Braunberger v Cementco Nominees Pty Ltd

[1994] QCA 76

IN THE COURT OF APPEAL	[1994] QCA 076
SUPREME COURT OF QUEENSLAND

Appeal No. 187 of 1993

Before Fitzgerald P.
Davies JA.
Kiefel J.

[Braunberger v. Cementco Nominees Pty. Ltd.]

BETWEEN:

KENNETH MALCOLM BRAUNBERGER

Respondent

AND:

CEMENTCO NOMINEES PTY. LTD.

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 31/03/94

This is an appeal from a judgment given in the District Court at Brisbane on 1 September 1993. The issue concerns the construction of a Trust Deed relating to the Queensland Cement Limited Superannuation Fund For Wages Employees.

Clause 4 of the Trust Deed is concerned with the benefits payable to a member of the superannuation fund in various circumstances; for example, on "Normal Retirement", "Late Retirement", "Early Retirement", "Death" and "Total and Permanent Disablement". Clause 4.14, the clause which falls for consideration in this matter, is headed "Benefit On Resignation Or Dismissal Before Normal Retirement Date".

Clause 4.14 provides for the calculation of the amount payable in various circumstances. The amount differs depending upon whether the employee "is leaving the Service of the Employer for reasons other than retrenchment or reorganisation of the Employer" (subclause 4.14(b)(ii)(A)), or "as a result of retrenchment or reorganisation [of] the Employer" (subclause 4.11(b)(ii)(B)).

On 14 November 1991, the respondent's employer told its employees that, for economic reasons, "... it has been decided to cease cement manufacturing operations ... in late 1993, ...". Each employee, including the respondent, was also given a letter "... to advise you of your entitlements to assist you in your planning process over the next eighteen months to two years." The respondent, like other employees, was told in his letter that it was his employer's intention "to continue to operate at or near full capacity ... until the closure of the plant." The letter also set out a description of the benefits that employees who remained employed until the plant closure could expect to receive, and said:

"In order to give you an idea as to the extent of these redundancy, and superannuation entitlements, the following approximate values are provided. These have been calculated for potential plant closure dates of (i) June 30 1993 and(ii)December 31 1993 as examples because of the uncertainty of the closure date."

It is unnecessary to set out details of the amounts notified to the respondent.

So far as can be told from the material available to this Court, matters had not progressed any further when, on 11 April 1992, the respondent wrote to his employer saying that he had been offered a position "and not being a gambler (waiting to be made redundant and hoping to gain employment straight away) I have decided to accept the offer." His
letter continued with a request "to be made redundant so that I could receive a reasonable payout from the superannuation scheme." That request was not acceded to.
The District Court Judge who tried the matter found that the respondent left the service of his employer "as a result of retrenchment", and declared that subclause 4.11(b)(ii)(B) of the trust deed was applicable. The appellant has appealed from that decision, and contends that it is subparagraph 4.14(b)(ii)(A), not subclause 4.14(b)(ii)(B), which applies.

Obviously those subclauses must be read together as collectively covering the alternatives specified. They proceed on the basis that a material employee will have left "the Service of the Employer as a result of retrenchment or reorganisation [of] the Employer" or "for [other] reasons". The question which is therefore posed is whether the employee left the service of his or her employer "as a result of" (i) "retrenchment", or (ii) "reorganisation" or (iii) for some other reason.

It can be said that "retrenchment", and perhaps "reorganization", was the reason why the respondent left his employer's service in the sense that he left in order to avoid the planned "retrenchment" and perhaps "reorganisation" which his employer had decided upon. But that is not the sense spoken of in subclause 4.14(b)(ii) of the Trust Deed. Its concern is with present events ie., a retrenchment or reorganization which has occurred, not with what is to occur in the future; that is to say, with an employee a leaving "as a result of" an operative "retrenchment" or "reorganization". Unless that is the reason why an employee has left (subclause 4.14(b)(i)(B), he has left "for [other] reasons" (subclause 4.14(b)(i)(A)).

It follows that the District Court Judge who decided the matter was in error and the declaration which he made should be set aside and the respondent's application dismissed. The respondent must pay the taxed costs of the proceeding,including this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 187 of 1993

Brisbane
[Braunberger v. Cementco Nominees Pty. Ltd.]

BETWEEN:

KENNETH MALCOLM BRAUNBERGER

Respondent

AND:

CEMENTCO NOMINEES PTY. LTD.

Appellant

Fitzgerald P.
Davies JA.

Kiefel J.

Judgment delivered 31/03/94
Judgment of the Court

Appeal allowed. Declaration made below by District Court Judge set aside. Respondent's application below dismissed. Respondent to pay the taxed costs of the proceeding including the costs of this appeal.

CATCHWORDS: TRUSTS - application to the court - construction of trust deed - Superannuation Fund - employee told of planned redundancy and obtained other employment - whether employee left the service of employer as a result of retrenchment or reorganisation.

Counsel:	Mr. A. Herbert for the appellant Mr. T. Matthews for the respondent
Solicitors:	Feez Ruthning for the appellant Quinlan Miller and Treston for the respondent

Hearing Date: 21/03/94