Publications - Commercial & property

Legal Weapons Cut Both Ways

Last week I wrote about the relatively peaceful and productive world of property. This week I will look at the decidedly unpeaceful and often destructive world of legal disputes.

Be aware the legal armoury is a many-weaponed place. And in selecting your weapon, you want to make sure you don’t look like the guy who came up against Crocodile Dundee in the knife scene.

But in almost every case you will be selecting a two-edged sword.

One such example is a thing called a statutory demand. This is a formal notice that you can serve on a company that owes you money (it has to be at least $2,000). The company has 21 days to pay you the money or it is deemed to be insolvent UNLESS it makes an application to the court to set aside the demand – usually within that 21 day period.

But like every good two-edged sword, a statutory demand can cut both ways.

If there is actually a “genuine dispute” about the money owed, or the strict procedural requirements of the Corporations Act are not complied with, the court can set aside the demand. If it does so, the court will often order the party that issued the demand to pay the costs of the company against which the demand was issued.

This can be a very unpleasant experience.

Many lawyers love statutory demands. Okay, love may be too strong a term, but it is certainly a weapon often selected by lawyers when there is a claim for money owed by a company.

I agree that a statutory demand is a very powerful device. And it does work in the right circumstances. But if rolled out when the conditions are not conducive to it, or with limited preparation, then the scales of justice can easily fall against you. 

Sean Kelly is a Director at Kelly Legal and can be contacted on sean.kelly@kellylegal.com.au or at www.kellylegal.com.au

Sean’s articles can be accessed on the Daily Mercury website at http://www.dailymercury.com.au/ or you can find Sean’s column “Mind Your Own Business” in APN newspapers each Wednesday.

 

Publications

Send us an Enquiry

Testimonials

My husband and myself recently purchased a block of land at Habana and we decided to use the Team at Kelly Legal. We had the up most professionalism and the contact between us and the Kelly legal team…

— KF, Ooralea

View more testimonials »

When I needed a solicitor quickly, Elspeth’s name was recommended quite a few times from family and friends. My matter was a very stressful and because I had cancer in 2008-2009 I was worried…

— Robert, Rural View

View more testimonials »

This was our first property transaction in 48 years. Debbie always returned our phone calls straight away. She was kind to us and helped us understand what was going on and took the time to explain…

— MS & AS, Mount Pleasant

View more testimonials »

Jane's letters that she sent to others on my behalf were brilliantly written.  She always explained everything to me in down to earth terms.  Jane is very intelligent and understanding and…

— JW, Glenwood

View more testimonials »

I found Elspeth to be kind and compassionate, but professional at the same time.

— KA, North Mackay

View more testimonials »

Elspeth told us what our rights were and what we were entitled to, and she was spot on.

— SD & SD, Belgian Gardens

View more testimonials »

I was able to see an experienced lawyer the next day without going on a waiting list.

— CF, Eimeo

View more testimonials »

Individual liability limited by a scheme approved under professional standards legislation