Cassegrain v Cassegrain [2015] NSWCA 387

Cassegrain v Cassegrain [2015] NSWCA 387

Leave under s 471B was granted because it was required by the liquidation of Gerard Cassegrain & Co Pty Ltd and was not opposed. The stay was refused because, although Ms Cassegrain's proposed appeal was treated as relatively weak but not hopeless, she gave no evidence of solvency, assets or income, the Federal Court had already adjourned the sequestration application pending the Court of Appeal proceedings, and there was no hard evidence of material prejudice; the balance of convenience, coupled with the relative weakness of the appeal questions, did not justify a stay.

Jurisdiction
Australia
Judgment Date
30 November 2015
Procedural Posture
Notice of Motion in Pending Application for Leave to Appeal and Appeal / Application for Leave Under S 471 B of the Corporations Act 2001 (cth) and Stay Pending Appeal
Outcome
Leave under s 471B granted; notice of motion otherwise dismissed; applicant ordered to pay respondents' costs of the notice of motion.
Legal Topics
['stay Pending Appeal' 'serious Question to Be Tried' 'balance of Convenience' 'leave to Proceed Against Company in Liquidation' 'lump Sum Costs Order' 'equitable Compensation' 'proportionate Liability' 'sequestration Order']
['procedure' 'corporations Law' 'bankruptcy' 'equity' 'costs'] ['stay Pending Appeal' 'serious Question to Be Tried' 'balance of Convenience' 'leave to Proceed Against Company in Liquidation' 'lump Sum Costs Order' 'equitable Compensation' 'proportionate Liability' 'sequestration Order']

Case Brief

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Procedural Posture

Notice of Motion in Pending Application for Leave to Appeal and Appeal / Application for Leave Under S 471 B of the Corporations Act 2001 (cth) and Stay Pending Appeal

Legal Issues

  1. 1 ['Whether leave should be granted pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed against Gerard Cassegrain & Co Pty Ltd (in liq).' 'Whether the orders made on 15 May 2014, 5 December 2014, 30 June 2015 and 5 August 2015 should be stayed pending determination of the application for leave to appeal and the appeal.' 'Whether the proposed appeal and application for leave raised a serious question to be tried.' 'Whether the balance of convenience favoured granting a stay.']

Ratio Decidendi

Leave under s 471B was granted because it was required by the liquidation of Gerard Cassegrain & Co Pty Ltd and was not opposed. The stay was refused because, although Ms Cassegrain's proposed appeal was treated as relatively weak but not hopeless, she gave no evidence of solvency, assets or income, the Federal Court had already adjourned the sequestration application pending the Court of Appeal proceedings, and there was no hard evidence of material prejudice; the balance of convenience, coupled with the relative weakness of the appeal questions, did not justify a stay.

Court Disposition

Leave under s 471B granted; notice of motion otherwise dismissed; applicant ordered to pay respondents' costs of the notice of motion.

Orders

  • ['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.' 'Otherwise dismiss the notice of motion, filed 27 October 2015.' "Order that the applicant, Ms Cassegrain, pay the respondents'...