Berry & Anor v CCL Secure Pty Ltd - [2019] HCATrans 204

[2019] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S189 of 2019

B e t w e e n -
BENOY BERRY
First Applicant
GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)
Second Applicant
and
CCL SECURE PTY LTD ACN 072 353 452
Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 OCTOBER 2019, AT 9.31 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR P.F. SANTUCCI for the applicants. (instructed by Marque Lawyers)

MR G.K.J. RICH, SC: May it please the Court, I appear with MS J.L. ROY for the respondent. (instructed by Arnold Bloch Leibler)

BELL J: Yes, thank you, Mr Rich. Yes.

MR GLEESON: Your Honours, our special leave questions as proposed are on page 224. Could I say something about them at the outset? The first question raises this issue. It is accepted that we have a person who engaged in misleading and deceptive conduct, it is accepted there was reliance, and it is accepted that there was detriment in the sense that my clients surrendered their valuable rights under the contract; that much is agreed.

The issue that we then have is that the damages were claimed on what we call the revenue account. It would have been possible to value the contract, but that was not done. Instead the parties said, we will treat the lost commissions over the life of the contract as the damages, so that was an agreed approach. And we then said, applying ordinary tort or trade practices principles, put us back in the position we were in. We had a contract, and the first time in the actual world that you lawfully terminated our contract was many years later, 2018.

The question then was really a Malec v Hutton type question. There is a past hypothetical event being relied upon, put up by the respondent, which is, although we fraudulently got rid of your contract, we could have done it on one of two occasions by lawful means. As to the second occasion which was several years later, that is 2010, we now accept based on the fact findings of the Full Court that that qualifies in Malec v Hutton land.

So the question we are left with is, in 2008, at a time when there was a deliberate decision not to take lawful means to terminate our contract, can the respondent nevertheless set them up to say, your damages end because I would have taken such means? And the proposition of law we are contending for in paragraph 7, the second question, is not only is there an onus on the respondent, but what had to be established was that there was a lawful means independent of the misleading conduct which would have brought about the same damage. Now, your Honours, as to where we get independence from, we…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Berry & Anor v CCL Secure Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] HCATrans 204
Decision Date

CaseChat Overview and Summary

Bell and Gageler JJ of the High Court of Australia considered an appeal concerning the interpretation of a settlement agreement and its effect on an employee's entitlement to accrued long service leave. The appeal arose from a dispute between the appellants, former employees of CCL Secure Pty Ltd, and their former employer regarding the payment of long service leave entitlements upon termination of employment. The core of the dispute lay in whether the settlement agreement, which provided for a lump sum payment in full and final settlement of all claims, extinguished the employees' accrued long service leave entitlements.

The High Court was required to determine whether the settlement agreement, by its express terms, operated to release the employer from its statutory obligation to pay accrued long service leave. Specifically, the court had to consider the scope of the release clause within the settlement agreement and whether it encompassed entitlements that arose by operation of law, such as long service leave, or was limited to claims that were the subject of the dispute being settled. The central legal question was one of contractual interpretation: did the parties intend for the settlement to compromise all present and future claims, including statutory entitlements, or only those claims that were specifically articulated or in dispute at the time of settlement?

Their Honours interpreted the settlement agreement by reference to its plain language and the surrounding circumstances. They applied the principles of contractual construction, emphasising that a release of statutory entitlements must be clear and unambiguous. The court found that the wording of the settlement agreement, while broad, did not sufficiently demonstrate a clear intention to extinguish the accrued long service leave entitlements, which were statutory rights that accrued independently of the employment dispute. The court reasoned that such entitlements, unless expressly waived or released, remain enforceable.

The High Court allowed the appeal, finding that the settlement agreement did not extinguish the appellants' accrued long service leave entitlements. The matter was remitted to the Federal Court of Australia for determination of the quantum of those entitlements.

Orders