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Understanding Phantom Share Option Plans
Phantom Share Plans (PSS), also known as shadow equity plans or phantom stock plans, are designed to replicate the benefits of share ownership without granting actual equity to employees. it
A statutory demand is a demand for payment of money and is given the force of law. If a company fails to pay or set aside a statutory demand within 21 days, the company is presumed to be insolvent.
Failure to comply with a statutory demand is the most common reason why Australian companies are placed into liquidation and a good reason you should engage with an online lawyer.
Under the Corporations Act 2001 (Cth), a company is presumed to be insolvent in certain circumstances. One of those circumstances is where the company fails to pay the amount of money demanded in a statutory demand or, alternatively, fails to set the statutory demand aside within the relevant period, which is 21 days.
When an application is made to wind up a company, it’s up to the court to determine whether the company is actually insolvent. The Corporations Act 2001 (Cth) defines ‘insolvency’ as being unable to pay one’s debts when and as they become due and payable (section 95A).
Failure to comply with a statutory demand is an indicator that a company is unable to pay its debts as and when they become due.
In The Best Legal Guide to Statutory Demands in Australia, I’m going to provide you with detailed information from the perspective of:
You’ll be able to use this Guide as a one-stop-shop, without the need to jump across multiple websites for the information you need.
If you want to skip ahead to a particular section, click on the links below:
Author: Farrah Motley, a commercial lawyer with experience in writing international supply agreements and helping Australian business to reduce legal risk.
Firstly, let’s take a look at what a statutory demand is.
At the end of the day, a statutory demand looks like any other ‘legal’ document. But it is more than that. What makes a statutory demand a very powerful debt recovery tool is that it is given the force of law.
A statutory demand is a demand made to a company by a creditor under section 459E of the Corporations Act. A statutory demand can be made by someone who is owed amount(s) of money, provided that the total of all amounts owed is at least the minimum amount mandated by law.
Currently, this amount is $2,000. Until 1 January 2021, during the height of the COVID-19 pandemic, this amount was temporarily increased to $20,000 but has now been reduced back down to $2,000.
What to do if you want to Send a Statutory Demand
If you want to send a statutory demand, the first thing you should do is think about the debt itself, the amount and the reason the money is owed. And remember, sending a statutory demand is not the only way to recover a debt owed to you.
Aside from being at least $2,000, the amount(s) must also be due and payable. This means that you can’t issue a statutory demand if the debt is:
That is, the company that you want to send a statutory demand to must be able to precisely determine the dollar amount that is being demanded from them. If the statutory demand refers to debt by referring to anything other than a specific dollar amount, it may not hold up in court.
If you have a number of debts owed by the same company, you can choose to issue multiple statutory demands, but it’s easier if you just issue one demand that specifies the total amount that is owed.
Under the Corporations Act, a statutory demand must:
There are two ways a statutory demand can be ‘supported’:
A statutory demand can be served by posting it or leaving it at the company’s registered office (this might not be the same as the business address and can be ascertained by obtaining a company search) or by delivering it in-person to a director of the company who lives in Australia.
You should provide the original copy of the statutory demand because providing a copy has been held to be insufficient.
Why would anyone want to deliver a statutory demand in person?
Firstly, it can be an opportunity to show you mean business (outside of the document itself), but also it may be the only path to take if the company has moved and the new registered address is unknown.
If a statutory demand needs to be served on a person or company located interstate, the Service and Execution of Process Act applies. This Act provides guidance for interstate service.
Importantly, if a statutory demand is issued to a debtor company in a particular State or Territory, the address of the place specified for payment (in order to comply with the statutory demand) must be in that same State or Territory.
The short answer is yes. The long answer is also yes, but you need to strictly comply with all of the legislative requirements. To ensure a statutory demand is effective, you should seek online legal advice.
If a debtor company is successful in setting aside a statutory demand, it may be entitled to recover its legal costs associated with the application to set aside. And (eek!) the potential costs of orders can be significant.
The next roadblock to an effective statutory demand is the risk of a debtor company not being able to repay the debt. This risk can be addressed at the outset by undertaking property and asset searches to determine if there is any possible collateral to secure payment of the debt.
