Gerard Cassegrain & Co Pty Ltd v Cassegrain; Cassegrain v Gerard Cassegrain & Co [2010] NSWSC 91

Gerard Cassegrain & Co Pty Ltd v Cassegrain; Cassegrain v Gerard Cassegrain & Co [2010] NSWSC 91

Leave granted to amend pleadings in derivative and oppression proceedings, including allegations of agency and imputed knowledge (not fraud) against Felicity, subject to clarifications; leave granted to bring derivative claims within oppression proceedings and to join Mr Sarks, subject to undertakings to indemnify costs; defendants' objections regarding futility, standing, and prejudice rejected; combining derivative and oppression claims permitted; costs orders made for costs thrown away and otherwise costs in the cause.

Parties
Plaintiff: Gerard Cassegrain & Co Pty Ltd; First Defendant: Claude Cassegrain; Second Defendant: Felicity Cassegrain; Plaintiff in Oppression Proceedings: Denis Cassegrain; First Defendant in Oppression Proceedings: Gerard Cassegrain & Co Pty Ltd; Second Defendant in Oppression Proceedings: Claude Cassegrain; Third Defendant in Oppression Proceedings: Felicity Cassegrain
Jurisdiction
Australia
Judgment Date
19 February 2010
Procedural Posture
Corporations/equity List / Interlocutory Applications for Leave to Amend Pleadings, Bring Derivative Claims, and Join Party
Outcome
Leave granted to amend statements of claim in derivative and oppression proceedings; leave granted to bring derivative claims and join Mr Sarks as defendant; costs orders made; short minutes of order to reflect judgment; applications stood over for undertakings.
Legal Topics
Statutory Derivative Action, Oppression Proceedings, Breaches of Director's Duties, Pleadings Amendment, Agency and Imputed Knowledge, Indefeasibility Under Torrens System, Security for Costs, Issue Estoppel
Corporations Law Equity Statutory Derivative Action Oppression Proceedings Breaches of Director's Duties Pleadings Amendment Agency and Imputed Knowledge Indefeasibility Under Torrens System +2 more

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Parties

Gerard Cassegrain & Co Pty Ltd

Plaintiff

Claude Cassegrain

First Defendant

Felicity Cassegrain

Second Defendant

Denis Cassegrain

Plaintiff in Oppression Proceedings

Gerard Cassegrain & Co Pty Ltd

First Defendant in Oppression Proceedings

Claude Cassegrain

Second Defendant in Oppression Proceedings

Felicity Cassegrain

Third Defendant in Oppression Proceedings

Procedural Posture

Corporations/equity List / Interlocutory Applications for Leave to Amend Pleadings, Bring Derivative Claims, and Join Party

Legal Issues

  1. 1 Whether leave should be granted to amend statements of claim in derivative and oppression proceedings
  2. 2 Whether leave should be granted to bring derivative claims within oppression proceedings
  3. 3 If derivative and oppression claims can be combined in a single proceeding

Ratio Decidendi

Leave granted to amend pleadings in derivative and oppression proceedings, including allegations of agency and imputed knowledge (not fraud) against Felicity, subject to clarifications; leave granted to bring derivative claims within oppression proceedings and to join Mr Sarks, subject to undertakings to indemnify costs; defendants' objections regarding futility, standing, and prejudice rejected; combining derivative and oppression claims permitted; costs orders made for costs thrown away and otherwise costs in the cause.

Court Disposition

Leave granted to amend statements of claim in derivative and oppression proceedings; leave granted to bring derivative claims and join Mr Sarks as defendant; costs orders made; short minutes of order to reflect judgment; applications stood over for undertakings.

Orders

  • Leave to amend statement of claim in derivative proceedings granted, subject to variations in para 26A.
  • Plaintiff to pay defendants' costs thrown away by amendment; subject thereto, costs of applications to be costs in proceedings.