Cassegrain v Gerard Cassegrain & Co Pty Ltd [2008] NSWSC 1159

Cassegrain v Gerard Cassegrain & Co Pty Ltd [2008] NSWSC 1159

The appropriate order is for the Company (first defendant) to pay the plaintiff's costs of the application for leave under s 237 of the Corporations Act, but this order is stayed until the final determination of the related derivative proceedings, so that subsequent orders may appropriately address any benefit obtained by defendants from costs orders. There is insufficient basis for indemnity costs or costs orders against Felicity or Claude Cassegrain.

Parties
Plaintiff: Denis Cassegrain; First Defendant: Gerard Cassegrain & Co Pty Ltd; Second Defendant: Felicity Cassegrain
Jurisdiction
Australia
Judgment Date
04 November 2008
Procedural Posture
Derivative Action Leave Application / Post Judgment—costs and Ancillary Orders
Outcome
Costs awarded to plaintiff; order for costs stayed; interim restraint continued
Legal Topics
Derivative Proceedings, Costs, Interlocutory Orders
Corporations Law Civil Procedure Derivative Proceedings Costs Interlocutory Orders

Case Brief

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Parties

Denis Cassegrain

Plaintiff

Gerard Cassegrain & Co Pty Ltd

First Defendant

Felicity Cassegrain

Second Defendant

Procedural Posture

Derivative Action Leave Application / Post Judgment—costs and Ancillary Orders

Legal Issues

  1. 1 Who should bear the costs of a successful application for leave under s 237 of the Corporations Act
  2. 2 Whether indemnity costs should be ordered
  3. 3 Appropriate interim orders pending resolution of derivative proceedings

Ratio Decidendi

The appropriate order is for the Company (first defendant) to pay the plaintiff's costs of the application for leave under s 237 of the Corporations Act, but this order is stayed until the final determination of the related derivative proceedings, so that subsequent orders may appropriately address any benefit obtained by defendants from costs orders. There is insufficient basis for indemnity costs or costs orders against Felicity or Claude Cassegrain.

Court Disposition

Costs awarded to plaintiff; order for costs stayed; interim restraint continued

Orders

  • The first defendant pay the plaintiff's costs of the application for leave pursuant to s 237 of the Corporations Act.
  • Order 1 be stayed until the final determination of Proceedings 4647/08 in the Equity Division of the Supreme Court, or until further order.