only), you’re typically transferring the business assets and the operational ability to keep trading. This often includes things like:

• Plant and equipment
• Stock (sometimes)
• Business name and branding (sometimes)
• Customer contracts and supplier arrangements (sometimes, and subject to consent/assignment rules)
• Goodwill (the value of the reputation and ongoing custom)
• Systems, processes, and handover support

From a tax and legal perspective, “going concern” can also be relevant for GST treatment. In some cases, a sale can be treated as a GST-free supply of a going concern, but only if the requirements under the GST law are met and the contract is drafted to reflect that intention (including the required statements). Your accountant can advise on the tax position for your specific deal, but the contract wording still matters.

Even if you’re mainly focused on finding a sale of business as a going concern agreement template, it’s worth being clear about whether your deal is actually structured as a going concern sale, because it impacts:

• What assets are included and excluded
• What happens to employees
• What happens to leases
• What consents you need to get before settlement
• Whether GST is added to the price

When Do You Need A Sale Of Business As A Going Concern Agreement?

If you’re selling a business (rather than selling shares in a company that owns the business), you will typically use a business sale agreement (sometimes called an “asset sale agreement”). This is the document that sets out the deal terms and protects both parties.

You’ll usually need a sale of business as a going concern agreement (or an agreement drafted to suit a going concern sale) when:

• You’re selling the operating business - not just an individual asset like a vehicle, a domain name, or a piece of equipment.
• The buyer wants to continue trading under the same or similar setup (often immediately after settlement).
• The transaction includes goodwill and the buyer is paying for the value of the business as an ongoing enterprise.
• There is a handover period, training, introductions to suppliers, or transition support.

On the other hand, if you’re doing a share sale (where the buyer acquires shares in the company that owns the business), the agreement structure is different and the risks shift (for example, the buyer may inherit historical liabilities in the company). In that case, a “template” meant for asset sales is often the wrong tool.

If you’re not sure whether your deal is an asset sale or a share sale, it’s worth clarifying early - it affects everything from what you’re selling to what approvals you need.

What A Sale Of Business As A Going Concern Agreement Template Usually Includes

A strong sale of business as a going concern agreement template should do more than just confirm the price and settlement date. It should act like a roadmap for the entire transaction - from signing, through due diligence, through settlement, and into the handover period.

Here are the clauses and schedules you’d usually expect to see (or want to see) in a practical agreement template.

1. Parties, Business Description, And Background

This section identifies who the seller and buyer are, and describes the business being sold (including the trading name and location). It may also include background statements explaining the intention to sell and buy the business as a going concern.

This sounds simple, but precision matters. If the business operates across multiple sites, multiple brands, or multiple ABNs/entities, the agreement needs to match the reality.

2. What’s Included In The Sale (And What’s Not)

This is one of the highest-risk areas for disputes, especially when people rely on a generic template.

A good agreement will clearly list:

• Assets included (e.g. equipment, systems, IP, stock, domain names, phone numbers, social media accounts)
• Assets excluded (e.g. cash on hand, particular vehicles, personal tools, old stock)
• Condition of assets (including whether anything is leased, financed, or subject to security interests)

If you’re buying, you want confidence you’re actually receiving the assets you think you’re paying for. If you’re selling, you want to prevent “assumed inclusions” that turn into arguments after settlement.

Where equipment or vehicles are involved, it’s also smart to do checks for existing security interests. For example, a PPSR registration can reveal whether an asset is encumbered.

3. Price, Deposit, And Adjustments

Templates will usually cover the purchase price, when the deposit is paid, and whether it is refundable (and in what circumstances).

In many deals, you’ll also see “adjustments” at settlement for things like:

• Rent paid in advance
• Outgoings (for leased premises)
• Staff entitlements (if relevant)
• Stock valuation (if stock is included and value is determined at or near settlement)

It’s important that the agreement explains the adjustment method (not just that an adjustment will occur). Otherwise, you may end up negotiating key financial outcomes at the last minute.

