Wambo Coal Pty Ltd & Anor v Sumiseki Materials Co Ltd [2015] HCATrans 56 (13 March 2015)

Last Updated: 20 March 2015

[2015] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S267 of 2014

B e t w e e n -

WAMBO COAL PTY LTD (ACN 000 668 057)

First Applicant

PEABODY AUSTRALIAN MINING LIMITED (ACN 002 818 699)

Second Applicant

and

SUMISEKI MATERIALS CO LTD

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, QC: May the Court please, I appear with my learned friend, MR J.R. WILLIAMS, for the applicants. (instructed by Johnson Winter & Slattery)

MR N.C. HUTLEY, SC: If the Court pleases, I appear with my learned friend, MS Z.C. HEGER, for the respondent. (instructed by Allens Lawyers)

FRENCH CJ: Yes, Mr Young.

MR YOUNG: If the Court pleases, we contend that issues of general importance arise both in relation to the Court of Appeal’s decision that the dividend in question here was a mandatory dividend and in relation to aspects of the decision on oppression. By a mandatory dividend it is clear that the Court of Appeal meant a dividend with these elements. First, it was payable to the exclusion of any discretion given to the directors either by the Corporations Act or the accounting standards or the Constitution. That is the effect of the trial judge’s declaration which was left in place.

Secondly, it is mandatory regardless of any decision that it should be declared or paid. The Court of Appeal specified that at paragraph 117. And it is also mandatory regardless of the director’s decision as to what is the profit available for distribution and what dividend decision was in the best interests of the company as a whole and that follows from the Court’s reasoning in various places in the judgment.

FRENCH CJ: To what extent are you cavilling with a question of construction?

MR YOUNG: We do cavil with a question of construction, but the first point is that the particular article must be construed in a way which gives effect to the overriding requirements of the Corporations Act and the accounting standards. It is our submission that the Court of Appeal’s approach ignores the necessary role of directors under the Corporations Act and the accounting standards.

HAYNE J: What is different from this – between this clause and a common form preference share clause of a kind found in Palmer’s 16th and 17th editions?

MR YOUNG: In England, there was no regime of statutory and accounting requirements similar to those which are operative here, so that authority does not raise the issue, nor do any of the earlier English cases that Justice Barrett referred to. There is a settled line of authority in Australia that a provision like this is not to be construed as conferring a mandatory dividend obligation.

HAYNE J: You cannot have a preference share that requires payment of a dividend from available profit?

MR YOUNG: Not inconsistently with the requirements of the Corporations Act or the accounting standards and that is the effect - - -

HAYNE J: Does the proposition come to the fact that the clause should be read as not consistent with the Act?

MR YOUNG: The clause as construed by the Court of Appeal is not consistent with the Act and the accounting standards. The overriding requirements of both those matters, both those framework issues, require the construction that we contended for, that is, within the body of the article, the reference to profit available for distribution refers to such profit as the director’s determine in accordance with their duties and responsibilities under the Corporations Act and the accounting standards can and should be made available for distribution in pursuance of their duty under section 181 to act in the best interests of the company as a whole. It is that element which is missing. There is no proper consideration of those overriding requirements in the decision of the Court of Appeal, and that is why we say it does raise matters of general importance.

The Court of Appeal said, for instance, that the phrase “profits available for dividend” depends wholly on the construction of the Constitution. They said that in several places. First, at paragraph 83, which is at page 131 of the application book, last paragraph on the page. They said it again at paragraph 117 – I am sorry, at paragraph 98, that is at 137. Now, it is that absolute proposition that the meaning of the phrase “profits available for dividend” depends wholly on the construction of the clause as if the overriding requirements of the Corporations Act and the accounting standards did not apply.

FRENCH CJ: Can you identify in a nutshell the inconsistency between the “overriding requirement” of the Corporations Act?

MR YOUNG: Yes, yes I can, your Honour.

FRENCH CJ: By reference to the text of the relevant provision?

MR YOUNG: Yes, if I go to the provision firstly of section 254T?

FRENCH CJ: Yes, I think that is set out at 57; yes.

MR YOUNG: Yes, there are three limbs, as the Court - - -

FRENCH CJ: These are necessary conditions?

MR YOUNG: These are matters that directors must always address before making any dividend payment declaration or payment decision:

(1) A company must not pay a dividend unless –

those three matters are satisfied which means each of the three matters must be satisfied.

FRENCH CJ: That is to say, as the Court of Appeal said:

It imposes a prohibition upon payment of a dividend unless specified conditions are satisfied.

MR YOUNG: The Court of Appeal in that passage, I think your Honours at paragraph 126 - - -

FRENCH CJ: No, 74, I think.

MR YOUNG: Paragraph 74 – it is said again at - - -

FRENCH CJ: Page 128.

MR YOUNG: Page 128, yes, but there is a discussion of that provision later in Justice Barrett’s reasons at paragraph 126 at page 146 where again the provision is set out. It is misconstrued. In the last sentence of paragraph 126:

If all those conditions are not satisfied and the legal prohibition on the payment of any dividend operates –

the provision operates to prevent the payment of the dividend if one of those conditions is not satisfied. So, the provision is misconstrued. Secondly, that whole discussion - - -

HAYNE J: Sorry, what is the proposition?

MR YOUNG: Under section 254T the prohibition operates if one of those three conditions (a), (b) or (c) is not satisfied.

FRENCH CJ: All must be satisfied.

MR YOUNG: Yes, that is right.

HAYNE J: Which is what the judge says.

MR YOUNG: Yes, but they are not cumulative in the sense that the prohibition does not operate simply because - - -

FRENCH CJ: Well, you are reading it in the particular way as though he is requiring an accumulation.

MR YOUNG: Perhaps, your Honour, but I am going to make a deeper point, if I may? Paragraph 126 ignores the fact that at the point of considering whether to declare or pay a dividend, the directors are required by 254T to make a judgment as to what profits are available for dividend and whether the payment of the dividend will infringe any of the three conditions, including whether the payment of the dividend would not be fair and reasonable to shareholders as a whole. In this case, there was unchallenged evidence from the directors that payment of this dividend would not be in the best interests of the company. There are a range of factors that they considered in that regard, their evidence was unchallenged. Payment of the dividend would remove funds that the company required for future capital expansion as those dividend decisions recorded.

Now, those are matters that the directors have to consider at the point of determining whether there are profits available for a dividend. It is that role of the directors which is left out of account by the characterisation of these matters as a legal prohibition or a legally binding stipulation. It is more than that. The directors have a duty under sections 180 and 181 to ensure that the three conditions in 254T are satisfied before any payment is made. There was evidence about these matters. The directors considered the availability of profits for dividend and they considered and found that there were good reasons why a dividend should not be paid, why it would not be fair and reasonable. That evidence went unchallenged.

Now, this goes back to the proposition also in paragraph 183 that there is no separate decision to be made to declare or pay is required. That is paragraph 83 at 131. Now, that is mistake. It ignores the essential role of directors. A decision must be made under 254T to declare or pay a dividend. That decision involves consideration of the accounting standards, as 254T(2) says. It involves consideration of solvency issues under 588G, and the directors must consider all those matters. They effectively did so here and their evidence went unchallenged.

HAYNE J: They did so on the footing that there was no contractual obligation to pay the fixed dividend.

MR YOUNG: They did so on the basis of legal and accounting advice that they had a discretion.

HAYNE J: Yes, that is, an assumption that the case should be resolved in the fashion you urge.

MR YOUNG: A belief, not just an assumption, a belief based on legal and accounting advice that was also unchallenged.

HAYNE J: No challenge to bona fides is made, I think, is there?

MR YOUNG: No, there is not, your Honour. Can I then just address the accounting standards issue that the directors, in our submission, also had to consider? At paragraph 125, at pages 145 to 146, Justice Barrett accepted that the application of the accounting standards to determine what profit was available required necessary judgments to be brought to bear. They were judgments that had to be made by the directors. The conclusion that the dividend is mandatory, it is automatic, there is no decision as to declaration or payment and there is no room for a director’s judgment about matters in pursuance of their duties produces a paradoxical result. If this is a mandatory dividend, the evidence before the Court – and accepted by all sides – was that a mandatory dividend is a financial liability. It is a liability that has to be valued over its life - - -

FRENCH CJ: Well, this has to be added up and it ends up exceeding the assets.

