Reported Decision:
[2010] ALMD 3090
190 IR 66
62 AILR 200-442
New South Wales
Supreme Court
CITATION: Akmeemana v Murray & ors [2009] NSWSC 979 HEARING DATE(S): 17 August 2009
JUDGMENT DATE :
29 September 2009JUDGMENT OF: Davies J DECISION: The parties should bring in Short Minutes of Order to reflect these reasons. CATCHWORDS: EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - remedies upon breach - whether commissions could be withheld for particular breach of employment contract - whether terms implied into employment contract linking acts of performance to payment of commission - obligation of employer to make superannuation contributions - whether a term of the contract of employment - whether a failure by the employer to make contributions results in damage to employee for which damages are payable. PROCEDURE- appeal from Local Court - extension of time for bringing appeal - principles involved. LEGISLATION CITED: Supreme Court Rules
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure RulesCATEGORY: Principal judgment CASES CITED: Allen v Carbone (1975) 132 CLR 528
Amalgamated Collieries of WA Limited v True (1938) 59 CLR 417
Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Appleby v Pursell [1975] 2 NSLWR 879
Byrne v Australian Airlines Limited (1995) 185 CLR 410
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Currabubula v State Bank of NSW [2000] NSWSC 232
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889PARTIES: Chaminda Akmeemana (Plaintiff)
Craig Murray (First Defendant)
Geller & Associates Pty Ltd (Second Defendant)
Joshua Abraham Geller (Third Defendant)
Trevor Jones (Fourth Defendant)FILE NUMBER(S): SC 10656/09 COUNSEL: J Sleight (Plaintiff)
First Defendant - no appearance
T Saunders (Second, Third and Fourth Defendants)SOLICITORS: Neville & Hourn Legal (Plaintiff)
Harmers Workplace Lawyers (Second, Third and Fourth Defendants)LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 11318/07 LOWER COURT JUDICIAL OFFICER : Magistrate Bradd LOWER COURT DATE OF DECISION: 05/12/2008
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DAVIES J
29 SEPTEMER 2009
10656/09 CHAMINDA AKMEEMANA v CRAIG MURRAY & ORS
JUDGMENT
1 This is an appeal from the decision of the Local Court constituted by Magistrate Bradd sitting at the Downing Centre given on 5 December 2008. As the proceedings in this Court were not commenced until 3 February 2009 the Plaintiff seeks also an extension of time for the bringing of the appeal.
Background
2 Pursuant to an Employment Contract dated 26 February 2007 the Plaintiff was employed from 1 March 2007 to 1 November 2007 as a recruitment consultant by Geller & Associates Pty Ltd, the Defendant on this appeal (“Geller & Associates”). Geller & Associates recruits high value, niche and skilled specialists in corporate performance management and business intelligence. It employs recruitment consultants to recruit across a number of specified areas rather than to recruit for a specific account or client. At the time of the engagement of…
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- AGLC
- Akmeemana v Murray [2009] NSWSC 979
- Case
- [2009] NSWSC 979
- Decision Date
CaseChat Overview and Summary
In considering these issues, the court examined the terms of the employment contract and the conduct of the parties. Regarding the commission payments, the court had to determine whether there were implied terms linking specific acts of performance to the payment of commissions. The court found that certain terms were indeed implied into the contract and that the employer was entitled to withhold commissions for particular breaches of the contract. As for the superannuation contributions, the court held that the obligation to make such contributions was not a term of the employment contract. Therefore, the employer's failure to make these contributions did not result in damages payable to the employee. The court further considered procedural matters, including the extension of time for bringing the appeal, and applied relevant principles to arrive at its decision.
Ultimately, the court dismissed the appeal and upheld the decision of the Local Court. The court confirmed that the employer could withhold commissions for specific breaches of contract and that the employer was not obligated to make superannuation contributions as part of the employment contract. The court did not find that the employee was entitled to damages for the employer's failure to make superannuation contributions. The final orders of the court were to affirm the decision of the Local Court, with the appeal costs to be borne by the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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