Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2012] NSWCA 435 Hearing dates: 10 December 2012 Decision date: 18 December 2012 Before: Ward JA Decision: Leave granted to appellant to proceed with appeal against respondent in liquidation. Stay of judgment pending determination of appeal. Order restraining appellant, pending determination of appeal, from (inter alia) dealing with certain assets without providing 7 days' written notice in advance of intention to do so. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - application for leave to proceed against company in liquidation pursuant to s 417B - reasonably arguable grounds to support grant of leave - whether leave should be granted on terms - liquidator sought security for the judgment debt

PRACTICE AND PROCEDURE - application for stay - basis of stay being that execution of the judgment debt would render the appeal nugatory - whether stay should be granted on terms - liquidator's concerns that applicant will dissipate assets Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Limitation Act 1969 (NSW) Cases Cited: Adeels Palace Pty Limited v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Cassegrain v Cassegrain (unreported, FCA, Davies J, 15 July 1998) Castlemaine Tooheys Ltd v South Australia (1986) 1611 CLR 148 Denis Cassegrain & Ors v Gerard Cassegrain & Co. Pty Ltd & Ors [2012] NSWSC 403 Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393 Ex Parte Walker (1982) 6 ACLR 423 Hawkesbury Development Pty Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 La Trobe Wholesale Finance Pty Ltd v Silkwav Pty Ltd t/as Acval Turner Valuers (in liq) [2011] FCA 1102 Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 Lawrence v Brighton Hall Securities Pty Ltd (in liq) [2009] FCA 1425 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2003] NSWSC 307 Najjar v Alfayhaa Cheese Pty Ltd (in liq) [2011] NSWSC 791 Re Gordon Grant and Grant Pty Ltd (in liq) (1982) 6 ACLR 727 TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 Texts Cited: Austin and Black's Annotations to the Corporations Act (LexisNexis Butterworths) Category: Interlocutory applications Parties: Claude Cassegrain (Applicant) Gerard Cassegrain & Co Pty Ltd (Respondent) Representation: Counsel: D E Grieve QC with P Bolster (Applicant) G Colyer (Respondent) Solicitors: Oliveri Lawyers (Applicant) McCabes Lawyers Pty Ltd (Respondent) File Number(s): CA 12/076400 Decision under appeal Citation: [2011] NSWSC 1594 Date of Decision: 2011-12-20 00:00:00 Before: Barrett J File Number(s): 2008/280507