Cassegrain, Felicity v Cassegrain, Denis [2016] NSWCA 71

Cassegrain, Felicity v Cassegrain, Denis [2016] NSWCA 71

Proportionate liability provisions under Part 4 of the Civil Liability Act 2002 (NSW) were not engaged as the appellant's liability arose from knowing receipt of property transferred in breach of fiduciary duty, not from a failure to take reasonable care. The procedural posture precluded raising the issue on appeal; and the trial judge correctly adopted the referee's report imposing joint and several liability. The appeal failed, with costs.

Jurisdiction
Australia
Judgment Date
15 April 2016
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed, application for leave to extend time refused, with costs.
Legal Topics
['equitable Compensation' 'proportionate Liability' 'knowing Receipt' 'fiduciary Duties' 'joint and Several Liability' 'costs Orders' 'civil Liability']
['equity' 'procedure'] ['equitable Compensation' 'proportionate Liability' 'knowing Receipt' 'fiduciary Duties' 'joint and Several Liability' 'costs Orders' 'civil Liability']

Case Brief

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ["Whether the appellant's liability for equitable compensation should be joint and several or proportionate under Pt 4 of the Civil Liability Act 2002 (NSW)" "Whether the appellant's liability ought to be limited to at most 10% of the compensation ordered" 'Whether proportionate liability applies to knowing receipt claims in equity' 'Whether leave to appeal is required for costs orders']

Ratio Decidendi

Proportionate liability provisions under Part 4 of the Civil Liability Act 2002 (NSW) were not engaged as the appellant's liability arose from knowing receipt of property transferred in breach of fiduciary duty, not from a failure to take reasonable care. The procedural posture precluded raising the issue on appeal; and the trial judge correctly adopted the referee's report imposing joint and several liability. The appeal failed, with costs.

Court Disposition

Appeal dismissed, application for leave to extend time refused, with costs.

Orders

  • ['Dismiss the appeal with costs.' 'Refuse the application for leave to extend the time for filing an application for leave to appeal with costs.']