By clicking “Accept”, you agree to the storing of cookies on your device to enhance site navigation, analyze site usage, and assist in our marketing efforts. View our Privacy Policyfor more information.
We create a bespoke document based on
your instructions.
A$
770
Create the document yourself with 30 mins help from a lawyer.
Create the document yourself with 30 mins help from a lawyer.
A$
770
Create the document yourself with 30 mins help from a lawyer.
Create the document yourself with 30 mins help from a lawyer.
A$
770
Lawyer Assisted is not yet available for this document.
Create the document yourself with 30 mins help from a lawyer.
Most Popular
Create the document instantly yourself by entering the key details.
A$
550
Most Popular
Create the document instantly yourself by entering the key details.
A$
550
Self Service is not yet available for this document.
550
Please turn your device to landscape mode to begin creating your document.
Please turn your device to landscape mode to begin creating your document.
Please turn your device to landscape mode to begin creating your document.
Please turn your device to landscape mode to begin creating your document.
1️⃣ For a single debt that the Debtor company does not dispute it owes to a creditor that is currently due and payable and which is at least AUD$4,000; or
2️⃣ For 2 or more debts that the Debtor company does not dispute it owes to a creditor or joint creditors that are currently due and payable and which in aggregate total at least AUD$4,000.
Please Note: If separate unrelated debt(s) are currently due and payable to separate creditors respectively, the debts cannot be joined together in a single Statutory Demand.
The low cost + strict 21-day timeframe, combined with the potential for a Debtor company being presumed insolvent, placed in liquidation + wound up are the major reasons why a Statutory Demand is so effective.
The ultimate result you obtain by serving a Statutory Demand depends upon the response (if any) from the Debtor Company as summarised below:
1️⃣ Prompt payment (+);
2️⃣ An offer to enter into a payment plan (+);
3️⃣ An application to the Court to set aside the Statutory Demand (within 21 days of receipt) forcing you to participate in further litigation claiming (-):
❌ A technical defect in the Statutory Demand which includes the Affidavit of Debt (if applicable);
❌ A genuine dispute regarding all or part of the debt;
❌ An amount is owed back to the Debtor company which offsets the amount claimed in the Statutory Demand to less than $4,000; +/or
❌ Acknowledging the debt but disputing the fact that it was due and payable when the Statutory Demand was served.
If the Debtor company is successful in having the Statutory Demand set aside, they could seek cost orders against you to pay for their legal costs which may be substantial (-).
If the Debtor company fails to respond in anyway, your only option to enforce the debt is to wind up the Debtor company which can be time-consuming + expensive with no guarantee that the ultimate result will be full or even part payment of the debt (-).
✅ Obtain legal advice + assistance prior to deciding whether to serve a Statutory Demand on a Debtor company.
Both our [Lawyer-Assisted] and [Full-Service] options include:
✅ The cost of the ASIC Search;
✅ Co-ordinate + confirming your correct execution of the Affidavit of Debt;
✅ Review the Statutory Demand for any potential technical defects;
✅ Effect service on the Debtor company using a local service agent at the Debtor company's registered office; and
✅ Procure the Affidavit of Service (if required) from the local service agent to assist with next steps, should the Debtor company not pay the Statutory Demand within the prescribed 21-day timeframe.
If the Debtor Company is not Australian, using a Statutory Demand will most likely not be the right document.
As an alternative, you can still proceed to send a Letter of Demand [First Attempt to Recover a Debt] internationally.
In the event the Debtor does not respond, or disputes the debt:
➲ Due to the complexity of international debt collection, we strongly recommend you contact our legal team before taking any further steps.
If the debt involves a progress claim under a building contract or sub-contract for the supply of goods or services in the building industry, then as an alternative to serving a Statutory Demand, you have the option to invoke the relevant state/territory Security of Payment Statutory Scheme.
Please read our FAQ: How can Security of Payment Legislation assist debt collection under a building contract or sub-contract?
Important: We recommend that before commencing this process, a paid current ASIC Search (min. cost $9) be conducted to confirm that the debtor company is not currently in administration/liquidation and to ascertain its current registered office address for service.
