Triad Health Products Group of Companies Pty Ltd v Food Improvers Pty Ltd

Triad Health Products Group of Companies Pty Ltd v Food Improvers Pty Ltd - [2008] FCA 617 - FCA 2008 case summary — Zoe

[7]

Proceedings for Oppression 3 Proceedings were commenced in the Federal Court of Australia pursuant to s 233 of the Corporations Act 2001 (Cth) by The Food Improvers Pty Limited ('TFI') and John Stephen Bax, its principal shareholder, seeking the winding up of BGR Corporation Pty Limited and its associated companies ('BGR') on the ground of oppression. The oppression was said to have resulted from conduct of Frederick Thomas Gulson and his company, the Triad Health Products Group of Companies Pty Ltd ('Triad'). 4 The shareholding in BGR was held by Triad (70.4%), TFI (22.2%) and John Reese through his company Karcor Holdings Pty Limited ('Karcor') (7.4%). In July 1999 Mr Gulson caused Triad to transfer 7.4% of its share in BGR to Cordato Partners (Services) Pty Limited ('Cordato'), a company controlled by Tony Cordato, Mr Gulson's solicitor. 5 Messrs Bax, Gulson and Reece conducted the functions of senior management of BGR's business. The business was involved in the production of tea tree oil. The main asset of the group was real estate known as Main Camp Station. 6 In July 2000, Triad, TFI and Karcor entered into consultancy agreements with BGR which made provision for the payment of consultancy fees to each shareholder. 7 At a meeting in March 2001 Messrs Bax, Gulson and Reece decided that it would be pointless to issue monthly tax invoices for consultancy fees since the BGR did not have the monies to pay them. However, each of them continued to work full time in the management of the group. As will be seen, whether the obligation of BGR to pay consultancy fees after March 2001 was suspended or was extinguished became an issue of pivotal contention. 8 In 2002 Mr Reece relinquished his shareholding. The remaining three shareholders in BGR were then Triad (68%), TFI (24%) and Cordato (8%). In 2005 disputes arose between Mr Bax and Mr Gulson and numerous other incidents occurred which led to the institution of the proceedings. 9 One dispute arose over a claim by TFI for consultancy fees. TFI claimed it was entitled to such fees exceeding $1,000,000 allegedly incurred in the period between March 2001 and 2005. Triad however asserted that no consultancy fees were owing either to TFI or Triad because the entitlement to consultancy fees in this period had been extinguished and not merely suspended. 10 The parties attempted to resolve their differences in two options for negotiated settlement. The first was known as Option A, pursuant to which Triad and TFI would each be paid consultancy fees totalling $1,040,849 plus interest. The second was known as Option B, which provided for a compromise payment for consultancy fees of $500,000 plus interest to TFI with the balance of the sale proceeds of the BGR's assets being distributed by way of fully franked dividends to each of the shareholders in accordance with each shareholding proportion. 11 On 12 February 2007 the primary Judge delivered reasons for judgment in proceedings NSD1140/2005: see The Food Improvers Pty Limited and Anor v BGR Corporation Pty Limited and Ors (No 3) [2007] FCA 97 ('the first reasons').

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19 In summary, the primary Judge made orders which had the same effect as Option B. The effect of the order necessarily subsumed the claim by Triad against BGR for consultancy fees by the payment of fully franked dividends. The combined effect of the orders was to remedy the proved oppression by resolving the claims of TFI and Triad upon BGR for consultancy fees and to achieve an equitable winding up of BGR for its shareholders. 20 The alternative proposal, namely Option A, was one in which both TFI and Triad would be paid the whole of their entitlement to consultancy fees. His Honour found that such payment, followed by the residue distribution from the sale of Main Camp Station, would be less advantageous to all parties. 21 Pursuant to the first reasons, his Honour also found that Triad was to refund consultancy fees paid to it in the period between 20 July 2005 to 28 February 2006 and after 28 February 2006, later calculated in the amount of $311,550.86. 22 On 12 February 2007 the primary Judge made orders in relation to certain aspects of the relief and stood the proceedings over to 14 February 2007 for the making of further orders. 23 On 14 February 2007 the primary Judge made orders that are not relevant to the present applications. His Honour stood over the proceedings to 19 February 2007 for the making of additional orders. 24 On 19 February 2007 after a further hearing before the primary Judge, his Honour made additional orders. Those orders, inter alia, effectively adopted the provisions of Option B. Order 6 of such orders ('Order 6') provided: Declares that other than as provided in these orders the first plaintiff and the second defendant have no subsisting entitlement to consultancy fees from any of the first, fourth, fifth, sixth, seventh and eighth defendants. 25 On 19 February 2007 the primary Judge also found that Triad and Cordato had been overpaid in respect of the interim dividend declared by BGR on 22 February 2006. Triad and Cordato were ordered to repay those monies, being $340,000 and $40,000 respectively. 26 On 28 February 2007 the primary Judge delivered reasons ('the second reasons') which related to the hearing on 19 February 2007, particularly in relation to Order 6: see The Food Improvers Pty Ltd and Anor v BGR Corporation Pty Ltd and Ors (No 4) [2007] FCA 220. As to the adoption of Order 6, his Honour said at [9]: I also made an order that the resolution of the directors of BGR made on 22 February 2006 declaring and effecting payment of the interim dividend, which I found to be oppressive, be set aside and substituted a resolution which sought to give effect to what was proposed in option B. I was of opinion that it would be too cumbersome to order meetings of BGR or its directors to take the procedural steps necessary to implement and vote for the resolution.

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Subsequent events 29 On or about 13 March 2007, Triad received a letter from Gadens Lawyers ('Gadens'). Such letter informed Triad that Gadens were acting for the liquidator, David John Kerr of BGR. The letter demanded payment of $651,550.86 said to be owing to BGR by Triad pursuant to the Court's orders. Triad then engaged new lawyers, namely Shaw Reynolds Bowen & Gerathy Lawyers, and Andrew Peter Quigley of that firm had carriage of the matter. 30 By letter dated 5 April 2007 Mr Quigley responded to Gadens. Such letter claimed that Triad was owed consultancy fees totally $1,165,777.73 as at 1 July 2005, and included the following: We note that it has been accepted by His Honour Mr Justice Rares that our client is entitled to render invoices so as to be paid over $1M in consultancy fees which had not been invoiced, and in this regard we draw your attention to page 89 of His Honour's Reasons for Judgment dated 12 February, 2007. 31 On 24 July 2007 Gadens responded to Mr Quigley and rejected any right to Triad's consultancy fees as claimed and referred to Order 6. Such letter stated, inter alia: Triad's Entitlement to Consultancy Fees On our reading of the reasons for judgment dated 12 February 2007 (with particular regard to page 89 to which you directed our attention), there is no basis for claiming that Triad is entitled to be paid $1 million in consultancy fees. At page 89 the Court says that "Mr Gulson has indicated that he and Triad do not wish to receive any consultancy fees. As the difference between options A and B showed, Triad was fiscally better off by receiving only dividends which would be fully franked together with the corresponding imputation credits." Order 6 of His Honour's orders entered on 28 February 2007 is a declaration that "other than as provided in these orders the first plaintiff and the second defendant [Triad] have no subsisting entitlement to consultancy fees from any of the first [BGR], fourth, fifth, sixth, seventh and eight defendants". 32 By letter dated 7 August 2007 Mr Quigley responded to Gadens. Mr Quigley rejected the liquidator's claim but did not refer to Order 6 or to its effect, nor did the letter refer to consultancy fees. On 8 August 2007 Gadens responded and foreshadowed an application to the Court by the liquidator. 33 Mr Gulson claims that only after this exchange did he become aware that Mr Kerr was disputing Triad's claim to consultancy fees from BGR on the basis of Order 6.

