In the matter of Bettaway Financial Group Pty Ltd and National Mortgage Processing Centre Pty Ltd

[2014] NSWSC 328

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Bettaway Financial Group Pty Ltd and National Mortgage Processing Centre Pty Ltd [2014] NSWSC 328
Hearing dates:	2 December 2013, 26 February 2014
Decision date:	25 March 2014
Jurisdiction:	Equity Division - Corporations List
Before:	Black J
Decision:	Parties to bring in, within 21 days or such longer period as may be ordered on application to my Associate, agreed Short Minutes of Order to give effect to judgment and as to costs and, if agreement is not reached between them, their respective drafts of such orders and short submissions as to any differences between them.
Catchwords:	PROCEDURE - application to determine questions in dispute between parties in respect of terms of settlement under Civil Procedure Act 2005 (NSW) s 73 - whether conditions of terms of settlement have been satisfied - whether obligations owed by company to third parties have been discharged - whether relevant defendants are 'third parties' - where terms of settlement contained a release clause - construction - whether release clause extinguished relevant claims to unpaid remuneration and leave entitlements - whether release clause invalidated by leave entitlement legislation - whether proper superannuation entitlements had been paid to trustee of relevant defendants - whether affairs of companies have been finalised. PROCEDURE - judgments and orders - effect of judgments - where previous interlocutory judgment addressed several issues - where no orders had been made following interlocutory judgment - whether parties can lead evidence and advance submissions in respect of matters considered in interlocutory judgment - whether this course is consistent with the facilitating of just, quick and cheap resolution of real issues in dispute.
Legislation Cited:	- Annual Holidays Act 1944 (NSW) s 8 - Anti-Discrimination Act 1977 (NSW) - Civil Procedure Act 2005 (NSW) s 56, 73 - Corporations Act 2001 (Cth) s 240 - Fair Work Act 2009 (Cth) ss 44, 61, 87 and 92 - Long Service Leave Act 1955 (NSW) s 7 - Uniform Civil Procedure Rules 2005 (NSW) rr 36.11, 36.16 - Workplace Relations Act 1996 (Cth) - Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Cases Cited:	- Ahmed v Chowdhury [2011] NSWSC 893 - Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 - Arrowsmith v Micallef [2013] QCA 142 - Australia & New Zealand Banking Group Ltd v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149 - Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 - Blair v Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 - Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 - Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 - Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 - Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709 - Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 - Lowe v Pascoe (No 3) [2011] NSWSC 192 - Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 - Re Bettaway Financial Group Pty Limited and National Mortgage Processing Centre Pty Limited (Supreme Court (NSW), Black J, 10 October 2013, unrep) - Thomas Cook Ltd v Patheyjohn [1996] NSWIR Com 130; (1996) 66 IR 201
Category:	Interlocutory applications
Parties:	Bettaway Financial Group Pty Ltd (First Plaintiff) National Mortgage Processing Centre Pty Ltd (Second Plaintiff) Tracy Lee Pollard (Third Plaintiff) Rocco Massaria (First Defendant) Elizabeth Massaria (Second Defendant) Your Manager Pty Ltd (Third Defendant) William Buck Wealth Advisors (NSW) Pty Ltd (Fourth Defendant) R & EM Pty Ltd (Fifth Defendant) Antonietta Splendora Carrabs (Sixth Defendant)
Representation:	Counsel: J T Johnson (Third Plaintiff) C Bolger (First and Second Defendants) Solicitors: MCW Lawyers (Third Plaintiff)
File Number(s):	2011/280487

Judgment

1. By Amended Interlocutory Process filed on 4 December 2013, the Applicant, Ms Tracy Pollard, who is the Third Plaintiff in these proceedings, seeks several orders under s 73 of the Civil Procedure Act 2005 (NSW). That section provides that the Court may exercise its jurisdiction to determine any question in dispute between the parties as to, relevantly, the terms on which proceedings have been settled and make such orders as it considers appropriate to give effect to such a determination.

1. I should first set out something of the background to the proceedings, which I also noted in my judgment in Re Bettaway Financial Group Pty Limited and National Mortgage Processing Centre Pty Limited (Supreme Court (NSW), Black J, 10 October 2013, unreported) ("the earlier judgment"). Nearly 18 months ago, on 30 October 2012, the parties agreed to Terms of Settlement and the Court granted leave under s 240 of the Corporations Act 2001 (Cth) to Ms Pollard to settle a claim brought by Bettaway Financial Group Pty Ltd ("Bettaway") against Mr Massaria and others. That leave was required because the proceedings were derivative proceedings brought by Ms Pollard on Bettaway's behalf.

1. The orders made by the Court, with the parties' consent, involved orders for the dismissal of the proceedings against certain defendants and for verdict and judgment in favour of other defendants, and an order that a first cross-claim be dismissed. The Court noted an agreement reached between the parties that they gave mutual releases and that, notwithstanding the mutual releases:

(a) Ms Pollard and Mr and Mrs Massaria would do all things reasonably necessary and sign all such documents and participate in all necessary meetings so as to procure the transfer of the net proceeds of sale of the business of the relevant companies to Ms Pollard, provided that such obligations were conditional upon the terms of paragraph (b), to which I will now refer;

(b) that transfer would only occur on satisfaction of:

(i) all obligations owed by the companies to third parties being discharged;

(ii) payment by the companies to the relevant trustee of any proper superannuation entitlements due to Mrs Massaria and any other party entitled to payment of superannuation entitlements;

(iii) the due release of Mr and Mrs Massaria of all guarantees and indemnities that they may have given to secure the performance of the company's obligations to third parties; and

(iv) the finalisation of the relevant company's affairs;

(c) that at the time of that transfer Mr Massaria pay $30,000 at the direction of Ms Pollard, such direction being a direction given in writing by her solicitors in the proceedings.

The orders also contemplated that any dispute would be determined under s 73 of the Civil Procedure Act.

1. On 30 May 2013, Ms Pollard brought an Interlocutory Process seeking orders under s 73 of the Civil Procedure Act. The function of that section was noted by Slattery J in Ahmed v Chowdhury [2011] NSWSC 893 at [4] as follows:

"Before the enactment of Civil Procedure Act, s 73 there were different judicial views as to whether an alleged settlement of proceedings could be enforced by motion in the proceedings or whether a separate action needed to be commenced: Phillips v Walsh (1990) 20 NSWLR 206 at 210 and Roberts v Gippsland Agriculture & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 at 557-562-7 and Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510. Now Civil Procedure Act , s 73 resolves these different views and makes clear that the court has jurisdiction to determine any dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised: Civil Procedure Act , s 73(1)(a). Civil Procedure Act , s 73 probably preserves a discretion to require the enforcement of settlement claims to be brought in separate proceedings. Neither party advanced that procedure here."

