A Creditor’s Statutory Demand (or commonly referred to as a CSD) is a technical letter of demand. It is issued per section 459E of the Corporations Act 2001 (Cth) against corporate entities where the issuing creditor has good reason to believe that there is no dispute in relation to the debt owed.
A CSD can be either supported by a Judgment of a court or an Affidavit and the demand must meet the statutory minimum amount of $4,000.00.
The CSD provides a notice period of 21 days in which the debtor company must act. There are strict rules about service and the calculation from the date on which the CSD is delivered. If no action is taken within those 21 days, a presumption of insolvency automatically arises.
This acts as a short cut and for a strict period of 3 months can be used by either the issuing creditor or any other creditor who becomes aware of an expired CSD.
A presumption of insolvency means a company is presumed to not be in a position to pay its debt as and when they fall due. This then supports a creditor making an application to the Court to wind the company up and appoint a liquidator.
A liquidator has extensive powers to enable him/her to realise (recover or sell) the company’s assets and to also ask tricky questions of the directors such as: Where did all the money go? Monies realised are then disbursed between all known unsecured creditors.
If a company owes you a debt equal to or greater than $4,000.00, use of a CSD may be suitable. It is not an everyday debt collection tool, but when used properly it can be highly effective.
Has your company been served with a Creditor’s Statutory Demand? Find out what you need to urgently do by reading EL's Knowledge Centre article
If you need to discuss your company's debt recovery options, get started by making an appointment with EL's Principal Legal Advisor - Disputes, Kirsten Woolston:
☎️ | (07) 4646 2621✉️ | Submit an Online Request
If you have received a Creditor’s Statutory demand DO NOT DELAY! It is essential that you act and immediately seek legal advice.
The 21-day time limit is very strict and time starts ticking from the moment of delivery to your registered office. This may mean that you already do not have the full 21 days and your options decrease in proportion to the amount of time you have left.
The first step will be to ascertain WHEN exactly the Creditor’s Statutory Demand was served upon your Company’s registered office. A date stamped on the received envelope can be useful. Otherwise, if it was posted to your street address, please keep the envelope as it may be possible to utilize the Australia Post tracking number to ascertain the delivery date.
It might. The 21-day time frame is strict and cannot be extended. At the expiration of the 21-day time frame a ‘presumption of insolvency’ automatically arises and the presumption exists for 3 months. This presumption can expose your company to an application to the Court for an order that the Company be wound up and a liquidator appointed. Besides losing control over your company and its bank accounts, assets, existing business networks and good will, this can also have adverse consequences on you personally as a director.
a) Call your Enterprise Legal advisor as soon as possible. We will ascertain whether:
i. the Demand is technically compliant with the legislation; ii. the Demand was properly served; and iii. the debt is disputed.
b) Depending on those results, most options include:
i. Pay the demand in full and satisfy the debt; ii. Instructing Enterprise Legal to write that the debt is disputed and include available evidence in support, note any technical failings and demand that the Creditor’s Statutory Demand be withdrawn; or iii. File and serve a Supreme Court application to have the Creditor’s Statutory Demand set aside.
All 3 of the available options MUST occur within the 21-day period, otherwise your company will be statutorily presumed insolvent. There is an exponential increase in costs to save your company after the 21-day deadline has passed. Have you been served with a Creditor's Statutory Demand?Front-foot it by making an appointment with EL's Principal Legal Advisor - Disputes, Kirsten Woolston to discuss your options: