Rogers & Norton News
Rogers and Norton Litigation Team have had another notable success, this time acting for a multi-million pound company which face the threat of a winding-up petition following the service of a statutory demand. Peter Hastings comments “Our client is a successful company and was served with a statutory demand for an alleged cancellation fee It was clear to us that the Statutory Demand was an abuse of process. We had to act quickly to have the statutory demand withdrawn to prevent the presentation of a winding up petition. We therefore prepared High Court proceedings for an injunction as the presentation and service of a Winding Up Petition on a company can have enormous consequences for a business. The cancellation charge was clearly a penalty clause. We relied on the Supreme Court’s decision in Talal El Makdessi and Cavendish Square which held;- “ The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach”.
Peter adds: “ There were also a number of other grounds for disputing the sum. The Statutory Demand was withdrawn and obviously our client was delighted. It should never have been served with the Demand. Although a creditor can serve a Statutory Demand or present a Winding-Up petition if (a) the debt is due, (b) the creditor has demanded it, but it remains unpaid, (c) the debt is undisputed and is for £750.00, this was clearly not appropriate”.
Our team is able to assist and act on all Insolvency related matters including opposing Demands and Winding-up Petitions (especially presented by HMRC) and commercial litigation disputes, it had a proven track record and is experienced in all Courts and dealing with injunctions.
Our team can assist on:-
- Allegations of Fraud and Deceit
- Creditor’s Claims and Disputes
- Debt claims/recovery
- Directors’ claims (including Breach of Duty claims and defending Personal Guarantees)
- Director’s Disqualification Orders and Undertakings
- Employment issues
- Fraudulent Trading
- Freezing Injunctions
- General Insolvency Advice
- HMRC claims and issues (including winding up petitions and assessments)
- Preference transactions
- Retention of Title Claims
- Shareholder issues
- Statutory Demands
- Tracing Assets
- Transaction at undervalues
- Winding Up Petitions
- Wrongful trading