In the matter of International Trade & Tenders (In Liquidation) and the Corporations Law Elisjones v Green [2001] NSWSC 111

New South Wales Supreme Court

CITATION : In the matter of International Trade & Tenders (In Liquidation) and the Corporations Law Elisjones v Green [2001] NSWSC 111 revised - 14/03/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2612 of 1994 HEARING DATE(S) : 20 and 21 February 2001 JUDGMENT DATE : 21 February 2001

PARTIES : Barbara Elisjones (Applicant/Appellant) John Duncan Green (Respondent) JUDGMENT OF : Windeyer J at 1

LOWER COURT Decision of Liquidator JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT John Duncan Green JUDICIAL OFFICER :

COUNSEL : Mr R.J. Brender (Applicant/Appellant) Mr M J Cohen (Respondent) SOLICITORS : In Person (Applicant/Appellant) Dickson Fisher Macansh (Respondent) CATCHWORDS : CORPORATIONS - winding up - appeal against liquidator's decision to reject proof of debt for unpaid wages - appeal upheld - CONTRACT - agreement as to wages DECISION : see paragraph 27

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 21 FEBRUARY 2001

2612/94 NATIONAL ADVERTISING SERVICES PTY LTD v INTERNATIONAL TRADE & TENDERS PTY LTD ELISJONES V GREEN - Appeal from Liquidators decision on proof of debt

JUDGMENT

1 HIS HONOUR: This is an appeal by Miss Elisjones against the decision of the liquidator of the original defendant in these proceedings to reject a proof of debt which had been lodged by Miss Elisjones, whom I will call the applicant, claiming to be entitled to a sum of approximately $137,000 for unpaid wages due to her by the company International Trade & Tenders Pty Limited at the date that the winding up commenced together with an amount of $14,285.66 for holiday pay. The liquidator disallowed most of the claim by notification dated 13 July 2000 giving reasons for doing so. 2 The applicant was employed by ITT from 27 January 1992 to until 22 November 1993. By that time ITT had ceased business apart from working on a claim which it had against a company, Fujitsu Ltd, for breach of contract. 3 When the applicant commenced work, she originally did so it seems for $200 per week but, in any event, I find that it was agreed shortly thereafter that her wages would be $300 per week plus rent, which she was paying of $1,417 per month. The claim of the applicant is that she was told from the start by Mr Moreland, the managing director of ITT, that although she would not be paid much at the start she should trust him as he would be able to top it up later as funds became valuable. I accept that evidence. She also said that during the time she was at the company she had conversations with Mr Moreland about what her remuneration would be and although he did not name any figure he commonly said: "Trust me, you will be looked after." 4 After the wind down of the company commenced after 30 June 1993, when all the staff other than the two directors, Messrs Moreland and Arthur, and the applicant had left, it was necessary to have the accounting records of the company brought up to date, at least as far as wages were concerned, so that employees who had left could be furnished with the necessary group certificates for tax purposes. 5 The applicant attended to that work. She says that she asked Mr Moreland what amount should be written in the wages book for his wages, Mr Arthur's wages and her wages and that he responded: