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, so a company can be wound up and brought to a commercial end. Whereas an individual continues to live and breathe through and after bankruptcy and the slate is wiped clean, a company is brought to a commercial conclusion by a wind-up application.
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 can only be sent by creditors who have a debt of $2,000 or more, 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, for example, if the other party claims the goods delivered were incorrect, or not of merchantable quality then there is a dispute. You may feel it is unmeritorious but that doesn’t matter. Also, if there is a claim against you by the Company, then this can be used as a basis to ‘offset’ the amount claimed. Statutory Demands in these circumstances cannot assist you. On the other hand if you are on the receiving end of a Statutory Demand the process can be interrupted by making this claim.
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 then to get the person claiming that all will be ok and that they just need time, to put it in writing and to confirm they are authorised by the company to do so. It is then so much harder to subsequently claim there is a ‘genuine dispute’ in circumstances where someone has in effect said on behalf of the company that it just wants more time to pay the money owing.
In addition, you have to be able to put a dollar value on the debt and the debt amountmust 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 receiving 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.
One of the significant advantages of Statutory Demands is that it is notnecessary to first get judgment against the debtor company. This means that to commence action 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, which verifies that the debt is due and payable and complies with the rules laid down for Statutory Demands. Note that if the Statutory Demand does not rely on a judgment and it is not accompanied by an affidavit verifying the debt, it will be set aside.
A Statutory Demand must be properly served. It 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. Should they receive a Statutory Demand and fail to deal with the document or ignore it then the accountants themselves could be liable in negligence.
If a company wishes to have a Statutory Demand set aside, it must apply to the Court within 21 days of receiving 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.
There are strict rules about how an application to set a demand aside must be served, especially if the creditor is in another State.
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 thedemand is not set aside;or if there is some other reason why the demand should be set aside such as the existence of a genuine dispute as to the amount of the claim.
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.
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 must either pay the debt and legal fees or risk being wound up.
A creditor using a Statutory Demand as a quick means of a debt recovery can likewise have the whole thing blow up in its face. Where there is no judgment already obtained, all a debtor has to show to set aside a demand is that there is some genuine dispute which is why it is prudent to get debtor concessions, if that is possible, at an early point. If the Statutory Demand is successfully set aside by the debtor the usual order is that the Court will order the creditor to pay the debtor’s legal costs of the application to set aside.
If there is no dispute then the only thing left for the debtor is urgently negotiatethe dispute, usually including the payment of the creditor’s legal costs in full.
Statutory Demands can be very effective and a powerful tool for 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 not done properly and you should always seek the advice of lawyer when considering whether to issue a statutory demand.
If you need more information or if you need assistance or advice on how to proceed please call us on(02) 9274 8820 or email email@example.com.