TOSKAS v TOSKAS [2000] NSWSC 565

TOSKAS v TOSKAS [2000] NSWSC 565

The summons was dismissed because the failure of the Justice of the Peace to sign the first page of the supporting affidavit was a form irregularity that did not justify setting aside the demand, the shareholder's loan recorded as unsecured and at call was due and payable despite no separate prior demand, and the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 June 2000
Procedural Posture
Application to Set Aside a Statutory Demand / Judgment on Summons
Outcome
Summons dismissed.
Legal Topics
['statutory Demand' 'genuine Dispute' "shareholder's Loan" 'debt Due and Payable' 'affidavit Defect' 'implied Contractual Term']
['corporations Law'] ['statutory Demand' 'genuine Dispute' "shareholder's Loan" 'debt Due and Payable' 'affidavit Defect' 'implied Contractual Term']

Source-derived case record

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Procedural Posture

Application to Set Aside a Statutory Demand / Judgment on Summons

Legal Issues

  1. 1 ['Whether a defect in the affidavit supporting the statutory demand justified setting aside the demand under s.459J(1)(b).' "Whether a shareholder's loan described as unsecured and at call was due and payable despite no separate demand having been served before the statutory demand." "Whether there was a genuine dispute because an implied term required six weeks' notice before repayment could be required." "Whether the plaintiff's affidavit in support complied with jurisdictional requirements."]

Ratio Decidendi

The summons was dismissed because the failure of the Justice of the Peace to sign the first page of the supporting affidavit was a form irregularity that did not justify setting aside the demand, the shareholder's loan recorded as unsecured and at call was due and payable despite no separate prior demand, and the proposed implied term requiring six weeks' notice was not supported by a genuine dispute.

Court Disposition

Summons dismissed.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the defendant's costs."]