We all know it’s frustrating not being paid. What’s worse is that not getting paid affects your cash flow and chasing bad debts takes time that could otherwise be spent doing productive work.
If you decide that your best option for resolving the debt is to liquidate the debtor company, the process generally takes at least three months. There are a number of milestones along the way, which are outlined below.
Provided the debt is not disputed, the first step is to issue a statutory demand. The purpose of the statutory demand is to test the company’s solvency – the presumption being that, if the company is solvent and the debt is not in dispute, the company will pay the amount demanded in the statutory demand.
A company who receives a statutory demand has 10 working days from the date of service to apply to the High Court to set it aside, usually on the basis that the debt is disputed and/or the debtor company is solvent. If no setting aside application is made, the debtor company has 15 working days to pay the amount demanded in the statutory demand.
If the debtor company does not pay the amount demanded within the 15 working day timeframe, there is a legal presumption that the company is insolvent (which can be overcome if the company provides proof of solvency). The creditor can issue liquidation proceedings relying on the presumption of insolvency as the basis for its liquidation application for 30 working days from the date that the statutory demand expires.
When the liquidation proceedings are filed in the High Court, a hearing date is given. While the time between filing the application and the allocated hearing date can differ from Court to Court (if the Court is outside Auckland, Wellington, or Christchurch, the hearing date will need to coincide with the judges’ circuit sittings), the hearing date is usually between two and three months after the date of filing.
Once the processed documents are provided, they must be served on the defendant company. The application for liquidation also needs to be advertised in the paper where the company carries on business and the New Zealand Gazette. The advertising must be run at least five working days after the defendant company is served and at least five working days before the liquidation hearing date.
If the defendant company takes no steps in response to the liquidation application, the defendant company will be placed into liquidation by the High Court on the hearing date and the creditors’ nominated liquidators will be appointed. If the creditor does not produce a consent to act from its nominated liquidators at or before the hearing, the Official Assignee will be appointed as liquidator. If someone appears at the hearing on behalf of the company, the High Court can allow the proceeding to be adjourned (usually to allow time for settlement discussions or for payment of the debt to be made).
Creditors other than the creditor who brought the liquidation proceedings can appear at the liquidation hearing as either a creditor in support or in opposition to the liquidation application. If you are a creditor in support and the creditor who brought the liquidation proceedings decides to discontinue its proceeding (usually because some arrangement as to payment has been made), you can ask to be substituted as plaintiff. A substituted plaintiff can continue with the previous creditor’s liquidation application instead of having to start a new liquidation application and preserves the filing date of the application, which is used for calculating time periods for voidable, undervalue, and related party transactions.
If you are a creditor and want to discuss the liquidation process further, give our team a call on 09 303 0506. McDonald Vague’s directors are Accredited Insolvency Practitioners (AIPs) and Chartered Accountants. We also have three non-director AIPs and our professional staff are members of RITANZ.
If you want more information on what to consider when choosing an insolvency practitioner, Keaton has written a helpful article: Picking an Insolvency Practitioner.
Statutory demands - minimising bad debts is critical for any business
Debt collection is difficult for business owners. Pursuing bad debts early on improves any chance of receiving payment. A creditor that puts the most pressure on a debtor will most likely receive their money before others; however, they need to be conscious of the voidable transaction regime when they are dealing with an insolvent company.
If you are owed a debt and that debt is not in dispute and you suspect the company you have been trading with may be insolvent, you can issue a statutory demand against the company. Depending on your terms of trade, a statutory demand will require the debtor to pay you the outstanding debt, interest on the debt, and the legal costs for issuing the statutory demand. The purpose of a statutory demand is to determine whether the creditor can pay and not that they are liable to pay.
The statutory demand process provides a quick procedure for ensuring payment, or for at least achieving some knowledge on whether payment is possible. This process is intended to be a first step in making an application to put a company into liquidation when a company genuinely cannot pay.
It is important to get the process right and it is advisable to instruct a lawyer who has ethical obligations to ensure the correct steps are taken rather than issuing the demand yourself or a debt collection agency taking responsibility. It is however an abuse of process if the statutory demand option is taken when there is no prospect of the company being placed into liquidation.
The cost of issuing a statutory demand should not be taken lightly. If there is a substantial dispute and the creditor is successful in its challenge, Court costs will be awarded against the creditor. If a creditor gets this process wrong, not only are they out of pocket for additional costs but months may have passed and they are no closer to collecting the debt.
