AMENLEY PTY LTD v JOBSON [1998] NSWCA 14

AMENLEY PTY LTD v JOBSON SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

MEAGHER JA, HANDLEY JA and SHEPPARD AJA 7 October 1998

[1998] NSWCA 14 APPEAL — evidence — unsupportable finding of fact by trial Judge

The late Mr Wood had been a casual employee of the appellant at the time of his death. His legal personal representative successfully argued at trial that there had been a breach of a term in Mr Wood's contract of employment which required his employer to have superannuation arrangements in place for Mr Wood's benefit, which included life insurance.

HELD: Allowing the appeal: The trial Judge's finding of the existence of the above term was not supportable.

Handley JA. This is an appeal by an employer from a judgment for $50,000 plus interest entered by Craigie DCJ in an action for breach of contract.

The late Paul John Wood, whom I will call the deceased, was a casual employee of the appellant from 8 July 1992 to 23 July, and from 5 August until his death on 2 September 1992.

The plaintiff, who had been the de facto wife of the deceased in his life time, sued as the administrator of his estate for breach of a term in his contract of employment which it was said bound the employer to have superannuation arrangements in place for the deceased's benefit, including life insurance.

The events which the trial Judge held led to an express term being included in his contract of employment took place against the background of the new Superannuation Guarantee Administration Act 1992 (C'wlth). This effectively made it compulsory for all employers to provide superannuation for their employees. The Act was assented to on 21 August of that year andcame into force immediately with retrospective effect from 1 July. Without imposing an enforceable legal obligation on employers, it effectively required them to make payments to an approved superannuation fund based on wages paid to employees from and after 1 July 1992. However those arrangements did not have to be in place and the first payment of superannuation contributions did not have to be made until 14 August 1993, nearly a year after the death of the deceased.