MR YOUNG: Well, it goes into the balance sheet. The payment of the dividend then – if this is a mandatory obligation – is an expense. So, the proposition that you have a mandatory dividend payable out of profits cannot be met, it cannot be satisfied. That construction produces a result which is inconsistent with the accounting standards that the directors are bound to apply under both section 254T and sections 180, 181 and also 295 to 297. It also produces a paradoxical result when you consider that the article covers both half year dividends and full year dividends. The half year dividend is on the basis of unaudited accounts. There is a long-established principle that an interim dividend, a half year dividend, is provisional only and before declaring and paying it the directors have to make an assessment as to the full year results.

FRENCH CJ: Well, what is this? Is this a point that goes to construction?

MR YOUNG: No, it goes to the proposition that the mandatory dividend decision is inconsistent with settled principles of company law.

FRENCH CJ: Well, you say, in other words, you cannot have a mandatory dividend provision.

MR YOUNG: For a half year, is the point I am making at the - - -

FRENCH CJ: Or, at all?

MR YOUNG: Or, at all, but the point I am making at the moment is - - -

HAYNE J: That is, you cannot have a preference share?

MR YOUNG: You can have a preference share but the decision as to what profits are available still must rest with the directors under the scheme of our Corporations Law and accounting standards. And the directors must act honestly, reasonably and bona fide, in that regard. But if they bona fide form the view that there are no profits available, that is the first question that has to be addressed before you apply the preference dividend provision. But can I just finish on the interim dividend point? This Court in Bluebottle said the decision of the directors is wholly provisional based on an estimate as to full year results. Marra Developments in the Court of Appeal in New South Wales said the same thing. That is a settled principle of the general law of corporations.

This decision applying a mandatory dividend concept to the half year dividend, based on unaudited accounts, is inconsistent with that. It would mean that you have to pay the half year dividend even if the directors anticipate that in the second six months, what appeared to be a profit after six months is going to be wiped out by expenditures or losses in the next six months. So, you would have a dividend on a full year basis that is not paid out of profits. But according to the construction, you have to pay it by virtue of the fact that it is a mandatory dividend, there is no room for an independent decision about what is available, declaring it or paying it.

These matters, in our submission, do raise matters of general importance. To go back to your Honour the Chief Justice’s question to me, we do challenge the construction itself. We say there is a settled line of authority culminating in Justice Lockhart’s decision in Tosich.

FRENCH CJ: The first line is they construed it wrongly, and if they construed it rightly, it is invalid.

MR YOUNG: Yes. If that construction were to be open, or warranted by the language, it would produce results inconsistent with the scheme of the Corporations Act and the accounting standards.

FRENCH CJ: Is that reflected in ground 3? I am looking at your amended draft notice.

MR YOUNG: It is reflected in grounds 2, 3 and 4. Ground 4 is the positive way of putting - - -

FRENCH CJ: Ground 2 is the constructional point, is it not?

MR YOUNG: No. Ground 2 goes to the point that it is regardless of any decision that is should be declared or paid.

FRENCH CJ: Yes. I am just wondering where the validity is taken on. It seems to be the closest to that is 3.

MR YOUNG: It is primarily 3, your Honour, but the – 3 obviously links to 2 because it is the decision in 2 to exclude any decision that it be declared or paid, and 4 puts what we say is the appropriate construction having regard to the requirements of the Act and the accounting standards, and 5 picks up the incongruous result that is produced that is inconsistent with the accounting standards. If I may, your Honours, can I turn briefly to oppression?

FRENCH CJ: Yes.

MR YOUNG: Can I ask the Court to go to paragraph 226?

HAYNE J: Page?

MR YOUNG: It is page 180. This encapsulates the Court of Appeal’s decision and the grounds and the two grounds articulated for finding oppression. One is departure from:

the established course of conduct with respect to B class dividends –

The second is the resort to the loan covenants. Although Justice Barrett notes that that was only relevant to three of the five decisions but had no relevance to the other two.

Now, as to the suggestion there was a departure from established course of conduct, there was no basis for that finding. From December 2008, when the directors took advice from accountants and lawyers as to the proper construction of the articles, they proceeded on the basis that there was a discretion and that discretion was recorded in a note to the accounts. The previous evidence was that on occasions when dividends were considered, the directors made a decision. Sometimes they declared a dividend by reference to consolidated profits. Sometimes they declared a dividend by reference to the profits of the single entity. But the fact that dividends were paid does not establish some course of conduct from which there was a departure.

But in any event, that proposition really amounts to saying that it is oppressive conduct for the directors to take legal advice and accounting advice to act on the basis of that advice that they had a discretion and the consequence is said to be that because you have made a wrong decision about the construction based on advice, that is unfair, unduly prejudicial or oppressive.

HAYNE J: Your proposition inverted is that you cannot have oppression without bad faith.

MR YOUNG: No, your Honour. No, I am not going - - -

HAYNE J: The bare fact of good faith is advanced by you, I understand it, as a total answer to the oppression case.

MR YOUNG: It is part of the answer because a bona fide belief based on advice as to the proper construction of a particular provision, of and by itself, cannot amount to conduct that falls within the scope of section 232. But, there are other factors as well which was that there was no evidence to support any such established course of practice from which there was an unfair departure.

If one goes back to the trial judge’s declaration, his declaration was that the conduct in denying Sumiseki’s right and expectation was oppressive. That really amounts to saying that Sumiseki had an expectation of a different interpretation of the article, therefore to disagree about that interpretation is, of and by itself, oppressive. So, in our submission, that does not withstand analysis. The second ground as to - - -

HAYNE J: Do you accept that many oppression cases arise in circumstances where what might be called both sides are acting in what they understand to be pursuit and execution of rights?

MR YOUNG: It may be on occasions because it is an objective test that one applies. I accept that, your Honour. But it is a different proposition to say that conduct is oppressive solely by virtue of the fact that you take a different view about legal rights or entitlements based on legal and accounting advice. That is the first proposition and that is the only proposition to support the finding of oppression in two of the five dividend decisions. There is no other basis. It is illogical to say that in those two cases where covenants were not relevant, they somehow bolstered the decision. They were not even referred to, or relied upon, by the directors in making the decision.

FRENCH CJ: Thank you, Mr Young.

MR YOUNG: If your Honour pleases?

FRENCH CJ: Yes, Mr Hutley.

MR HUTLEY: Your Honours, this case was conducted at trial and on appeal, on the basis that there was a construction issue and a construction issue is just to the meaning of the relevant article and the Court treated it in that way. That appears from the summary of our learned friends’ arguments in the Court of Appeal, which your Honours will find at paragraphs 46 and following of the Court of Appeal judgment at application book 119. In effect, the argument advanced was that there was a settled meaning of the phrase:

“available for dividend purposes” -

That led to a lengthy consideration of numerous cases by Justice Hammerschlag between paragraphs 88 and 103, commencing at application book 132 which mirrored the similar extensive consideration by Justice Hammerschlag at first instance at application book 39, at paragraphs 144 to 160. Both judges came to the somewhat unsurprising result that that phrase depended upon the context it found itself in in particular articles.

Of course, the actual words of this article, which they considered, found no identical reflection in any of the cases considered, as did when one goes through the cases, each had a different form of articles and different cases came to different conclusions. So the point of construction that this is some unique and pre-determined result in the law of this country is, in our respectful submission, without any basis whatsoever. One merely has to go to the House of Lords decision in Prenn v Simmonds where they were dealing with cognate words and they came to a conclusion identical to that which was come to by the Court of Appeal.

So, we say the point of construction is a matter of no – the task sought to be advanced that there is some adamantine meaning to these words is one which we say has no prospects of success. Then one turns to the next issue which seems to be advanced, and it is important in this regard to realise that these articles entered the Constitution when section 254T took the form that it does not have today, but that which your Honours will see from paragraph 56 of the Court of Appeal’s judgment at 121 in the application book, where – and your Honours will find the form of it in the materials behind, I think, tab 2 where 254T required:

A dividend may only be paid out of profits of the company.

So when one comes to the consideration of the legality or illegality of this article, one has to determine it in the legal context in which it was entered into, and so 254T was - in its current form, is irrelevant. Now, my learned friend seeks to deploy 254T now as saying that for reasons, some reasons, 254T in its current form precluded this article. Now, that may be a point which might have been available had it ever been taken either at trial or in the Court of Appeal.

Now, we have referred to the fact that it was not taken at trial and it was not taken, we submit, for very good reason, because had it been sought to be deployed that 254T stood in the way of payment of these dividends there would have been what you might call a red hot issue of credit as to what was driving this organisation in doing what it was doing and that it was not not paying the dividend because of good reason, but because of its determination to pressurise my client.

