Banking and Finance

Caveats

Caveats are common instruments by which a person who has interest in a parcel of land can register that interest against the certificate of tile of that parcel of land.

Caveats primarily serve the following purposes:

  • they prevent the registered proprietor of a parcel of land from disposing of the land without first notifying the caveat holder. For example, it is commonplace for lenders whose loans are secured by a parcel of land to register a caveat over that land.  Similarly, prudent purchasers of land may register a caveat over the property the subject of the transaction to ensure that it cannot be transferred to a third party prior to the settlement; and
  • they notify persons who subsequently obtain an interest in the land of the existence of a prior interest with respect to that land. For example, unregistered loans secured against a parcel of land can maintain priority for payment purposes against subsequent unregistered loans secured against the same property by notifying that interest by way of a caveat.  Without a caveat, a prior unregisteredloan could lose its default priority over a subsequent unregistered loan for payment purposes.

For a person to register a caveat over a parcel of land, he or she must either have a direct interest in the land or a contractual agreement that enables the lodgement of the caveat. 

Rowe Bristol Lawyers is experienced in advising and assisting clients with respect to all aspects of dealing withcaveats, including:

  • drafting and reviewing clauses and documents that would create a caveatable interest;
  • advising on the necessity and effects of a caveat in the circumstances;
  • drafting and lodging caveats on behalf of clients;
  • advising on the enforceability of caveats; and
  • setting aside caveats and resisting applications to set aside caveats.

If you require legal advice in relation to caveats, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Consumer Credit Code advice

A single national consumer credit regime now operates in all Australian jurisdictions after the enactment of the National Consumer Credit Protection Act 2009 (Cth) (“NCCP”), which includes the National Credit Code (“NCC”) as Schedule 1 to the Act.  The NCC replaces previously State based regimes and is regulated by the Australian Securities and Investments Commission (“ASIC”).

Broadly, the NCC applies to personal credit contracts (as opposed to for business purposes) with the following characteristics:

  • entered into on or after 1 July 2010;
  • the lender is in the business of providing credit;
  • a charge is made for providing the credit;
  • the debtor is a natural person or strata corporation; and
  • the credit is provided:
    • for personal, domestic or household purposes, or
    • to purchase, renovate or improve residential property for investment purposes; or
    • to refinance credit previously provided for this purpose.

The NCC does not apply to certain loans, including: low cost short term credit for less than 62 days, insurance premiums paid by instalments, bill facilities and staff loans.

The NCC contains provisions that:

  • impose various disclosure obligations on credit providers such as comparison rates and documents that enable consumers to assess their ability to service the relevant loan;
  • allows a borrower to request a change to the terms of their credit contract on the grounds of financial hardship, which the credit provider must consider and respond to but is not obliged to accept if unreasonable to do so;
  • prohibits certain securities; and
  • prohibits certain unfair contract terms.

When applicable, the client may benefit from lodging a complaint with the Financial Ombudsman Service (“FOS”), which could resolve the relevant issues in a more cost effective manner.

Rowe Bristol Lawyers is experienced at advising and assisting clients with respect to the application of the NCC, including:

  • providing advice as to the requirements of the NCC and application to the client’s circumstances;
  • liaising with financial institutions as relief to be provided to the client;
  • preparing complaints to be lodged with the FOSand representing the client during the FOS process; and
  • representing the client during court action commenced by the client or taken against the client.

If you require legal advice in relation to National Credit Code, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Lending Advice

A variety of transactions by non-financial services providers require advice in relation to lending, such as:

  • sales of businesses or assets involving vendor financing;
  • joint venture agreements;
  • directors’ loans to companies and loans to directors by companies; and
  • loans to associated businesses and individuals by non-financial services providers.

In groups of private companies, lending advice is often advisable with respect to intra-group lending that is undertaken routinely as part of the operation of the group.

Rowe Bristol Lawyers is experienced at advising and assisting clients with respect to lending, including:

  • advising as to the legal risks associated with transactions;
  • advising as to appropriate security to be provided (when applicable);
  • advising as to the priority of any security to be provided in comparison with any other existing secured loans;
  • advising and assisting with appropriate registration of any applicable securities or lodgement of caveats; and
  • advising on related legal issues such as the effect on directors’ obligations, potential insolvent trading or preference payments issues etc.

If you require legal advice in relation to lending advice, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Personal guarantee advice

Clients are often called upon by entities such as lenders and suppliers.

to provide personal guarantees with respect to obligations of associated entities such as family members, business partners or companies of which a client is a director.

