MAILMAN and ORS v ELLISON and ORS [1993] NSWCA 169

MAILMAN and ORS v ELLISON and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

BRYSON J KIRBY P, MAHONEY, SHELLER JJA 21 September 1993, 25 November 1993 [1993] NSWCA 169

PRACTICE and PROCEDURE — motion for judgment at end of plaintiffs case — judgment entered — "jury basis"

CONTRACT — bonus payments — construction of agreements — quantum metuit

PRACTICE and PROCEDURE — motion for judgment under Pt34 R8 SCR — claim by manager for bonus payments allegedly owing under agreements with former employer or for quantum meruit — at end of manager's case employer moves successfully for judgment — on appeal to the Court of Appeal

CONTRACT — employment contract — promise to pay bonuses in respect of development and investment properties found for employer — initial agreement evidenced by letter — subsequent agreement made in contemplation of manager's termination — construction of agreement(s) — trial judge (Bryson J) at conclusion of plaintiff s case enters judgment upon employer's application in employer's favour — on appeal

Held: There was evidence, taking the plaintiffs' case at its highest, upon which a tribunal of fact could find for plaintiffs - proceedings returned for conclusion of trial.

Held: (per Mahoney JA; Kirby P and Sheller JA concurring):

(1) Assuming (as was done at the trial) that the decision of the judge was to be made upon "the jury basis", ie taking the evidence of the manager at its highest, there was evidence upon which the judge could find in favour of the manager, at least upon the first agreement and the claim for a quantum meruit;

(2) Accordingly, judgment for the employer set aside and proceedings returned for completion of the trial.

Held: Judgment for plaintiffs' open.

Held: (Mahoney JA; Kirby P and Sheller JA concurring): Upon a true construction of the agreements it was open to the trial judge to find a promise to pay outstanding bonus payments after date of termination - it was also open to find for the manager on a quantum meruit - judgment for employer set aside and proceedings returned for completion of trial.