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Take stat demands seriously

Barry has suffered a workplace injury, but his life insurance company (“MPA”) won’t pay out on his Total Permanent Disability (“TPD”) claim. Frustrated and upset, he issues a statutory demand (“SD”). The statutory demand describes his claim on the basis that the CEO of MPA failed to answer the “Common Law Commercial Lien in Tort” (“CLCLT”) within 30 days…

Supporting affidavit’s are paramount

When attempting to set aside a statutory demand (“SD”), please don’t forget to actually ‘file’ the supporting affidavit with the court registry, as a law firm recently found out the hard way. On 18 April 2018, Irwin Homes’ lawyers applied to court to set aside the SD. The 21 day period was to end on…

Setting aside a court wind-up with the UCPR

A director, last week, successfully set-aside a court-ordered liquidation using the Uniform Civil Procedure Rules (NSW) (“UCPR”), rather than the Corporations Act (Cth) (“CA”). The director argued that the wind-up should be set aside under Rule 36.16(2)(b) of the UCPR, because: (1) he thought he had changed the company’s registered address to his current accountant;…

48 cents below

“The statutory demand is set aside, and, on condition that the creditor commences fresh proceedings within 28 days to recover their outstanding debt, the debtor company must pay $2,000 into court.” This was the finding of a recent NSW Supreme Court (“SC”) case (called Wabbits). Two things to note: 1) In the last 2 months, there is an…

Creditors, be careful with post-judgment interest

James issued an invalid statutory demand on a customer, following a recent successful judgment in the NSW District Court. He claims $100k for unpaid debts, plus interest until the date of judgment of $10k, and also a further $5k for post-judgment interest. James reckons he can claim all of this because his terms and conditions say that his company may…

How not to set aside a statutory demand

Counsel: “I seek orders to adjourn the wind-up hearing.” Judge: “On what grounds?” C: “I am instructed that the half year 2017 audit report won’t be ready until March 2018.” C: “Oh and my instructing solicitor signed an affidavit stating the reports will establish solvency.”  J: “It’s January. The parties agreed to the proceedings timetable in December. Why was this…

Why wait 21 days?

If you issue a statutory demand on a company, it is generally advisable to wait the 21 day time period before applying to wind-up a company. But what if you don’t? This is what happened, due to a miscalculation by a solicitor, in the recent case of Re DG Haulage Pty Ltd [2017] VSC 780.…