Rema Tip Top Asia Pacific Pty Ltd v Grüterich [2019] NSWSC 1594

Supreme Court New South Wales

Medium Neutral Citation: Rema Tip Top Asia Pacific Pty Ltd v Grüterich [2019] NSWSC 1594 Hearing dates: 6-8, 10, 13-15, 17 May 2019 Date of orders: 18 November 2019 Decision date: 18 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Declare that the plaintiff would have been justified in terminating the contract of employment between itself and the defendant on 16 March 2018 for serious misconduct by the defendant. 2. Declare that moneys in respect of the car allowance, the double salary payments and the expenses said to be incurred under the claimed private business class travel budget (as opposed to the claimed business travel expenses on Mr Grüterich's company credit card) totalling $187,037.67 were wilfully and dishonestly misappropriated by the defendant and that those moneys were impressed with a presumed or resulting trust and are held on trust by the defendant for the benefit of the plaintiff. 3. Declare that those moneys, together with the moneys in respect of the bonus payment of $103,210.88 and the unauthorised credit card expenses (including the Poliform furniture deposit) totalling $21,413.75, that the defendant caused to be paid to himself or for his benefit in breach of his fiduciary duty not to make an unauthorised profit from his position, are held by the defendant subject to a constructive trust in the plaintiff's favour. 4. Order that, subject to the set-off ordered below, funds held in the HSBC bank account to the amount of $311,662.30 (being the total of the amounts the subject of the trust declarations in Orders 2 and 3 above) be released to the plaintiff. 5. Order that the defendant pay the following sums to the plaintiff (totalling $336,413.69) as damages (for breach of contract, in equity or under s 1317H of the Corporations Act 2001 (Cth) for breach of fiduciary or statutory duties owed by the defendant as managing director of the plaintiff) and/or by way of restitution: (a) Car allowance: $22,750. (b) Double salary: $69,999.99. (c) Bonus payment: $103,210.88. (d) Poliform furniture: $9,616.40. (e) Travel expenses: $94,287.68. (f) Annual leave overpayment: $24,751.39. (g) Other miscellaneous credit card expenses: $11,797.35. 6. Order the payment of interest up to judgment on the above amounts. 7. Order that the plaintiff pay to the defendant accrued long service leave calculated taking into account his employment within the Rema Group of companies from 25 October 2012 to the date of termination of his employment on 16 March 2018, with interest calculated up to judgment on that amount, but otherwise dismiss the defendant's cross-claim. 8. Order that the amounts payable pursuant to the plaintiff under Orders 4 and 5 be set-off against the amount ordered to be paid to the defendant under Order 7; with the remaining balance of the amounts so ordered to be paid to the plaintiff or the defendant, as the case may be, within 28 days. 9. Reserve the question of costs to be dealt with on the papers following any further brief written submissions on that issue. 10. Liberty to apply on three days' notice for any variation necessary to correct any error in the calculation of the above amounts or otherwise in relation to the working out of the above orders. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice – whether the plaintiff was justified in terminating the employment contract of the defendant (its former managing director) – whether the plaintiff would have been justified in terminating summarily the defendant's employment contract on the ground of serious misconduct – where information regarding unauthorised directions and payments made by the defendant were discovered after the termination – whether the contract was for a fixed term – held that the contract was not for a fixed term and the plaintiff was justified in terminating the employment contract and would have been justified in terminating summarily the defendant.