Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346

New South Wales Supreme Court

CITATION : Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346

HEARING DATE(S) : 18, 19 and 20 August 2009

JUDGMENT DATE : 28 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : I give verdict and direct entry of judgment for the plaintiff in the sum of $819,180.50. I will hear the parties on costs. The exhibits may be returned after 28 days.

CATCHWORDS : CONTRACT – EMPLOYMENT – employee was senior executive – participant in employee incentive schemes – employment contract provided for notice periods for termination of employment and payments to employee on termination – contract allowed employee to terminate contract for change of control of employer leading to material diminution of role and responsibilities and additional payment in lieu of notice – takeover of employer – employee gave conditional notice under change of control provision – employer terminated contract and employment - CONTRACT – construction of contract – employee not entitled to benefits under employee incentive schemes if employment terminated earlier – entitled to pro-rata benefits under transitional arrangements and amended employee incentive schemes – purported amendments of incentive schemes effective – plaintiff entitled to benefits under schemes as amended - CONTRACT – employee gave valid termination notice – change of control leading to material diminution in role and responsibilities – "entitlement" to more than 50% of shares in employer includes equitable interest – requirements for valid notice of termination – conditional notice valid provided condition is certain – notice operates on fulfilment of condition – employer wrongly terminated employment after valid notice given – breach of implied term not to hinder or prevent fulfilment of purpose of provision in contract – employee entitled to damages equal to amount payable under provision - CONTRACT – employee not entitled to redundancy payments – damages not reduced by earnings made after termination – employee entitled to be put in same position had contract been performed