Cook v Chesterton International Pty Ltd [2015] NSWSC 283

Supreme Court New South Wales

Medium Neutral Citation: Cook v Chesterton International Pty Ltd [2015] NSWSC 283 Hearing dates: 16 March 2015 Date of orders: 24 March 2015 Decision date: 24 March 2015 Before: Young AJA Decision: The proceedings must be dismissed with costs Catchwords: EMPLOYMENT LAW – Superannuation levy – whether employee may sue if levy paid out of his own entitlement to commission Legislation Cited: Limitation Act 1969 Superannuation Guarantee (Administration) Act 1992 (Cth) Cases Cited: Akmeemana v Murray [2009] NSWSC 979 Commissioner for Government Transport v Kesby [1972] HCA 64; 127 CLR 374 Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 Category: Principal judgment Parties: Angus Cook (Plaintiff) Chesterton International Pty Ltd (Defendant) Representation: Counsel: JS Wheelhouse and DW Elliott (Plaintiff) NJ Owens (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Gadens (Defendant) File Number(s): 2013/246517

Judgment 1. HIS HONOUR: The plaintiff is a former employee of the defendant. The plaintiff was employed in a senior position with the North Sydney office of the defendant. His title appears to be Associate Director, Commercial Leasing. 2. On 27 September 1993 the defendant wrote to the plaintiff a letter which contained the following: Following your recent discussions with Michael Stokes I have pleasure confirming your employment with Chesterton International on the following revised terms and conditions. 1. I need not refer to any of these conditions in detail. The remuneration was $35,000 per year with up to $16,000 per year which could be taken as a "locomotion allowance" to be paid on the 15th day of each month. In addition, commission was to be paid in accordance with the defendant's incentive scheme. 2. Clause 11.0 is headed "Superannuation" and reads as follows: Chesterton International will pay your Superannuation Guarantee Levy, as required by recent legislation (presently 4.0% of your 1992/3 salary) to a nominated superannuation fund. This is in addition to your salary. 1. The letter does not contain all the terms and conditions of the employment but it is unnecessary to refer to other parts of the contract. The plaintiff was employed from September 1992 until 27 June 2011. 2. This is not the only dispute that has existed between the parties. In 2012 there were District Court proceedings between the parties and other parties as well and these were settled after a mediation by heads of agreement of 27 July 2012. The parties released each other from all claims but the heads of agreement made it quite clear that the plaintiff did not release the defendant from what is described as "the Cook superannuation dispute". 3. I have spent some time over the last month dealing with disputes as to the pleadings. The first three versions of the statement of claim, claim that the defendant had miscalculated the plaintiff superannuation contributions under the Superannuation Guarantee (Administration) Act 1992 (Cth) and for an order that the defendant pay the plaintiff's nominated superannuation fund the appropriate sum. It also sought a declaration that deductions of a 2% entertainment levy was unauthorised. 4. A fourth version of the statement of claim was proffered which I indicated last week that was still not sufficiently well phrased in order to produce meaningful questions to be tried. Although I never made any decision I strongly intimated to counsel then appearing for the plaintiff that either I would have to vacate the hearing date and give leave to amend with an order against the plaintiff for costs thrown away or else refuse leave to amend. It was clear to me that the submission of the defendant, that were the amendment allowed it would need to have an adjournment to obtain further evidentiary material to meet the amended claims, was valid. After a short adjournment the fourth amended statement of claim was withdrawn and the plaintiff elected to go to trial on the third, that is, the statement of claim entitled Further Amended Statement of Claim filed on the 18th of March 2014. 5. As I have indicated that statement of claim put forward two causes of action: A, a claim that money be paid into the plaintiff's superannuation fund because the contributions had been miscalculated; and B, relief about a 2% entertainment levy. However, not only was an executive order asked for in prayer 7 of the relief claimed, but a series of declarations was asked for in prayers 1 to 5. 6. At the hearing the claim for the 2% was abandoned. Accordingly, the only matter for me to decide is whether the plaintiff is entitled to any relief with respect to the payment of superannuation contributions. 7. I heard the case on 16 March. Mr Scot Wheelhouse SC and Mr David Elliott appeared for the plaintiff and Mr Nicholas Owens appeared for the defendant. 8. Mr Wheelhouse put, and this was sensible and correct, that there were four issues for me to decide which can be summarised as: A The proper construction of clause 11 of the letter of employment; B Whether any part of the plaintiff's present rights were compromised by the heads of agreement for release in 2012; C If clause 11 is as the plaintiff contends, is the plaintiff entitled to relief and if so what?; and D Is there a proper defence by the Limitation Act 1969? 1. I will deal with these matters in turn.