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Your rights as a guarantor

What information should I be given as a guarantor?

Credit Contracts and Consumer Finance Act 2003, ss 24, 25, 26

If you agree to be a guarantor for a borrower, the lender must give you the following information:

  • before you give the guarantee, you should get:
  • a copy of the guarantee, and
  • a copy of the key information about the consumer credit contract (see: “The information you must be given”).
  • at any time, you can write to the lender to request certain information. The lender has 15 working days to give you the information (or until 15 working days after you pay any reasonable fee charged by the lender, if this is later). You can ask for:
    • the amount required for full payment at any date, or
    • details of any changes made to the contract, or
    • a copy of the contract.
  • if the lender agrees to lend the borrower more money, you should be told about this if you’ve also agree to guarantee any future debts that the borrower incurs with the lender. The lender must tell you about this within five working days.
  • if the contract changes, the lender must give you full written details of any changes to the credit contract that either increase the borrower’s obligations or shorten the amount of time the borrower has to pay the debt. The lender must give you this information within five working days after the change.
  • if the lender repossesses property from the borrower, you must be sent the notices that are sent to the buyer (see: “Repossession”).

When might my goods get repossessed if I’m a guarantor?

Credit Contracts and Consumer Finance Act 2003, ss 83G, 83V

If you as a guarantor have put up some of your property as security for the borrower’s debt, and the borrower doesn’t make their payments, there’s a strict process the lender must follow before they can take your property (“repossess” it) to cover the debt. This includes first having to give you a “repossession warning notice” (see: Repossession”).

What can I do if the contract is unfair?

Credit Contracts and Consumer Finance Act 2003, ss 117–131

The courts can change the terms of a credit contract if the contract is “oppressive,” meaning it is “harsh, unjustly burdensome, unconscionable, or in breach of reasonable standards of commercial practice”. If the credit contract also requires a guarantee, the guarantee is treated as forming part of the credit contract, and so the guarantee can be changed too.

The judge can also change or strike out the terms of the guarantee if you were pressured into signing it by oppressive means, or if it would be harsh and oppressive to enforce the guarantee against you. For information about challenging unfair contracts and guarantees, see: “Challenging an unfair credit contract”.

What responsibilities do lenders have towards guarantors?

Credit Contracts and Consumer Finance Act 2003, ss 9C(2), (4), 93, 96

Lenders have certain responsibilities towards you if you give a guarantee for a consumer credit contract. These are similar to the responsibilities owed to borrowers.

Most importantly, before a lender takes a guarantee from you, and in all their later dealings with you in relation to the guarantee, the lender must exercise the care, diligence and skill of a responsible lender. The lender also has these specific responsibilities:

  • Checking out your ability to fulfil the guarantee – Before you give the guarantee, the lender must make reasonable enquiries so that they’re satisfied you’ll be able to fulfil the guarantee without suffering substantial hardship. The lender is entitled to rely on the information you give them unless they have reasonable grounds to believe it’s not reliable.
  • Helping you reach an informed decision – The lender must help you to reach an informed decision about whether to give the guarantee and to be reasonably aware of the guarantee’s full implications. As part of this responsibility, the lender must make sure that any information they give you isn’t likely to be misleading, deceptive or confusing, and that the terms of the guarantee are written in plain language and are clear, concise and understandable.
  • Reasonable, ethical treatment – The lender must treat you reasonably and ethically at all times, including when problems arise, such as the borrower missing their payments.
  • No oppressive terms or conduct – The lender must make sure that the guarantee isn’t oppressive, that they don’t exercise any of their rights or powers under the guarantee in an oppressive way and that they don’t pressure you by oppressive means into giving the guarantee.
  • Meeting all legal obligations – The lender must meet all their legal obligations to you, including, for example, the requirements in the Credit Contracts and Consumer Finance Act to provide you with necessary information.

If a lender breaches any of those responsibilities, the courts can order them to pay you compensation, or can make various other orders (see: “Enforcing the credit contract laws against lenders”).

