TERASHORE v JACDIN [2001] NSWSC 601

New South Wales Supreme Court

CITATION : TERASHORE v JACDIN [2001] NSWSC 601 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2660 of 2001 HEARING DATE(S) : 4 July 2001 JUDGMENT DATE : 4 July 2001

PARTIES : Terashore Pty Limited v Jacdin Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : D.J. Durston for plaintiff J. Dupree for defendant SOLICITORS : Searle & Associates for plaintiff L.C. Muriniti & Associates for defendant CATCHWORDS : Corporations Law. Application to set aside demand. Deman varied by reducing it from $70,000 to $50,000. No matter of principle. DECISION : Paragraph 32

1 MASTER: This is an application to set aside a demand under section 459G of the Corporations Law. The demand is dated 17 April 2001 and seeks to recover the sum of $70,000 that is said to be in respect of a loan advance in June 1998 of $50,000 and a fee payable on a loan advance by 30 June 1999 of $20,000. 2 It is sought to set aside that demand on two grounds. The first is that it is said to be an abuse of process as there are parallel proceedings already on foot between the same parties in the District Court. Secondly, it is said that there is a genuine dispute in respect of the amount of the demand. 3 There was an initial question as to the sufficiency of the affidavit filed on behalf of the plaintiff on 16 May 2001. The law in this regard is conveniently set out in the judgment of Sunburg J in Graywinter Properties Pty Limited v Gas and Fuel Corporation Superannuation Fund, 21 ACSR, 581. At page 587.8 his Honour had the following to say: "Is a complying affidavit a condition of jurisdiction?

It seems to me that s 459G(3) makes plain that the Court can entertain an application to set aside only if within the prescribed period an affidavit supporting the application is filed and copies of the application and affidavit are served. The High Court in Grant said that compliance with the subsection is a limitation or a condition upon the authority of the Court to set aside a demand; it is a condition of the jurisdiction that subs (3) be observed; if the condition is not observed there is no application before the Court. I am thus unable to agree with the Senior Master that the failure of an affidavit to satisfy the minimum requirements for an affidavit to be a "supporting affidavit" is not a jurisdictional impediment.