Legal Research
Cases
Cassegrain v Cassegrain

Cassegrain v Cassegrain

Case [2015] NSWCA 387 30 November 2015

No judgment structure available for this case.

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassegrain v Cassegrain [2015] NSWCA 387
Hearing dates: 30 November 2015
Decision date: 30 November 2015
Before: Leeming JA
Decision:
1. Grant leave pursuant to s 471B of the Corporations Act 2001 (Cth) to Ms Cassegrain to proceed against Gerard Cassegrain & Co Pty Ltd (in liq) in proceedings 2015/219321 and 2015/299594.

2. Otherwise dismiss the notice of motion, filed 27 October 2015.
3. Order that the applicant, Ms Cassegrain, pay the respondents’ costs of the notice of motion.
Catchwords: PROCEDURE – appeals – stay pending appeal – whether serious question to be tried – whether balance of convenience favoured granting relief – stay refused
Legislation Cited: Bankruptcy Act 1966 (Cth), s 43
Civil Liability Act 2002 (NSW), s 34A
Conveyancing Act 1919 (NSW), s 66G
Corporations Act 2001 (Cth), s 471B
Cases Cited: Cassegrain v Cassegrain [2015] FCA 1233
Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2014] NSWSC 411
Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851
Gerard Cassegrain & Co Pty Ltd (in liq) v Cassegrain [2013] NSWCA 455
Lawrence v Gunner [2015] NSWCA 322
Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494
Category: Procedural and other rulings
Parties: Felicity Cassegrain (Applicant)
Denis Cassegrain (First Respondent)
Catherine Dunn (Second Respondent)
Patrick Cassegrain (Third Respondent)
John Cassegrain (Fourth Respondent)
Gerard Cassegrain & Co Pty Ltd (in liq) (Fifth Respondent)
Christopher Mel Chamberlain in his capacity as liquidator of Gerard Cassegrain & Co Pty Ltd (Sixth Respondent)
Claude Cassegrain’s Official Trustee in Bankruptcy (Seventh Respondent)
Anthony Blake Sarks (Eighth Respondent)
Representation:
Counsel:
LM Jackson (Applicant)
M Ashhurst SC (First to Sixth Respondents)
Solicitors:
Peter Condon & Associates (Applicant)
McCabes Lawyers (First to Sixth Respondents)

File Number(s): 2015/299594; 2015/219321
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 851

Date of Decision:

30 June 2015

Before:

Bergin CJ in Eq

File Number(s):

2008/281625

ex tempore Judgment

HIS HONOUR: There are two proceedings pending in this Court. The first, 2015/299594, is an application for leave to appeal connected with costs orders. The second, 2015/219321, is an appeal as of right against a judgment debt together with interest. In both cases, the amounts in question are large.
By notice of motion filed on 27 October 2015, Ms Felicity Cassegrain, who is the applicant for leave to appeal and the appellant in the first and second proceedings respectively, seeks two substantive orders. The first is a grant of leave pursuant to s 471B of the Corporations Act 2001 (Cth) which is required by reason of the fact that one of the companies joined as respondents to each proceeding, Gerard Cassegrain & Co Pty Ltd, is in liquidation. The counsel for the liquidator, Mr Ashhurst SC, who also appears for other respondents in both proceedings, did not oppose the grant of leave and in the orders I will make, there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassegrain v Cassegrain

Details

AGLC: Cassegrain v Cassegrain [2015] NSWCA 387
Case: [2015] NSWCA 387
Decision Date: 30 November 2015

CaseChat Overview and Summary

In the matter of *Cassegrain v Cassegrain*, Ms Cassegrain sought leave from the Court of Appeal of New South Wales to proceed against Gerard Cassegrain & Co Pty Ltd (in liq) in two separate proceedings. The core of the dispute involved Ms Cassegrain's attempts to pursue claims against the company, which was in liquidation, and the liquidator's opposition to these proceedings.

The primary legal issue before the court was whether to grant Ms Cassegrain leave under section 471B of the *Corporations Act 2001* (Cth) to continue her proceedings against the company in liquidation. This required the court to consider whether there was a serious question to be tried in the underlying proceedings and, if so, whether the balance of convenience favoured granting the requested relief.