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Grounds of proposed appeal from the dismissal of the slip rule application 43 Leave is sought to appeal from the interlocutory judgment of the primary Judge under the slip rule. Triad submits that Triad would suffer substantial injustice if leave were refused because 'it will then have no avenue to challenge Order 6, which has extinguished a chose in action worth in excess of $1 million without compensation'. Triad also submits that the slip rule reasons are attended with sufficient doubt to warrant it being reconsidered by the Full Court. It is submitted that the primary Judge in dismissing the slip rule application relied upon matters which were not contained in either his first or second reasons, and that the approach is inconsistent with the requirement that the Court should objectively consider whether the Court's orders reflect the published reasons. 44 Triad submits that the primary Judge appeared to proceed upon the basis that Triad carried an onus to propose a new regime of orders to give effect to the Court's reasons as set out in [23] of the slip rule reasons. Further, it is submitted that Order 6 was equivalent to specific performance of Option B which the primary Judge had found was not enforceable as acknowledged in the first reasons at [198]. It is submitted that the Court cannot objectively have intended to both extinguish Triad's action against BGR for the debt and also to have effectively ordered specific performance of Option B. 45 Additionally, it is submitted that the Court proceeded beyond the relief sought and made orders which were unnecessary or inappropriate: see Cadwallader v Bajco Pty Ltd & Ors [2002] NSWCA 328 at [251]. The relief claimed in the proceedings only sought orders for the winding up of BGR, the appointment of a liquidator and the repayment of overpaid consultancy fees in order to address the oppression. 46 Triad submits that the Court must have expected the liquidator would perform its statutory duties in connection with the administration of BGR as required by ss 474 and 477 of the Corporations Act 2001 (Cth) and reg 5.6.53 of the Corporations Regulations 2001 (Cth). Triad submits that an order such as Order 6 interferes or displaces the function of the liquidator to adjudicate in respect of a proof of debt, and accordingly such order could not reasonably be an accurate reflection of the Court's intention. 47 Triad submits that the objective intention of the Court is to be gleaned from its reasons for judgment. Even if the primary Judge considered that the challenged order correctly reflected his intention, the objective test prevails: see Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944 at 951-954; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [25]-[27]. An application to vary an order of the Court to give effect to that Court's intention is within the ambit of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.

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Extension of time application 48 The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187, each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 49 Triad submits that Mr Gulson has provided an adequate explanation for the delay, namely that he believed that Triad's right to consultancy fees had been recognised rather than extinguished and that once he had become aware that this was in dispute he promptly took steps to make the slip rule application to vary Order 6. Triad also submits that the fact that Triad had changed its legal representation is also relevant, as 'there was understandably a period of time after judgment where Triad was seeking new lawyers and they were digesting a complicated history and regime of reasons and orders'. 50 Triad submits that no obvious prejudice would be caused to the respondents if leave were granted and that the draft notice of appeal has reasonable prospects of success. The draft notice of appeal contains 13 grounds of appeal relating to Order 6. 51 Grounds 1, 2 and 13 of the draft notice of appeal raise the question whether the Court has power under s 233 of the Corporations Act 2001 (Cth) to extinguish a debt owed by the company to another person. Triad submits that these grounds raise a constitutional issue, namely whether s 233 allows for the acquisition of property otherwise than on just terms as required by s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Cth) ('the Constitution'). Triad seeks to argue that the debt owed by BGR to Triad for consultancy fees was Triad's asset which could only be extinguished or released by agreement for valuable consideration or under seal: see The Commissioner of Stamp Duties for the State of New South Wales v Bone and Others (1976) 135 CLR 223 at 229. In the absence of any agreement between the parties, Triad did not surrender its claim. 52 Triad also seeks to argue that clear and unambiguous words are required before a provision will be construed to take away property without compensation: Bropho v State of Western Australia and Another (1990) 171 CLR 1 at 17-18. It is claimed that s 233 of the Corporations Act 2001 (Cth) should not be construed as permitting the Court to remove the property rights of another person other than the company against which orders were sought (BGR). 53 Grounds 3 to 7, 9 and 10 of the draft notice of appeal raise the question whether, even if power were available to the primary Judge to make Order 6, his Honour erred in making such order. This question raises the issue of the statutory construction of s 233 of the Corporations Act 2001 (Cth). 54 Grounds 8, 11 and 12 of the draft notice of appeal also raise the issue of the appropriateness of Order 6 in respect of other relief which was granted by the Court pursuant to the orders of the primary Judge.

