A statutory demand is a written notice demanding payment of a debt owed by a company or an individual to a creditor. If a statutory demand has been issued, this indicates that the creditor intends to present a winding up petition to the business if the debt is not paid or in the case of an individual a bankruptcy petition.
If your company is struggling to pay its creditors, then it is extremely important to be aware of the implications of receiving a statutory demand which can be very serious. A court will assume that any company served with notice who does not pay their debts in three weeks is therefore unable to pay their debts. On that basis they will assume insolvency and have the power to wind up the business.
There are strict rules surrounding how a statutory demand must be served on a debtor. Where it is for an individual, the creditor must take all reasonable steps to deliver the notice by hand. In the case of the debtor being a company the demand must be served at the registered office of the business. If this is not done, then the demand may be invalid and unenforceable.
If you have received a statutory demand, you have three weeks in which to respond to it. There are basically four options depending on your business' circumstances:
- Pay the amount owed in full. Once the creditor receives payment, the matter will be settled and the demand dropped.
- Speak to the creditor you owe money to and come to an agreement to repay the debt over a sensible time period. A court will generally take a dim view if a creditor is simply using a statutory demand as a method of debt collection. You may be able to get the court to rule in your favour if you believe that you are making a reasonable offer to repay the debt over a longer period and the creditor is unwilling to agree to it.
- Present a counter claim to the court to argue why you believe that the debt claimed by the creditor is not valid. If this claim is upheld by the court, the statutory demand will be extinguished and the creditor will not be able to take further action against your company.
- You can choose to effectively ignore the demand and not pay. If the demand is valid but no payment agreement is reached after a three week period, the creditor is entitled to present a winding up (bankruptcy) petition against your business which is likely to be upheld by the court. This will have serious implications. On receipt of a winding up petition, your company bank account will be frozen. Then, if the petition is not withdrawn, the business will be closed.
You should note that the court views the service of a statutory demand as the first step towards declaring a company or individual insolvent. It therefore follows, if you have received a statutory demand but cannot reach a payment agreement, the court may allow your creditor to proceed with issuing a winding up petition to wind up your company. However, any creditor would be foolish to issue a statutory demand unless they have tried and failed to collect their debt through normal collection procedures. If a creditor has not been reasonable in negotiating repayment terms or there is a genuine dispute over the validity of the debt or a counter claim could overturn it, then the court will very often throw out the statutory demand.
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Derek Cooper is Managing Director of
Cooper Matthews Limited and a member of the Turnaround Management Association UK.
Find out more about the implications at
http://coopermatthews.com/winding-up-petition.html
Cooper Matthews have significant experience in working with small to medium sized businesses to turn your business around.
