BANKING & FINANCE
There are a lot of different things to understand when either you loan money to someone else (for example a friend or a family member) or you borrow money from someone else (for example from a bank or family member). Accordingly, legal advice should be sought, even for what appears to be a simple transaction. The most common type of loan is known as a mortgage. A mortgage is a transaction whereby an interest in land is conferred on a lender of money for the purpose of securing the repayment of that money.
There are three main things that need to be examined when loaning/ borrowing money:
The Contract/ Loan Agreement;
The Security (if any); and
The Guarantee and Indemnity (if any)
The most important points in banking and finance law is to:
Understand what rights the borrower and the lender have if for example the borrower cannot or will not meet their obligations; and
Consider what security to take if the borrower defaults for example a mortgage over freehold land.
Not all loans are secured by property, therefore proper advice regarding the obligations of each party and their capacity to pay should be sought prior to entering into the transaction.
We can provide you with advice regarding:
Rights prior to entering a loan or mortgage agreement;
Priority of mortgages;
Discharge, variation and assignment;
Covenants in mortgages;
Consumer credit code;
Security over assets other than real property.
See Well Law Practice is involved with and has advised on many significant transactions across a wide spectrum of industries, including advertising, retail, entertainment, food and beverage, building, manufacturing, media, community organisations, mining and natural resources, music, transport, banking, graphic design, nurseries and many more.
Our team offers clients experience, expertise and commonsense in dealing with the wide spectrum of trade related issues, including:
Corporate structure advice;
Preparing and amending trust deeds;
Mergers and acquisitions;
Avoiding anti-competitive conduct;
Marketing and advertising reviews;
Preparation and review of contractual terms; and
Compliance programs, policies and procedures
COMPETITION & TRADE REGULATION
Are you owed money because you have performed work or supplied material and have not been paid? Where a party to a contract (the "unpaid party") is owed money for work carried out or materials supplied to the party in default this debt can be recovered directly from that person.
Generally, the time and order of performance of a contractual obligation depend on the intention of the parties and are questions of construction. Under the modern law of contract, each party's performance obligations are presumed to be dependent on the other party's performance or readiness and willingness to perform.
If the contract has not been performed there is a breach of contract. A breach of contract may arise from a failure to perform; or an anticipatory breach.
The onus of proving a breach of contract rests on the party who makes the allegation, that is, the promisee.
If a performance is otherwise sufficient to discharge a promisor, it does not amount to a breach of contract merely because a reasonable person would consider that the promisor has not acted in good faith.
The principal remedies for breach of contract, and their essential characteristics, are as follows:
An award of damages
The award of a sum liquidated (fixed) by the contract, that is, an order for the payment of a debt due
An order for specific performance
The grant of an injunction
Equitable relief by way of account of profits, constructive trust or equitable damages may be available, on the breach of an equitable duty associated with a contractual relationship or the negotiation of a contractual relationship.
Restitution, where the defendant has been unjustly enriched at the plaintiff's expense.
Call us today to discuss your particular circumstance.
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