Creditor’s should exercise caution when issuing a creditor’s statutory demand when they have engaged in correspondence with the debtor regarding the debt. This scenario was discussed in the recent decision of In the matter of Acciona Infrastructure Australia Pty Limited  NSWSC 1156.
In Acciona, the parties exchanged correspondence regarding debts owing by Acciona pursuant to a crane hire agreement. The nature of the correspondence was to resolve an issue regarding payments made to the creditor.
A letter of demand was sent to Acciona by the creditor’s solicitor which specifically mentioned the existence of a ‘dispute’ and when payment was not made pursuant to the letter of demand, the statutory demand was issued to Acciona.
The Court in Acciona set aside the statutory demand and noted that the statutory regime for issuing statutory demands is not established for creditor’s to collect debts which are the subject of a dispute.