💡 Make sure you send the letter by express post and note the tracking number;
💡 Take photos of the front + back of the addressed envelope before it is posted;
💡 Log the post office tracking number in your records, and take a screen capture or photo of the delivery confirmation, or otherwise save a copy;
💡 Keep these records in case you need these as evidence of proof of delivery in a Court or Tribunal later.
If the Debtor responds to your reminders, polite calls or Letter of Demand claiming a dispute regarding the amount of the debt +/or the quality or otherwise of the service or product provided, then your next step is to consider whether the Debtor's claims have any merit and if so whether to attempt to commence Settlement Negotiation.
Please refer to our article: How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations.
Please read our FAQ: Why has it come to this? Root Cause Analysis: Letters of Demand/Statutory Demand for non-payment of debt
Enter the code WHen you pay full price to Purchase one of the following Self Service documents:
Re-Enter the code at checkout each time you buy the following documents to get a discount:
The Australian Competition & Consumer Commission (ACCC) & the Australian Securities & Investments Commission (ASIC) have published:
➲ Joint Debt Collection Guidelines.
Both the ACCC and ASIC enforce Commonwealth consumer protection laws, including laws relevant to debt collection.
The ACCC and ASIC have jointly produced this guideline which aims to assist creditors, collectors and debtors understand their rights and obligations, and ensure that debt collection activity is undertaken in a way that is consistent with consumer protection laws.
The guide was originally published in 2005 and has been updated to reflect significant changes to the law, such as the introduction of the Australian Consumer Law in 2011, the National Consumer Credit Protection Act 2009, and privacy laws and principles.
Source: ACCC Debt collection guideline for collectors & creditors
If the debt involves a progress claim under a building contract or sub-contract for the supply of goods or services in the building industry, then you will have the option to invoke the relevant state/territories Security of Payment Statutory Scheme.
Security of Payment refers to any system designed to ensure that contractors + sub-contractors in the building industry are paid even in case of dispute.
This can involve a system of progress payments, interim arbitration decisions, or a system which legally requires a company to pay an invoice within a set number of days, regardless of whether the company believes they are accurate.
Security of Payment legislation has been introduced by each Australian State and Territory to allow for the rapid determination of progress claims under building contracts or sub-contracts and contracts for the supply of goods or services in the building industry.
This process, which establishes adjudication as the primary dispute resolution mechanism, was designed to ensure cash flow to businesses in the construction industry, without the parties getting tied up in lengthy and expensive litigation or arbitration.
In addition to quick payment, the scheme also allows for Security of Payment to be provided in stages or payment schedule.
The relevant State/Territory Security of Payment Statutory Scheme can be invoked by including the following words of your invoice.
"This is a payment claim made pursuant to the Building and Construction Industry (Security of Payment) Act 2009 (ACT)”; or
"This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 NSW".
These Statements may vary depending in which State/Territory the Claim is made......".
These statements have not been a requirement in NSW since legislative amendments made in 2013.
✅ Secures Rapid Payment;
✅ Adjudication is Quicker + Less Expensive than Court;
❌ Potential for Power Imbalance;
❌ Confusion + Poor Understanding;
❌ Costliness of Dispute Resolution.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
The identity of the Debtor and their address for service (incl. email +/or fax) should already be clearly specified in the agreement, or provided by the Debtor as part of your standard business processes.
We also assume that the terms of your agreement will provide permission to serve notices via email or fax (if required).
You will need to consider whether you already know the actual identity of the Debtor/Defendant and their address for notices/Service.
The Debtor/Defendant may not be the person with whom you made the original agreement, or the person who actually published the defamatory statement.
The person you might consider is the Debtor/Defendant may have been acting/dealing as an agent or employee of another person, the actual owner/s of the business, a sole trader, partnership, unincorporated association, company, etc.
If you only have the name of the business, you can start by conducting a free ASIC business names index + business names holder organisation/person searches to determine the owner of the business name, followed by a paid ASIC search to determine a valid + current address for Service.
Before sending a Letter of Demand/Statutory Demand/Concerns Notice to a Debtor company, we strongly recommend you conduct a paid current ASIC Company Search (min. cost $9) to confirm that:
✅ The Debtor/Defendant company is not currently under administration/in liquidation; and to
✅ Ascertain the companies current registered office address for service.
