The Loan Book

The full title of this latest work from Victorian Barrister Peter Agardy is “The Loan Book, An Analysis of the Unsecured Loan: Elements, Proof and Recovery.”

I had the great pleasure of reviewing the first edition of this work in 2020. That edition like the present deals with what are commonly known as “simple contracts”, that is, agreements made in writing or by word-of-mouth, otherwise than by deed.

However, as some loan agreements are expressed to be by deed, the author has added a chapter addressing the essential requirements of a deed and the distinction between a deed and a simple agreement.

The work commences with a consideration of the elements of a contract of loan which the author notes, like any other contract, must contain terms that are sufficiently certain to be enforced. Consideration is also given the circumstances in which a contract can be inferred from the conduct of the parties and terms implied at law.

The author dispels the common assumption that a lender is automatically entitled to charge interest, which is not the case at common law, except in a number of well-defined circumstances. He also adds commentary concerning the ability of commercial parties to negotiate on interest rates in counter-poise to consumer credit contracts which are governed by statute.

A particular benefit of the work is the manner in which the author, a well-regarded insolvency and restructuring barrister, addresses the issues which often times arise upon the bankruptcy of an individual or the liquidation of a company. For example, is the transaction the subject of scrutiny by a trustee in bankruptcy or a liquidator, in reality, a loan or a gift? This question can become a vexed issue in family law proceedings also. What is the position in a family context including in the case of deceased estates?

The author also deals with issues for the Bank of Mum and Dad, assisting family members in property purchases.

When is a loan repayable, is a demand required and when is a claim statute barred are each considered in turn?

The work considers the manner in which a lender proceeds to recover a loan account and the elements which they are required to prove to the satisfaction of a court or other tribunal. It considers, as an alternative, the moneys had and received count, the circumstances in which such a claim would be made and the elements required to be established.

The book concludes with a helpful chapter in which each of the concepts examined by the author is summarised.

In short, “The Loan Book” dissects in a simple and practical manner the multifaceted landscape of credit and addresses with alacrity fundamental concepts, laying a solid foundation for readers regardless of their prior financial literacy.

By doing so, it has made this area of the law more easily accessible to practising lawyers, accountants and businesspeople. It also provides a foundation for additional research.

Like the first edition, it is expected that the work will continue to be a vital addition to any financial library. Its pragmatic, authoritative, and user-friendly guide, will serve to empower individuals and businesses to make informed borrowing decisions and navigate the complexities of the credit market with confidence.