Non-compliance with a statutory demand is the most common way to prove insolvency.
The recent decision of the Supreme Court of Victoria in A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq)  VSC 468 illustrates the issues faced by the recipient of a statutory demand who disputed the debt on which the demand was based. While it was argued that they were unquestionably solvent, the recipient failed to make an application to have the statutory demand set aside within the 21-day time limit.
On 1 July 2018, new Ipso Facto provisions introduced into the Corporations Act 2001(Cth)(The Act) by the Treasury Laws Amendment (2017 Enterprise Incentives No 2) Act 2017 (Cth) commenced as part of the Federal Government’s insolvency innovation reform packages. The new provisions have altered the contractual rights of parties against insolvent counterparties by imposing a stay on the enforcement of Ipso Facto clauses, preventing the termination of a contract upon the occurrence of certain insolvency events. The new provisions apply to nearly all contracts, agreements and arrangements entered into on or after 1 July 2018. However, some contracts and contractual rights are excluded from the operation of the provisions pursuant to statutory instruments.
Given the infancy of the new regime, many companies are yet to fully grasp the changes or the implications for their businesses and what may be required to protect their commercial interests appropriately. The nature of the changes may alter the way you do business with your customers or contract with your clients, so it is important that you understand both the changes and the measures required to mitigate the potential risks to you and your business.
The recent decision of Justice Logan of the Federal Court in Australia and New Zealand Banking Group Limited v State of Queensland  FCA 464 acts as a reminder to directors and insolvency practitioners of the importance of default notices in retaining contractual rights and enforceable securities. It discusses the operation of section 133 of the Bankruptcy Act 1966 (Cth) (Act) and how it can protect security holders against bankruptcy disclaimers and the doctrine of escheat.