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Can a calderbank offer be withdrawn?(7 Posts)
Just looking for some advice on this. I do have a solicitor but won't get to speak to him until Monday. It's a long story but will try and keep this brief.
We have been in negotiations for around 15 months with a contractor who owes our business a significant amount of money.
After a couple of part 36 offers they made a calderbank offer last November which we accepted. No settlement has been made.
We served a statutory demand which expired yesterday. The company has instructed a new solicitor who spoke to ours yesterday and stated they would get an injunction to prevent us doing the winding up order and would get in touch today with a new offer. We are waiting for this to come across.
I forgot to ask my solicitor this morning if they can withdraw the calderbank offer we accepted. If so how would this affect a winding up order based in the states demand that was served on the calderbank offer we accepted back in November?
Getting very pissed off with being messed around and do not think this company is going to pay unless forced via the courts. They actually owe over twice the amount of he calderbank offer, haven't raised a defence for the amount and just seem to do enough to keep it out of.court.
Have had a Google and can see a part 36 offer can be withdrawn but I can't see whether a calderbank offer can be.
While an offer can be withdrawn, and agreement once made can only be undone with the consent of both parties.
If you are confident that the other side has no actual defence, and have to go to court anyway to recover the debt, isn't it better for you that the agreement be torn up and you end up back at square one? that will leave you free to claim the whole amount again.
That's what we are considering now. The offer would have been acceptable at the time it was made due to the needs of the business. It would have been reinvested and got us through a short period. Now though we can afford to wait.
So they can only withdraw if we are in agreement? And if we don't we could still recover that amount via a winding up order if necessary?
I am pretty sure they will only pay if forced to. So suspect that threat of a winding up order for non payment of an agreed amount will recover this debt. If we go down the court route because of the amount (greater than 25k) it will take around a year to actually even get to court.
You can in theory recover the settlement amount by serving a statutory demand then winding up the company on the basis that it is unable to pay its debts. The amount due under the settlement is a debt due to you. They cannot withdraw the offer if there was a concluded agreement (ie your acceptance). You can both consent to vary the agreement (eg agreeing to accept more money in settlement but over a longer period) but it sounds as though this is unlikely.
Bear in mind that there is no guarantee you will be paid the debt in the liquidation if the company has no money. The company is also likely to seek further time to pay (usually the court will grant up to a couple of months before it finally winds the company up, as long as there is evidence that the company will have funding in that time). However, generally the presentation of a winding up petition encourages companies to pay up if they can afford it because of the impact on their bank accounts being frozen, reputation, etc.
Thanks for replying.
He (the sole MD of the company) doesn't want a winding up order. It would cripple him as he relies on funding to continue trading and has been trading for many years so I don't think he will lose his company over what to him will be a pretty small amount of money. We have also been told he is part way through another property renovation and would assume he owns the building and possibly others.
It was supposed to be settled from the sale of previous property. His solicitor gave a verbal undertaking that this would happen and a roundabout undertaking in writing so we also need to investigate what happened with that sale and the proceeds.
It's incredibly frustrating as it's a significant amount of money to us and has been owed for 15 months. But isn't a lot of money to him. We haven't received an email at all like promised so will speak to my solicitor Monday with a view to starting the winding up proceedings at the end of the week.
It is also the last time I don't listen to my gut instinct. I knew he wouldn't pay up. But dp was in hospital at the time, we had moved house a couple of days before and it was a very complicated situation that led us to be working for him directly.
I would much rather have the agreed amount in the bank by the end of the month than twice that in 12 months.
They won't get an injunction unless they can prove the money isn't due and owing. With a concluded settlement that seems very unlikely indeed. You will generally be entitled to your costs of the winding up petition if they pay up after you have presented it, so it does seem like your best option. Good luck!
Thanks. MD is a bullying fucker who likes his own way. He doesn't like it because we have pursued him.
He will like a winding up order as much as a shit sandwich so will see how we go.
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