Keays v J P Morgan Administrative Services Australia Limited [2012] FCAFC 100

FEDERAL COURT OF AUSTRALIA

Keays v J P Morgan Administrative Services Australia Limited [2012] FCAFC 100 Citation: Keays v J P Morgan Administrative Services Australia Limited [2012] FCAFC 100

Appeal from: Keays v J P Morgan Administrative Services Australia Limited [2011] FCA 358

Parties: COLIN KEAYS v J P MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED ACN 001 531 586 J P MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED ACN 001 531 586 v COLIN KEAYS

File numbers: NSD 575 of 2011 NSD 928 of 2011

Judges: GRAY, NORTH AND BESANKO JJ

Date of judgment: 12 July 2012

Catchwords: CONTRACT – where appellant employed by respondent – whether appellant's job description as modified formed part of contract of employment – whether court may refer to extrinsic material to determine meaning and content of appellant's job description. CONTRACT – where contract of employment provided appellant would work on "public side" of JP Morgan in sales of interest rate derivative products and "wall crossed" to private side when necessary – where appellant responsible for foreign exchange sales pursuant to contract of employment – where JP Morgan proposed to appellant that he work on "private side" – where JP Morgan gave responsibility for foreign exchange sales to another employee – whether repudiation of contract by JP Morgan – whether acceptance of repudiation by appellant – whether appellant affirmed contract. CONTRACT - where contract provided for "bonus guarantee" in form of restricted JP Morgan stock – where vesting of restricted stock contingent upon appellant's continued employment with JP Morgan at each "vesting date" – whether appellant entitled to part of bonus guarantee upon termination of his employment with respondent – interpretation of contractual term "payment". TRADE PRACTICES ACT – misleading and deceptive conduct – where JP Morgan made representation that appellant's position a "public side" position being "wall crossed" when necessary – whether reasonable grounds for making statement – ss 51A, 52 and 53 of Trade Practices Act 1974 (Cth). Held: The appeal should be dismissed. COSTS – indemnity costs – appeal by JP Morgan – where JP Morgan made Calderbank offer prior to filing of proceedings – whether Mr Keays' refusal of offer imprudent or unreasonable – where JP Morgan did not provide reasons as to why claim must fail with offer – where offer open for acceptance for period of seven days – whether appropriate to re-exercise discretion – whether appropriate to award indemnity costs. Held: The appeal against the costs order must be dismissed.