Ms Pollard sought, inter alia, an order that Mr Massaria sign all documents necessary to appoint her as the sole signatory of any bank account operated by Bettaway and that he execute a notice of assignment directed to a third party assigning further payments due to the relevant companies to Ms Pollard. Ms Pollard also sought to have the Court enter judgment against Mr Massaria in the sum of $30,000; that order presumably reflected the provision for payment of $30,000 by Mr Massaria at the time of the relevant transfer.

1. On 17 June 2013, Nicholas J made several of the orders sought by Ms Pollard in the absence of the Defendants who had not then appeared. On 24 June 2013, White J set aside those orders, on the basis that the application had arguably not been brought to the Defendants' attention. Ms Pollard's application was heard before me on 10 October 2013, and Mr Massaria represented himself on that application. I delivered the earlier judgment but did not then make orders since Mr Johnson, who appears for Ms Pollard, then accepted that issues that Mr Massaria had raised in respect of Bettaway's tax position and his superannuation entitlements would need to be the subject of further evidence. I observed that claims for commission made by certain brokers to which Mr Massaria referred did not have the result that the Bettaway's affairs were not finalised, where all that had occurred was that a broker asserted a claim, Bettaway had denied it and the broker had done nothing further to pursue the claim. I also addressed (at [20]) Mr Massaria's contention that the companies' affairs had not been finalised, by reason that of unpaid long service leave and superannuation entitlements due to Mrs Massaria, and noted that those entitlements was not established on the basis of the evidence then before me. I also addressed (at [25]) but did not finally determine a question as to Mr Massaria's claim that superannuation entitlements were also due to him.

1. The matter was relisted on 2 December 2013, when Ms Pollard was represented by Mr Johnson and Mr and Mrs Massaria were represented by Mr Bolger of Counsel. Mr Bolger submitted that the orders sought by Ms Pollard should not be made because Mrs Massaria had unresolved claims for employee entitlements against National Mortgage Processing Centre Pty Ltd ("NMPC") for unpaid wages (or alternatively severance) and the payment of statutory entitlements being annual leave and long service leave and Mr Massaria had unresolved claims against Bettaway for unpaid wages (or in the alternative directors' fees) and the payment of statutory entitlements being annual leave and long service leave. Mr Bolger also contended that a third party, Holmes Financial Services Pty Ltd ("Holmes Financial Services"), had a claim for commission against Bettaway. Mr Bolger also contended that the mutual releases given in settlement of the proceedings only relate to the matters raised in the proceedings, a submission that I had not accepted in the earlier judgment, and that s 7 of the Long Service Leave Act 1955 (NSW) and s 8 of the Annual Holidays Act 1944 (NSW) (which, as I will note below, has been repealed) prohibited any release of obligations arising under those Acts.

1. The matter did not proceed to judgment on that day, because Ms Pollard contended that she was caught by surprise by the matters then raised, and I made directions to clarify the matters in issue and relisted the application for hearing on 26 February 2014. Pursuant to those directions, Mr and Mrs Massaria filed Points of Claim which were to "identify ... any basis on which they contend the transfer contemplated by paragraph (a) of the Terms of Settlement may not occur". Those Points of Claim, in some 87 paragraphs, identified several such bases. Ms Pollard has in turn filed Points of Defence indicating where certain matters were common ground or in issue. By her Amended Interlocutory Process dated 4 December 2013, Ms Pollard has also joined Mrs Massaria as an additional respondent to the application, reflecting the fact that Mr Massaria had previously relied on certain entitlements of Mrs Massaria to contend that the companies' affairs have not been finalised.

The parties' evidence

1. Ms Pollard relies on her affidavits dated 23 May 2013, 4 July 2013 and 14 February 2014 and on her solicitor's affidavits dated 24 May 2013 and 17 June 2013. Ms Pollard's affidavit dated 23 May 2013 deals with payment of external creditors of Bettaway and NMPC. Ms Pollard's affidavit dated 4 July 2013 refers to claims by brokers which was a matter addressed in the earlier judgment. Mr and Mrs Massaria did not pursue that matter in respect of this application, other than in respect of an additional claim by Holmes Financial Services to which I will refer below.

1. Mr and Mrs Massaria rely on Mr Massaria's affidavits dated 20 June 2013, 11 July 2013, 26 November 2013 and 4 February 2014, on Mrs Massaria's affidavits dated 26 November 2013 and 4 February 2014 and an affidavit of Mr Brian Cook sworn 4 February 2014. By his affidavit dated 20 June 2013, Mr Massaria contended, inter alia, that Mrs Massaria had claimed outstanding wages and long service leave to the approximate value of $20,000 and that he was currently owed approximately $21,000 in superannuation payments. Mr Massaria also relied on his affidavit dated 11 July 2013 which, inter alia, responded to the affidavits of Ms Pollard and Mr Prowse. Mr and Mrs Massaria also relied on their further affidavits each dated 26 November 2013. In his affidavit of that date, Mr Massaria gives evidence in support of his claim for unpaid remuneration to which I will refer below. Mr Massaria's evidence is also that he had not received any long service leave or payment of accrued annual leave on the cessation of his employment and he estimates his accrued annual leave as 13 years and 3 months. Mr Massaria quantifies his unpaid wages or salary from 1 September 2010 to 19 October 2012 as $49,000 net; accrued annual leave as $13,250 net; long service leave as $5,737.25 net and quantifies his claim to superannuation as $24,119.88, comprising superannuation for the financial year to 30 June 2008 of $8,572.38; for the financial year to 30 June 2009 of $5,962.50; for the financial year to 30 June 2010 of $4,815; for the period to September 2010 of $360 and superannuation in respect of outstanding salary and wages from 1 September 2010 to 19 October 2012 of $4,410, calculated at a rate of 9%.

1. In her affidavit dated 26 November 2013, Mrs Massaria gives evidence in support of her claim for unpaid remuneration to which I will refer below. Mrs Massaria calculates her unpaid wages from 25 May 2011 to 25 January 2012 as $19,557.59; accrued annual leave as $8,895.55; long service leave as $6,993 and superannuation entitlements as to her unpaid remuneration as $1,760.