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Credit and debt

Where to go for more support

Legal information and support groups

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Consumer Protection

The Consumer Protection website has useful information on a range of consumer topics. Consumer Protection is part of the Ministry of Business, Innovation, and Employment (MBIE).

Website: www.consumerprotection.govt.nz
Email: cpinfo@mbie.govt.nz
Phone: 0508 426 678 (0508 4 CONSUMER)

Consumer NZ

The Consumer NZ website provides a wide range of information on consumer issues and template letters you can use to write to traders to enforce your rights.

Website: www.consumer.org.nz
Email: info@consumer.org.nz
Phone: 0800 226 786 (0800 CONSUMER)

Commerce Commission

The Commerce Commission enforces the laws against misleading and deceptive conduct by traders (the Fair Trading Act) and the consumer credit legislation (the Credit Contracts and Consumer Finance Act). The Commission provides information on these areas on its website.

Website: www.comcom.govt.nz
Email: contact@comcom.govt.nz
Phone: 0800 943 600

To make a complaint online: comcom.govt.nz/make-a-complaint

To read consumer rights in different languages: comcom.govt.nz/consumers/read-about-your-consumer-rights-and-business-responsibilities-in-another-language

Citizens Advice Bureau (CAB)

CAB provides free, confidential and independent information and advice. See CAB’s website for valuable information on a range of topics.

Website: www.cab.org.nz
Phone: 0800 367 222
Facebook: www.facebook.com/citizensadvicenz

Find your local CAB office: www.cab.org.nz/find-a-cab

FinCap and Money Talks

FinCap is a non-government organisation providing free financial mentoring services.

Website: www.fincap.org.nz
Email: kiaora@fincap.org.nz
Phone: 04 471 1420

MoneyTalks is a financial capability helpline operated by FinCap. The Financial Mentors offer free, confidential advice by phone, text, email and live chat.

Email: help@moneytalks.co.nz
Phone: 0800 345 123
Text: 4029
Live chat: www.moneytalks.co.nz

Insolvency and Trustee Service (ITS)

The ITS deals with bankruptcies, no-asset procedures, summary instalment orders and some company liquidations. Information about those processes is available on its website. The ITS is part of the Ministry of Business, Innovation and Employment (MBIE).

Website: www.insolvency.govt.nz
Phone: 0508 INSOLVENCY (0508 467 658)

Dispute Resolution Schemes

There are four dispute resolution schemes for consumers dealing with lenders and other credit providers. Contact the scheme your service provider has registered with.

1. Financial Services Complaints

Website: fscl.org.nz
Phone: 0800 347 257

2. Insurance & Financial Services Ombudsman

Website: www.ifso.nz
Phone: 0800 888 202

3. Banking Ombudsman

Website: www.bankomb.org.nz
Phone: 0800 805 950

4. Financial Dispute Resolution Service

Website: www.fdrs.org.nz
Phone: 0508 337 337

Credit Reporting

Your credit record

There are three credit reporting companies that operate nationally in New Zealand. To check your record or correct any information, you’ll need to contact them all.

You’re entitled to a free copy of your credit record. You should make sure you choose the free option when you contact each company.

1. Centrix – www.centrix.co.nz – 0800 236 874
2. Illion – www.illion.co.nz – 0800 733 707
3. Equifax – www.equifax.co.nz – 0800 698 332

Personal Properties Securities Register (PPSR)

Search the PPSR register to see if there is any security interest registered against a vehicle. This can be done for a small fee by registering to check online.

Website: www.ppsr.companiesoffice.govt.nz

Privacy Commissioner

The Privacy Commissioner has information on your rights in relation to credit reporting and how to complain if you feel your rights have been breached.

Website: www.privacy.org.nz
Email: enquiries@privacy.org.nz
Phone: 0800 803 909

To make a complaint online: go to the website above and select “Your rights tab” then “Complaining to the Privacy Commissioner”

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