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Costly consequences

21 May 2015 / Elaine Palser
Issue: 7653 / Categories: Features , Procedure & practice , Costs
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Who bears the costs of statutory demands, asks Elaine Palser

This article considers the cost consequences following service of a statutory demand in two scenarios:

  1. X serves a statutory demand on Y (an individual). Y applies to set aside the statutory demand. Upon seeing the application and evidence in support, X withdraws the statutory demand.
  2. X serves a statutory demand on Z (a company). Z applies to restrain presentation of a winding-up petition. Upon seeing the application and evidence in support, X gives an undertaking not to present a winding-up petition.

Creditor takes the risk

While scenarios (a) and (b) are common scenarios, awareness of the authorities governing the costs consequences seems to be less so. Often X will assert that Y and Z should bear X’s costs—or that there should be no order as to costs— because X simply did not know that there was any potential defence until seeing the evidence. The invariable outcome though is that X will have to

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