If you are in business, whether it’s in the capacity of a company director, in management or if you represent a company as its accountant, you must know of the power of a Statutory Demand. This article sets out the huge benefits in using this as a method of very quickly and effectively collecting a debt. Alternatively, if your company receives a Statutory Demand you will see the need to act urgently and seek immediate legal advice.
In practice, the process of issuing a Statutory Demand as a means of collecting debts is now commonly used, although it was originally intended to form the first part in a winding up application.
The Corporations Act specifies that a company is deemed to be insolvent if, having received a Statutory Demand it fails to pay the creditor or have the Statutory Demand set aside by a court. A company may be wound up if it is insolvent, that is, the company is finalised and its assets sold to pay its debts. This means therefore, that a Statutory Demand is a useful way to pressure a company to pay its debts.
The most common basis for placing a company into liquidation is insolvency. Just as an individual can be made bankrupt, a company can be wound up and brought to a commercial end. The test of whether or not a company is insolvent is whether or not the company is able to pay its debts as and when they become due and payable.
Valid Statutory Demands
Valid Statutory Demands can only be sent by creditors who have a debt, which is due and payable by a company. This does not apply to individuals or people trading under a business name owing money.
The debt cannot be in dispute. This means that, if the other party claims the goods delivered were incorrect, or not of merchantable quality then there is a dispute. Statutory Demands in these circumstances cannot assist you. On the other hand if you receive a Statutory Demand the process can be interrupted if there is a valid dispute.
Company Directors, managers, accountants and people in credit control can all benefit by knowing how to minimise an allegation of a genuine dispute. For example, if you are being told by a debtor company that they need more time to pay a debt, before the ‘warning bells’ ring and a legal process starts, it is prudent to get that request in writing. This can then be used as evidence that the debt is not in dispute.
In addition, you have to be able to put a dollar value on the debt and the debt quantum must be at least $2,000.
The document claiming the demand must be in the prescribed form, must be in writing and must be signed by or on behalf of the creditor. It must correctly state the debtor’s company name and its registered office and it must specify a place in Australia where the debt can be paid. It is permissible to specify that payment be made to the creditor’s solicitors.
The Statutory Demand requires the company to pay the debt or secure or compound the amount owed within 21 days of the date of the Statutory Demand “to the creditor’s satisfaction”. Those words require an objective test. It is for the Court to decide whether a creditor acted reasonably if he or she rejected a debtor’s proposal.
Judgment does not need to be obtained
One of the significant advantages of Statutory Demands is that it is not a requirement to first get judgment against the debtor company. This means that to commence action by issuing a Statutory Demand it is much faster and much more efficient, as well as being significantly less costly in legal fees.
If a judgment has not been obtained then there must be an affidavit accompanying the Statutory Demand, verifying that the debt is due and payable and that it complies with the rules laid down for Statutory Demands. Note that, if the Statutory Demand does not rely on a judgment or is not accompanied by an affidavit, it will be set aside.
How a Statutory Demand is served
A Statutory Demand can be served by leaving it at the registered office of the debtor company, sending it by post to that office or delivering a copy of the Statutory Demand personally to a director of the company who resides in Australia.
Where a creditor becomes aware that the company no longer occupies the registered address and the creditor is aware of the new address, then he or she should bring the Statutory Demand to the notice of the company at that new address.
Accountants need to be very careful here. Often accounting firms are the registered offices for many of their clients. If they receive a Statutory Demand and fail to deal with the document or ignore it then the accountants themselves could be liable in negligence.
Resisting a Statutory Demand
If a company wishes to have a Statutory Demand set aside, it must apply to the Court within 21 days of service of the Statutory Demand and it must serve the application to set aside and the supporting affidavit on the person who made the demand within that 21 day period as well.
The supporting affidavit should state all the grounds for making the application, rather than simply making an assertion that the debt is not due. If the affidavit is insufficient, it cannot be supplemented by a late affidavit served outside the 21 day period.
Reasons for setting aside a Statutory Demand
A Statutory Demand will only be set aside if the amount in fact owed is less than the statutory minimum, if there is a defect in the demand that would cause substantial injustice if the demand is not set aside or if there is some other reason why the demand should be set aside.
A Statutory Demand which has a defect can only be set aside where it causes substantial injustice. It will not be set aside if it was a demand within the terms of the Act and the defect is only a minor irregularity or misstatement.
Risks in Statutory Demands for both debtors and creditors
From a debtor’s point of view, the problem with the Statutory Demand is that once the time for compliance with the Demand has expired, unless there is a valid application filed and served to set the demand aside, there is absolutely no opportunity of contesting the Demand and the debtor can be forced to pay the debt and legal fees or risk being wound up.
A creditor using a Statutory Demand to quickly recover a debt can also run into trouble if they do not comply with the legal requirements. They need to ensure that the prescribed forms are used and are properly completed, that the debt is not in dispute, and that the Statutory Demand is properly served on the debtor. If a Statutory Demand does not comply with the requirements, it may not be enforceable. In some circumstances the debtor may apply to the Court to have a non-compliant Statutory Demand set aside, in which circumstances costs can be awarded against you. It is therefore important to obtain legal advice if you are considering issuing a Statutory Demand.
If there is no dispute then the only thing left for the debtor is to urgently negotiate the dispute, usually including the payment of the creditor’s legal costs in full.
Statutory Demands can be very effective and certainly powerful to a creditor. Using a Statutory Demand can be cheaper, faster and more efficient in recovering debts due than other methods and if done properly can be done in circumstances where the debtor must deal with you and do so urgently. There are risks though, if it is not done properly and this should always be done with the help of your lawyer.
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