That was avoided by the applicants by not raising 254T as an inhibition in point of fact to the payment of the dividends – the five dividends – with respect to which we made claim. So, the point we say is simply not open. It does not go to legality. If it went at all to anything it would have gone, as the Court of Appeal observed, to the question as whether in the year in question there was a profit available for dividend purposes. That would have been a particular inquiry of particular fact about particular dividends, but it would have had to be pleaded and articulated. It was not, and so the point simply does not arise for your Honours. It simply was not investigated. So we say 254T in its current form is of no interest in this case.

The next point, as we understand it, is the interim dividend point. Now, we have addressed that shortly in our submissions at application book 241, paragraph 37. Now, the point is, the decision of Marra Developments dealing with what was an interim dividend was dealing with it in a particular statutory context, the Companies Act 1961 which there provided only for an annual dividend. The legal framework has changed significantly in this regard. But these articles of this company call for a half yearly set of accounts and the payment of a dividend in accordance with the profits ascertained from those half yearly accounts.

We would say it is not an interim dividend as that word, that phrase has been used to develop the principles which this Court has considered and Marra Developments. These articles provide that there are to be two profits determined by this company; one at half year, in accordance with accounts prepared as mandated by the article in accordance with the accounting standards – and I will come to the accounting standards point next, if I might – and one, an annual dividend. That is what is required and that is what the obligation is. Can I now turn to the accounting standards?

Again, there was no case led at trial that the accounting standards precluded payment of this dividend. It simply was not investigated, there was no evidence tendered by any expert accountant or the standards themselves in point of detail about some requirement. Now, as we understand it, it is said – the point seems to be raised – that because of the form of the article with respect to the half year and then year, the payment of the dividend if the half year becomes a debt and therefore a deduction which interferes with the calculation process, well, we say that has not been investigated from the point of view of accounting.

It was not run at any point and it is not available, because had it been run, it would have led to, potentially, evidence from experts as to how accountants treat such matters as your Honour Justice Hayne has observed, mandatory preferential dividends, that is, which could be paid not necessarily solely on an annualised basis. They are, of course, paid out of profit, so they do not become a deduction, they become a subtraction after profit. But that could have been dealt with by expert evidence. It is a point, we say, which does not arise, and it certainly is not a point which turns this case into one which is of interest to this Court. It will be a particular outworking of a particular article which, if it led, for example, to an absurd result inconsistent with the construction of the article would probably mean that the construction would be, as it were, massaged – if that point had ever been run.

So, we say none of these points, other than if your Honours are interested in the construction question, namely, you cannot have - or this article did not, when it was introduced in the statutory framework which then exists, create a mandatory article - unless that is of interest to this Court, none of the other points properly arise. That is all we wanted to say about the first ground. As to the oppression, it is, in essence, in its current form, wholly parasitic on the construction because in effect as determined, it was determined to in effect, ex excessio cautela to make clear that which was implicit in the construction. So, unless the construction point interests this Court, the oppression case is of no importance, in our respectful submission, and will lead to no change in the result.

But further we say, in point of fact, the conduct here involved was and was objectively clearly oppressive. This company was bought by the applicant on the basis that there was a mandatory dividend of the variety we have contended. It bought it on that basis. It then proceeded to act on that basis for a number of years until it became in the commercial interests of the holding company in the United States to alter that basis for accounting purposes. That was the fons et origo of what was the movement towards the act which took place. We put, and we were successful, that the introduction of the lending covenants was part of that process. So the

lending covenants were an aspect of a design to depart from what the parties understood and had agreed was the basis upon which they would deal, and my clients sold out valuable interests to Wambo and on which Peabody acquired this company.

FRENCH CJ: The issue of the B class shares was in substitution for a profit interest entitlement under an agreement between Sumiseki and the shareholder, was it not?

MR HUTLEY: Yes, a company then Hunter Coal which, in effect disappeared in a reconstruction - - -

FRENCH CJ: And that became Peabody - - -

MR HUTLEY: - - -and becomes, in effect, the holding company of Wambo – PAML, I think - - -

FRENCH CJ: That is right.