Such personal guarantees can represent significant personal risk to a guarantor as they often enable another party to have recourse to the guarantor’s personal assets without first seeking relief against that the individual or entity whose obligations are guaranteed by way of the personal guarantee. Therefore, it is important for the guarantor to seek legal advice.

Financial institutions also routinely require guarantors to seek legal advice in relation to personal guarantees to assist in the enforceability of the guarantee.

Rowe Bristol Lawyers is experienced in advising and assisting clients with respect to personal guarantees, including:

  • considering and advising clients in relation to rights and obligations under a personal guarantee, including as affected by the National Credit Code;
  • advising clients with respect to amendment of personal guarantees;
  • advising and representing clients with respect to enforcing a personal guarantee; and
  • advising and representing clients with respect to resisting enforcement by a third party of a personal guarantee.

If you require legal advice in relation to personal guarantees, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Preparation and advice in relation to mortgage and loan documentation

Rowe Bristol Lawyers recommends that clients ensure that lending transactions are recorded by way of sufficiently comprehensive documentation as this will:

  • inform the parties of their respective rights and responsibilities;
  • may assist in parties avoiding costly enforcement proceedings in the event of a dispute;
  • assist in minimising legal costs if enforcement proceedings are necessary; and
  • maximise the likelihood of recovery of the amounts sought and legal costs incurred.

Rowe Bristol Lawyers is experienced in advising and assisting clients with respect to mortgage and loan documentation, including:

  • providing advice with respect to necessary clauses and amendments sought by the client or the other party;
  • providing advice in relation to risk management and enforceability of loan documentation;
  • providing advice in relation to appropriate security and preserving the client’s position in relation to such security;
  • providing advice in relation to related legal issues such as the effect on directors’ obligations, potential insolvent trading or preference payments issues etc.;
  • performing due diligence in relation to loan transactions; and
  • drafting loan documentation or amending third party loan documentation to meet the client’s commercial needs.

If you require legal advice in relation to mortgage and loan documentation, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Security documentation drafting and related advice

Rowe Bristol Lawyers advises lenders to ensure that any lending or security documentation most effectively gives effect to the clients’ intentions. Often this will involve ensuring that the amount lent is secured to the extent possible over all available assets of the borrower to maximise the likelihood of full recovery in the event of a default by the borrower.

It is important that security documentation is drafted in a professional and comprehensive manner as it will often come under the scrutiny of the borrower and/or competing lenders when there is a default.

Rowe Bristol Lawyers is experienced at advising and assisting clients with respect to securities documentation, including with respect to:

  • providing advice in relation to necessary clauses and amendments sought by the client or the other party;
  • providing advice in relation to risk management and enforceability of securities documentation, including registration of caveats and mortgages over certificates of title or registration with the Personal Property Securities Register;
  • providing advice in relation to appropriate securities and preserving the client’s position in relation to such securities;
  • providing advice in relation to related legal issues such as the effect on directors’ obligations, potential insolvent trading or preference payments issues etc.;
  • performing due diligence in relation to availability of securities and competing security interests; and
  • drafting securities documentation or amending third party securities documentation to meet the client’s commercial needs.

If you require legal advice in relation to the security documentation, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published. 

Transfer Duty advice

The Duties Act 2008 (WA) imposes Transfer Duty on dutiable transactions undertaken in Western Australia, including:

  • a transfer of dutiable property, which in relation to Transfer Duty is generally a right in relation to land in Western Australia;
  • an agreement for the transfer of dutiable property (whether conditional or unconditional);
  • a declaration of trust over dutiable property;
  • a vesting of dutiable property:
    • by, or expressly authorised by, statute law; or
    • by, or as a consequence of, a court order;
  • a foreclosure of a mortgage over dutiable property;
  • an acquisition of new dutiable property, on its creation,grant or issue;
  • a surrender of special dutiable property (e.g. life interest in land, remainder interest in land, easement, right of way etc.).

Transactions in the controlling interest of a land rich company may also attract duty as if the transaction was a transfer in land.

Rowe Bristol Lawyers recommends that clients seek advice in relation to Transfer Duty payable in transactions directly or indirectly involving land to avoid significant unexpected duties liabilities.

Rowe Bristol Lawyers is experienced in advising and assisting clients with respect to Transfer Duties, including:

  • providing advice in relation to whether Transfer Duties may be payable;
  • liaising with the Office of State Revenue with respect to assessments of Transfer Duties;
  • objecting to assessments of Transfer Duties; and
  • appealing adverse decisions with respect to objections to assessments of Transfer Duties.

If you require legal advice in relation to the Transfer Duty, please contact us to arrange a meeting so that we may consider your specific circumstances.

The above information is provided as general information only and should not be relied upon as legal advice.  The accuracy of this information may have changed from the date when it was published.