In the previous article (located in the February 2022 edition of CBD News), I discussed Sexually Transmitted Debt (STD), and the consequences of joint borrowings.
Now it is time to talk about the difference between guarantees and indemnities!
Be very careful! A guarantee means a demand must be made by the borrower to the lender, and generally the borrower must default over it or be sued by the lender. If the lender does not recover the loan, then your guarantee is liable. However, an indemnity effectively means the lender can pursue the person’s indemnities that occur without the borrower first defaulting.
The best you can hope for is to not have to make any payments, while at the same time, deriving no direct benefit. Quite often, you have no control over the events which may make you liable under the guarantee and the indemnities. In short, there is really no upside to the huge risk.
To those who have unfortunately already been infected by an STD, and the condition was a contributing factor to your relationship’s demise, my sympathy goes out to you. I do suggest you immediately seek advice on the best course of action to limit your continuing exposure and, if possible, terminate it. There are situations where the terms of the loan have been varied without the consent or knowledge of the guarantor. In some situations , this can prevent the lender relying on your guarantee.
For those who find themselves in a position where they cannot escape the temptation of exposure, let me tell you this…the fact is that lenders are reluctant to let go of anyone when an outstanding debt exists. From their point of view, the more people they can look to in the event of non-payment, the merrier it is likely to be!
You will all have heard the stories about parents losing their house or farm as a result of providing a personal guarantee for one of their children who was setting up a sure-fire business, which then failed to fire surely. I alarm you that these events are not stories, but true events. They really do happen.
One of our most eminent Judges, now deceased, was made bankrupt as a result of a personal guarantee given to an oil company to support his parents’ business. They tend to be even less sympathetic than banks, if you can believe that!
If you must provide a guarantee, or sign for an indemnity, firstly go chant “a guarantor is a fool with a pen” again, and have a long hard think about it. If, for some overwhelming reason, living stress free has no appeal, or you choose not to tread a lotus strewn path, then please seek legal advice before signing.
You must try to find any possible ways to limit your exposure as best you can.
It’s an unpleasant question to have to consider, but do you have someone you can trust in the event of being placed on life support? In the next article, I will look at Powers of Attorney in their various forms.
Peter Nevile
Partner
Nevile & Co.
On 29 March 2021, Victoria made significant changes to Residential Tenancies Act 1997. Landlords will be renamed as rental providers and tenants are now called renters. Leases are now called rental agreements. The rental providers and estate agents must ensure they are compliant with the new laws.
We would like to capture some important summaries in this article. Rental agreements must be in the “prescribed form”. Additional conditions can be included if the renter or rental provider requests them, but there are some conditions that are not allowed.
If one of these prohibited conditions is included in the agreement, it is not valid. The rental provider may also have to pay penalties for including a prohibited term in the agreement.
For example, renters cannot be required to:
The changes to the law clarify the rights and responsibilities of renters and rental providers – from before you sign a rental agreement until after the agreement ends – and apply to all types of tenancies, private rentals, caravan, and residential parks, and rooming houses.
The law changes include a ban on rental bidding, new rental minimum standards, no eviction without a reason, pets, allowable modifications by renters, and urgent repairs. Some of the new rental laws which came into effect on 29 March 2021 will not apply to renters who are already in a fixed-term or periodic rental agreement before that date. A list of the changes that will not apply to existing rental agreements.
Want to know more changes in the new agreements?
If you would like to check your rights, we can arrange a lawyer to assess you shortly.
Contact us at nevileco@nevile.com.au to discuss further.
Disclaimer: This publication contains comments of a general nature only, and is provided as an information service.
It is not intended to be relied upon as, nor is it a substitute for specific professional advice.
On 1 January 2021, the largest reforms to Australia’s corporate insolvency laws in 30 years took effect, following the end of the temporary insolvency relief measures that protected financially distressed businesses during the worst of the COVID pandemic in 2020.
The changes, which were outlined in the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth), comprise the following key elements:
Small Business Restructuring Process
The new Part 5.3B of the Corporations Act creates a simplified voluntary administration process for Small and Medium-sized Enterprises (SMEs).
The process involves the directors or board of an SME appointing a Small Business Restructuring Practitioner (“SBRP”) to oversee the restricting of the company’s affairs.
In order an SME to appoint an SBRP and undergo the restructuring process, it must satisfy the following eligibility criteria:
Once the SBRP has been appointed, they have 20 business days to submit a restructuring proposal to the company’s creditors.
Those creditors then have 15 more business days to accept or reject the proposal. Once accepted, the SBRP must manage the distribution of funds to creditors, and in the meantime, no action can be taken against the company or its directors until the restructuring plan is completed.
The directors of the company remain in control of the “ordinary course of business” for the company during the process.
Simplified Liquidations
The new simplified liquidation process under Subdivision B to Part 5.5 Division 3 of the Corporations Act creates an alternative pathway for creditors of voluntarily wind up a company. Key features of this new liquidation process to note are:
For further information and advice on how to take advantage of the new small business insolvency laws, feel free to contact us.
Disclaimer: This publication contains comments of a general nature only, and is provided as an information service.
It is not intended to be relied upon as, nor is it a substitute for specific professional advice.
The Morrison Government is reforming business and investor visas to maximize the economic benefits for Australia. To that end, changes have been passed and are waiting to come into effect. If you are a prospective investor, an entrepreneur, or a businessperson who has been looking at Australia as a potential market, it is imperative that you be on top of these changes and prime yourself for them.
Here are the changes that you should know:
As the date (1/7/2021) is quickly approaching, it is important that you ready yourself for it to prevent any disruption to your immigration plan.
At Nevile & Co., we have the resources and expertise to assist you with these changes and provide a tailor-made solution to your problem.
Contact us at nevileco@nevile.com.au to discuss further.