A preliminary issue

1. A preliminary issue arises as to whether several matters raised in Mr and Mrs Massaria's Points of Claim, and also relied upon by Mr Bolger in submissions, are open to them given the earlier judgment. Both parties accepted that the preferable way to address that issue was for evidence as to those matters to be led and submissions made about them and to address the question whether they were open in this judgment.

1. Mr Johnson, who again appeared for Ms Pollard in this application, submitted that the matters raised in paragraphs 1-21 of the Points of Claim dealing with the scope of the mutual releases given by the Terms of Settlement and paragraphs 46-63 of the Points of Claim dealing with Mrs Massaria's claim for remuneration and superannuation entitlements were dealt with by the earlier judgment and that it is not now open to Mr and Mrs Massaria to agitate those matters. Mr Johnson referred to the decision of the High Court of Australia in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [57] in support of that proposition.

1. The position in respect of Mrs Massaria is relatively clear. Mr and Mrs Massaria contend, and I accept, that Ms Massaria was not bound by the earlier judgment, where Ms Pollard did not join her as a respondent to the application until December 2013. It seems to me that proposition must be correct notwithstanding that Mr Massaria had made submissions that the affairs of the companies were not finalised by reason of matters relating to Mrs Massaria, with her authority (as she accepted in cross-examination), that were addressed in the earlier judgment.

1. The position in respect of Mr Massaria is more complex. I did not, when hearing the earlier argument as to these matters, make an order for the determination of separate questions and I made no orders in respect of the matters addressed in the earlier judgment. However, the earlier judgment was delivered after I had heard argument on the merits and I observed, in a hope that has plainly not been realised, that:

"The matters I have addressed in my judgment may provide some assistance to the parties in identifying the matters that remain outstanding and may need to be addressed, whether by further evidence led by the parties or, preferably, by their reaching agreement so as to avoid the continuing costs of disputes of this kind."

1. I turn now to the authorities as to the effect of a determination of an interlocutory nature made in the course of proceedings. In Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 at 531, Dixon J observed that:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the parties or their privies. The estoppel covers only those matters which the prior judgment ... necessarily established as the legal foundation or a justification of the conclusion. ..."

In Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642, cited in Bass v Permanent Trustee above, Diplock LJ noted that an interlocutory judgment which separately determined an issue has the result that:

"[t]he parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance an argument or adduce further evidence directed to showing that the issue was wrongly determined."

In Bass v Permanent Trustee above, a majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) observed (at [57]) that this principle had the result that:

"[o]nce an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination."

1. On the other hand, in Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421, the Full Court of the Federal Court observed that a judgment that made findings of fact and law that were not expressed as having final effect and were not implemented by orders did not create a res judicata between the parties. Those observations were approved by French J in Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 99-100, where his Honour observed that, if a judge did not intend to make orders reflecting conclusions that he or she had reached part way through the conduct of a trial of a matter, then there was no judicial decision that could be the subject of an appeal. In Lowe v Pascoe (No 3) [2011] NSWSC 192, Smart AJ dealt with a similar issue where his Honour had delivered reasons for judgment covering a number of matters but had not made final orders, and a party contended that those matters could be reconsidered in the light of further evidence without the need to reopen that judgment. His Honour noted (at [20]) that it had been recognised for many years that, until an order is entered, the Court has an inherent power to reopen a hearing, inter alia, for the purposes of reviewing and varying reasons for judgment, although that jurisdiction is to be exercised with caution having regard to the public interest in the finality of litigation.

1. I should also have regard to s 56 of the Civil Procedure Act 2005 (NSW) and the Court's obligation to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or the proceedings, although the question before me does not strictly involve the exercise of a power under the Act or the rules. In my view, it would be consistent with the just, quick and cheap resolution of the real issues in dispute to allow Mr and Mrs Massaria to lead further evidence and advance further submissions in respect of the matters that were addressed in the earlier judgment. As I noted above, the observations that I had made had not been reflected in orders, and some other matters had been left open so that Ms Pollard could lead further evidence about them. The just resolution of the proceedings will be promoted by that course since Ms Pollard and Mr and Mrs Massaria will then have the benefit of a determination on the merits, made with regard to the more extensive evidence and submissions now put by Counsel for both parties. That course does not seem to me to be inconsistent with the quick and cheap resolution of the matters in dispute, where a further hearing was in any event required today in respect of the other issues that remained open, and addressing the matters raised by Mr and Mrs Massaria will only involve a marginal increase in the length of that hearing.

1. I raised with Counsel for Mr and Mrs Massaria, in the course of submissions, the possibility that such an order should only be made on terms that Mr Massaria pay the costs of the hearing before me on 10 October 2013, possibly on an indemnity basis, and payable forthwith. Mr Massaria accepted that it would be proper that he pay the costs of that hearing, on the basis that he would very likely have been required to pay the costs thrown away had he then requested an adjournment of that hearing, but resisted an order that those costs be paid forthwith and, I assume, an order that they be paid on an indemnity basis. I do not consider that an order should be made against Mr Massaria on an indemnity basis, since I do not consider that his conduct in respect of the hearing on 10 October involved unreasonable conduct of a kind that would warrant an order on that basis. I do consider that such an order should be made on the basis that those costs are payable forthwith, where Ms Pollard will already have expended the costs of retaining representation on that date and those costs will largely be wasted by the reargument as to the relevant issues that will now occur. I will not make an order for costs against Mrs Massaria in this regard, since she was not party to the application when it was heard before me on 10 October 2013, although Mr Massaria advanced argument in respect of matters affecting her with her authority.

1. I note, for completeness, that rr 36.11 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) have no application, since there were no orders made consequential upon the earlier judgment that were capable of entry.

The scope of the dispute

1. I turn now to the substantive issues raised by the argument before me. Ms Pollard's position is, simply enough, that the conditions required for the specified steps to be taken under the Terms of Settlement have been satisfied and that those steps should be taken. Mr and Mrs Massaria have identified the several bases on which they oppose such an order, which I will now address. Mr and Mrs Massaria submitted, in chief, that they had provided prima facie evidence in support of their claims for unpaid employment entitlements and that a dispute arises as to the payment of those entitlements that would properly be determined in another forum such as the Federal Circuit Court or the Local Court of New South Wales. I accept that any claim brought by Mr and Mrs Massaria for payment of such entitlements, if they did not release them by the Terms of Settlement, would properly have been brought in one of those jurisdictions and not in this application. I must nonetheless, in this application, determine the question whether Ms Pollard has established, on the balance of probabilities, that there are no undischarged "obligations" owed to third parties, unpaid "proper superannuation entitlements" or affairs of the companies that have not been "finalised" so that the conditions to a transfer under paragraph (b) of the Terms of Settlement have now been satisfied.