Leeming JA considered the application for leave to proceed. The court determined that the threshold for granting leave under s 471B was met, indicating that there were serious questions to be tried in the proceedings initiated by Ms Cassegrain. However, the court ultimately refused to grant a stay pending appeal, finding that the balance of convenience did not favour such relief. Consequently, leave was granted for Ms Cassegrain to proceed with her claims, but the notice of motion seeking other relief was dismissed, with Ms Cassegrain ordered to pay the respondents' costs.

Orders

Orders of the court

1. Grant leave pursuant to s 471B of the Corporations Act 2001 (Cth) to Ms Cassegrain to proceed against Gerard Cassegrain & Co Pty Ltd (in liq) in proceedings 2015/219321 and 2015/299594.

2. Otherwise dismiss the notice of motion, filed 27 October 2015.

3. Order that the applicant, Ms Cassegrain, pay the respondents’ costs of the notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Cassegrain v Cassegrain [2015] NSWCA 387

Most Recent Citation

Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd [2017] VSC 101

Cases Citing This Decision

Memduh Cihan and Mehmet Cihan trading v Cihan Family Pty Limited [2023] NSWSC 1289
Citation 1 (Para 118)

…The majority of the High Court (French CJ, Hayne, Bell and Gageler JJ) in Cassegrain v Cassegrain (2015) 254 CLR 425; [2015] HCA 2 at [40] confirmed that the reference to fraud being “brought home to the person whose registered title is impeached or to his agents” should be understood “as posing, in the case of an agent, questio…
Reindel v Confreight Pty Ltd (No 2) [2022] VSC 442
Citation 2 (Para 1)

…ore may emerge following discovery, it could not be said that the case against Ms Runhardt is particularly compelling at this point in time. [90] Cassegrain v Cassegrain (2015) 254 CLR 425 [32]. However, the conduct complained of by the investors post-dates the acquisition of the Toorak property, as Ms Runhardt became the regist…
In the matter of Orix Australia Corporation Limited [2020] NSWSC 1770
Citation 3

…04 - Australian Securities and Investments Commission v Flugge [2016] VSC 779 - Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 - Cassegrain v Cassegrain (2015) 254 CLR 425; [2015] HCA 2 - Cleary v Australian Co-Operative Foods (No 2) (1999) 32 ACSR 701; [1999] NSWSC 1062 - Commonwealth Bank of Australia v ZYX Learning Cen…
Topez v Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC [2017] FCCA 91
Citation 4 (Para 5)

…osed statement of claim, currently stayed by operation of the order of Master Keith, satisfies this low threshold. [10] See Cassegrain v Cassegrain [2015] NSWCA 387 at [11]…
Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd [2017] VSC 101
Citation 5

…Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 163 [174]; Macquarie Bank Ltd v Sixty Fourth Throne Pty Ltd [1998] 3 VR 133, 143–4; Cassegrain v Cassegrain (2015) 254 CLR 425, 437–45 discussed and applied.…

See all citing cases →

Cases Cited

Cassegrain v Cassegrain [2015] FCA 1233
Citation 1 (Para 8)

…eral Court on an application for a sequestration order against Ms Cassegrain under s 43 of the Bankruptcy Act 1966 (Cth): see Cassegrain v Cassegrain [2015] FCA 1233. The outcome of a hearing over two days in October 2015 was to “adjourn the applicants’ application for a sequestration order against the estate of F…
Lawrence v Gunner [2015] NSWCA 322
Citation 2 (Para 9)

…ercise of the power to grant a stay pending appeal are well known and uncontroversial. They were recently restated by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 at [10]-[13]:…
Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liquidation) [2015] NSWSC 851
Citation 3 (Para 5)

…udge in a reserved judgment after argument as to the adoption of a referee’s report: see Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851. The orders were that the second, third and fourth defendants (Mr Claude Cassegrain, Ms Felicity Cassegrain and Mr Anthony Sarks) were jointly and seve…
Sarks v Cassegrain [2015] FCAFC 38
Citation 4

…eneveld Australia Pty Ltd [2011] FCA 1494 at [29]. On the former aspect, I take into account the applicants’ submission that Sarks v Cassegrain [2015] FCAFC 38 shows that, in equity, a judgment on liability with a reference for an enquiry is regarded as a final order but, arguably, the point sought to be taken in…
Denis Cassegrain v Gerard Cassegrain and Co Pty Limited (in Liquidation) [2014] NSWSC 411
Citation 5 (Para 12)

