Toorallie v Black [2001] NSWSC 1088

Toorallie v Black [2001] NSWSC 1088

The propositions that Toorallie had claims against Mr Black, Mr Chapman and Mr Carter based on vicarious liability and statutory responsibility of employers passed the relevant genuine claim test in a theoretical sense, and s.459H was not defeated merely because the claim might also lie against other persons. However, the genuineness and quantification of the claim depended on further evidence about the trustee of the trusts and a concrete articulation of the claim against Mr Carter. The fair course was therefore to stand the matter over and permit Toorallie to file further affidavit evidence and a proposed further amended statement of claim.

Jurisdiction
Australia
Judgment Date
28 November 2001
Procedural Posture
Application to Set Aside Statutory Demand Under S.459 H of the Corporations Act 2001 / Matter Stood Over for Further Evidence
Outcome
Matter stood over for further evidence.
Legal Topics
['statutory Demand' 'genuine Offsetting Claim' 'unliquidated Damages' 'amount of Offsetting Claim' 'partnership Debt' 'vicarious Liability' 'payroll Tax Advice']
['corporations' 'insolvency' 'fair Trading' 'partnership' 'negligence'] ['statutory Demand' 'genuine Offsetting Claim' 'unliquidated Damages' 'amount of Offsetting Claim' 'partnership Debt' 'vicarious Liability' 'payroll Tax Advice']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demand Under S.459 H of the Corporations Act 2001 / Matter Stood Over for Further Evidence

Legal Issues

  1. 1 ['Whether Toorallie had a genuine offsetting claim for the purposes of s.459H of the Corporations Act 2001.' 'Whether an unliquidated damages claim in the District Court could be quantified at least at $70,152.35 for the purposes of an offsetting total.' 'Whether the alleged offsetting claim was a claim against the persons who served the statutory demand, where the District Court defendants and the statutory demand claimants did not correspond.' 'Whether the identity of the trustee of two trusts affected the amount and genuineness of the asserted offsetting claim.']

Ratio Decidendi

The propositions that Toorallie had claims against Mr Black, Mr Chapman and Mr Carter based on vicarious liability and statutory responsibility of employers passed the relevant genuine claim test in a theoretical sense, and s.459H was not defeated merely because the claim might also lie against other persons. However, the genuineness and quantification of the claim depended on further evidence about the trustee of the trusts and a concrete articulation of the claim against Mr Carter. The fair course was therefore to stand the matter over and permit Toorallie to file further affidavit evidence and a proposed further amended statement of claim.

Court Disposition

Matter stood over for further evidence.

Orders

  • ["Toorallie was granted leave to file by delivery to the Associate and serve, not later than 12 noon on the court day before the next listing, an affidavit of Toorallie's solicitor identifying the evidence to be adduced in the District Court proceedings if Toorallie was put to proof that it was, at all material...