The recent collapse of Probuild is a shocking example of how even the biggest companies can go into liquidation and leave contractors and suppliers massively out of pocket. The best time to protect yourself is when you sign up a new customer. Personal guarantees, caveats and PPSA registrations are all very effective. But if it is too late for all of that, check if you can claim against another company or entity. If you delivered the goods or services to a different entity than signed your credit terms, you may have a claim against both. Or you may be able to bring the director in personally in some cases. Remember, signs of wealth like the director driving a nice car or living in a big house are often irrelevant. Usually the company does not own those things, or they are under finance.
Transcript
Hi, everyone. We’re talking today about what to do if a customer can’t pay you, so not just that they don’t want to pay you, but they don’t have the cash or the assets to pay you. What are your options?
I’m Alex Martin a commercial litigation specialist, and these are my no bull legal tips for business owners. The topic for today is what to do if a customer can’t pay you. So if they don’t have the assets, they don’t have the cash and they can’t make payment to you, what are your options?
Now I’ll probably give you the lawyer answer, which is the best time to protect your deal is before you do it or when you’re doing it, you get the best security at the time you’re signing up customers.
So if you can get a personal guarantee from customers or you can get property security against the customer that’s from their home or their factory, or their equipment or whatever it is, if you can get property security and a personal guarantee, you’re going to be in a much better position if the company you’re dealing with goes, into liquidation and can’t pay. But assuming you’ve done all of that or that hasn’t worked and you’ve got a deal that you’ve done some time ago and you’re trying to enforce it, what do you do if the customer doesn’t have any money.
Typically the customer will be a company. That’s the first thing to check. You want to make sure that you’re actually dealing with the entity you think you’re dealing with. It might be that you’re supplying one entity and your actual credit terms are signed by another entity.
So you might want to look at who you supplying to and who your credit terms were signed with may be that you have another option. If you if you sign credit terms with one entity, but then supplied the other, you might have a claim against both.
If you’re dealing with an individual, you may also have a claim against that individual if they have made a misleading statement to you or they’ve made some other legal wrong in the course of dealing with you, you might be able to drag them in personally to the litigation. It might even be that they purchased from you personally, if they didn’t purchase on behalf of the company. So that can be a gray area and certainly worth exploring.
The reality is, if a company you’re dealing with goes into liquidation and doesn’t have any assets or has assets that are encumbered by the bank, it has mortgage assets, then you are unlikely to recover anything and that’s a serious risk.
You’ve really got to think about that when you’re signing up new customers if they go into liquidation. What do I do? How likely are they to go into liquidation? What assets do they have? And not just what assets does the director appear to have, not what kind of car is the director driving? What kind of house did I leave in? But what assets are actually owned by the customer that you’re dealing with? That’s the entity. So it may well be that the director lives in a lovely house, but that might be owned by the director’s partner. Or drives a car and that car might be under finance. So signs of wealth don’t necessarily mean wealth with the entity that you’re dealing with.
So if you’re signing up a customer, make sure you get as much security as you can – find out about them. And if that’s a two dollar company, a company with no assets, then you might want a personal guarantee from the director or property security that puts you in the best position you can to recover from your customers. Thanks for listening, and we’ll see you next time.