Guarantees

A guarantee is a binding agreement that involves the lender, the borrower and the guarantor. A guarantor promises the lender that they will pay the loan if the borrower fails to do so.

However, several circumstances make a guarantee unenforceable by the lender (i.e. the guarantor can avoid the guarantee and not repay the debt to the lender) (see “Rights of a guarantor“˜Other ways a person can escape liability under the guarantee and “Guarantee limitations in “The NCC and guarantees’ section, below). Also, a guarantor can cancel their guarantee at certain points in the lending process and in certain circumstances (see “The NCC and guarantees’, below).

Note that for credit contracts regulated by the National Credit Code, there are additional requirements for guarantees (see “Formalities of guarantees’ in “The NCC and guarantees’ section, below).

Introduction

The following applies to all guarantees, whether or not they are regulated by the NCC. The provisions of the Code of Banking Practice regarding guarantees may also apply (see Credit reporting).

What is a guarantee?

A guarantee is a binding agreement that involves three parties:

1 the credit provider (lender);

2 the debtor (borrower); and

3 the guarantor.

Guarantees are sometimes required by credit providers before they agree to lend money if they suspect the debtor may not be able to make all repayments. A “guarantor” promises the credit provider to pay the loan if the debtor refuses or is unable to do so.

Agreeing to become a guarantor may cause financial hardship. It involves more than helping out a friend or relative who needs money or wants to buy goods on credit, because if the debtor stops making repayments the guarantor will have to pay. Think very carefully before you agree to guarantee anyone. If the credit provider won’t take the risk, can you afford to?

Rights of a guarantor

A guarantee involves a promise by the guarantor that they will pay the debt owing to the credit provider if the debtor fails to do so. Unless the guarantee document is a deed, meaning among other things, that the document contains the words “signed, sealed and delivered”, the guarantee must be given before or at the time the credit provider lends to the debtor. If the guarantee is given after the credit provider lends to the debtor, it may be that the guarantee was not given in exchange for the loan. This would make the guarantee unenforceable.

Also, if the credit provider used any force, fraud, illegality, duress, undue influence or allowed the guarantor to be mistaken as to rights and liabilities under the guarantee, the guarantee may be avoided.

A guarantee may also be avoided if the credit provider was aware of another party using fraud, illegality, duress, undue influence or mistake being used by the debtor against a potential guarantor.

What if the guarantor pays?

The guarantor is entitled to recover any money paid from the debtor, if that is possible. Also, the guarantor is entitled to any securities held by the credit provider. In Lavin v Toppi [2015] HCA 4 at 52, it was held that a co-guarantor (Lavin) to a bank loan, who entered into a Deed of Release with the bank (this deed contained the bank’s covenant not to sue Lavin), had to make an equitable contribution to their co-guarantor who paid a disproportionate amount of the guaranteed debt to the bank.

Other ways a person can escape liability under the guarantee

A guarantor may be freed from their obligations if:

the guarantee is altered by the credit provider (e.g. the name of one co-guarantor is struck out);

the credit provider changes;

the guarantor is called on to pay but the credit provider cannot hand over securities it has taken;

the credit provider fails to protect the guarantor (e.g. fails to insure when there is an obligation to do so); or

the credit provider alters the guaranteed contract (e.g. by giving the debtor more time to pay than the original contract provides for), as long as this alteration is by a binding contract.

However, the terms of the guarantee may be framed so as to make the guarantor still liable even if one of the matters listed above has occurred.

Code of Banking Practice 2013 and guarantees

The most recent version of the Code of Banking Practice, which has applied since 1 January 2014, contains additional protections for people who are or may become guarantors.

In National Australia Bank Limited v Rice [2015] VSC 10, it was decided that NAB could not enforce its loan guarantees as it failed to comply with the Code of Banking Practice. The court held the Code to be a term of the banker-customer contract. In particular, the court held that NAB failed to comply with the Code by failing to verbally inform the guarantor of certain written warnings in the documents, including that the guarantor should seek independent legal advice before signing the guarantees.

(SeeCode of Banking Practice” in Credit reporting.)

The NCC and guarantees

Formalities of guarantees

The NCC creates a number of additional requirements for guarantees that are entered into in relation to a credit contract regulated by the NCC.

A guarantee must be in writing and signed by the guarantor, although it will be enough if the guarantee is contained in a mortgage signed by the guarantor (s 55 NCC). The guarantee will not be enforceable unless these requirements are complied with (s 55(3) NCC).

A copy of the credit contract must be given to the guarantor before the guarantor signs (s 56(1)(a) NCC). The guarantee will also not be enforceable unless this is done (s 56(2) NCC).

The credit provider must also give the prospective guarantor a copy of a booklet entitled Things You Should Know About Your Guarantee, which explains the rights and obligations of the guarantor (s 56(1)(b) NCC; r 82 the National Consumer Credit Protection Regulations 2010 (Cth) (“NCCP Regulations”)).

The credit provider must, within 14 days after the guarantee is signed, give the guarantor a copy of the guarantee signed by the guarantor and any related credit contract or proposed credit contract (if a copy of the related contract has not previously been given to the guarantor) (s 57 NCC).

Can a guarantee be cancelled?

A guarantor can withdraw from a guarantee by giving written notice to the credit provider:

at any time before credit is first provided under the credit contract; or

after credit is first provided under the credit contract if the credit contract is materially different from the proposed credit contract given to the guarantor before they signed the guarantee (s 58 NCC).

A guarantee can also be cancelled by a court under section 76 of the NCC if it is found to be unjust (seeUnjust contracts”).

All-accounts guarantees

A guarantee may provide that the guarantor guarantees not only the debtor’s obligations under a particular credit contract but also obligations under future credit contracts (s 59(1) NCC). The guarantee will only be enforceable in relation to future credit contracts if the credit provider has given the guarantor a copy of the contract document of that future credit contract, and subsequently obtained from the guarantor a written acceptance of the extension of the guarantee (s 59(2) NCC).

Increasing the guarantor’s liabilities

A guarantor’s obligations under a guarantee can be significantly increased in a variety of ways (s 61 NCC). For instance, the credit contract subject to the guarantee may allow the debtor and credit provider to agree to vary the contract by providing further amounts of credit under that contract to the debtor. However, that increase in liability will have no effect unless:

the credit provider gives to the guarantor a written notice setting out how the terms of the credit contract will be changed to allow the increase in the guarantor’s liabilities; and

the credit provider subsequently obtains from the guarantor an acceptance of the extension of the guarantee to that increased liability (s 61(2) NCC).

Certain exceptions to these requirements are set out under section 61(2) of the NCC.

If a guarantor gave a guarantee (including a clause giving a legal mortgage) to a credit provider to secure a debtor’s debt, and the guarantor bankrupts after the credit provider called on the guarantee to be honoured, the bankruptcy makes no difference to the enforceability of the guarantee (GE Commercial v Bankrupt Estate of Lymn [2012] NSWSC 562 (13 April 2012)).

Guarantee limitations

A guarantee will be void to the extent that it:

secures an amount that exceeds the debtor’s liabilities under the credit contract and the reasonable expenses to enforce the guarantee (s 60(1) NCC); or

limits the guarantor’s rights to indemnity from the debtor (s 60(5) NCC).