The first precondition under the Terms of Settlement - discharge of third party obligations

1. The first precondition to the transfer under condition (b)(i) of the Terms of Settlement was that all obligations owed by the companies to third parties had been discharged. Any obligations owed to Mr and Mrs Massaria do not, in my view, fall under this head. They were each parties to the proceedings and the Terms of Settlement and not "third parties" for that purpose.

1. The only third party obligation on which Mr and Mrs Massaria relied in this application related to a claim by Holmes Financial Services. Paragraphs 22-28 of their Points of Claim deal with a claim made by that entity on 28 November 2013 for payment of $6,673.04 which has not been determined. Mr and Mrs Massaria contend that condition (b)(i) of the Terms of Settlement has not been satisfied, or alternatively the affairs of the companies have not been finalised, so as to allow the condition to paragraph (a) of the Terms of Settlement to be satisfied. Ms Pollard responds that there is no evidence that Holmes Financial Services has commenced an action against the companies.

1. I addressed the position as to claims of this nature in paragraphs [15]-[19] of the earlier judgment. In my view, the fact that a "claim" was made by Holmes Financial does not establish an "obligation" owed to it that is required to be discharged for the purposes of paragraph (b)(i) of the Terms of Settlement, because a "claim" made by a person is not an "obligation" to that person.

Mr and Mrs Massaria's claim for wages and remuneration and the scope of the release under the Terms of Settlement

1. I should nonetheless deal with other matters raised by Mr and Mrs Massaria which may potentially fall under this head in case an appellate court should take a different view as to the scope of this condition.

1. By paragraphs 64-66 of the Points of Claim, Mr Massaria contends that Bettaway has not paid him wages and remuneration for the period 1 September 2010-19 October 2012. That allegation is particularised by reference to paragraph 35(i) of Mr Massaria's affidavit sworn 26 November 2013 in which he states that he has not received those wages. Mr Massaria's evidence, in his affidavit dated 26 November 2013, was that Ms Pollard and he "drew wages from the business as employees" of Bettaway and that he received group certificates from Bettaway, the last group certificate being received for the financial year ending 30 June 2008. Mr Massaria's evidence was that he and Ms Pollard agreed to a reduction in the "wages" he received from Bettaway from $5,000 to $2,000 per month in February or March 2010 and that Ms Pollard stopped paying his salary of $2,000 per month from Bettaway in about September 2010. His evidence is that when he ceased receiving a salary from Bettaway, in September 2010, he was receiving $2,000 per month "net of tax". On the other hand, Ms Pollard contends, in her Points of Defence, that Mr Massaria's employment ceased on 1 July 2008 when his and Ms Pollard's employment was terminated and they become non-employed directors only entitled to directors' fees.

1. This claim in turn depends on the scope of the mutual releases given under the Terms of Settlement. Mr and Mrs Massaria contend that the Plaintiffs' claims and their Cross-Claim did not include any claim in respect of their respective employment entitlements (namely wages or remuneration, accrued statutory entitlements by way of annual leave and long service leave and superannuation) and that Mrs Massaria (although she was party to the Cross-Claim) did not seek any relief against the Plaintiffs by it; and that the mutual releases are only enforceable to the extent that they relate to the claims that were the subject of the proceedings. Mr and Mrs Massaria point out the only relevant releases are those embodied in the Terms of Settlement which provide:

"The court notes the agreement that the parties, in consideration of the orders referred to above, give mutual releases."

Mr and Mrs Massaria submit that the term "mutual releases" is not defined and that there is no express provisions barring any other proceedings between the parties. Mr and Mrs Massaria also contend that the "mutual releases" can only be in respect of the pleaded claims, because that is all the parties have given "consideration" for. I do not accept that submission, since the consideration given by the parties' mutual agreement to the Terms of Settlement can be sufficient consideration for releases that extend more widely on their proper construction.

1. Mr Massaria's evidence in his affidavit dated 26 November 2013 is that:

"I did not make a claim for the wages or entitlements set out in [his affidavit] in the Statement of Cross-Claim field [sic] in these proceedings. I do not understand that I have provided or signed any document releasing the Plaintiff's [sic] from paying these wages and or entitlements."

Mrs Massaria's evidence is also that:

"I did not make any claim in the proceedings before this Court for my unpaid employment benefits and entitlements. I did not provide any written release or agreement to the plaintiffs releasing them from these claims."

1. On the other hand, Ms Pollard submits that the releases cover matters within the contemplation of the parties at the time the Terms of Settlement were entered, and that the relevant employment disputes were within the parties' contemplation and covered by those releases. Ms Pollard contends that a general release given under a settlement will be construed by reference to the matters within the contemplation of the parties at the time the release was entered; and refers to Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 at 123-124; Qantas Airways Ltd v Gubbins (1982) 28 NSWLR 26 at 29; Arrowsmith v Micallef [2013] QCA 142 at [52]. Ms Pollard points out that Mr Massaria had claimed unpaid remuneration (then put by way of directors' fees) in the First Amended Cross Claim filed by Mr and Mrs Massaria in the proceedings and that a claim of unpaid remuneration was therefore within the contemplation of the parties at the time the Terms of Settlement were entered. Mr Massaria was also plainly then aware of any wages not paid to him, which were not excluded from the mutual releases or otherwise addressed by a reservation in the Terms of Settlement in the manner that was adopted to reserve his and Mrs Massaria's rights in respect of unpaid superannuation.

1. In Qantas Airways Ltd v Gubbins above at 29, Gleeson CJ and Handley JA observed that:

"The rule is that the general words of a release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed."

In Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709 at [406] (on appeal, on other issues, in Australia & New Zealand Banking Group Ltd v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149), Santow J summarised the principles applicable to construing releases in several propositions. These included that the Court should ascribe to a release the meaning that the release would convey to a reasonable person having all the background knowledge that would reasonably have been available to the parties at the relevant time; that a party may agree to release claims or rights of which it was unaware, provided clear language is used to make plain that was its intention; and that general words in a release are limited to what was specifically in the contemplation of the parties at the time the release was given. His Honour applied those principles, in the fact of the case, by noting that the Court needed to determine the ordinary meaning of the release, taking into account the terms used as a whole, its purpose, and attributing to the words used their natural and fair meaning against the background knowledge reasonably available to the parties at the time of contracting.

1. In a decision of the Court of Appeal of the Supreme Court of Queensland in Arrowsmith v Micallef [2013] QCA 142, Peter Lyons J (with whom White and Gotterson JJA agreed) accepted (at [39]) that terms of settlement, as incorporated into a court order, were to be construed in the same manner as a written agreement and that the admissibility of extrinsic evidence was to be determined by reference to the principles identified by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352-353. There is, in this case as in Arrowsmith, an ambiguity in the Terms of Settlement, so far as the reference to "mutual releases" could be limited, as Mr and Mrs Massaria contend, to the particular issues raised in the proceedings, or extend to all known disputes between the parties, or extend more broadly to disputes known and unknown between the parties.

1. For reasons that I will now explain, I consider that the mutual releases under the Terms of Settlement extended to remuneration that Mr Massaria claimed was due and payable to him and that is sufficient for Ms Pollard to establish that he now has no such entitlement. A reading of the release as having general application is supported by the terms of paragraph (b)(i) of the Terms of Settlement which provided that, "for the avoidance of doubt", the relevant transfer would occur only upon due satisfaction of all obligations owed by Bettaway and NMPC to "third parties" being discharged. The use of the language "for the avoidance of doubt" indicates that that clause is intended to confirm the result that would otherwise follow from the Terms of Settlement, and it is significant that the provision deals with obligations owed only to third parties and not obligations owed to Mr and Mrs Massaria who were party to the Terms of Settlement. The fact that such obligations were not there recognised is consistent with reading the release as not preserving them. By contrast, any obligations owed to the relevant superannuation trustees in respect of proper superannuation entitlements was separately preserved by paragraph (b)(ii) of the Terms of Settlement, to which I will refer below.

1. In the present case, it seems to me that several other factors are relevant to the construction of the release given under the Terms of Settlement. The first is that, so far as Mr Massaria is concerned, it was then plain that there was then a dispute between the parties as to the extent of remuneration that had been paid to him, since cl 10 of the Cross-Claim brought by Mr and Mrs Massaria was particularised by reference to Ms Pollard's alleged withholding of directors' fees due to Mr Massaria It is also plain that there was, at the time of settlement of the proceedings, also a known dispute as to Mrs Massaria's claim for payment of wages, long service leave and annual leave. She had written to NMPC seeking such a payment on 2 September 2011 and again on 12 September 2011, had received a letter from NMPC dated 9 September 2011 seeking further information in respect of her claim and had sent a further letter dated 26 September 2011 to NMPC and lodged a complaint against NMPC with the Fair Work Ombudsman on 7 October 2011. By letter dated 18 October 2011, the Fair Work Ombudsman had written to NMPC in respect of Mrs Massaria's complaint concerning her employment with NMPC. Mrs Massaria's resignation letter dated 18 January 2012 referred to NMPC's refusal to pay her entitlements.

1. At the time the mutual releases were given, the parties were also aware that the proposed settlement required the Court's approval under s 240 of the Corporations Act, because the proceedings brought in the name of Bettaway were in the nature of a statutory derivative action. Mr and Mrs Massaria (who were then represented by Counsel and solicitors) did not, when approval was sought for the settlement from the Court, suggest that they sought to reserve the ability to bring any claims as to the matters on which they now rely. The existence of such claims would have been plainly relevant to whether the Court should grant approval for a settlement which would, on the position they now advance, have obtained the benefit of a release of the companies' claims against them but been left free to bring a range of claims for substantial amounts against the companies. It seems to me that the fact that Mr and Mrs Massaria, their Counsel and their solicitors did not consider it necessary to disclose any claims reserved to them (other than in respect of superannuation) which would have been relevant to an assessment of whether the proposed settlement was in the companies' interests, supports a conclusion that the mutual releases had general operation rather than being limited in a manner that would reserve the claims now sought to be brought. It is not necessary to determine whether the release extended further to claims that were unknown to Mr and Mrs Massaria, since the particular claims in respect of remuneration and statutory entitlements were within a category that was known to them for the reasons that I have noted above.

1. For these reasons, I consider that the "mutual releases", construed in accordance with their terms and by reference to the surrounding circumstances to which I have referred, extended at least to the categories of claims then known by Mr and Mrs Massaria, which included claims for outstanding remuneration (whether characterised, in Mr Massaria's case as "wages" or "directors fees") and to statutory entitlements in respect of such claims, other than in respect of the question of superannuation which was specifically reserved by condition (b)(ii) in the Terms of Settlement. For this reason, Bettaway owes no continuing obligation to Mr Massaria in respect of wages and remuneration for the purposes of condition (b)(i) of the Terms of Settlement.

1. By paragraphs 67-69 of the Points of Claim, Mrs Massaria also advances a claim for wages and remuneration for the period 25 May 2011-25 January 2012. Mrs Massaria's evidence in her affidavit dated 26 November 2013 is that she was paid wages by NMPC up to 20 May 2011 and continued to work for NMPC until 25 January 2012 when she resigned her employment. Mrs Massaria also refers to having received a letter from Ms Pollard in October 2010 advising that she was on paid leave until further notice, but also refers to Mr Massaria having advised her that that was not a joint decision of the directors of NMPC and "directed [her] to continue working." By her affidavit dated 4 February 2014, Mrs Massaria denies that she "abandoned" her employment with NMPC in February 2010 and denies that she received any direction from NMPC or its officers to take long service leave during the period February 2010 to 25 January 2012. For the reasons noted above, the mutual releases under the Terms of Settlement extends to this claim and NMPC therefore owes no continuing obligation to Mrs Massaria in respect of wages and remuneration for the purposes of condition (b)(i) of the Terms of Settlement.

