Where a construction debt remains unpaid, how effective is a statutory demand followed by a winding-up petition as a means of recovering it?
A statutory demand and the threat of winding-up can prompt a reluctant debtor to pay. Against a genuinely disputed debt it fails, the petition can be restrained or dismissed, and its use can be treated as an abuse of process.
Only against a solvent but reluctant debtor, and not where the debt is genuinely disputed: a statutory demand can prompt a company to pay within twenty-one days, but where the debt is contested the company cannot set the demand aside and instead applies to restrain the winding-up petition, which the court treats as an abuse of process, while the eighteen-day set-aside belongs to personal bankruptcy, as the cross-claim in Shaw v MFP illustrates
Only against a solvent but reluctant debtor, and not where the debt is genuinely disputed. A statutory demand gives a company twenty-one days to pay a debt of more than 750 pounds, after which the creditor can present a winding-up petition. The petition, not any later order, is advertised in the official gazette at least seven working days before the hearing, and once it is presented and advertised the company's bank will usually freeze the account. The threat can make a solvent but reluctant company pay. Where the debt is genuinely disputed on substantial grounds the route fails, and here the company and individual positions differ: a company cannot set a statutory demand aside, but it can apply to restrain the creditor from presenting or advertising the petition, which the court will treat as an abuse of process if it is used to enforce a disputed debt. The eighteen-day set-aside of a statutory demand belongs to personal bankruptcy, not company winding-up. In Shaw v MFP Foundations and Pilings Ltd an individual debtor resisted bankruptcy on a statutory demand founded on an adjudicator's decision by showing a genuine cross-claim, adjudication being pay-now, argue-later, and the same logic protects a company facing a petition over a contested debt.
| How it works | Twenty-one days to pay a debt over 750 pounds, then a winding-up petition |
| Company route | No set-aside of the demand; apply to restrain the petition instead |
| Individual route | An individual has eighteen days to set the demand aside in bankruptcy |
| Genuine dispute | A disputed debt makes the petition an abuse of process |
| Shaw v MFP | A genuine cross-claim defeated a demand founded on an adjudicator's decision |
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