Thus, the appeal proceeded by way of rehearing subject to the limitations enunciated by Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 at 419. Section 75A(10) provides that
"The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."
Thus, in the appeal, the Court is entitled to make any order which the nature of the case requires.
6 Under such legislative provisions, the substantive order which binds the parties will take effect as from the date of the order in the appeal or from the date of the order below depending upon the nature and content of the order made in the appeal. In Borthwick v The Elderslie Steamship Company Ltd (No.2) [1905] 2 KB 516, Collins MR said at 519:
"There can be no doubt that under Order LVIII ., r. 1, an appeal to a Court of Appeal is a rehearing, and though by rule 4 of the same order the Appeal Court has all the powers of the High Court, including the power to give any judgment and make any order which ought to have been made by the Court of first instance, still the judgment of the Court of Appeal is a judgment of the date on which it was given, and it would require the invocation of the powers given by Order XLI., r. 3, if that judgment is to be antedated."
7 At 521, Romer LJ said:
"When a plaintiff has failed in the Court below so that his action has been dismissed, if he succeeds on appeal it cannot, I think, be properly said that the judgment of the Court of Appeal must be regarded for all purposes as if it had been the judgment given by the judge in the Court below. The judgment in favour of the plaintiff must be treated as of the date on which it was given in the Court of Appeal, subject to the right of that Court to antedate its judgment."
8 The principle enunciated in Borthwick was applied by Mason ACJ, Wilson and Deane JJ in L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1982) 151 CLR 590, where their Honours added interest to the amount of damages assessed at first instance in order that the award of damages be appropriate as at the date when the judgment of the High Court was given.
9 The principle was further examined and applied in Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306. At 310, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ cited Borthwick with approval. At 311, their Honours said:
"In our view, the words 'may give such judgment as ought to have been given in the first instance' in s.37 of the Judiciary Act do not have the operation for which the appellant contends. Clearly they were not thought to do so in Borthwick v. Elderslie Steamship Company (No. 2) for by its rules of court the Court of Appeal had all the powers of the English High Court, including the power to give any judgment and make any order which ought to have been made by the court of first instance: see Collins M.R. [at 519]. Such a provision speaks to the power of the Court and no doubt a rule such as O.43 r.3 of this Court's Rules is a useful corollary to such a provision. But to empower an appellate court, in the exercise of its appellate jurisdiction, to 'give such judgment as ought to have been given in the first instance' does not, as Romer L.J. pointed out in Borthwick [at p.521] mean that the judgment of the appellate court 'must be regarded for all purposes as if it had been the judgment given by the judge in the Court below'."
10 In the present case, it is essential to make an order which will speak from the date on which the order is made, for the subject of the judgment is the value to be paid on the transfer of the shares and units. That event is still to take place in accordance with the orders of the Court. It would be entirely inappropriate to antedate the value to be paid either to 14 March 1996, when the order was first made by Master McLaughlin that the shares and units be transferred, or to 6 February 2001, when the Master certified that the value to be paid be "nil". It was always the intent of the earlier orders that the value be paid when the shares were transferred. The amount to be paid having been fixed by my judgment, the effective orders for transfer and payment will have application on and from the date on which I pronounce them.
11 I would further add that my reference to the rates of interest as reflected in Schedule J to the Supreme Court Rules did not reflect a finding that either Shirim Pty Ltd or Dr Smith was entitled to interest on any sum. I did not have in mind to include an amount of interest as such. The reference to interest was simply one of the factors to which regard was had in arriving at an appropriate figure for the value to be paid for the shares and units when transferred. For example, prejudgment interest in an award of damages for personal injury was held by Black CJ, Lockhart and Burchett JJ, in Whitaker v Commissioner of Taxation (1998) 82 FCR 261, not to be assessable income. In the present case, the reference to interest rates occurred simply because there was a good deal of evidence as to the relevant facts as at 30 June 1996, but there was very little evidence as to factors to which regard should be had so as to bring the value of the shares and units up to date.
12 The second issue concerns costs. Mr Lindsay submitted that each party should bear his or its own costs of the proceedings to date, including the costs of the proceedings up to and including the consent order on 14 March 1996, the costs of the proceedings thereafter culminating in the orders of Master McLaughlin on 6 February 2001 and the costs of the proceedings in the appeal. Mr Lindsay submitted that the issue between the parties had not been as to whether or not the shares and units should be transferred but whether any amount should be paid to Shirim Pty Ltd by way of relief against oppression and, if so, what that amount was. Mr Lindsay provided a schedule of settlement offers and related communications between the parties from 3 December 1993 to 30 November 2001. The latter date was during the hearing in the appeal. The schedule shows that, over the period, the companies in the Macquarie Hospital group were reluctant to offer any sum other than the monies payable to Dr Smith under a superannuation fund, which subsequently were paid to him. Shirim Pty Ltd and Dr Smith sought a substantial payment for oppression although, by 28 November 2001, Shirim Pty Ltd and Dr Smith had indicated a preparedness to accept $350,000 including costs.
13 In my opinion, the ordinary rule as to costs should apply. There was oppression of a minority. The institution of the legal proceedings was necessary. The amount that will be recovered will be greater than any sum offered by those responsible for the conduct which I have held to be oppression.
14 Mr Cotman conceded that the costs of the inquiry before the Master should be reduced to 80 per cent, having regard to the manner in which the inquiry was presented on behalf of Shirim Pty Ltd and Dr Smith. I agree that that would be appropriate. I consider the orders as to costs proposed by Mr Cotman are appropriate.
15 The third issue concerns the matter of a stay. Mr Lindsay has sought a stay of the orders pending the hearing and determination of the appeal. In my opinion it is premature to consider that issue. An application for a stay may be made if and when a notice of appeal is filed.
16 I shall however fix 31 May 2002 as the date on which the shares and units be transferred and the value be paid. By that date, the time for appeal will have expired.
17 I accordingly make orders in the form propounded on behalf of Shirim Pty Ltd and Dr Smith, save that in paragraph 7 thereof I substitute the date 31 May 2002.
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