Time limitation for claim for equitable relief (for
breach of fiduciary duty – case of Cassegrain v Gerard
Cassegrain & Co Pty Ltd  NSWCA 454 – delivered on
18 December 2013
The Supreme Court of NSW, Court of Appeal (Beazley P, Basten JA
and MacFarlan JA) delivered its decision in the case of Cassegrain
v Gerard Cassegrain & Co Pty Ltd  NSWCA 454 on 18
One issue on appeal was whether the primary Judge (Barrett J)
had correctly dealt with the question of whether a limitation
period should be applied to the equitable claim by analogy with a
common law claim, and if so, what the analogous period was. Barrett
J had considered that the claims upon which the company (Gerard
Cassegrain & Co Pty Ltd) had succeeded warranted an analogy
with tort, and accordingly, the analogous limitation period was six
years. His Honour however, took into account that the company had
for a period of time been in receivership at the instance of a
secured creditor (the Commonwealth Bank). Barrett J considered that
during that period of receivership the prospect of leave being
granted to bring proceedings against Claude Cassegrain and his
wife, Felicity Cassegrain, would have been "very remote".
Barrett J had found that there was no real ability for shareholders
to bring an action during the period of the receivership, and his
Honour considered that the period of receivership was, in this
case, akin to "a state of 'disability'" under the
Limitation Act s11(3). Accordingly, by analogy, his Honour
considered that the limitation period was suspended during this
On Appeal, Beazley P considered [at 156] that "[i]t was
open to his Honour to find that the period of receivership ought to
be ignored for the purposes of determining the expiry of an
analogous limitation period" and that "[i]t was open to
his Honour to infer that it was unlikely that leave would be
granted to bring proceedings whilst the company was in receivership
and also unlikely that the receivers themselves would have taken on
such proceedings as were eventually brought, because they had no
interest in doing so". MacFarlan JA agreed with Beazley P on
this issue and Basten JA found that it was unnecessary to consider
this issue given the finding of both Basten JA and McFarlan JA that
the equitable claim by the company fell within the terms of s47 of
the Limitation Act for which a 12 year limitation period applied
(or alternatively that s47 of the Limitation Act was the statutory
provision closest in kind to the circumstances of the case and
applied by analogy).
In her Honour's judgment, Beazley P [at 118] noted that
there may be a question as to whether the application of an
analogous limitation period in respect of an equitable claim is an
aspect of the law of laches, with the same considerations as apply
to that doctrine applying to the application of the analogous
period. Her Honour noted that the question had not been raised in
the case and therefore it was not appropriate to consider that
specific question in the judgment.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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