End to COVID-19 Insolvency Protections a Win for Creditors

In the recent Court of Appeal case of Rowe v Metroll SA Pty Ltd[1] a guarantor (the appellant) was unsuccessful in arguing that he was not liable to the respondent under a guarantee that he signed in 2018. His two primary grounds of appeal were around the law of agency and the wording of the guarantee.

The case provides valuable lessons for businesses to ensure they have an effective credit agreement and guarantee and indemnity in place, and to individuals when executing a guarantee and the obligations contained within it.

Businesspeople will be familiar with the process of implementing shareholders agreements to govern the relationship between shareholders to set them up for a successful business relationship.  These agreements should be customised to ensure they are fit for purpose.

An often overlooked but important consideration for businesses relates to the intellectual property (IP) being created, including securing how the company owns it and having a strategy in place for how it is to be protected and commercialised.

When it comes to written agreements in a commercial context, attention is often paid to the drafting and scope of terms. However, evidence suggests, that often, “incorporation” of those terms is key.  In other words, the scope of the terms has no weight if they are not properly incorporated into the contract.

On 1 January 2019, the Modern Slavery Act 2018 (Cth) (Act) commenced and introduced a new statutory requirement for eligible companies to assess and report on the risks of modern slavery identified in their operations and supply chains (as well as the steps taken to address those risks).

Modern slavery occurs in circumstances where coercion, threats or deception are used to exploit or undermine an individual’s freedoms. Human trafficking, slavery, servitude, debt bondage and forced marriage or labour are all examples of modern slavery.

The Federal Government has enacted the Payment Times Reporting Act 2020 (Cth) (Act), which is set to commence on 1 January 2021.

The Act imposes obligations on large businesses and government enterprises with over $100 million in annual turnover to publish information on their small business payment times and practices.

A recent test of the ‘good faith’ defence in resisting a preference claim highlights the effectiveness of having your recovery processes in order and faithfully following them.

Creditors are often faced with disputes by guarantors over the validity and enforceability of a guarantee following a failure by the principal to pay a debt.

Poorly drafted and ambiguous personal guarantees can give rise to guarantors being wrongfully released from liabilities, or alternatively documents being signed which are unenforceable and ultimately worthless.

Large financial exposure is not uncommon in the mining and resources sector.

Providing specialist representation for an equipment finance company, we were approached to recover a $2.7-million debt from operator of a Western Australian coal mine.

When Personal Guarantees Provide Radically Different Outcomes.

A well executed personal guarantee can be the holy grail of debt recovery tools, but one overlooked detail can bring the whole thing to its knees.