Fardell v Coates Hire Operations Pty Ltd

CITATION:	Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346
HEARING DATE(S):	18, 19 and 20 August 2009
JUDGMENT DATE :	28 April 2010
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	I give verdict and direct entry of judgment for the plaintiff in the sum of $819,180.50. I will hear the parties on costs. The exhibits may be returned after 28 days.
CATCHWORDS:	CONTRACT – EMPLOYMENT – employee was senior executive – participant in employee incentive schemes – employment contract provided for notice periods for termination of employment and payments to employee on termination – contract allowed employee to terminate contract for change of control of employer leading to material diminution of role and responsibilities and additional payment in lieu of notice – takeover of employer – employee gave conditional notice under change of control provision – employer terminated contract and employment - CONTRACT – construction of contract – employee not entitled to benefits under employee incentive schemes if employment terminated earlier – entitled to pro-rata benefits under transitional arrangements and amended employee incentive schemes – purported amendments of incentive schemes effective – plaintiff entitled to benefits under schemes as amended - CONTRACT – employee gave valid termination notice – change of control leading to material diminution in role and responsibilities – “entitlement” to more than 50% of shares in employer includes equitable interest – requirements for valid notice of termination – conditional notice valid provided condition is certain – notice operates on fulfilment of condition – employer wrongly terminated employment after valid notice given – breach of implied term not to hinder or prevent fulfilment of purpose of provision in contract – employee entitled to damages equal to amount payable under provision - CONTRACT – employee not entitled to redundancy payments – damages not reduced by earnings made after termination – employee entitled to be put in same position had contract been performed
LEGISLATION CITED:	Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Industrial Relations Act 1996 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Re Primac Holdings Ltd & Anor (1988) 14 ACLR 580 Burton Group Ltd v Smith [1977] IRLR 351 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Carter v Hyde (1923) 33 CLR 115 Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 Frederick v State of South Australia [2006] SASC 165; (2006) 152 IR 182 Gunnedah Shire Council v Grout (1995) 134 ALR 156 Fryar v System Services Pty Ltd (1996) 137 ALR 321 Payne v Foxboro L & N Pty Ltd (1998) 81 IR 404 Thickbroom v Newcastle Wallsend Coal Company Pty Ltd (1998) 83 IR 193 Grout v Gunnedah Shire Council (1994) 125 ALR 355 Birrell v Australian National Airlines Commission (1984) 5 FCR McGrane v Ryan (1965) 7 AILR 83 Automatic Fire Sprinklers Pty…