News & Events

ndividuals should be prepared to present their case in the Fair Work Commission.

A new case in the Fair Work Commission (FWC) has confirmed that lawyers need to seek permission to represent their clients in matters before it. This means that individuals should be prepared to present their own case if their lawyer is refused permission to represent them.

Proceedings brought within the FWC are intended to be conducted with less procedural formality than other jurisdictions. The general rule under the law is that each party bears their own costs and can only be legally represented with the FWC’s permission. In the past, it has been assumed that permission will be granted as a mere formality, but not anymore.

In this case, the worker, who suffered a mental disability, filed an unfair dismissal case against his employer. The worker was self-represented and the employer was represented by a solicitor. The worker was unsuccessful in his case. On appeal, the FWC found it was unfair of the judge not to have considered and applied the constraints of the law when faced with a party who was mentally disabled and self-represented, against a trained solicitor.

When considering whether to grant permission for parties to be represented, the FWC will look at whether:

  • the matter can be dealt with more efficiently, taking into account the complexity of the matter;
  • it would be unfair not to allow representation because the person is unable to represent themselves effectively; or
  • it would be unfair taking into account fairness between the parties.

If you have a case before the FWC, make sure your solicitor has trained and prepared you as best as they can to conduct your own case.

Going Guarantor

— 18 January, 2014

A contract of guarantee arises where one person, a Guarantor, contracts with another to pay someone else’s debt or to perform some act, owed to a third by the Borrower.

Even when a guarantee is signed the borrower remains primarily liable for payment or performance.

Agreeing to be a Guarantor means taking on a legal liability. The Guarantor agrees to repay the amount lent to the Borrower if the Borrower fails to repay the loan. The Guarantor may have to pay interest and costs as well, especially if the guarantee is not limited to a specified amount.

The Guarantor only becomes liable on the default of the Borrower.

Going Guarantor does not mean:

  • that the Guarantor believes the Borrower is good for the money;
  • that the Guarantor is just witnessing the Borrower’s signature;
  • that the Guarantor is declaring that the Borrower is who they say they are; and it is not “just a formality”.

Unless the guarantee is created by deed, the Guarantor’s promise must be supported by valuable consideration such as a payment or a promise. The making of the loan to the borrower, or an agreement not to sue are examples of valuable consideration.

If there is no consideration, the guarantee will be unenforceable and will fail. A guarantee for past consideration will also fail because past consideration is not valuable consideration.

If a Lender requires a guarantee it usually means that they believe that there is a risk that the Borrower may not be able to repay the loan. That risk is, in effect, transferred to the Guarantor, who assumes such responsibility, usually with little or no benefit to themselves.

Although a Guarantor has a right to recover any money they have paid out under the guarantee from the Borrower, the chances are that, if the Borrower could not pay the Lender, they will not be able to pay the Guarantor. Agreeing to be a Guarantor should therefore not be done lightly. A Guarantor should be fully informed about the terms of both the Guarantee and the Borrower’s contract. Some conditions can be very difficult to meet, for example, if the Borrower fails to meet their repayments, the Lender may be able to demand that the Guarantor pay the whole amount owing in a single lump sum, rather than in repayments as the Borrower did.

A potential Guarantor should ask the Lender to provide all the information they have as to the risks they see in the transaction. If the Lender is not willing to give convincing reasons why they require a Guarantor, or the Borrower is not willing to disclose information about their financial situation or the loan, the risk of the Guarantee be called upon is higher.

If the Guarantor is not informed of all of the terms of the loan, they may be able to avoid liability for the debt.

Uniform credit laws exist throughout Australia. These laws regulate the circumstances in which a contract of guarantee is formed, varied and enforced. A full analysis of the credit laws is beyond the scope of this article and you should seek professional advice for any specific circumstances.

At the end of the day if a guarantee is called on, then you may lose valuable assets. If you can’t satisfy a call on the guarantee, you will be sued and a judgment may follow causing you to be liable for costs and interest. If you can not satisfy the judgment you may end up bankrupt.

As you can see, even if you think the borrower is good for the money there is still a risk and we as your lawyers need to make sure the risks are understood by you.

We can not advise you about the financial risks you face nor, whether the borrower will be able to pay the debt. If you have nay concerns about the borrower’s capacity then don’t sign the guarantee. No matter how much pressure is put on you a lot of people just sign to avoid the pressure of a confrontation and this leads to a lot of further marital problems and in some cases financial ruin.

Be careful.

Wills: Logging off for life

— 12 December, 2013

Take steps now to ensure your online presence is managed appropriately after death.

Digital assets do not have an expiry date. The question of who should have post-mortem access to digital assets is of particular importance in the context of estate planning and management.

Dealing with digital assets may not be as simple as leaving login details with a third party. Sensitive information left in the wrong hands could lead to disastrous consequences.

Executors may have legitimate reasons for seeking access to digital assets, including:

  • online banking accounts which can hold vital information such as account and credit card details for proper administration of the estate;
  • Paypal and Ebay accounts which may contain funds of significant value that the executor must collect for distribution; and
  • online photo accounts that might hold sentimental value and will be memoirs for family members.

When making a will, you should consider:

  • making a list of your digital assets and online accounts;
  • making a record of user names and passwords to each account, including answers to any security questions (ideally, this should be kept separately from your will);
  • giving your executors access to some or all of your digital assets which refer to where the full list and password information can be found; and
  • how you want your digital assets to be dealt with, for example, whether you want family members reading your personal emails or accessing other personal information, or simply deleting all online accounts.

Call our office to make an appointment about making a will now.