Dealing with the challenges of business disputes and effectively resolving them Part 1: Debt Recovery

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1 Dealing with the challenges of business disputes and effectively resolving them Part 1: Debt Recovery Presented by: Emily Stubbs Date: 28 April 2016

2 Facts Recap Air Con Solutions Pty Ltd (ACS) buys air conditioners from a USA supplier pursuant to a Distribution Agreement ACS sells 15 air conditioners to Cooling 4 U Pty Ltd (C4U) at $20,000 per unit, a total of $300,000 C4U fails to pay within trading terms ACS demands payment of the $300,000 C4U refuses to pay alleging 5 units are defective Around the same time, ACS has been served with a Default Notice from the USA supplier ACS seeks legal advice on recovering the debt and the Default Notice

3 Outline Common evidentiary issues Terms and conditions of trade Proof of purchase Proof of delivery Pre-litigation Negotiation Letter of demand Options of enforcement Statutory Demand Court proceedings

4 Common Evidentiary Issues Terms and conditions of trade In writing Up to date Signed Correct entities Guarantees PPSR

5 Common Evidentiary Issues Proof of purchase In writing Record keeping Correct entities Consistent with written agreement

6 Common Evidentiary Issues Proof of delivery In writing Record keeping Detailed Witnesses

7 Pre-Litigation Negotiation Without Prejudice First point of contact Flexible Meeting of minds

8 Pre-Litigation Letter of demand Timing can lead to negotiations Correct Entities Guarantees Obligations under the Civil Procedure Act and costs consequences

9 Enforcement Options Statutory Demand Debt of more than $2,000 against a company 21 days to pay Defences Liquidation

10 Enforcement Options Court Proceedings Winning doesn t guarantee payment Evidentiary issues Counterclaim or set off Costs Orders Jurisdiction

11 Summary Make sure agreements are up to date and paperwork is in order Always have a paper trail Early intervention can be the key Explore options before Court proceedings Consider chances of recovery before commencing Court proceedings

12 USA Distributor Be open Negotiate Look to vary the agreement Consider defending Default Notice Seek urgent funding

13 Dealing with the challenges of business disputes and effectively resolving them Part 2: Unfair Preference Claims Presented by: Sofia Lozanova Date: 28 April 2016

14 Facts Air Con Solutions (ACS), a creditor of Cooling 4 U (C4U), enters into a payment plan for the outstanding amount of $300,000 C4U pays to ACS 4 monthly repayments of $25,000 each from 1 August 2015 In about May 2016, ACS receives a letter of demand from the liquidators for C4U demanding payment of $100,000 ACS wants to know whether: It has to pay $100,000 back to the liquidators It has any defences available to it There are any strategies that can be implemented to lower its liability

15 Statutory Defences Section 588FG(2) of the Corporations Act 2001 Elements 1. Valuable consideration for the payment; 2. Payment in good faith; 3. No reason to suspect insolvency; and 4. A reasonable person would not have suspected insolvency.

16 Valuable Consideration Initial supply of goods and services Other examples: A loan creditor providing the initial loan ACS has given something of value in consideration for receiving the payment ACS supplied the commercial grade air conditioners to C4U = valuable consideration

17 Payment Received in Good Faith ACS must prove that each and every time it received the monthly instalment, it did so in good faith Did ACS receive payment in good faith? C4U initially made its usual repayments as per the terms of payment plan The last 2 payments were received late and only after ACS made several attempts at contacting C4U to ask for payment

18 Suspecting Insolvency Personal knowledge, belief and suspicion vs. the mere suspicion of a reasonable person

19 Personal Knowledge, Belief and Suspicion Payment arrangements not out of the ordinary Disputes as to quality of goods leads to withholding of payment Tactics Payment in accordance with the terms of the payment arrangement Other creditors being paid in accordance with their terms Credit Reports

20 Personal Knowledge, Belief and Suspicion The fact of entering into a repayment arrangement Pressing for payment Payment not in accordance with the terms of the payment arrangement

21 The Mere Suspicion of A Reasonable Person The fact of entering into a repayment arrangement Pressing for payment Payment not in accordance with the terms of the payment arrangement

22 What We Can Do If You Are in ACS Position 1) Check whether the goods are secured 2) Ask the liquidator to provide proof of insolvency 3) Convince the liquidator that you have a valid defence 4) If the liquidator is not convinced, they are likely to issue proceedings (depending on the amount of the unfair preference claim either Magistrates Court or County Court) 5) Negotiate a settlement with the liquidator

23 Running Account Defence Jul-15 Aug-15 Sep-15 Oct-15 Nov-15 Dec-15 Jan-16

24 Defending Proceedings in Court Cost and time component A carefully drafted defence can pave the way for effective settlement discussions Litigation strategy Negotiations

25 What To Take It From All of This? Implement processes in your own business to minimise risk (for example, credit checks, registering securities) Effectively dealing with a liquidator once a claim has been made Seek advice early and quickly If you are unsure of your position, come and speak to any one of our team members who would be happy to help

26 Questions? The floor is yours

27 Thank you for attending 315 Ferntree Gully Road, Mount Waverley Victoria 3149 Australia Tel: This publication provides a summary and overview of its subject matter and does not constitute legal advice The reader should not act on its content without first obtaining legal or other professional advice MST Lawyers2013. All rights reserved No part may be reproduced without the prior written permission of MST Lawyers.

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