Mr and Mrs Massaria's claim for annual leave and long service leave

1. Paragraphs 70-75 and 76-81 of Mr and Massaria's Points of Claim deal with claims for accrued annual leave on the termination of their employment and accrued long service leave on the termination of their employment. These matters raise similar issues to the claims by Mr and Mrs Massaria for unpaid remuneration. By way of background, cl 5(d) of the Terms of Settlement required the parties to deliver a written statement of known creditors of the companies and, by letter dated 5 November 2012, Mr Massaria identified only "third party creditors" of Bettaway and NMHC, namely the Australian Tax Office, certain brokers, a firm of accountants and a firm of solicitors. Mr and Mrs Massaria did not then identify any monies due to them in this regard in identifying Bettaway's creditors as required by the Terms of Settlement.

1. Ms Pollard's evidence, in her affidavit dated 14 February 2014, is that Mrs Massaria was placed on annual leave and exhausted her leave entitlement. I have referred to Mrs Massaria's evidence as to this matter in paragraph 35 above. There is a conflict in the evidence between Ms Pollard on the one hand, and Mrs Massaria on the other, as to whether Mrs Massaria had exhausted her annual leave. It is not necessary to resolve that conflict for the purposes of this judgment, given the findings that I have reached in respect of the terms of the mutual releases under the Terms of Settlement. I am satisfied that any claim in respect of annual leave or long service leave by Mr and Mrs Massaria was also released by the Terms of Settlement, for the same reasons as any claim in respect of unpaid remuneration.

1. There is a further issue as to whether the release of claims for annual leave and long service leave was invalidated by statute. Mr and Mrs Massaria contend that s 7 of the Long Service Leave Act and s 8 of the Annual Holidays Act (since repealed) prohibit contracting out of obligations arising under those Acts. Mr and Mrs Massaria accepted, in supplementary submissions, that the Annual Holidays Act ceased to apply from 27 March 2006 by reason of amendments to the Workplace Relations Act 1996 (Cth) made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). They also conceded that s 8 of the Annual Holidays Act did not apply to their entitlements as at October 2012, when the "mutual releases" were provided, but contended that the effect of ss 44, 61, 87 and 92 of the Fair Work Act 2009 (Cth), which replaced the Workplace Relations Act (as amended) from 1 July 2009, was to prohibit contracting out of the relevant entitlements. On the other hand, Ms Pollard contends that a release of Mr and Mrs Massaria's alleged annual holiday and long service leave entitlements in respect of a settlement of the proceedings does not constitute a prohibited contracting out under the terms of the Annual Holidays Act and the legislation that replaced it and the Long Service Leave Act.

1. Mr and Mrs Massaria rely on the decision in Thomas Cook Ltd v Patheyjohn [1996] NSWIR Com 130; (1996) 66 IR 201 as authority that a release cannot act as a bar against further claims for long service leave in the context of a settlement of a claim for employee entitlements. It does not seem to me that that decision is authority for that proposition. To the contrary, Maidment J there cites the Court of Appeal's decision in Qantas Airways Ltd v Gubbins above at 31, where Gleeson CJ and Handley JA distinguished between a person bargaining away in advance their rights to seek relief under the Anti-Discrimination Act 1977 (NSW) and the settlement of a dispute that had arisen, and expressed the view that that Act did not prohibit complainants from compromising or releasing accrued claims for damages. Maidment J expressly noted (at 204) that the decision in Qantas Airways Ltd v Gubbins:

"might well be authority for the proposition that a disputed claim for benefits under the Long Service Leave Act can be effectively compromised and that a general deed of release reflecting such a compromise would be good evidence in defence of a recovery action under that Act."

1. As I understand his Honour's judgment, he held that the release in issue in that case did not have that effect, because a dispute had not previously existed as to the long service entitlements of Mr Patheyjohn and the evidence in that case did not in fact manifest any compromise. I have held above that there was an existing dispute as to Mr Massaria's remuneration and, by extension, his consequential entitlements and as to Mrs Massaria's entitlements and that the mutual releases under the Terms of Settlement were sufficiently wide to address that dispute. It seems to me that that the reasoning of the Court of Appeal in Qantas Airways Ltd v Gubbins above is equally applicable to the Long Service Leave Act and the Annual Holidays Act (had it still been in force) and the legislation that replaced it, and the statutory prohibition on contracting out of entitlements should not be read as prohibiting parties from compromising claims for such entitlements, after they have arisen, so as to require parties to a dispute concerning those entitlements to litigate it to judgment where they wished to settle it between themselves.

1. Accordingly, I do not consider that the Long Service Leave Act or the Annual Holidays Act (had it still been in force) or corresponding legislation invalidated the mutual releases in the Terms of Settlement so far as they extended to annual leave and long service leave.

The second precondition under the Terms of Settlement - payment of superannuation entitlements

1. The second precondition to the transfer contemplated by the Terms of Settlement was payment by the companies to the relevant trustee of any proper superannuation entitlements due to Mrs Massaria and any other party entitled to payment of superannuation entitlements. It is therefore necessary to determine whether Ms Pollard has established, on the balance of probabilities, that Mr and Mrs Massaria's proper superannuation entitlements have been paid to their respective superannuation trustees. It was common ground that this would not be the case if such entitlements have not been paid on wages that had (1) been paid or (2) were due but unpaid to Mr and Mrs Massaria, and not released by the Terms of Settlement.

1. Paragraphs 29-45 of Mr and Mrs Massaria's Points of Claim refer to Mr Massaria's claim to superannuation entitlements. Mr Massaria contends that he was an employee of Bettaway from 22 August 2000 and accepts that his superannuation entitlements were paid up to 30 June 2007 but contends that superannuation entitlements were due for wages and remuneration paid to him between 1 July 2007 and 1 September 2010 and for wages and remuneration due but not paid to him for the period 1 September 2010 to 19 October 2012.

1. The first issue is whether, on the balance of probabilities, there exists an obligation to a superannuation trustee in respect of Mr Massaria's superannuation entitlements in respect of payments in fact made to him prior to 1 July 2008. There was no dispute that Mr Massaria was an employee prior to that date and that payments made to him prior to that date were salary or wages. Ms Pollard accepted in cross-examination that group certificates were issued to Mr Massaria for the financial year ended June 2008, and also that Mr Massaria had not been paid superannuation entitlements between 2007 and 30 June 2008. Ms Pollard also contended in cross-examination that any superannuation entitlements due to her and Mr Massaria as at 30 June 2008 "were not carried forward after that period of time because we changed the way that we were being paid", although she did not explain how that occurred. A statement issued to Mr Massaria by his superannuation fund, for the period 1 July 2007 - 30 June 2008, records contributions to that fund for that period of $809.19, a small amount that appears to be consistent with Mr Massaria's submission that contributions referable to wages paid over that period were not paid into the fund. Mr Massaria contends that the amount of $8,500 is due and payable to his superannuation trustee in respect of this period, and Ms Pollard did not contest that figure as distinct from the existence of any obligation to make the relevant payment.

