Clark v Korda [2005] FCA 56

FEDERAL COURT OF AUSTRALIA

Clark v Korda [2005] FCA 56

CORPORATIONS – administration – appeal from decision of Deed Administrators – plaintiffs made redundant by Deed Administrators – Deed Administrators refusing proofs of debt lodged by plaintiffs – redundancy governed by EBA IV or CR91 Policy – application and interpretation of policies – EBA IV superseded CR91 Policy – EBA IV provided that CR91 Policy could be relied upon where an employee would be disadvantaged by EBA IV – whether capping provisions in EBA IV apply.

Ajax Cooke Pty Ltd t/a Ajax Spurway Fasteners v Anthony Nugent (Unreported, Supreme Court of Victoria, J.D. Phillips J, 29 November 1993) cited Australian Licenced Aircraft Engineers' Association v Ansett Australia Limited [2003] FCA 249 followed Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers' Association [2003] FCAFC 209 followed PHILIP ALLEN CLARK & ORS v MARK KORDA and MARK XAVIER MENTHA (in their capacity as Deed Administrators of Ansett Australia Ltd (subject to a Deed of Company Arrangement)) V3155 of 2003 LANDER J 8 FEBRUARY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V3155 OF 2003

BETWEEN: PHILIP ALLEN CLARK & ORS

PLAINTIFFS

AND: MARK KORDA and MARK XAVIER MENTHA (in their capacity as Deed Administrators of Ansett Australia Ltd (subject to a Deed of Company Arrangement))

DEFENDANTS

JUDGE: LANDER J

DATE OF ORDER: 8 FEBRUARY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS AND DECLARES THAT: 1. The airline pilots who were permanently employed by Ansett Australia Limited (subject to Deed of Company Arrangement) as at 12 September 2001 are entitled to have the amounts due and payable to them for severance and redundancy pay calculated and paid in accordance with the 'Ansett Airlines of Australia and Subsidiary Airlines Non-Voluntary Redundancy Plan and Procedures Document' dated 3 May 1991 (the CR91 Policy) where such entitlements would be greater than if calculated under the Ansett 'Business Recovery Redundancy Program' effective 1 November 1998 (the BRP), as provided for in Clause 21 of the Ansett Australia Union Collective Bargaining Agreement 1999 (EBA IV). 2. Liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.