If you have any questions regarding the above please contact our legal team to discuss.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.
Whilst you might think you are progressing the matter:
➲ This is generally a mistake!
Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.
This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.
It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.
When it comes to civil disputes we recommend you adopt the same position.
Our advice may be spot on when it comes to large $$ civil disputes.
When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.
Q: How then can you proceed?
A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.
Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?
We strongly recommend you obtain legal advice + assistance regarding:
✅ Determining whether the Debtor has the potential financial means to ultimately pay the debt + interest + legal costs should you be successful in your claim;
✅ If the Debtor is an individual, conducting a Bankruptcy Search;
✅ If the Debtor is a company, conducting a Bankruptcy Search;
✅ Determining whether the Debtor has been or is currently involved in other legal proceedings;
✅ The legal merits of your claim; and
✅ Ensuring you understand that it is extremely rare to recover your legal costs in litigation; and
✅ The inherent Litigation Risk of potential liability for the Debtor's legal costs in commencing legal proceedings in a Court, as opposed to a Tribunal;
✅ The cost + availability of litigation funding, +/or litigation insurance.
The requirements for valid + effective Service of a Filed Application or Statement of Claim vary depending on the relevant Court or Tribunal.
We strongly recommend you obtain legal advice + assistance regarding:
✅ The selection of the appropriate Court or Tribunal to bring suit; as well as
✅ The drafting of the required Application/Statement of Claim; and
✅ The compliant Service of same on the Debtor once legal proceedings have been filed.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.
ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.
Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.
“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.
“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.
The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.
“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
In order to reduce the need to send Letters of Demand/Statutory Demands in the future, it is worthwhile to conduct a root cause analysis which might include the following questions:
✅ Did you perform reference checks on the Debtor?
✅ Did you perform a credit check before extending credit?
✅ If you are dealing with a company, did you obtain a personal guarantee from the company directors to support the account?
✅ Does your written agreement include a term granting you the right to secure a charge against the Debtor's current +/or future real and/or personal property?
✅ Do you have a written agreement with the Debtor, which includes payment terms, address for service, and the capability to serve notices via email/fax?
✅ Did you engage a lawyer to prepare your written agreement with the debtor or your standard terms of trade?
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:
1️⃣ Proceed to obtain legal advice;
2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful
3️⃣ Proceed to take steps to enforce your legal rights without any further delay.
Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.
Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia
In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:
"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.
Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.
In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:
The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.
In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:
"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."
Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –
“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”
The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –
(i) delay with acquiescence, where prejudice to others need not be shown; and
(ii) more commonly, delay with prejudice to others.
However, in Fisher v Brooker Lord Neuberger said –
“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.
He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”
Trying the validity of the defence on equitable principles involves the balancing of equities.
In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –
“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.
The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”
And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –
“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.
If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
As of 1 January 2021, temporary legislative changes implemented due to COVID-19 ceased, and the following changes apply for individuals and companies:
⚖️ The minimum debt threshold for creditors to apply for a bankruptcy notice against an individual has reduced from the temporary amount of $20,000 to the new permanent amount of $10,000.
⚖️ The timeframe for a debtor to respond to a bankruptcy notice has reverted to 21 days. This means if a bankruptcy notice is issued on or after 1 January 2021, the debtor will have 21 days to respond.
⚖️ The period for temporary debt protection for debtors has reverted to 21 days.
⚖️ For more information, see the Australian Financial Security Authority.
⚖️ The minimum debt threshold for creditors to issue a statutory demand against a company has reverted to $2,000.
⚖️ The timeframe for a debtor to respond to a statutory demand has reverted to 21 days.
This means if a statutory demand is issued on or after 1 January 2021, the debtor will have 21 days to respond.
⚖️ For more information, see Insolvency reforms to support small business.
If you receive a bankruptcy notice or statutory demand, you should seek independent legal advice or contact a financial counsellor.
Source: ACCC Debt Collection Guideline for Collectors & Creditors.
Subscribe for FREE access to our growing list of [350+] personal and/or business legal documents.
View Pricing
Close
