Gerard Cassegrain & Co Pty Ltd (in liquidation) v Cassegrain [2013] NSWCA 455

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gerard Cassegrain & Co Pty Ltd (in liquidation) v Cassegrain [2013] NSWCA 455 Hearing dates: 26 and 27 June 2013 Decision date: 20 December 2013 Before: Meagher JA at [1]; Ward JA at [2]; Emmett JA at [3] Decision: 1. The appeal by Claude Cassegrain and Anthony Sarks (CA 2012/256538) be dismissed. 2. The appellants in appeal CA 2012/256538 pay the costs of the first to fifth respondents to that appeal. 3. The appeal by Gerard Cassegrain & Co Pty Limited (ACN 000 342 174) (in liquidation) by its Liquidator Chris Chamberlain (CA 2012/259522) be dismissed with costs. 4. The appeal by Felicity Cassegrain (CA 2012/253268) be allowed. 5. Order 17 of the orders made by the primary judge on 24 July 2012 in the proceedings at first instance (2008/281625) be set aside in relation to Felicity Cassegrain. 6. The matter be remitted to the primary judge for the purpose of considering any application on behalf of the plaintiffs for leave to amend their second further amended further statement of claim filed on 20 June 2011 in terms of the draft pleading provided to this Court and for the making of appropriate orders, dealing with the matters indicated in [180] of these reasons, depending upon the outcome of any such amendment application. 7. The first to fifth respondents in appeal CA 2012/253268 pay the appellant's costs of that appeal. [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: DIRECTORS' DUTIES - whether directors breached their duties under Corporations Act 2001 (Cth) and at equity in causing their company to transfer shares it owned in two other companies to an individual who was the wife of one director and the daughter of the other - whether shares transferred at undervalue - whether breach of directors' duties under the Corporations Act and at equity regardless of whether shares transferred at undervalue due to improper purpose breach and conflict breach - whether directors should be excused under s 1318 of the Corporations Act