Statutory demand (s 459E) preparation
A statutory demand is a powerful but narrow tool. Defects in the demand give the debtor easy grounds to set it aside. This checklist walks through the steps.
This is a 12-step checklist for preparing a statutory demand under the Corporations Act. It covers amount, form, affidavit, service and follow up.
The checklist
Confirm the debt is a statutory demand debt
Debt must be due and payable, and for an amount of at least the statutory minimum.
Confirm no genuine dispute
A statutory demand is inappropriate if there is a genuine dispute or offsetting claim.
Confirm the correct creditor and debtor
Identify the correct legal entity for both creditor and debtor.
Complete Form 509H
Complete the demand in Form 509H with correct amounts and particulars.
Prepare supporting affidavit if required
A supporting affidavit is required unless the debt is a judgment debt.
Identify the registered office
Identify the company's registered office for service.
Serve on the registered office
Serve the demand at the registered office by post or personal service.
Diary the 21-day period
Diary the 21-day compliance period — extensions are not available from the creditor.
Monitor for application to set aside
An application to set aside must be filed and served within 21 days. Monitor the court file.
Respond to set aside application
If a set aside application is filed, prepare a response on the merits.
Presumption of insolvency
Non-compliance triggers a presumption of insolvency for 3 months.
Prepare winding up application
If the demand is not complied with, prepare a winding up application.
When this checklist applies
Use this checklist when a corporate debtor has an undisputed debt and winding up is a realistic next step.
Common pitfalls
- Serving a demand where there is a genuine dispute
- Defective Form 509H
- Supporting affidavit missing or inadequate
- Service on the wrong address
- Missing the 3-month window for winding up
Run this checklist on a real matter
Quillio drafts statutory demands, supporting affidavits and winding up applications in current Australian format. See /practice-areas/commercial-lawyers.
This checklist is a general guide. Adapt for foreign corporations and trustee companies.
Use this checklist on your matter.
Quillio can run this checklist on a specific NSW conveyancing matter — confirm each item, calculate adjustments, and generate the supporting documents. The free trial requires no credit card.
Start your free trial