corporation | Business Asset Protection

What to do when served with a creditor’s statutory demand?

Firstly, don’t panic (straight away). Think clearly.

For starters, it is a good idea to understand exactly what a creditor’s statutory demand (“the demand”) is?

Our related blog page is a good place to start? It explains what a demand is in some detail. That blog should be read if this is the first time your business has received such a demand.

But, make no mistake, a creditor’s statutory demand can have very serious consequences.

You, the director, must immediately action it by following the steps as suggested below. Otherwise, in consultation with ourselves, action the demand using our free introductory review.

Once you’ve read this present blog and you know what a creditor’s statutory demand is, the focus moves to what now? What to do next?

But first ….

Who, what, when, where, why, how?

It’s a useful practice in business to always be considering these pointed questions.

But, they are probably best considered before a creditor’s demand is received. Ideally when or before a debt is incurred.

Our separate blog on good debt practices may also be a helpful place for a business, particular if the director thinks it may be headed for a cashflow squeeze?

Having however incurred a debt, and now having been served with the demand, the director must consider what next?

The questions above are a helpful place to start.

Who is making the demand? Did you business incur a debt from this entity? Was the debt actually incurred by the business that is named on the demand? If not, the demand may be able to be set-aside, or better still, maybe the creditor will withdraw it without much fuss? The demand’s requirements, discussed in another blog, are highly precise with no leeway for error.
What is the demand saying your company owes? Demands can only be issued to corporations, so if you’ve received a demand against you personally then it will not be of any effect. Additionally, the amount owed must be for at least $2000. If the debt is under $2000 presently, the demand is of no effect. Assuming the demand is made out to the correct legal entity and is in excess of $2000, read on.
When was the demand served on your premises? This is both a technical and legal question. If the article has come through the post (in the ordinary course of postage) the item is presumed to have arrived several days after post mark on the envelope. It’s always an excellent idea to retain the envelop with the post-mark. This can be very useful. Is some instances, we’ve been able to get very large creditor’s statutory demands set aside for minor deficiencies (see blog – ATO v GSFPA link). Can you answer this when question precisely?
Where was the debt incurred, where is the jurisdiction of the loan, tax debt or other facility? This is less relevant, but in some cases it can make a difference where the demand was served, where it was sent from (if posted from overseas), where it was left (if it wasn’t served at the company’s premises). If in doubt as to whether procedures have been complied with, call us for your free initial review appointment.
Why – why is the demand being used now? Is the debt out of time? Why is the demand being used rather than other debt collection techniques – this can be a very important question particularly if the debt was ever disputed (see our good practice blog).
How? How was it served? How long ago was it served? How was the debt incurred? This last one is often highly relevant. Whether a debt such as a PAYG or GST ATO tax debt has been incurred over several months or longer, or has continued to grow over time – can suggest bigger overall issues within the business? For instance, if a business has been unable to fully pay its super, GST or PAYG ATO debt on time each quarter, or when due, the company may need to look more closely at itself? Is the company trading profitably? Is the owner taking too much in drawings? Are overheads too high? Are fixed or variable costs too high? Our advisory service can offer a range of excellent solutions to a business to enable them to restructure and avoid cashflow issues, insolvency and worse. A free introductory business review is available to assess a company’s issues and potential solutions.

After answering these questions, act.

It is critically important, after receiving a creditors statutory demand that the company does not ignore it (and hope it goes away).

Yet some business owners can be embarrassed to discuss these issues with their accountants.

The law provides only a short period after receipt of the demand to take action – so it is critical that action is not delayed.

Business Asset Protection offers a free introductory first session to help a director work through the above and other relevant questions.

Our service is judgement free and focussed very much on solutions to the present problem.

Our available solutions are often more comprehensive than merely negotiating an extension of time to pay the ATO.

Whilst we can often provide tax debt loans, often times a range of other solutions may also be better suited to some clients? These can dramatically simplify your business and give it a fresh start.

If your company has received a creditors statutory demand and is unable to, or unwilling to pay the claimed debt, call us to schedule a free appointment – obligation free – on 1300-327123 (1300-DCP123), click our free appointment scheduling link, or complete the form below.

To take our free Business Health Check click here.

To schedule a free review of your current business structure click the following link: Book a meeting instantly

To view our knowledge base glossary – for the definition of a term click the following link: Glossary of terms

To view our knowledge base click the following link: Knowledge base

For any other questions chat with us now using the live chat icon in the bottom corner of your screen.

To view related blogs, follow the following category links and tags below.

take our free Business Health Check and receive bespoke, obligation free advice suited to your needs within minutes.

