Cassegrain v Cassegrain

Case [2016] NSWCA 71

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Cassegrain, Felicity v Cassegrain, Denis [2016] NSWCA 71
Hearing dates:29 February 2016
Decision date: 15 April 2016
Before: Basten JA [1];
Sackville AJA [31];
Emmett AJA [36]
Decision:

(1)   Dismiss the appeal with costs.

 (2)   Refuse the application for leave to extend the time for filing an application for leave to appeal with costs.
Catchwords: EQUITY – equitable compensation for costs incurred in proceedings – enquiry as to amount of compensation referred by consent to Referee – order sought that report of Referee be adopted – trial judge ordered that report be adopted and that parties including the appellant jointly and severally pay compensation – whether trial judge erred in finding appellant jointly and severally liable – whether trial judge ought to have found that appellant’s liability did not extend to more than 10 per cent of the equitable compensation ordered – whether liability ought to have been limited to an amount that was proportionate to the appellant’s liability under the first limb of Barnes v Addy – whether extent of liability impermissible having regard to the Civil Liability Act 2002 (NSW), Pt 4
PROCEDURE – whether leave to appeal required
Legislation Cited: Civil Liability Act 2005 (NSW), s 34
Civil Liability Act 2002 (NSW), ss 3, 4, 5, 34, 34A, 35; Pt 1A; Sch 1, Pt 3, cl 6; Pt 4, cl 13
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Sch 1 [5]
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.23, 20.24
Cases Cited: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd [2012] NSWSC 403
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
George v Webb [2011] NSWSC 1608
Gerard Cassegrain & Co Pty Ltd (in liquidation) v Cassegrain [2013] NSWCA 455
Denis Cassegrain & Ors v Gerard Cassegrain & Co Pty Limited (in Liquidation) & Ors [2014] NSWSC 411
Grimaldi v Chameleon Mining (No 2) (2012) 200 FCR 296; [2012] FCAFC 6
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Kalls Enterprises Pty Ltd (In liq) v Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557
Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762; [2008] NSWSC 187
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418
Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317
Texts Cited: B McDonald and JW Carter, “The Lottery of Contractual Risk Allocation and Proportionate Liability” (2009) 26 Journal of Contract Law 1
Category:Principal judgment
Parties: Felicity Cassegrain (Appellant)
Denis Cassegrain (First Respondent)
Catherine Dunn (Second Respondent)
Patrick Cassegrain (Third Respondent)
John Cassegrain (Fourth…

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AGLC
Cassegrain v Cassegrain [2016] NSWCA 71
Case
[2016] NSWCA 71
Decision Date

CaseChat Overview and Summary

The appeal concerned the extent of equitable compensation payable by the appellant, Ms. Cassegrain, following proceedings in the Supreme Court of New South Wales. The dispute arose from a family trust and the appellant's involvement in transactions that led to equitable compensation being ordered against her and other parties. The primary judge had adopted the report of a Referee, which determined the amount of equitable compensation, and ordered that the appellant and other parties be jointly and severally liable for this compensation.

The central legal issues before the Court of Appeal were whether the trial judge erred in finding the appellant jointly and severally liable for the equitable compensation. Specifically, the court considered whether the appellant's liability should have been limited to 10 per cent of the ordered compensation, or whether it should have been proportionate to her liability under the first limb of *Barnes v Addy*, and whether the extent of her liability was permissible having regard to Part 4 of the *Civil Liability Act 2002* (NSW). The court also considered whether leave to appeal was required.

The Court of Appeal dismissed the appeal, finding that the trial judge had not erred in ordering joint and several liability. The court reasoned that the principles of equitable compensation, particularly in cases of breach of trust or fiduciary duty, often involve joint and several liability to ensure full restitution for the loss suffered. The court found that the appellant's conduct warranted such an order and that the *Civil Liability Act 2002* (NSW) did not operate to limit her liability in the manner contended. The application for leave to extend time for filing an application for leave to appeal was also refused.

Orders

Orders of the court

(1) Dismiss the appeal with costs.

(2) Refuse the application for leave to extend the time for filing an application for leave to appeal with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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