1. I am not satisfied, on the balance of probabilities, that Mr Massaria's superannuation entitlements in respect of the financial year ended 30 June 2008 have been paid to his superannuation trustee. Ms Pollard's evidence does not provide any clear basis for any view that that entitlement was extinguished; and it seems to me that condition (b)(ii) to the transfer of the proceeds of sale of the business under the Terms of Settlement is not satisfied while that entitlement is unpaid.

1. The second issue is whether payments made to Mr Massaria between 1 July 2008 and 1 August 2010 had the character of wages or salary such that superannuation should have been, but was not, paid on them. So far as that period is concerned, it is common ground that Mr Massaria received remuneration over that period. He contends that he received that remuneration as an employee and Ms Pollard contends that he received that remuneration as directors' fees.

1. Ms Pollard contends that Mr Massaria ceased to be paid a salary as at 1 July 2008 and that he has not received group certificates since the financial year ended 30 June 2008. Ms Pollard's evidence in cross-examination was that she and Mr Massaria received wages prior to July 2008, and thereafter ceased to be employees of Bettaway at Mr Massaria's suggestion. Her evidence was that no tax was taken out of payments to them after that date and each director that was responsible for their own tax after that date. Mr Massaria contends that, between 1 July 2008 and 1 August 2010, he was an employee and continue to receive wages. Mr Massaria accepted in cross-examination that at least from March 2010 he was receiving "directors fees" and contended that prior to that date the directors received both directors' fees and wages, and that directors' fees were withheld from August or September 2010.

1. Mr and Mrs Massaria also rely on the fact that wage declarations made for workers compensation from 1 July 2007 to 30 June 2011 recorded that Bettaway had two workers, namely Ms Pollard and Mr Massaria, who were paid "wages". Ms Pollard responds that the workers compensation declaration does not indicate that Mr Massaria was an employee or was paid wages, since that declaration needed to be given in respect of persons who received either directors' fees or wages.

1. Mr and Mrs Massaria also point to bank statements issued by National Australia Bank in January 2009 which continue to show a "salary" being paid to Mr Massaria, although the term "commissions" is used to describe that payment from February 2009. Other bank statements annexed to Mr Massaria's affidavit sworn 11 July 2013 record the payment of salary or wages until September 2009, and the term "commissions" is used to describe payments from that date until May 2010, with the term "directors drawings" being used to describe payments from August 2010. For example, the narration for payment made to Mr Massaria on 2 August 2007 in the amount of $1,235 refers to "salary/wages" whereas another payment on that date of $5,000 is described as "directors drawings". Similarly, a payment made to Mr Massaria of $1,235 on 16 August 2007 is described as "salary/wages" whereas a payment of $5,000 made on 31 August 2007 is described as "directors fees" in his bank statement. A payment made on 2 July 2009 in the amount of $1,250 is again described as "salary/wages". Payments made on 3 and 10 September 2009 in the amount of $1,250 are described as "commissions due". On the other hands, an amount of $2,000 paid on 28 June 2010 is described as "directors drawings". In cross-examination, Ms Pollard conceded that the payments made to Mr Massaria were recorded for part of the period as "salary/wages" in the narrations reflected in bank statements, but contended that they were drawings rather than wages and that the narration reflected Mr Massaria's instruction. Ms Pollard was also cross examined as to a reference in her affidavit dated 19 June 2012 to having paid Mr Massaria a "salary" until 31 August 2010 and her evidence was that the reference to "salary" in that affidavit referred to directors drawings.

1. On the other hand, the fact that group certificates were not issued to Mr Massaria after 30 June 2008, although he was then a director of Bettaway responsible with Ms Pollard for compliance with the obligation to issue them if he was an employee, is consistent with the fact that he was no longer in an employment relationship with Bettaway from that date. Mr Massaria has also not led evidence of his income tax returns nor explained their absence, notwithstanding that they would demonstrate whether he had treated the income received from Bettaway in a manner that was consistent with it being paid as salary from which PAYG deductions had been made. I can properly infer that that evidence would not have assisted Mr Massaria in establishing that the relevant payments were in the nature of wages or salary, rather than on some other basis. Mr Massaria's affidavit dated 26 November 2013 also annexes the annual report for the Bettaway Financial Group for the year ended 30 June 2009 in the form which he says was "submitted". The profit and loss statement for that year records that directors' fees paid in the year ended 30 June 2008 were nil and directors fees paid in the year ended 30 June 2009 were $75,000, and that salaries and wages paid in the year ended 30 June 2008 were $90,817.04 and salaries and wages paid in the year ended 30 June 2009 were nil. Although those financial statements are not signed by the directors, Mr Massaria relies on them in his affidavit, and they seem to me to be strong evidence that Mr Massaria and Ms Pollard ceased to be paid a wage and began to be paid directors' fees at the end of the financial year ended 30 June 2008.

1. As I noted above, cl 5(d) of the Terms of Settlement also required the parties to deliver a written statement of known creditors of the companies and, by letter dated 5 November 2012, Mr Massaria identified only "third party creditors" of Bettaway and NMHC as the Australian Tax Office, certain brokers, a firm of accountants and a firm of solicitors, and did not identify any superannuation trustee as a creditor in respect of superannuation entitlements due to him in that statement. It seems to me that the provision of that information was an important step in the implementation of the settlement and that I should give substantial weight to the information provided by Mr Massaria at that point. In reaching this finding, I have not neglected the fact that Mrs Massaria also failed to identify a superannuation entitlement that NMPC later recognised by a payment made in May 2013.

