CASSEGRAIN v CASSEGRAIN [2006] NSWCA 39

CASSEGRAIN v CASSEGRAIN [2006] NSWCA 39

Although the Court assumed in the claimant's favour that an appeal lay as of right because the indemnity orders were made under Corporations Act 2001 ss 232 and 233 rather than as ordinary discretionary costs orders, the appeal was out of time. The extension of time was refused because the claimant's explanation for delay was inadequate, his conduct disregarded the opponents' position, and the proposed grounds of appeal had no sufficient prospects, including the argument that the opponents were confined to Supreme Court Act 1970 s 76 and the allegations of procedural unfairness.

Jurisdiction
Australia
Judgment Date
22 February 2006
Procedural Posture
Application for Extension of Time to Appeal From Costs and Indemnity Orders in Corporations Oppression and Winding Up Proceedings / Court of Appeal Summons
Outcome
Summons dismissed with costs.
Legal Topics
["members' Oppression Remedies" 'winding Up on Just and Equitable Ground' 'costs Indemnity Under Corporations Act 2001 S 233(1)(j)' 'appeal as of Right or Leave for Costs Orders' 'extension of Time to Appeal']
['corporations' 'costs' 'appellate Procedure'] ["members' Oppression Remedies" 'winding Up on Just and Equitable Ground' 'costs Indemnity Under Corporations Act 2001 S 233(1)(j)' 'appeal as of Right or Leave for Costs Orders' 'extension of Time to Appeal']

Case Brief

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Procedural Posture

Application for Extension of Time to Appeal From Costs and Indemnity Orders in Corporations Oppression and Winding Up Proceedings / Court of Appeal Summons

Legal Issues

  1. 1 ['Whether an appeal from costs indemnity orders made under Corporations Act 2001 ss 232 and 233 lay as of right or required leave under Supreme Court Act 1970 s 101(2)(c).' "Whether time should be extended to permit the claimant to appeal from White J's orders." 'Whether the proposed appeal had sufficient prospects, including challenges to the use of Corporations Act 2001 ss 232 and 233 instead of Supreme Court Act 1970 s 76 and allegations of procedural unfairness.']

Ratio Decidendi

Although the Court assumed in the claimant's favour that an appeal lay as of right because the indemnity orders were made under Corporations Act 2001 ss 232 and 233 rather than as ordinary discretionary costs orders, the appeal was out of time. The extension of time was refused because the claimant's explanation for delay was inadequate, his conduct disregarded the opponents' position, and the proposed grounds of appeal had no sufficient prospects, including the argument that the opponents were confined to Supreme Court Act 1970 s 76 and the allegations of procedural unfairness.

Court Disposition

Summons dismissed with costs.

Orders

  • ['The summons was dismissed with costs.' 'The third opponent, having adopted a submitting stance except as to costs, was to receive a costs order reflecting that situation.']