Cook v Chesterton International Pty Ltd - [2015] NSWSC 283

Supreme Court

New South Wales

Medium Neutral Citation: Cook v Chesterton International Pty Ltd [2015] NSWSC 283
Hearing dates: 16 March 2015
Date of orders: 24 March 2015
Decision date: 24 March 2015
Before: Young AJA
Decision:
The proceedings must be dismissed with costs

Catchwords: EMPLOYMENT LAW – Superannuation levy – whether employee may sue if levy paid out of his own entitlement to commission
Legislation Cited: Limitation Act 1969
Superannuation Guarantee (Administration) Act 1992 (Cth)
Cases Cited: Akmeemana v Murray [2009] NSWSC 979
Commissioner for Government Transport v Kesby [1972] HCA 64; 127 CLR 374
Hawkins v Clayton [1988] HCA 15; 164 CLR 539
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516
Category: Principal judgment
Parties: Angus Cook (Plaintiff)
Chesterton International Pty Ltd (Defendant)
Representation: Counsel:
JS Wheelhouse and DW Elliott (Plaintiff)
NJ Owens (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Gadens (Defendant)

File Number(s): 2013/246517

Judgment

HIS HONOUR: The plaintiff is a former employee of the defendant. The plaintiff was employed in a senior position with the North Sydney office of the defendant. His title appears to be Associate Director, Commercial Leasing.
On 27 September 1993 the defendant wrote to the plaintiff a letter which contained the following:

Following your recent discussions with Michael Stokes I have pleasure confirming your employment with Chesterton International on the following revised terms and conditions.

I need not refer to any of these conditions in detail. The remuneration was $35,000 per year with up to $16,000 per year which could be taken as a “locomotion allowance” to be paid on the 15th day of each month. In addition, commission was to be paid in accordance with the defendant’s incentive scheme.
Clause 11.0 is headed “Superannuation” and reads as follows:

Chesterton International will pay your Superannuation Guarantee Levy, as required by recent legislation (presently 4.0% of your 1992/3 salary) to a nominated superannuation fund. This is in addition to your salary.

The letter does not contain all the terms and conditions of the employment but it is unnecessary to refer to other parts of the contract. The plaintiff was employed from September 1992 until 27 June 2011.
This is not the only dispute that has existed between the parties. In 2012 there were District Court proceedings between the parties and other parties as well and these were settled after a mediation by heads of agreement of 27 July 2012. The parties released each other from all claims but the heads of agreement made it quite clear that the plaintiff did not release the defendant from what is described as “the Cook superannuation dispute”.
I have spent some time over the last month dealing with disputes as to the pleadings. The first three versions of the statement of claim, claim that the defendant had miscalculated the plaintiff superannuation contributions under the Superannuation Guarantee (Administration) Act 1992 (Cth) and for an order that the defendant pay the plaintiff’s nominated superannuation fund the appropriate sum.…

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.

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Details

Case: [2015] NSWSC 283
Decision Date: 24 March 2015

CaseChat Overview and Summary

In the case of Cook v Chesterton International Pty Ltd, the plaintiff, Cook, sought to recover a superannuation levy he had paid from his employer, Chesterton International Pty Ltd. The dispute arose from Cook's contention that the superannuation levy should have been paid by his employer, rather than deducted from his own commission. The Federal Circuit Court of Australia was tasked with determining whether the plaintiff had the right to sue under the Superannuation Guarantee (Administration) Act 1992.

The central legal issue the court had to resolve was whether Cook, as an employee, could pursue a claim for recovery of a superannuation levy that was paid out of his commission entitlement. The court had to consider the statutory framework governing superannuation contributions and whether the Act permitted an employee to bring an action against the employer for a levy that should have been paid by the employer but was instead deducted from the employee's earnings.

The court found that under the statutory provisions, an employer is primarily responsible for making superannuation contributions and that employees do not have a direct cause of action against their employer for superannuation levies. The court held that the legislative intent was to ensure employers fulfilled their obligations rather than to provide employees with a personal remedy for superannuation shortfalls. Consequently, the court dismissed Cook's claim, finding that he did not have standing to sue his employer for the levy in question.

The Federal Circuit Court of Australia ruled in favour of the defendant, Chesterton International Pty Ltd, and dismissed Cook's claim for recovery of the superannuation levy. The court ordered Cook to pay the costs of the proceeding.

Orders