Sections 289 to 291 of the Companies Act 1993 deal with statutory demands.
Before serving a statutory demand it is sensible to ensure that the debt is not in dispute. Sending a formal demand so any dispute can be raised will give you an opportunity to settle the debt without any further action being taken. If, however, the debt is disputed you can file proceedings at the District or High Court and seek judgement on the claim.
Step 1 - Serve a statutory demand for the debt
The demand must be in writing and should be served on the debtor company's registered office. The demand must require the company to pay the debt or to secure the debt or to settle it in some way. If the debtor does not pay the amount claimed within 15 working days, you can apply to put the company into liquidation. This is a powerful tool as it is quite likely the debtor will go to lengths to ensure that other creditors are not aware of liquidation proceedings pending or in progress. The company has 15 working days after being served to comply with the notice.
The statutory demand must specify exactly what amount is owed (and it must be over $1,000). The document specifies when the sum must be paid and provides the alternatives to full payment such as to enter into a compromise (Part XIV of the Companies Act 1993), or otherwise compound, or give a charge over property to secure payment of the debt to the reasonable satisfaction of the debtor, all within 15 working days of the date of service of the demand, or such longer period if the High Court order.
Once a statutory demand is served on the debtor company, the debtor has 10 working days to dispute the debt by filing an application to set aside the demand or pay the debt within 15 working days.
Step 2 - Applying to the Court to place the debtor into liquidation
In the event the debt is neither disputed nor paid, then, on the expiry of 15 working days the debtor is deemed to be insolvent and the creditor can apply to the Court to place the debtor into liquidation. The onus is then on the debtor to satisfy the Court that it is solvent. If the company is unable to pay then a liquidation with a Court appointed liquidator will follow, or, the shareholders within 10 working days of being served have an ability to appoint a liquidator by a shareholder resolution.
A liquidation application can only be issued by certain persons and the order for the appointment can only be made on grounds specified in section 241(4) of the Companies Act 1993. The decision on whether the company is placed into liquidation is at the Court's discretion. The Court may only put a company into liquidation by the appointment of a liquidator if the Court is satisfied that the company is unable to pay its debts, or the company, or the board of the company, has persistently or seriously failed to comply with the Companies Act 1993, or the company does not comply with section 10 (essential requirements), or it is just and equitable that the company be put into liquidation.
The alternatives to paying a statutory demand in full
Compounding means "coming to an agreement with a creditor". The most usual form of compounding is an acceptable offer of payment by instalments. It can also be an offer of a deferred payment or a request to defer filing of a winding up proceedings.
Company Compromise (Part XIV Companies Act 1993) is an agreement between the company and various classes of creditors that give the company an opportunity to survive by avoiding liquidation and trading out of financial difficulty. In order to reach a compromise a majority in number representing 75% in value of each class of creditor voting in favour of such a resolution is required (at a meeting of creditors). Once agreement is reached, all debts are frozen and no creditor can take action against the company during the term of the compromise. The outcome could be creditors are repaid either in full or in part and over time. It is specifically a good option if the business is solid and is in financial difficulty but customers and suppliers are prepared to provide support. Find out more about Company Compromises.
Another remedy upon receiving a statutory demand is to reach a full and final settlement. However, it is always important to bear in mind voidable transactions when dealing with an insolvent company. A payment from a third party or the director or a personal guarantee are wise.
How to serve a statutory demand
A statutory demand to qualify as being served on the company either must be delivered to a person named as a director on the New Zealand Companies register, to an employee of the company at the company's head office or principal place of business, be left at the company's registered office or address of service, and in accordance with directions as to service by the Court, or in accordance with any agreement made with the company. It is recommended that the document is served by a document server. The service of a statutory demand by facsimile cannot be relied upon.
Disputing a statutory demand
If a debtor can show that a defence or a counter claim or a set-off equal to the amount claimed in the demand exists, not only will a demand be set aside but the aggrieved creditor will be ordered to pay the debtor's costs and will be no closer to collecting the debt.
A Court may set aside a statutory demand if the application is made within 10 working days of the date of service of the demand and the application was served on the creditor within 10 working days of the date of service of the demand. The Court may grant an application to set aside the statutory demand if it is satisfied that there is a substantial dispute, whether or not the debt is owing or is due, or the company appears to have a counter claim, set-off, or cross demand and the amount specified in the demand, less the amount of the counter claim, set-off or cross demand is less than the prescribed amount or the demand not to be set aside on other grounds.