Otherwise – click here to book a free appointment, call me anytime on 1300-327123 (till late), or click the chat tool – bottom right corner to instant chat now

Thanks, Mark Smith, Director

What is a creditors statutory demand?

The Corporations Act 2001 (“the Act”) provides for the conducting of business by a corporation in Australia.

Section 459E of the Act provides that a corporation may be served a statutory demand by a creditor (i.e. a creditor’s statutory demand) relating to (subsection 1):

(a) a single debt that the company owes to the person, that is due and payable and whose amount is at least the statutory minimum; or

(b) 2 or more debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum.

Once served with such a demand, a company cannot ignore the demand. The most serious of possible consequences for the company are now rolling out. There are no friendly rules or casual arrangements, strict compliance with the demand is necessary by law.

Requirements

There are further other requirements such as:

(2) The demand:

(a) if it relates to a single debt–must specify the debt and its amount; and

(b) if it relates to 2 or more debts–must specify the total of the amounts of the debts; and

(c) must require the company to pay the amount of the debt, or the total of the amounts of the debts, or to secure or compound for that amount or total to the creditor’s reasonable satisfaction, within 21 days after the demand is served on the company; and

(d) must be in writing; and

(e) must be in the prescribed form (if any); and

(f) must be signed by or on behalf of the creditor.

(3) Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:

(a) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and

(b) complies with the rules.

The key words above in each of the subsections are the words Must and AND.

The above requirements of the Act’s provisions are cumulative.

Skip any of the requirements and the consequences for the creditor’s demand is that it is potentially defective.

What happens next

Once a creditor’s statutory demand has been served upon a company, several things can happen:

the recipient company pays the debt in full
the company contacts the creditor and they negotiate a settlement
the company applies to have the demand set aside – for instance if there has been a genuine disputing of the debt.
the company does not respond, and the creditor applies to have it wound up

Next steps

If your company has received a creditor’s statutory demand, you have no time to waste. Go straight to our “what to do next blog” for further next steps – click here to book a free appointment, call us on 1300-327123 or complete the form below.

To view related blogs, follow the following category links and tags below.

take our free Business Health Check and receive bespoke, obligation free advice suited to your needs within minutes.

Otherwise – click here to book a free appointment, call me anytime on 1300-327123 (till late), or click the chat tool – bottom right corner to instant chat now

Thanks, Mark Smith, Director

What is insolvency?

Insolvency in general terms, as it relates to a corporation, is the inability to pay debts as and when they become payable.

A company is also insolvent if it is experiencing an ‘endemic shortage of working capital’ as opposed to a temporary lack of liquidity.

Determining the difference at a point in time during the corporation’s life is a question for a court to determine .

Indicators of insolvency include:

continuing losses,
no access to alternative finance,
the inability to raise further equity,
special arrangements with selected creditors,
solicitors’ letters or judgments issued against the company,
overdue taxes,
failure to keep books and records, etc.

The list is indicative and not exhaustive.

Companies experiencing any or all the above indicators should book a free consultation by clicking here then where we’ll provide you with company specific advice re insolvency in your instance. Alternatively call us on 1300-327123 (till late) or complete the form below.

What is a liquidator?

A liquidator is a person appointed, in the winding up of a corporation, to assume control of the company’s affairs and to discharge its liabilities in preparation for its dissolution. The appointment of a liquidator may be done voluntarily (by the proprietors) or via the courts (usually upon the application of a creditor – very often the ATO using a creditors statutory demand).

The process of the liquidator conducting the affairs of the company and realising its assets is called liquidation.

The liquidator’s role is to ascertain the liabilities (and assets) of the company, convert its assets into money, terminate its contracts, dispose of its business, distribute the net assets to creditors and any surplus (which is rare) to the shareholders and/or proprietors.

The liquidator will extinguish the company, lawfully, as a corporation on the records of ASIC by formal dissolution.

In determining the assets of a company, it is the liquidator’s duty to determine whether particular assets under the company’s control are owned by the company or others – i.e. stock may be purchased subject to a retention of title, vehicles may be on a corporate hire purchase and secured via a PPSR.

BAP can assist company directors to structure their assets and affairs, if not insolvent, in such a fashion to provide lawful asset protection. To discuss how we can help to structure your company’s affairs and assets to provide maximum asset protection, please click here to book an appointment, call 1300-327123 (1300-DCP123), or complete the below form.

take our free Business Health Check and receive bespoke, obligation free advice suited to your needs within minutes.

Otherwise – click here to book a free appointment, call me anytime on 1300-327123 (till late), or click the chat tool – bottom right corner to instant chat now

Thanks, Mark Smith, Director