Asset Protection Strategies

Regardless of amazing advances in technology and society, the risks and challenges that we face in business today have changed little over hundreds of years, it is only the tools which we now employ in our businesses that have changed. Concepts brought into existence hundreds of years ago still influence, if not determine, how a business should be structured.  The steps that you should take to upgrade your business were first taken by others hundreds of years ago.

A discretionary trust is a great way to separate different assets and protect these from business risk.  A discretionary trust works by separating "ownership" from "control".  By using a trust you may ensure that your personal assets are not put at risk.  Trusts are based on legal technicalities, so it is necessary to take care, simple technical failures in the management can undo the protection that a trust offers.  Too often we find that advisors do not take care to ensure that the arrangement actually works, or having set up the trust properly, over time the original intention of protecting the asset is forgotten.  Please read our story about Ralph to see how the most carefully constructed trust will not offer protection when improperly managed.

Riba Business Lawyers For all businesses, it is inevitable that the time will come when there will be a ‘changing of the guard’. But what happens when this is unexpectedly forced upon us?

In the event that a director or key person was to suffer an unexpected departure  from the business due to death or disability, there are several important factors that  every business needs to consider.

For the purpose of this article we will assume ABC Pty Ltd has 3 directors, Allan, Bart,and Cindy, and director Allan has recently passed away unexpectedly.

Since the commencement of the PPSR, retention of title clauses are ineffective against the interests of a registered creditor or a liquidator, unless the supplier’s continuing interest in goods supplied is registered. If the supplier fails to register their interest then they will at best be considered an unsecured creditor in the event that the purchaser goes into liquidation or bankruptcy.

Security interests under retention of title and leasing agreements are capable of being registered (and should be) as ‘Purchase Money Security Interests’ (PMSIs). The major benefit of a PMSI is that, if registered correctly, the PMSI takes priority over all other security interests (registered and unregistered) in the same collateral notwithstanding that some of the other registrations may be earlier in time. This priority survives the purchaser going into liquidation or becoming insolvent. It therefore makes it easier for the supplier to prove their interest as against any liquidator or trustee.

A Caveat is a notice that a person can give to the registrar of  titles.  It will generally stop anyone else registering any interest on a title to land.

So why would someone want to stop another person from registering an interest on a title.  Let me tell you about a case that I was involved with, it illustrates better than any explanation why caveats are so important. About 10 years ago I acted for a farmer.  He lived on his Macadamia nut farm with his wife. He had been given the farm by his father. His daughter had found herself in some trouble and decided that she needed money.   In order to get that money she went to a private lender.  As you know lenders don't lend money unless they receive  a mortgage in return.  The mortgage is their assurance that they will be paid.  A mortgage is a right given to a lender to sell a property to pay a loan.   The daughter had no house to mortgage. What could she do?

The Australian Personal Property Security Register was due to commence in May, then October this year and now, will commence in early 2012. It will affect most businesses and it is worthwhile looking at the impact of these new laws as soon as possible. Financiers, Lessors and Suppliers will need to make sure that they do not lose their rights over assets which they have secured. Buyers will need to make sure that no-one else has an interest in the item they are buying.

The new register will replace most traditional securities including bills of sale and company charges.

So what should you do to ensure that you are not affected?

The implementation of the new Personal Property Securities Register (PPSR) will affect most Business across Australia. Business owners and individuals who take security interests over personal property will need to understand the new system and how it differs from the existing registries. We will run through the some of the terminology and benefits of the new Register as well as provide some helpful information about ensuring your security interests are protected. In the same way that you can lose your interest in a house if you do not register that interest on the title. You can also lose your interest in any personal property in which you have taken an interest if it is not registered. If you operate a business where you retain title to goods until you receive payment then these changes have a particular impact on you.

We are fielding an increasing number of calls from business people who are anxious to know what they can do to ensure, that their assets and in particular their homes, are protected from creditors. There are simple steps that can be taken that greatly improve your chances of avoiding the loss of your home. In recent times this has  become more difficult, but it remains possible. The aim of asset protection strategies is to remove creditor access to certain assets entirely. When this is not possible then the aim instead should be to put significant obstacles in the way of creditors. Although some determined creditor may still suspect a way to penetrate your defences the cost of the taking these steps and the risk of failure may prevent a creditor from even trying.

In order to be successful, asset protection strategies need to be put in place before you are in financial trouble. Creditors should not be aware of the existence of the assets or they should know, from the time of their first dealing with you, that these assets are off limits. There are only limited things that can be done, once it becomes clear, that the risk of a financial failure is real. Yet there are still steps that can be taken to improve your situation. Although these steps may not defeat a trustee in bankruptcy they may improve your risk position and discourage creditors.