In the matter of Gerard Cassegrain & Co Pty Ltd (in liquidation) [2014] NSWSC 1292

In the matter of Gerard Cassegrain & Co Pty Ltd (in liquidation) [2014] NSWSC 1292

Approval under s 477(2B) and directions under s 479(3) were warranted because the evidence showed that the Company lacked available funds for the remitter and inquiry, the proposed Funding Agreement would allow the Company to seek the financial benefit of the existing judgment, the funder's premium appeared consistent with common funding premiums in complex commercial litigation, amendments clarified that the new agreement replaced rather than accumulated with the prior funding agreement, and there was no basis to conclude that the Liquidator's judgment involved lack of good faith, error of law or principle, lack of prudence, or impropriety. Approval and a corresponding direction for the...

Jurisdiction
Australia
Judgment Date
19 September 2014
Procedural Posture
Corporations Winding Up Application for Approval of Litigation Funding Agreement and Retainer and Costs Agreement / Interlocutory Application
Outcome
Orders made approving entry into funding agreement, approving entry into retainer and costs agreement, giving corresponding directions, and making confidentiality orders.
Legal Topics
['liquidator Powers' 'litigation Funding Agreement' 'court Approval Under S 477(2 B) of the Corporations Act 2001 (cth)' 'directions Under S 479(3) of the Corporations Act 2001 (cth)' 'retainer and Costs Agreement' 'confidentiality Orders']
['corporations' 'insolvency' 'civil Procedure'] ['liquidator Powers' 'litigation Funding Agreement' 'court Approval Under S 477(2 B) of the Corporations Act 2001 (cth)' 'directions Under S 479(3) of the Corporations Act 2001 (cth)' 'retainer and Costs Agreement' 'confidentiality Orders']

Case Brief

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Procedural Posture

Corporations Winding Up Application for Approval of Litigation Funding Agreement and Retainer and Costs Agreement / Interlocutory Application

Legal Issues

  1. 1 ['Whether the Liquidator should have approval under s 477(2B) of the Corporations Act 2001 (Cth) to enter into and cause the Company to enter into the Funding Agreement.' 'Whether a direction should be given under s 479(3) of the Corporations Act 2001 (Cth) that the Liquidator would be justified in entering into the Funding Agreement.' 'Whether the Liquidator should have approval under s 477(2B) of the Corporations Act 2001 (Cth), nunc pro tunc, for entering into and causing the Company to enter into a costs agreement retaining solicitors for the remitter and inquiry.' 'Whether corresponding directions should be given in respect of entry into the retainer and costs agreement.' "Whether confidentiality orders should be made in respect of exhibits to the Liquidator's affidavit."]

Ratio Decidendi

Approval under s 477(2B) and directions under s 479(3) were warranted because the evidence showed that the Company lacked available funds for the remitter and inquiry, the proposed Funding Agreement would allow the Company to seek the financial benefit of the existing judgment, the funder's premium appeared consistent with common funding premiums in complex commercial litigation, amendments clarified that the new agreement replaced rather than accumulated with the prior funding agreement, and there was no basis to conclude that the Liquidator's judgment involved lack of good faith, error of law or principle, lack of prudence, or impropriety. Approval and a corresponding direction for the...

Court Disposition

Orders made approving entry into funding agreement, approving entry into retainer and costs agreement, giving corresponding directions, and making confidentiality orders.

Orders

  • ['Approval under s 477(2B) of the Corporations Act 2001 (Cth) for the Liquidator to enter into and cause the Company to enter into the Funding Agreement as amended.' 'Direction under s 479(3) of the Corporations Act 2001 (Cth) that the Liquidator would be justified in entering into the Funding Agreement as amended.'...