Recovering Your Debts In Uncertain Times
During COVID-19 it may be difficult for businesses and individuals to pay their debts as they fall due. While the Government has provided economic relief for financially distressed businesses and individuals, a creditor may need to streamline and adapt their debt recovery processes.
Creditor’s Statutory Demand for Corporate Debtors
Under the Corporations Act 2001 (Cth) the usual amount required to issue a statutory demand is $2,000. However, the Government has significantly increased this amount by passing the Coronavirus Economic Response Package Omnibus Bill 2020 (Cth) (Bill). The new threshold of $20,000 applies to all statutory demands issued within the 6 month period of 25 March 2020 to 25 September 2020. It is important to note that the increased threshold does not take into account when the debt became due. This means that the new threshold applies regardless of whether the debt became due and payable months before COVID-19.
If the debt exceeds the threshold, a statutory demand can be prepared and served on the debtor. However, the debtor will not be limited to the usual 21 days to respond. Instead, the debtor will have 6 months to respond to the statutory demand before an application to wind-up the company can be made. While this is beneficial to the debtor who is suffering financial hardship, it puts a strain on the creditor being able to recoup their debts and manage their cashflow.
Bankruptcy for Individual Debtors
Similar to the changes for statutory demands, the threshold for issuing a bankruptcy notice under the Bankruptcy Act 1966 (Cth) has increased under the Bill. The new threshold is $20,000 as opposed to the previous amount of $5,000. The time for a debtor to respond to a bankruptcy notice has also been increased from 21 days to 6 months.
While these increases are significant, they are not as detrimental to creditors as the increases in statutory demands. The reason being is that a statutory demand does not require a Court judgment to have been issued in favour of the creditor. This is opposed to the rules regarding bankruptcy notices which mandate that a Court order must be the basis upon which a bankruptcy notice is issued. The difference in these processes means that the changes under the Bill make statutory demands unable to be used as a quick pre-litigation tool to apply pressure to force quick payment.
How to Best Collect Debts
Given the temporary changes to statutory demands and bankruptcy notices, creditors may not know where to turn to recover their debts.
Our suggestions are to:
- Follow your internal debt collection processes of following up debtors with a telephone call and/or letter. This will hopefully result in payment without having to incur legal fees;
- Issue legal proceedings immediately: this will avoid the delays of the new statutory demand and bankruptcy rules;
- If you are successful in obtaining a Court judgment, consider enforcing the judgment through a seizure and sale of property or if the debtor is an individual who is employed, garnish their wages;
- Consider entering into a payment plan, if your cashflow permits. Any payment plan should be in the form of a Deed (prepared by a lawyer) and allow you to claim interest and legal costs if the debtor defaults on payment. Some other clauses could include that the whole debt will become payable on default of one instalment or that the director (if the debtor is a company) provide a personal guarantee;
- If you also owe money to the debtor, consider whether the debts can be off-set;
- If the debt is part of a larger contract, look at suspending your goods/services or terminating the contract early.
If you need assistance recouping a debt or discussing your options, contact a member of the Taurus Legal Management team on (03) 9481 2000.