Nicholas Richard Whitlam v Insurance Australia Group Limited [2005] NSWSC 83

Reported Decision : 52 ACSR 470

New South Wales Supreme Court

Nicholas Richard Whitlam v Insurance Australia Group Limited [2005] NSWSC 83 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 01/02/05, 02/02/05, 03/02/05, 04,02,05, 07/02/05, 14/02/05, 15/02/05

JUDGMENT DATE : 23 February 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Breach of contract case upheld. Plaintiff entitled to damages for breach of contract.

CATCHWORDS : Representations made to plaintiff that if he resigned his directorship of defendant he would be entitled to participate under Retirement Policy to be adopted by it receiving promptly the maximum benefits to be calculated in accordance with that policy - Corporations - Directors - Entitlement of a director to receive a retirement benefit in an amount which conformed with Retirement Policy adopted by defendant corporation - Corporations - Authority of chairman to enter into contract with director relating to retirement benefits - Contract - Holding that defendant entered into enforceable contract with plaintiff whereunder he agreed to resign from his position as a director, defendant agreeing that plaintiff would be entitled to participate under Retirement Policy to be adopted by it receiving promptly the maximum benefits to be calculated in accordance with that policy - Estoppel - Alternative estoppel case made out - Character of representations made to plaintiff apt to induce in him belief that he had an enforceable entitlement against defendant to be promptly paid for the full retirement benefit if he resigned - Conduct of defendant following plaintiff's resignation as director held to be unconscionable in the circumstances - Trade Practices Act 1974/Fair Trading Act 1987 - Whether representations made in trade or commerce - Corporations - Consideration of scheme of Part 2D.2 Corporations Act 2001 - Section 200B - Section 200F - Section 200G - Section 9 definition of "remuneration" - Australian Accounting Standard Board (AASB) Accounting Standard 1017 - Related Party Disclosure - Construction - Whether appropriate to construe Retirement Policy in light of Corporations Act definitions of "remuneration" - Application to the particular circumstances - Liability - Joint obligors - Equity - Declaratory Relief - Utility