4. Conditions Precedent (What Must Happen Before Settlement)

A sale of business as a going concern often cannot settle unless certain things happen first. Common conditions include:

• Landlord consent to transfer or assign the lease
• Franchisor consent (if the business is a franchise)
• Third-party consents for key supplier/customer contracts
• Finance approval for the buyer
• Licences/permits being transferred or reissued

This is where many templates fall short - they list common conditions but don’t properly integrate them into timelines, notice requirements, or the consequences of delay (which can vary depending on the lease, contract terms, and the parties’ negotiated position).

If your deal involves taking over a premises lease, the lease transfer needs to be handled carefully, and it’s common to use a Deed of Assignment of Lease alongside the business sale agreement.

5. Employee Arrangements

Many small business owners overlook employees in a sale - until they become the biggest settlement obstacle.

Your agreement should cover questions like:

• Are employees transferring to the buyer, or being terminated by the seller?
• Who pays accrued entitlements (annual leave, long service leave, etc.)?
• Will the buyer recognise prior service?
• What happens if an employee doesn’t accept an offer to transfer?

Employee transfer and entitlement outcomes can depend on the sale structure, any applicable modern award or enterprise agreement, and the parties’ agreed approach at settlement. Where employees are continuing, it can be helpful for the buyer to have appropriate documents ready (for example, an Employment Contract) so the post-settlement transition is smoother and expectations are clear.

6. Restraint Of Trade And Non-Solicitation

In many business sales, the buyer is paying for goodwill. A restraint clause helps protect that goodwill by limiting the seller from setting up a competing business nearby or soliciting customers/staff for a defined period.

Restraints need to be drafted carefully to be enforceable. Overly broad restraints can be challenged, while weak restraints may not offer meaningful protection.

7. Warranties And Indemnities

Warranties are promises about the business at the time of sale (for example, that the seller owns the assets, the business has complied with laws, the financial records are accurate, and there are no undisclosed disputes).

Indemnities are obligations to reimburse the other party for certain losses (for example, if a liability arises from the seller’s conduct before settlement).

These clauses can have major financial consequences, so relying on a generic “template warranty list” without tailoring it to your business can be risky.

8. Handover And Transition Support

If the buyer expects training, introductions, or a transition period, the agreement should set out:

• How long the handover lasts
• What support is included (and what isn’t)
• Whether the seller is paid for additional support
• How disputes about handover will be managed

This is especially important when the “business” value is tied to relationships, know-how, and systems rather than just physical assets.

How To Use A Sale Of Business As A Going Concern Agreement Template Safely

A template can be a useful starting point - but a business sale isn’t a one-size-fits-all transaction.

If you’re using a sale of business as a going concern agreement template, here are practical steps to reduce your risk and improve the quality of the deal document.

Step 1: Confirm Whether It’s An Asset Sale Or Share Sale

Before you fill in any template, confirm what is actually being sold:

• Asset sale: You’re buying the business assets (and possibly goodwill) from the seller.
• Share sale: You’re buying shares in the company that owns the business.

Many templates online are designed for asset sales. If you accidentally apply one to a share sale, you can end up with mismatched documents and unclear risk allocation.

Step 2: List The Assets And Liabilities With Real Specificity

Don’t rely on generic phrases like “all assets necessary to operate the business”. That’s where misunderstandings live.

Instead, create a schedule that lists key assets and clarifies ownership, including:

• Serial numbers for major equipment
• Software subscriptions and whether they can be transferred
• Domain names and who holds the registrar account
• Business phone numbers and whether they are portable
• Social media accounts and admin access transfer steps

If the business collects customer data, you should also think about privacy compliance and how customer lists can be transferred. Depending on your situation, a Privacy Policy (and the consents it relies on) can affect what you can legally do with that data after the sale.

Step 3: Treat “Consent Items” As A Project Plan

Lease assignment, third-party contracts, and licences can derail settlement if they aren’t planned early.

As the seller, you’ll usually want to avoid being “on the hook” indefinitely if consent delays occur. As the buyer, you want enough time to get consents, without the seller being able to terminate too easily.

Make sure your template deals with:

• Who is responsible for requesting consents
• Timeframes for doing so
• What happens if consents are refused
• Whether either party can extend settlement

Step 4: Be Clear About Stock And Work In Progress

Some businesses include stock, and some don’t. Some include it at “cost”, some at “value”, and some at “agreed amount”.

If your business holds stock, your template should clearly state:

• Whether stock is included in the purchase price or paid separately
• How stock is valued (and who conducts the stocktake)
• How obsolete/damaged stock is treated

For service businesses, there’s a similar concept: “work in progress” or future bookings. This is another area where templates can be too simplistic, and it’s worth spelling out how prepayments and future jobs are handled.

Step 5: Match The Agreement To Your Risk Profile

Every business sale has different risk points. For example:

• A café might have higher risk around licences, lease terms, and equipment condition.
• An online service business might have higher risk around IP ownership, customer data, and contracts.
• A business with staff may need more detail on entitlements and transfer arrangements.

A “standard” sale of business as a going concern agreement template won’t automatically address what matters most in your industry. This is where a review can save you real money later.

Common Mistakes With Going Concern Agreement Templates (And How To Avoid Them)

Templates can create a false sense of security. You might feel like you’ve “covered it” because there’s a signed document - but if the document doesn’t match the deal reality, it can cause major stress post-settlement.

Here are some common pitfalls we see.

Relying On Vague Goodwill And Handover Terms

If the buyer is paying for goodwill, the handover and restraint terms should support that. Otherwise, the buyer may feel they paid for value that disappears the day after settlement.

Spell out what “handover” means in practice, including training days, supplier introductions, and access to systems.

Ignoring Security Interests And Ownership Issues

In some cases, equipment or assets are financed, leased, or subject to a security interest. If those aren’t properly discharged before settlement, the buyer can inherit a headache.

This is where doing checks and documenting discharge steps matters, not just writing “seller warrants they own the assets.”

Not Aligning GST Clauses With The Actual Deal

Whether GST applies can have a big impact on the final dollars paid. Your template needs to reflect:

• Whether the sale is intended to be treated as a GST-free supply of a going concern
• Whether both parties are GST-registered (or will be by settlement), if required
• What happens if the ATO later disputes the GST-free treatment

Even if you have an accountant helping with tax, the contract language still needs to support the intended outcome.

Forgetting The “Extra Documents” The Deal Actually Requires

A business sale agreement is often only one piece of the puzzle. Depending on the transaction, you may also need:

• A lease assignment or licence to occupy document
• Deeds of release (for guarantees)
• IP assignment documents
• Supplier/customer contract assignment documents (where the contract allows, and/or where consent is required)
• Employment documents for transferred staff

If you’re buying a business that relies heavily on brand, software, or online platforms, it’s worth ensuring IP is clearly transferred and properly documented (sometimes through an IP assignment clause or separate documentation).

Key Takeaways

• A sale of business as a going concern generally involves transferring an operating business so the buyer can keep trading immediately after settlement, and it can affect GST treatment (subject to the GST law requirements being met).
• A good sale of business as a going concern agreement template should clearly cover included/excluded assets, price and adjustments, conditions precedent (like lease consent), employees, warranties, restraints, and handover.
• Templates are a helpful starting point, but they often need tailoring to reflect what your business actually does, what assets it relies on, and what approvals are required.
• High-risk areas include vague asset descriptions, unclear stock/booking treatment, missing consent timelines, and misaligned GST clauses.
• Many business sales also require extra documents (like lease assignment documents), not just one agreement, so it’s important to treat the paperwork like a complete settlement pack.

If you’d like help with a sale of business as a going concern agreement (whether you’re buying or selling), you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.