Hyro Ltd v Eland & Ors [2007] NSWSC 1111

New South Wales Supreme Court

CITATION : Hyro Ltd v Eland & Ors [2007] NSWSC 1111

HEARING DATE(S) : 05/10/2007

JUDGMENT DATE : 10 October 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibits may be returned.

CATCHWORDS : Novation - identity of employer - supporting evidence

LEGISLATION CITED : Long Service Leave Act 1955 (NSW)

CASES CITED : Damevski v Guidice [2003] FCAFC 252

Hyro Ltd (Pl) Mark Eland (1st Def) PARTIES : Sang-Wun Kim (2nd Def) Clint Neilson (3rd Def) Lorna Walker-Kennedy (4th Def)

FILE NUMBER(S) : SC 15946/06

COUNSEL : Mr A. Ogborne (Pl) Mr T. J. Dixon (Def's)

SOLICITORS : Strategy Legal Solicitors (Pl) MCG Lawyers (Def's)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 12935/05; 12936/05; 12937/05; 12938/05

LOWER COURT JUDICIAL OFFICER : Lulham LCM

LOWER COURT DATE OF DECISION : 03/11/2006

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

10 OCTOBER 2007

15946/06 Hyro Limited v Mark Eland & Ors

JUDGMENT 1 HIS HONOUR: During July and September 2006, four proceedings were heard together in the Local Court by Lulham LCM. The Magistrate delivered his decision on 3 November 2006. 2 In each of the proceedings, the defendant was Hyro Limited (the plaintiff in this Court). 3 Each of the four claims was brought to recover employee entitlements. In three of the claims, both severance pay and long-service leave were sought to be recovered. In one of them, the claim was merely for severance pay. The claimants (who are the defendants in this Court) were successful and judgment was entered in favour of each of them. The Magistrate delivered detailed written reasons for his decision. 4 The plaintiff now appeals to this Court. The appeal is brought as of right. It is alleged that there has been error in point of law. The plaintiff bears the onus of demonstrating such error and that it was material to the decision that was made by the Magistrate. 5 I shall first recite some of the history that preceded the litigation. 6 The defendants had entered into written employment contracts with Brainwaave Administration Pty Ltd. Each contract contained a condition authorising assignment or novation. With effect from 1 January 2000, the contracts were novated to Brainwaave Interactive Pty Ltd (Brainwaave). Mr Kennedy was, at material times, the Chief Executive Officer of Brainwaave.