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TFI's response 55 TFI and Mr Bax oppose the orders sought in Triad's application for extension of time. They submit that no proper or satisfactory explanation has been provided by Triad for the delay in bringing of the application for leave and that there would be substantial and material prejudice to TFI, Mr Bax and all BGR companies if leave were granted. They also assert that the proposed appeal is futile and a waste of costs and resources. TFI and Mr Bax submit that it is inconceivable that Mr Gulson could not have understood the reasons of the primary Judge. 56 TFI and Mr Bax submit that there were two scenarios which the primary Judge had to consider in remedying the oppression of TFI, namely Option A and Option B. His Honour made orders having the effect of Option B. TFI and Mr Bax challenge the factual assertion by Mr Gulson that Mr Gulson acted promptly after learning of Order 6. It is submitted that Mr Gulson was fully aware of the consequence of the primary Judge making orders in accordance with Option B, but that he consciously chose not to appeal whilst costs were being incurred by the other parties. 57 TFI and Mr Bax also submit that there is no evidence that Triad's former lawyers did not understand the effect of Order 6. In the absence of evidence from them it is submitted that the Court could not be satisfied that there exists a proper or satisfactory explanation for the delay in pursuing the appeal. 58 It is claimed that TFI has to date paid $75,000 to fund recovery action by the liquidator and both TFI and Mr Bax have incurred heavy legal costs. The liquidator has made interlocutory applications to the courts, served statutory demands and incurred costs which would have been avoided had Triad filed a notice of appeal in time. It is submitted that the continuation of these proceedings would be wasteful and cause severe inconvenience. 59 TFI and Mr Bax also oppose the application for leave to appeal from the order dismissing Triad's slip rule application. The grounds relied upon in opposition to the application are essentially the same reasons as those relied upon by TFI and Mr Bax in opposition to the application for leave to file the application to appeal out of time.

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Explanation for delay 65 A satisfactory explanation for the delay is an essential 'pre-condition to the exercise of discretion' in considering an application for extension of time to appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. 66 The first reasons were delivered on 12 February 2007. Order 6 was made on 19 February 2007 and on 28 February 2007 the primary Judge delivered his second reasons. There is no evidence of any legal advice that might have been provided to Mr Gulson and Triad by their lawyers concerning the effect of his Honour's judgment and orders by Cordato who conducted the proceedings for Triad. 67 Mr Gulson acknowledged that he read the first reasons carefully. Orders were thereafter made on 14 February 2007. He did not attend the making of the orders on 19 February 2007 and was not present in Court on 28 February 2007 when the second reasons were delivered. He states that he did not recall the second reasons being brought to his attention. He also states that he instructed new solicitors to act on behalf of himself on or about 13 March 2007. 68 Mr Quigley was instructed after the letter of demand was received from the liquidator. Mr Quigley has testified that he asked his client to provide him with copies of the relevant documentation concerning the litigation and was provided with a copy of the first reasons. Order 6 was not provided, nor was any other judgment provided to Mr Quigley by Mr Gulson. Mr Quigley was provided with the orders made on 12 February 2007, being the first orders arising out of the first reasons. Mr Quigley deposed that his instructions on behalf of his client were to prepare a letter in response to the letter of Gadens, solicitors for Mr Kerr, dated 13 March 2007. Mr Quigley did not make any inquiries of counsel that had been retained by Triad, nor is there any evidence that he sought information from Triad's former solicitors. Mr Quigley prepared his letter which was forwarded on 5 April 2007 in reply to Gadens' letter. Such letter did not refer to the implications of Option A or Option B in the first reasons but instead referred to one portion of the first reasons where his Honour found that both TFI and Triad were entitled to consultancy fees in excess of $1,000,000. 69 The Court observes that Mr Quigley's letter dated 5 April 2007 refers to his awareness that orders had been made by the Court. Mr Quigley's letter states: The orders to which you refer in your letter are to be understood in the context of the principal relief granted by the Court in connection with the winding up of BGR. The various further orders give effect to the Court's conclusion in relation to a variety of matters of financial adjustment as between the respective shareholders in BGR.