…d pleadings and the referee’s report, namely: [74] of the judgment of Bergin CJ in Eq in Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2014] NSWSC 411, paras 9-10 of the amended points of defence of the third defendant before the referee dated 31 October 2014, para 12 and para 33 onwards in the report…
Gerard Cassegrain & Co Pty Ltd (in Liq) v Cassegrain [2013] NSWCA 455
Citation 6 (Para 12)

…erard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851, [76] of Emmett JA’s judgment in Gerard Cassegrain & Co Pty Ltd (in liq) v Cassegrain [2013] NSWCA 455, and the plaintiff’s reply to defences of the second, fourth and third defendants to the points of claim (in which there was no particularised contest to the…
Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494
Citation 7 (Para 11)

…rved that his Honour also noted that the relevant threshold of an arguable point is relatively low, quoting Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 at [29]. His Honour also noted that the arguments had not been fully developed before him. That said, his Honour had the benefit of submissions over two…
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130
Citation 8 (Para 5)

…fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]. It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, wher…
Vaughan v Dawson [2008] NSWCA 169
Citation 9 (Para 18)

…erious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA).”…
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383
Citation 10

…al are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where…
TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104
Citation 11 (Para 15)

…appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. It is for the ap…
TCN Channel 9 Pty Limited v Antoniadis [1997] NSWCA 306
Citation 12 (Para 15)

…or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. It is for the applicant to dem…
Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Citation 13

…“The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. A successful party is prima facie entitled to the fr…

Legislation Cited

Bankruptcy Act 1966 (Cth) 43
2 mentions (from Para 8)
Civil Liability Act 2002 (TAS) 34A
2 mentions (from Para 10)
Conveyancing Act 1919 (ACT) 66G
2 mentions (from Para 19)
Corporations Act 2001 (Cth) 471B
2 mentions (from Para 2)

Medium Neutral Citation:	Cassegrain v Cassegrain [2015] NSWCA 387
Hearing dates:	30 November 2015
Decision date:	30 November 2015
Before:	Leeming JA
Decision:	1. Grant leave pursuant to s 471B of the Corporations Act 2001 (Cth) to Ms Cassegrain to proceed against Gerard Cassegrain & Co Pty Ltd (in liq) in proceedings 2015/219321 and 2015/299594. 2. Otherwise dismiss the notice of motion, filed 27 October 2015. 3. Order that the applicant, Ms Cassegrain, pay the respondents’ costs of the notice of motion.
Catchwords:	PROCEDURE – appeals – stay pending appeal – whether serious question to be tried – whether balance of convenience favoured granting relief – stay refused
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 43 Civil Liability Act 2002 (NSW), s 34A Conveyancing Act 1919 (NSW), s 66G Corporations Act 2001 (Cth), s 471B
Cases Cited:	Cassegrain v Cassegrain [2015] FCA 1233 Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2014] NSWSC 411 Denis Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851 Gerard Cassegrain & Co Pty Ltd (in liq) v Cassegrain [2013] NSWCA 455 Lawrence v Gunner [2015] NSWCA 322 Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494
Category:	Procedural and other rulings
Parties:	Felicity Cassegrain (Applicant) Denis Cassegrain (First Respondent) Catherine Dunn (Second Respondent) Patrick Cassegrain (Third Respondent) John Cassegrain (Fourth Respondent) Gerard Cassegrain & Co Pty Ltd (in liq) (Fifth Respondent) Christopher Mel Chamberlain in his capacity as liquidator of Gerard Cassegrain & Co Pty Ltd (Sixth Respondent) Claude Cassegrain’s Official Trustee in Bankruptcy (Seventh Respondent) Anthony Blake Sarks (Eighth Respondent)
Representation:	Counsel: LM Jackson (Applicant) M Ashhurst SC (First to Sixth Respondents) Solicitors: Peter Condon & Associates (Applicant) McCabes Lawyers (First to Sixth Respondents)
File Number(s):	2015/299594; 2015/219321
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 851 Date of Decision: 30 June 2015 Before: Bergin CJ in Eq File Number(s): 2008/281625