Case: Cadwallader v Bajco Pty Ltd &amp; Ors [2002] NSWCA 328
Outcome: referred to
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 &amp; 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. 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.