MR HUTLEY: - - - was the acronym, your Honour. So, on the construction issue, to go back to that, the surrounding circumstance, if you ever got to it, made it absolutely clear to demonstration that our construction was right, because otherwise you had absurdities in the proceeding. So, what Peabody was doing for its own commercial interests had lit upon a possibility of, in effect, pressurising my client to seek to get it to abandon its - - -

HAYNE J: No, I do not think acting in commercial interests is some badge of dishonour is it, Mr Hutley?

MR HUTLEY: I accept that completely, but perceiving that and then departing from the common understanding as to the basis upon which parties has dealt can be. I accept that completely, your Honour. They can act in their self-interest, but then perceiving it and thereupon utilising it as a device to depart from what was the common intention of the parties we say can be oppression, and that is all that the court found. So, we say there is no point of importance in the oppression case. It is the application of principle is completely conventional. That is all our submission.

FRENCH CJ: Thank you. Yes, Mr Young.

MR YOUNG: Several points by way of reply, your Honours. First, on construction my learned friend referred to cases but he singled out Prenn. Prenn v Simmonds was a case about a contractual payment, and as the Court of Appeal pointed out, it did not involve rights between shareholders and a corporation attracting the provisions of the Corporations Act. That is paragraph 99 of the Court of Appeal’s judgment at page 137. Secondly, in relation to 254T, the old form of 254T is not relevant on any view of things. At the point of declaring or paying or considering a dividend, the articles must always conform to the overriding requirements of the then operative legislation and accounting standards.

Here, we specifically pleaded on four occasions that the mandatory dividend construction would be contrary to section 254T. In our defence, commercial list response, paragraph 53, paragraph 61 and paragraph – I will just find one more – 71E. So, 254T was specifically pleaded as a barrier to the construction that the Court of Appeal ultimately accepted. We refer to that in our reply at paragraphs 6 to 10 at page 245. So, the point was taken at trial and on appeal. As to the interim dividend, the proposition that the half year dividend falls outside the principles of Marra and Bluebottle is simply wrong. That was a provisional dividend based on unaudited accounts and the director’s legal obligations and duty were to estimate the full year position.

The accounting standards were addressed at trial by the trial judge at paragraphs 60 to 63, at application book 19 to 20. It was common ground at trial and on appeal that the effect of the accounting standards was that if there were no discretion and this was mandatory it would have to enter into the accounts as a financial liability. We address that in our reply at paragraph 13.

So, in our respectful submission, the points raised on the dividend point in answer are all diversions. As to the lending covenants, the historical origin in a profit interest agreement needs to be understood in this light: That was a contractual obligation of a shareholder. It was not an obligation of the company that brought in the role and responsibility of directors to determine what profit was available for dividend. It was like Prenn v Simmonds in that regard.

As to the lending covenants, the Sumiseki company took the benefit of the loan agreement. There is no challenge to the loan agreement; they took the benefit of the loan agreement. PAML was funding this company to the tune of many hundreds of millions of dollars. Capital expansions were about to be undertaken. It never received any ordinary dividends. The money stayed in the company for the benefit of those shareholders. So, the loan was needed by Wambo. It took the benefit. It never challenged the benefit, it never challenged the loan agreement. A loan was not available externally, the trial judge so found. It was not available externally on any terms and conditions except those that had covenants limiting distributions of dividends.

Now, in those circumstances, let me assume there was some conflict issue originally in putting forward the covenants. The relief goes to imposing a mandatory dividend obligation. It is not related to any advice that attends the insertion of the covenants in the circumstances I have just mentioned. There is a complete disconnect between the relief which is in terms of imposing a mandatory dividend obligation and a complaint about the operation of the covenants in three of five cases. For those reasons, in our submission, oppression also raises an issue of real importance. Those are our submissions.

FRENCH CJ: Thank you, Mr Young.

This application for special leave turns primarily on the construction of an article of a company constitution held by the Court of Appeal of the Supreme Court of New South Wales to entitle the holder of B class shares in the company to payment of a periodic dividend out of the profits of the company available for dividend purposes.

The construction of that article by the Court of Appeal, in our opinion, is unattended by sufficient doubt to warrant the grant of special leave. The related finding of oppressive conduct does not, in our opinion, give rise to any separate question of principle which would warrant the grant of special leave. Special leave is refused with costs.

AT 10.10 AM THE MATTER WAS CONCLUDED