Cassegrain v Cassegrain

The New South Wales Court of Appeal considered an appeal by Mr. Cassegrain against a costs order made by the primary judge. The dispute arose from proceedings brought by Mrs. Cassegrain against Mr. Cassegrain and a company, in which she alleged oppressive conduct by Mr. Cassegrain as a director. The primary judge had made an order requiring Mr. Cassegrain to indemnify the company for costs incurred in opposing a winding-up application, which the primary judge found Mr. Cassegrain had caused the company to oppose despite legal advice that it was inevitable.

The central legal issue before the Court of Appeal was whether an appeal lay as of right against the costs indemnity order made under section 233(1)(j) of the *Corporations Act 2001* (Cth), or if leave to appeal was required under section 101(2)(c) of the *Supreme Court Act 1970* (NSW), which generally mandates leave for appeals solely on costs. The court had to determine if the indemnity order was a "costs only" matter for the purposes of section 101(2)(c).

The Court of Appeal held that the indemnity order made under section 233(1)(j) of the *Corporations Act* was not an order as to costs in the ordinary sense, but rather a substantive remedy designed to compensate the company for losses or expenses incurred due to oppressive conduct. Consequently, section 101(2)(c) of the *Supreme Court Act* did not apply, and an appeal lay as of right. However, the court ultimately dismissed the summons, meaning the appeal was unsuccessful.