REALWorld Law

Real estate finance

Corporate governance

Does the law lay down any rules which must be complied with before a corporate entity can give valid security over its real estate assets, for example 'financial assistance' rules and 'corporate benefit' rules?

Australia

Australia

There are no specific corporate governance rules which must be complied with before a corporate entity can give valid security over its real estate assets where the transaction is between unrelated parties although certain general corporate law provisions will apply.  It is prudent for creditors to consider the following issues:

  • Whether the company has acted for the benefit of the company in entering into the transaction.
  • Whether the company has the power to enter into the relevant transaction. A person dealing with a company is entitled to make an assumption that internal procedures have been satisfied (such as complying with the companys constitution and that people holding themselves out as officers of the company are validly appointed officers) unless the party knew or suspected that the assumptions were incorrect.

Where a company is providing a loan, security or other financial assistance to acquire shares in the company, appropriate resolutions must be passed by the company and notices must be given to shareholders and the Australian Securities and Investments Commission (ASIC).

Subject to certain exceptions, if a public company proposes to give a financial benefit to a related company (such as providing a loan to the related company), it must obtain the approval of shareholders in a general meeting.

Breaches of the above-mentioned financial assistance rules and related party rules will not affect the validity of the transaction but may constitute breaches of the Corporations Act with consequences to the parties involved in the transaction.