Creditors Statutory Demand

Creditors Statutory Demand

Home Forums Understanding Contracts the Corporations Act 2001 Creditors Statutory Demand

  • This topic has 7 replies, 2 voices, and was last updated 4 weeks ago by DebonAir.
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    • #7194
      Tayla
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    • #7204
      DebonAir
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      The rules for a creditors statutory demand are in the Corporations Act 2001 volume 2. Please download and read the act. Use the search tool for ‘statutory demand’ as there are many other parts hidden throughout.

      Division 2 Statutory demand
      459E Creditor may serve statutory demand on company
      (1) A person may serve on a company a demand relating to:
      (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.
      (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.
      (4) A person may make a demand under this section relating to a debt even if the debt is owed to the person as assignee.

       

    • #7208
      DebonAir
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      Corporations Act 2001 vol 2

      459C Presumptions to be made in certain proceedings

      (1) This section has effect for the purposes of:

      (a) an application under section 234, 459P, 462 or 464; or

      (b) an application for leave to make an application under section 459P.

      (2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:

      (a) the company failed (as defined by section 459F) to comply with a statutory demand; or

      (b) execution or other process issued on a judgment, decree or order of an Australian court in favour of a creditor of the company was returned wholly or partly unsatisfied; or

      (c) a receiver, or receiver and manager, of property of the company was appointed under a power contained in an instrument relating to a circulating security interest in such property; or

      (d) an order was made for the appointment of such a receiver, or receiver and manager, for the purpose of enforcing such a security interest; or

      (e) a person entered into possession, or assumed control, of such property for such a purpose; or

      (f) a person was appointed so to enter into possession or assume control (whether as agent for the secured party or for the company).

      (3) A presumption for which this section provides operates except so far as the contrary is proved for the purposes of the application.

    • #7209
      DebonAir
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      statutory minimum means:
      (a) if an amount greater than $2,000 is prescribed—the prescribed amount; or
      (b) otherwise—$2,000.

    • #7211
      DebonAir
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      459N Costs where company successful
      Where, on an application under section 459G, the Court sets aside the demand, it may order the person who served the demand to pay the company’s costs in relation to the application.

    • #7212
      DebonAir
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      Companies
      If the business is run by a company, you must make a claim against the company. For example, your claim would name the defendant as ‘FF Holdings Pty Ltd ACN 111 222 111 trading as Fantastic Florists’.

      You can do a free search for information on a company on the ASIC organisations and business names register. The free search will give you the locality of the company but not the full address. If you want the address you will need to pay for a more detailed search.

      You can do a paid search on the ASIC website. For more information on how to do this and the fees see the ASIC website on How to search ASIC registers.

      You can also use an information broker to get information. Contact details for information brokers are on the ASIC website.

    • #7213
      DebonAir
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      Form attached. This must have an affidavit attached.

      Sample of claim;

      SCHEDULE

      Description of the debt Amount of the debt

      1.     Invoice No.1, dated 20 November 2020, issued for administration services and compensation as per agreement plus monthly fees, total $6,002,025, and

      [your statement goes here] Debtor has disregarded notices sent on dates…. and was issued invoices for administration service. Debtor subsequently issued creditor notice to default on date…, creditor did not consent with rights retained, debtor continued to proceed with harm and injury caused to creditor knowing fees for harm would be issued if debtor proceeded. Invoices and statements have been issued to debtor monthly without the debtor ever responding in any manner up to the present time. Invoices have been sent by regular international mail and Notices sometimes by registered mail.

      DO NOT COPY THIS. IT IS INCOMPLETE. I would be writing the affidavit of facts laid out very simply point by point, each line in an affidavit is numbered. Keep sentences simple, eg.

      1. I was employed by BHP Pty Ltd ABN 999999 (the company)
      2. On date… notice of conditional acceptance sent to company, this included a fee schedule and notice of joinder fee for third party to joinder contract
      3. On date…the company responded but failed to answer questions in the notice
      4. on date… I sent a Notice of Default to the company
      5. on date… the company engaged the services of lawfirm …..(name)
      6. on date… I wrote to the company and the lawfirm to advise my non-consent to joinder until the fee to joinder, in the Notice of Conditional Accpetance, has been paid
      7. etc etc.
      Attachments:
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    • #7215
      DebonAir
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      This demand is sent to the debtor directly. Within 21 days you can expect their lawyer to write to you with a denial.

      As this would be about the joinder fee, I would be writing to the lawyer to demand they pay the joinder fee or bugger off.

      I would be writing to the company, not to engage in anything but a settlement offer.

      After this is not paid you make application to the supreme court for the company to be wound up.

      READ the Corporations Act about this.

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