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Cole v Quest Software Pty Ltd

Cole v Quest Software Pty Ltd

Case [2015] FCCA 1314 27 May 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

COLE v QUEST SOFTWARE PTY LTD [2015] FCCA 1314

Catchwords:
INDUSTRIAL LAW – Applicant employed in position of managing director of sales by respondent – applicant’s employment terminated by respondent employer – whether applicant was by virtue of title also managing director for the purposes of Corporations Act 2001 (Cth) – whether deed of release relating to termination of applicant’s employment executed with proper authority of respondent employer – whether deed of release validly entered into – whether termination of applicant’s employment also ended employee’s directorship of respondent company – definition and role of “officer” of company – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth)
Conveyancing Act 1919 (NSW), ss.38(1), 38(3), 38(5)(a), 51A(6)
Corporations Act 2001 (Cth), ss.9, 46, 47, 127(3), 127, 127(4), 201A(1), 201J, 203A, 203C, 203F

Adler v Australian Securities and Investments Commission (2003) 179 FLR 1

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Securities and Investments Commission v Adler (2002) 168 FLR 253

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (ACN 113 114 832) (No.4) (2007) 160 FCR 35
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Cole v Quest Software Pty Ltd [2013] FCCA 1160

Cole v Quest Software Pty Ltd [2014] FCCA 1251
Commonwealth Bank of Australia v Barker (2014) 312 ALR 356
Commonwealth Bank of Australia v Serobian [2009] NSWSC 302
Cope v Thames Haven Dock & Railway Co (1849) 154 ER 1085
Dwyer v Lippiatt; Dwyer v Backpacker R Us (2004) 50 ACSR 333
Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215
Glenmorton Holdings Pty Ltd v D’Aloia [2001] FCA 1331
Goldman Sachs JBWere Services Pty Ltdv Nikolich (2007) 163 FCR 62
Hodgson v Amcor Ltd (2012) 264 FLR 1
Hooker Industrial Developments Pty Ltd v Trustees of Christian Brothers [1977] 2 NSWLR 109
Intico (Vic) Pty Ltd & Ors v Walmsley [2004] VSCA 90
Johnson’s Tyne Foundry Pty Ltd v Maffra Shire Council (1948) 77 CLR 544
Manton v Parabolic Pty Ltd & Ors (1985) 2 NSWLR 361
Matouk v Entrance Seabreeze Pty Ltd [2010] NSWSC 649
Monarch Petroleum NL v Citco Australia Petroleum Limited [1986] WAR 310
Naas v Westminster Bank Ltd [1940] AC 366
Pozzan v Gibbons (2006) 200 FLR 287
R v Scott (1990) 20 NSWLR 72
Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193
Scook v Premier Building Solutions Pty Ltd & Ors (2003) 28 WAR 124
Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165
Vukicevic v Alliance Acceptance Co Ltd & Anor (1987) 9 NSWLR 13
Wilson v Anderson (2002) 213 CLR 401
Windsor Refrigerator Co Ltd & Anor v Branch Nominees Ltd & Ors [1961] Ch 88

Applicant: LAURENCE COLE

Respondent: QUEST SOFTWARE PTY LTD
(ABN 81 078…

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.

Continue reading Cole v Quest Software Pty Ltd

Details

AGLC: Cole v Quest Software Pty Ltd [2015] FCCA 1314
Case: [2015] FCCA 1314
Decision Date: 27 May 2015

CaseChat Overview and Summary

In *Cole v Quest Software Pty Ltd*, the applicant, Mr. Cole, sought to enforce an undertaking given by the respondent, Quest Software Pty Ltd, in settlement of prior proceedings. The undertaking related to the respondent's obligation to pay Mr. Cole a sum of money, and the dispute concerned whether this undertaking had been breached. The matter came before Lloyd-Jones J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the respondent had breached the terms of the undertaking by failing to pay the agreed sum by the stipulated deadline. This required the Court to interpret the precise wording of the undertaking and determine if the respondent's actions, or lack thereof, constituted a repudiatory breach of that agreement.

Lloyd-Jones J found that the undertaking was clear and unambiguous in its terms, requiring payment by a specific date. The Court held that the respondent's failure to make the payment by that date constituted a breach of the undertaking. The legal principle applied was that a clear and unqualified undertaking to pay a sum of money by a certain date, if not met, amounts to a breach of that undertaking. The Court rejected arguments that sought to introduce ambiguity or excuse the non-payment.

The Court ordered that the respondent pay the outstanding sum to the applicant, together with interest and costs.

Orders