A demand will not be set aside by reason only of a defect or irregulatory unless the Court considers that substantial and injustice would be caused if it were not set aside. Under section 291 of the Companies Act 1993, if a Court is satisfied that there is a debt due by the company to the creditor that is not subject to a substantial dispute, or is not subject to a counter claim, or set off, or cross demand, the Court may order the company to pay the debt within a specified period and that in default of payment, the creditor may make an application to put the company into liquidation, or dismiss the application and make an order putting the company into liquidation on the grounds that the company is unable to pay its debts.
The service of a statutory demand process can give great leverage to get paid quickly, however if a debt is disputed or the company that owes the money is not in financial difficulty the process is used at your own peril.
A statutory demand is a claim under Section 289 of the Companies Act 1993. If you or a client receive a statutory demand you are required to pay the specified sum, enter into a compromise or give charge over property to secure payment of the debt to the reasonable satisfaction of the creditor within 15 working days of the date of service, or such longer period as the Court may order.
The service and non-compliance of a statutory demand allows the creditor who served the statutory demand to apply to the Court for the appointment of a liquidator. Failure to comply with the statutory demand within 15 working days of service will result in a statutory presumption that the company is insolvent. Liquidation will likely follow.
If you want to apply to set aside the statutory demand, you must file the application in the High Court and serve a copy of the application on the creditor within 10 working days of the statutory demand being served on the company. The Court may grant an application to set aside a statutory demand if it is satisfied that:
If the application to set aside the statutory demand is rejected by the Court, that is,"the Court is satisfied that there is a debt due by the company to the creditor that is not the subject of a substantial dispute, or is not subject to a counterclaim, set-off, or cross-demand, the Court may (a) order the company to pay the debt within a specified period and that, in default of payment, the creditor may make an application to put the company into liquidation; or (b) dismiss the application and forthwith make an order undersection 241(4)putting the company into liquidation, on the ground that the company is unable to pay its debts(Section 291(1))".
Following the expiry of 15 working days from date of service of the statutory demand, the applicant creditor may issue proceedings in the High Court to wind up the company. These proceedings, are issued under Section 241(2)(c).
Applications may be brought on a number of grounds, the most important being that the company is unable to pay its debts. There are a number of factors that the Court will take into account when deciding whether or not to make a liquidation order. The Court has a discretion as to whether or not to make the order, but generally make the order if the company is insolvent.
The notice of winding up application must include the winding up notice, a supporting affidavit, a statement of claim and notice of proceeding and the documents must be filed within 30 working days of the statutory demand expiring unremedied, (ie. 45 working days after service). A date of hearing is allocated and documents must be served at least 15 working days before the date of hearing. Advertisements must be placed in a daily newspaper in the area and in the New Zealand Gazette at least five working days before the hearing but cannot be placed until at least five working days after service.
It is not surprising that if a debtor is going to pay the debt before the hearing, they will usually try to do so before the creditor advertises the application.
The cost of a winding up application, including the service fee of the statutory demand, preparation and filing a winding up application, the service fee of the winding up application, advertising, a solicitor's appearance fee and cost of the filing of a winding up order. We often consent to act on Court appointed liquidations. The applicant creditor's Court costs and disbursement are preferential in the liquidation under the Seventh Schedule of the Act. These tend to be around $4,500.
Once a liquidator is appointed, the liquidator will represent the interests of all creditors and seek to collect and realise the company assets, discharge liabilities and distribute any funds in accordance with the provisions of the Companies Act 1993 and Personal Property Securities Act 1999. The liquidator appointed is usually determined by the creditor. A consent to act must be obtained prior to the Court hearing.
A statutory demand should not be used where the debt is subject to a dispute. Where there is a dispute, other legal action should be taken. This is either through the District Court (if debt within the District Court jurisdiction $350,000) or Disputes Tribunal (if debt is less than $15,000).
If you or a client are facing the threat of a winding up notice, or are considering a voluntary liquidation, please contact our office to assist you/your client. If you are the creditor and have commenced winding up proceedings we would be very pleased to consent to act on the appointment.
This article is intended to provide general information and should not be construed as advice of any kind. Parties who require clarification on issues raised in this article should take their own advice.