ByLawyers News and Updates

Guarantees – All states

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A recent case on guarantees and indemnities has been added to the By Lawyers Deeds and Agreements commentary.

Deeds and agreements for general and specific purposes are provided in every By Lawyers matter plan. The commentary provides assistance with drafting these documents.

In Taylor Square TT Pty Ltd v Kinselas Pty Ltd (No 2) [2024] NSWSC 987 the court considered at [20] – [29] the principles of construction for guarantee clauses, and ultimately ordered specific performance against the guarantor.

The court’s analysis sheds helpful light on the interplay between guarantees and indemnities which is covered in the Deeds and Agreements commentary under the heading Indemnities, guarantees, and warranties. The cases cited include Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 which is also included in the Deeds and Agreements commentary as authority for the distinction between a guarantee and an indemnity:

Simply stated a guarantee is a binding promise of one person to be answerable for the debt or obligation of another if that other defaults. The distinctive feature of a contract of guarantee is the secondary nature of the obligation which is assumed by the guarantor. There must be another person who is primarily liable.

In contrast, under an indemnity, a person assumes a primary liability. A contract of indemnity is a contract by one party to keep the other harmless against loss and is not dependent on the continuing liability of the principal debtor. An indemnity is an independent obligation to make good a loss.

The Deeds and Agreements commentary is located in the sub-folder of General deeds, agreements, execution clauses, and statutory declarations that appears in folder A. Getting the matter underway on all By Lawyers matter plans.

A link to the Kinselas case has been added to the drafting tips in the commentary.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

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