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70 The letter from Gadens to Mr Quigley dated 24 July 2007 referred to the effect of Order 6. Mr Quigley testified that at that date he had not been provided with a full set of orders and that he was unsure of what orders had been made. Mr Quigley said that he was not aware that the proceedings had been stood over after the first reasons had been given. Mr Quigley said that only after receiving the letter from Gadens dated 24 July 2007, which Mr Quigley pointed out was more than three months after he had written his letter, did he become aware that Order 6 existed. He said there was 'some confusion about how many orders have been made' and only then made an enquiry of the previous solicitors in relation to a full set of orders. The implication arising from this answer is that the former solicitors apparently held a full set of the orders. 71 The Court accepts that Mr Quigley was not fully informed of the orders of the Court, especially Order 6, at the time he wrote his letter dated 5 April 2007. The Court also accepts that Mr Quigley's retainer was limited to the purpose of writing such letter. 72 On 7 August 2007 Mr Quigley responded to Gadens' letter of 24 July 2007 but made no mention of the orders. Rather the letter refuted the right of the liquidator to issue any demand. Such correspondence was followed by a letter from Gadens to Mr Quigley dated 8 August 2007 which threatened to re-list the matter before the Court to have the issue resolved. 73 Mr Gulson claimed that he 'decided to await the outcome of the Applicant's slip rule application before filing an appeal because if the slip rule application succeeded there would be non [sic] need for an appeal'. There is no evidence to suggest that any inquiries were made by Mr Gulson of the second reasons or of the orders, especially Order 6. 74 The cross examination clearly establishes that Mr Gulson was acutely aware of the primary Judge's proposals in respect of consultancy fees contained in the first reasons. Mr Gulson acknowledged that he 'read what his Honour said about consultancy fees, and that really focussed my mind, and that's what I recall, and that's where I form my views'. He was aware from reading the first reasons that his Honour made orders which had the effect of implementing Option B. He also knew after reading the first reasons that under Option B the amount of $500,000 payable to TFI was a compromise claim for its consultancy fees. Mr Gulson also said that he understood that Option B contained no provision for the payment of unpaid consultancy fees to Triad as evidenced by the following cross examination: You were aware that option B worked in the way that his Honour expressed, namely, that the $500,000 was payable by way of consultancy fees to the Food Improvers?---Yes, correct.

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Leave to appeal from slip rule decision 93 Triad's application under the slip rule was predicated upon the submission that Order 6 did not reflect the true intention of the Court. Triad sought to have Order 6 varied to read: (a) Declares that other than as provided in these orders the first plaintiff and the second defendant have no subsisting entitlement to consultancy fees from any of the first, fourth, fifth, sixth, seventh and eighth defendants. (i) after 28 February 2006, and (ii) in an amount exceeding $15,000 (plus GST) per month in respect of the period 20 July 2005 to 28 February, 2006. (b) The Court orders that, subject to sub-paragraphs 1(i)(a) and 1(i)(b) above, and subject to the second defendant issuing to the first defendant proper tax invoices, the second defendant's entitlements to payment of consultancy fees of $20,833.33 per month (plus GST) for the period 1 July, 2000 to 20 July, 2005 (to the extent they are payable) are not otherwise [affected] by sub-paragraphs 1(i)(a) and 1(i)(b) herein. 94 In the slip rule reasons his Honour dealt extensively with Options A and B concluding that Order 6 truly reflected the effect of his findings made in his decision of 19 February 2007. 95 In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184; Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.

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Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 399. 96 Triad submits that it will suffer substantial injustice if leave is not granted to appeal against the dismissal of the slip rule application. Triad submits that the dismissal of the slip rule application occurred after the time expired for Triad to appeal against Order 6 and if the Court does not grant leave to appeal from his Honour's decision (either under the principal application for leave to extend time or under the leave application) Triad would have no rights to challenge Order 6. 97 Triad also submits that there is sufficient doubt to warrant the slip rule decision being reconsidered by the Full Court because the primary Judge relied upon matters not contained in his Honour's earlier reasons to dismiss the slip rule application which is inconsistent with the requirement that the Court should objectively consider whether the orders reflect the published reasons; the primary Judge appeared to proceed on the basis that Triad carried an onus to propose a new regime of orders to give effect to the Court's reasons; the Court must have contemplated that the liquidator would perform his statutory duties in connection with the administration and that Order 6 would, uncorrected, interfere with the liquidator's functions; the Court's intention is its objective intention to be gleaned from its reasons; the Court could not have intended by Order 6 to objectively extinguish Triad's action against BGR and to have effectively ordered specific performance of the alleged agreement; and the Court could not have intended to make orders which afforded TFI relief beyond which was necessary or appropriate (see Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [251]). 98 With regard to the last submission, Triad submits that an order compelling the winding up BGR, the appointment of Mr Kerr as liquidator and the repayment of the overpaid consultancy fee (i.e. those incurred in 2005 and 2006) would have addressed the oppression. 99 The answer to each of the submissions concerning 'sufficient doubt' lies in the clear findings of his Honour contained in the first reasons. Contrary to Mr Gulson's contention, the primary Judge found that the debt owed by BGR to both TFI and Triad for consultancy fees in the period 2001 to 2005 had not been extinguished. However his Honour found that the oppression which existed in the management of BGR against TFI caused by Triad would be remedied by the refund by Triad and Cordato of consultancy fees paid during 2005 and 2006; by repayment of the overpaid monies arising from the February 2006 distribution; by payment of the sum of $500,000 to TFI; and by distribution of the proceeds of the sale of the Main Camp Station by way of fully franked dividends to all parties in accordance with their shareholding. By virtue of such orders, the oppression which his Honour found resulted from Triad's actions would be remedied. The Court finds that such orders reflected the intentions of the primary Judge. 100 Order 6 gave effect to part of the arrangement resulting from his Honour's findings. The relief which was sought in the slip rule application by Triad would have resulted in an order directly contrary to his Honour's findings, namely that upon payment of the fully franked dividends to the shareholders after the payment of $500,000 by BGR to TFI, neither TFI nor Triad would have any entitlement to consultancy fees. 101 The order which was sought in the slip rule application would have resulted in the dismantling of one of the essential orders made by his Honour to redress the oppression. In response to the submission that his Honour relied upon matters in the slip rule application not previously contained in his reasons, it is apparent that such matters are merely explanations for his reasons rather than matters upon which he relied in reaching his decision. 102 The Court can find no error in the primary Judge's approach. Comparing Order 6 with the primary Judge's findings, it is apparent that it gives effect to that part of his Honour's decision which was integral to the scheme to overcome the oppression. 103 For the reasons indicated above the Court finds that the decision of the primary Judge is not attended with sufficient doubt to warrant it being reconsidered by the Full Court. 104 In considering whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong, the Court notes that a refusal to grant leave to appeal to Triad would result in the extinguishment of Triad's action against BGR. However, the considerations of sufficient doubt and substantial injustice 'bear upon each other' (Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 per Burchett J at 4,186). It follows that, supposing the primary Judge's decision to be wrong, the level of injustice suffered by Triad would need to be substantial before the Court could exercise its discretion to grant leave from the primary Judge's decision. In light of the Court's above findings regarding the lack of doubt attending such decision, the Court does not consider that such threshold of substantial injustice has been reached. 105 For the above reasons the Court dismisses the application for leave to appeal from the decision of the primary Judge dismissing the slip rule application. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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