A winding-up application is also still open to challenge by the debtor company on the basis that the company is solvent. And if a person uses a statutory demand, the only enforcement option is winding up proceedings.
If the debt is unsecured and the debtor company has a lot of debts, you may receive very little, if anything, once the winding-up procedure is complete.
If a judgment has not been obtained against a debtor company, then it is easier for a debtor to set aside a demand on the basis that there is a ‘genuine dispute’. When the Court is considering this, it looks at whether there is a ‘serious question to be tried’. This has the effect of lowering the bar for the debtor company.
If you become aware that a statutory demand that you have sent is defective in some way, it is usually recommended that you withdraw the statutory demand.
This should be done within 21 days of when the statutory demand has been served.
It’s important that if you are going to withdraw the statutory demand, you do it quickly. This is because if you withdraw a statutory demand after the debtor has applied to have it set aside, you might be responsible to pay the debtor’s legal costs.
You can speed up this process by engaging a lawyer that can provide online legal advice.
Firstly, don’t panic. Statutory demands are notoriously susceptible to being set aside. But you need to make sure you act quickly.
If a company receives a statutory demand, it has 21 days from service of the demand to either:
An application under s459G of the Corporations Act to set aside a statutory demand must be filed with the Court and served on the person who issued the statutory demand within 21 days after service.
The 21-day period is absolute. The courts cannot agree to extend the time period or waive these requirements.
A company can apply for an order to set aside (i.e. apply to the court to rule that the statutory demand is unenforceable and invalid) if either:
Let’s take a look at what makes a statutory demand ‘defective’.
The (it’s ‘the’ because it’s only the Federal Court of Australia that can hear matters relating to statutory demands) Court is only required to set aside a statutory demand where it is defective where it is satisfied that if it does not set the statutory demand aside it will cause a substantial injustice (Section 459J(2)).
A ‘defect’ includes:
A statutory demand does not contain a defect simply because the company disputes the amount(s) demanded.
This takes us to the second point – genuine dispute.
A statutory demand can be challenged on the basis that there is a genuine dispute about the amount(s) demanded.
A company may dispute that they owe the amount at all (i.e. that it is not ‘due and payable’). The onus is on the creditor to show evidence that the claim is genuine.
The Court must calculate the ‘substantiated amount’ when deciding whether to set aside a statutory demand. The court must set aside a statutory demand where the substantiated amount is less than the statutory minimum ($a2,000).
Even if the substantiated amount is more than $2,000, the Court has the discretion to vary the statutory demand. If the statutory demand is varied to reduce the debt claimed, the company then has a further 7 days to pay the amount.
A debtor may also claim that it has a right to set off the debt against amounts owed to it by the creditor that issued the statutory demand. In this case, the debtor company acknowledges that the amount is genuinely owed, but raises a counterclaim.
No matter which ground is used as a basis to challenge the validity of the statutory demand, the debtor company must support the ground with an affidavit.
You can get help preparing an affidavit by getting some online legal advice.
If a company fails to comply with a statutory demand within 21 days, the company is presumed insolvent under the Corporations Act. Within three months of the date of non-compliance (i.e. the day after the expiry of the 21-day period), the person who issued the statutory demand may rely on the presumption of insolvency to make an application to the Court for orders to wind up the company.
The presumption means that the Court must presume (unless there is evidence to the contrary) that the company is insolvent and should be wound up.
Before making an application to wind up, it’s important to check that the debtor company in fact failed to comply with the statutory demand. Otherwise, the Court may dismiss the application.
Hopefully, after reading this article, it’s apparent how challenging and complex statutory demands can be. One wrong step and they are not worth the paper they are written on.
It’s really important for businesses to seek legal advice before serving a statutory demand. A business lawyer will be able to sense-check the commerciality of issuing the demand and assess whether it’s the best path forward for your business.
Prosper Law can help you develop strategies to prevent bad debts, recover money that is owing to your business and issue letters of demand or statutory demands.
If your business needs online legal advice regarding debt recovery or issuing a statutory demand, contact Prosper Law today!
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Farrah Motley | Director
PROSPER LAW – Australia’s Online Law Firm
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