Case: D&eacute;cor Corporation Pty Limited v Dart Industries (1991) 31 FCR 397
Outcome: cited
an application of this kind an applicant must address the test laid down by the Full Court of this Court in D&eacute;cor Corporation Pty Limited v Dart Industries (1991) 31 FCR 397. In that case, and in many cases subsequent to it, the Full Court of this Court and members of this Court have said that leave to appeal will only be granted if the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered and substantial injustice will result if leave were to be refused, supposing the decision to have been wrong. The two tests are cumulative in the sense that both must be established before leave ought to be given. In my opinion, the applicant has failed to satisfy the test that the decision from which leave is sought to appeal is attended with sufficient doubt. Moreover, in my opinion, the applicant has failed to satisfy the second limb of D&eacute;cor 31 FCR 397. The second limb assumes that the decision is attended by doubt and the inquiry is whether substantial injustice would result if leave were to be refused. As I pointed out during argument, the orders which were made by his Honour require Gemhall Holdings and Time 2000 to pay the moneys which they receive on the sale of their property into an interest bearing account and to hold $1.7 million in that account until further order. The sum of $1.7 million, as I have said, is the sum of the claim by the applicants against the respondents. I was told on this application by both parties that, in fact, the properties which were advertised for sale and for expression of interest in December 2008 did not sell. In those circumstances, the orders in paragraphs 1 to 5 made by his Honour do not presently operate to inhibit Gemhall Holdings or Time 2000 at all. In those circumstances, they would suffer no substantial injustice, even assuming his Honour's decision to be wrong. Moreover, no prejudice to Gemhall Holdings and Time 2000 accompanies the making of the orders. There is no obligation on the part of Gemhall Holdings or Time 2000 to tell anyone of the existence of the orders. The only notification provision in the orders is that contained in paragraph 5 and that relates not to the assets of Gemhall Holdings or Time 2000 but to the constitution of the shareholding or directorships of those companies. There is a notification order in paragraph 7 that requires that Mr Donovan to notify the applicants' solicitors of any proposed mortgage or encumbrance or variation of any existing mortgage or encumbrance. There is, however, no injunction restraining Gemhall Holdings or Time 2000 from varying their existing borrowings or taking any further mortgages or encumbrances. In my opinion, because the orders presently do not in any way affect Gemhall Holdings or Time 2000, it cannot be said that those companies, which are applicants on this application, would suffer any substantial injustice by reason if leave were refused, even assuming the decision to be in error. Moreover, I do not think the respondents would suffer any substantial injustice by being required to file affidavits which would disclose the assets available to them to meet a judgment in favour, again, upon the assumption that the decision complained of was wrong. I do not think that would give rise to any substantial injustice on those parties' part.