McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liquidation) [2011] NSWCA 315

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liquidation) [2011] NSWCA 315 Hearing dates: 8 August 2011 Decision date: 30 September 2011 Before: Bathurst CJ at [1]; Macfarlan JA at [101]; Sackville AJA at [109] Decision: (1) Appeal allowed. (2) Cross appeal dismissed. (3) Orders 1, 2 and 3 of the orders made by the primary judge on 10 June 2010 and entered on 22 June 2010 be set aside and the following orders be made. (4) Order that the first and second appellants admit the respondent to proof in the scheme of arrangement of the third appellant for the following amounts and the following classes applicable to s 556 of the Corporations Act 2001 (Cth): (a) The amount of $216,690.17 for unpaid wages under s 556(1)(e); (b) The amount of $18,493.31 for unpaid superannuation under s 556(1)(e); (c) The amount of $37,578.33 for accrued annual leave under s 556(1)(g); (d) The amount of $241,388.36 for accrued long service leave under s 556(1)(g); (e) The amount of $132,523.42 for the retrenchment payment under s 556(1)(h); being a total of $646,673.59. (5) Order that the first and second appellants admit the claim of the respondent to proof in the scheme of arrangement of the third appellant for the following amounts as an ordinary unsecured creditor: (a) The amount of $551,148.88 for accrued annual leave; (b) The amount of $131,354.63 for accrued long service leave; (c) The amount of $1,426,575.58 for the retrenchment payment; being an unsecured total of $2,109,079.09. (6) Order that the respondent pay the appellants' costs of the appeal and cross-appeal. (7) Direct each party within 10 days of the date hereof to file submissions as to the appropriate order of the costs of the proceedings before the primary judge. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - employment contract - redundancy clause - construction - identification of employer - whether surrounding circumstances favour wider construction despite narrow definition