| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT & INDUSTRIAL LIST
S CI 2015 03354
| PAUL BANNON | Plaintiff |
| v | |
| NAURU PHOSPHATE ROYALTIES TRUST | Defendant |
| and | |
| NAURU PHOSPHATE ROYALTIES TRUST | Plaintiff by Counterclaim |
| v | |
| PAUL BANNON | Defendant by Counterclaim |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 16 to 20, 23, 24 and 26 April, 14 May, 4 to 7 and 25 to 27 June, 17 and 20 July 2018 |
DATE OF JUDGMENT: | 14 September 2018 |
CASE MAY BE CITED AS: | Bannon v Nauru Phosphate Royalties Trust |
MEDIUM NEUTRAL CITATION: | [2018] VSC 532 |
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CONTRACT — Contract of employment — Claim for unpaid fees for acting as Secretary/Director of 19 subsidiaries of defendant — Estoppel by convention — Defendant assumed that it had no liability to pay plaintiff fees for acting as Secretary/Director of subsidiaries — Plaintiff acquiesced in assumption — Whether estoppel by convention suspensory or permanent — Plaintiff estopped from claiming fees — Whether claims for fees prior to June 2009 statute barred — Claims for accrued annual and long service leave —Claims for redundancy pay and payment in lieu of notice — Claims for superannuation entitlements — Whether such claims subject to maximum superannuation salary base in Superannuation Guarantee (Administration) Act 1992 (Cth) — Corporations Act 2001 (Cth) Part 1.5, ss 46, 50AAA, 188, 204C — Superannuation Guarantee (Administration) Act 1992 (Cth) ss 11, 12, 15, 19 — Limitation of Actions Act 1958 ss 5, 27 — Nauru Phosphate Royalties Trust Act 1968 (Nr) s 32.
EQUITY — Fiduciary obligations — Counterclaim for repayment of funds advanced to plaintiff in excess of funds expended on behalf of the defendant — Adequacy of evidence — Claim dismissed in respect of financial years for which defendant failed to discover financial records which may have assisted plaintiff’s defence of claim — Claim upheld in respect of 2014 financial year — Civil Procedure Act 2010 s 7 — Supreme Court (General Civil Procedure) Rules 2015 r 48.03.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J North QC with Mr M G Rinaldi | Lander & Rogers |
| For the Defendant | Mr R A Millar | HMB Employment Lawyers |
HIS HONOUR:
Introduction
The Nauru Phosphate Royalties Trust (‘NPRT’) is a body corporate established under the Nauru Phosphate Royalties Trust Act 1968 (Nr) (‘the Act’). The Act established the Nauruan Land Owners Royalty Trust Fund. The beneficiaries of the fund are landowners in Nauru. Phosphate mining in Nauru generated millions of dollars of income. This money was invested in assets, particularly real estate, in other countries, including Australia. A principal function of the NPRT is the administration and distribution of payments to beneficiaries of the fund.
Mr Bannon was employed by NPRT between October 1994 and 30 June 2014. From July 2003 until 30 June 2014 Mr Bannon was the Secretary of NPRT. In this position he was the most senior employee of the Trust. Throughout his employment NPRT’s office was based in Melbourne. During the period…
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- Case
- [2018] VSC 532
- Decision Date
CaseChat Overview and Summary
The court ruled that the estoppel by convention was permanent, preventing the plaintiff from claiming fees. It found that the claims for fees prior to June 2009 were statute-barred, but the claims for annual and long service leave, redundancy pay, and payment in lieu of notice were not. The court held that the superannuation entitlements were not subject to the maximum salary base in the Superannuation Guarantee (Administration) Act 1992 (Cth). The counterclaim for repayment of funds advanced to the plaintiff was dismissed for certain financial years due to the defendant's failure to discover relevant financial records, but was upheld for the 2014 financial year.
The final orders included dismissing the plaintiff's claims for unpaid fees and for repayment of funds advanced for certain financial years, while allowing the claims for annual and long service leave, redundancy pay, payment in lieu of notice, and superannuation entitlements. The court also ordered the defendant to pay the plaintiff for the 2014 financial year the amount of funds advanced in excess of those expended on behalf of the defendant.
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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