Bryn Houghton
Solicitor
tel:+64212452847
mailto:bryn.houghton@hobec.co.nz
Qualifications
- LLB, BA, University of Canterbury 2024
Community
- Canterbury Community Law Centre
Contact
- M: +64 21 245 2847
- E: bryn.houghton@hobec.co.nz
Bryn Houghton is a solicitor in Holland Beckett’s civil litigation and dispute resolution team.
Bryn completed his studies at the University of Canterbury and moved to Tauranga to start his legal career in Holland Beckett’s civil litigation and dispute resolution team. He looks forward working on both criminal and civil legal matters.
Outside of work he has a passion for keeping fit and being outdoors, whether in the bush or on the water.
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Directors’ Contractual Liability. Dual Capacity – one signature but two roles?
When a company director signs an agreement on behalf of a company they may also be required to sign a personal guarantee, this means they are accepting personal liability for the obligations of the company.
Personal guarantees are common in several types of agreements, for example leases, supply/trade agreements, or loans. They provide additional security for lenders, allowing lenders to bypass a company when there is a breach of the agreement and look to the assets of the guarantor.
However, in certain circumstances a personal guarantee may not be enforceable, including when a director has only signed an agreement once, in their capacity as a company director, and not in a “dual” capacity.
Where there is only one signature on an agreement, there is a presumption that a person who signs once is signing as an agent of the company – and not in their personal capacity. To hold that person liable as a guarantor, it must be shown that the person signed in a dual capacity: this means that they signed on behalf of the company and in their personal capacity.
Factors in Determining Dual Capacity
1. Whether a person has signed an agreement in a dual capacity is circumstantial, however there are factors that assist with determining whether a person has signed in a dual capacity. These include:
The structure of an agreement is an indicator of whether a director has signed in a dual capacity. Typically where there is a guarantee, an agreement will identify the contract’s parties – which will include the lender, the company (for example as borrower/principal debtor) and the guarantor. If the guarantor is not a listed party to the agreement this may indicate that the director did not sign in a dual capacity and is therefore not bound by any personal guarantee clauses within the agreement.
The description of the signatory is another factor – however, this is not a straightforward indication as to whether a person has signed in a dual capacity. If the person is listed merely as a “Director,” this typically suggests the signature was made only on behalf of the company. That said, context is important, and “Director” may also be used to describe someone who happens to be bound as a guarantor.
The wording of the clause is also a key indication as to whether the guarantee is effective. If the clause includes clear acknowledgements by the guarantor, for example, inserting their name in the clause and/or an express acknowledgement that by signing the agreement they are accepting personal liability as a guarantor, can support enforcement. A guarantee clause may reference a separate document. Overall, the clauses should be read carefully as they may merely be an agreement to obtain the personal guarantee in the future in a separate document.
While potentially more difficult to prove, evidence that the personal guarantee clause was explained to the individual prior to signing can support the argument that the individual understood and accepted the dual role. Oral or written statements may be used to demonstrate this, however the main issue with this comes down to evidence.
2. Whether a director has signed in a dual capacity can be a complex issue when there is not a separate signature section. These sorts of issues are unlikely to arise in modern agreements, but may still arise in older ongoing agreements where there is less clarity.
Clarity is Key
Determining whether a personal guarantee is enforceable when there is only one signature is a fact specific exercise – the language of the clause, the entire agreement and the circumstances need to be considered.
A personal guarantee clause may be insufficient on its own to make a director or shareholder personally liable for company debts. For such a clause to be enforceable against an individual, the individual should sign the agreement twice (once in their capacity as director of the company and again in their capacity as a personal guarantor) or the agreement should be clear that an individual has signed in a dual capacity. To avoid any issues, clarity is key. Agreements should be clear when a director or shareholder is committing themselves personally, not just on behalf of the company.