1. I am satisfied that, on the balance of probabilities, payments made to Mr Massaria after 1 July 2008 were not salary or wages, the basis on which he contended that they gave rise to unpaid superannuation entitlements. I reach that finding because, first, it is common ground that Bettaway did not issue group certificates for the amounts paid to him after that date and I should not readily infer that, as a director of Bettaway, Mr Massaria had failed to take proper steps to comply with that requirement; second, he relied in this application on the unsigned accounts recording the payment of directors' fees rather than a salary to him in the year ended 30 June 2009, without disavowing their accuracy as to that issue or generally; and, third, he has not relied in his case on his income tax returns (which, consistent with his case, should have recorded the receipt of salary from Bettaway) and has led no evidence to explain their absence, and I infer those documents would not have assisted his case. I have had regard to the fact that, as noted above, the banking records and the reference to "salary" in Ms Pollard's evidence would support a contrary view, particularly where the different terms "directors drawings" and "commissions" were also used in those documents, but I ultimately consider they should be given lesser weight. The former is readily explicable by a less than punctilious approach to matters of administration and the latter by imprecision in Ms Pollard's earlier affidavit, which was then addressing the claim that remuneration had not been paid rather than a dispute as to its character.

1. The third issue that arises in respect of Mr Massaria is whether he is due further amounts by way of wages or salary for the period after 1 August 2010, in respect of which superannuation should be paid, or whether he has released any such claims under the Terms of Settlement. Mr Bolger properly recognised that this depends upon the effect of the release contained in the Terms of Settlement and that, if the release had wider operation so as to release any claim for unpaid remuneration by Mr Massaria after that date, then no superannuation entitlements would have arisen after that date. I have held above that the release extinguishes that claim and that determines that issue.

1. Paragraphs 46-63 of the Points of Claim in turn relate to the payment of Mrs Massaria's superannuation entitlements and have a broadly similar structure to Mr Massaria's claim in that regard. Mrs Massaria accepts that her superannuation entitlements were paid in respect of remuneration and wages paid up to 25 May 2011 but claims that NMPC was obliged to pay her wages for the period 25 May 2011-25 January 2012 and failed to do so and that NMPC was obliged to make superannuation contributions in connection with those wages. Mrs Massaria also did not identify any amount as due to her superannuation trustee in identifying the creditors of the Company for the purposes of cl 5(d) of the Terms of Settlement. Mr Bolger accepted, in oral submissions, that that issue also turned upon the effect of the release contained in the Terms of Settlement because, if Mrs Massaria had released any claim for unpaid remuneration after 25 May 2011, then no claim would arise in respect of her superannuation entitlements for that period. I have held above that the release had wider operation so as to have that effect.

The fourth precondition under the Deed of Settlement - Whether the affairs of the companies have been finalised

1. Mr and Mrs Massaria contend that the affairs of Bettaway and NMPC have not been finalised as required by paragraph (b)(iv) of the Terms of Settlement by reason of several matters. The usual meaning of the term "finalise" is to bring to an end or to completion. In the Terms of Settlement, that term must be read in the context of paragraph (b) and the Terms of Settlement as a whole, which contemplate the discharge of obligations owed by the companies to third parties; the payment of superannuation entitlements; the release of guarantees and indemnities and, finally, the "finalisation" of the affairs of Bettaway and NMPC. That term must also be read in a way which gives a commercial and sensible operation to the Terms of Settlement.

1. Mr and Mrs Massaria contend that the affairs of Bettaway and NMPC have not been finalised as required by paragraph (b)(iv) of the Terms of Settlement by reason of a claim for compensation by a broker by Holmes Financial Services. I do not consider that the claim made by Holmes Financial Services, at least where it was not pursued by the commencement of proceedings so as to seek to establish any entitlement or obligation, has the result that the affairs of the companies are not "finalised" for the purposes of paragraph (b)(iv) of the Terms of Settlement. The contrary view would have the result that the parties' rights and obligations under the Terms of Settlement could be deferred, at least until any relevant limitations period expired, so long as any third party chose to identify but not pursue such a claim.

1. Mr and Mrs Massaria also contend that the affairs of Bettaway and NMPC have not been finalised as required by paragraph (b)(iv) of the Terms of Settlement by reason of unresolved claims for employment entitlements for Mrs Massaria in respect of wages (or alternatively severance) and payment of annual leave and long service leave entitlements; and employment entitlements for Mr Massaria for unpaid wages (or in the alternative directors' fees) and payment of annual leave and long service leave entitlements to which I have referred above. I do not accept that submission. My determination above of the issues as to Mr and Mrs Massaria's claim for unpaid wages and remuneration and annual leave and long service leave entitlements means that no issue remains to be finalised in respect of that matter.

1. Mr and Mrs Massaria alternatively contend that, even if an obligation in respect of superannuation entitlements was not established in respect of Mr and Mrs Massaria, the affairs of Bettaway and NMPC would not be finalised until their claim for those superannuation entitlements had been determined. It cannot presently be said that the affairs of the Company are finalised until the superannuation of $8,500 due to Mr Massaria's superannuation trustee in respect of the period to 30 June 2008 is outstanding. However, the companies' affairs have been finalised in respect of Mr and Mrs Massaria's claims for other superannuation entitlements, since I have found that Ms Pollard has established, on the balance of probabilities, that such entitlements do not exist. Such a finding amounts to a determination of the claim such that no issue in respect of those entitlements remains to be finalised for the purposes of the Terms of Settlement.

1. Mr and Mrs Massaria also contend that the affairs of Bettaway and NMPC have not been finalised because it or they continue to receive income in respect of trailing commissions on loans entered into by its clients with Westpac Banking Corporation and with ING Bank and that the affairs of Bettaway and NMPC will not be finalised until they have sold the Westpac loan book and the ING loan book. Mr Massaria's evidence in his affidavit dated 26 November 2013 is that the two remaining loan books that had not been sold have a "very small value" generating commissions of approximately $180 per month and that the trailing commission on those books would continue until the loans were repaid or discharged. It is not clear whether this matter is addressed by the form of orders sought by Ms Pollard, which sought, inter alia, an order that Mr Massaria execute a notice of assignment directed to a third entity assigning further payments due to Bettaway and NMPC to Ms Pollard.

1. I accept that, as Mr Johnson points out, the requirement that the companies' affairs be "finalised" does not require that the companies be wound up. Nonetheless, it does not seem to me that it could be said that the affairs of the companies are in fact finalised, where these assets, although of relatively small value, could not be said to be de minimis or immaterial, and they will continue to generate income and (as I note below) give rise to tax liabilities which would need to be attended to. It may be that this issue could readily be resolved by cooperation between the parties as I will note below, or by an order of the Court if such cooperation is not forthcoming.

1. As I noted above, the Terms of Settlement require Ms Pollard and Mr and Mrs Massaria to do all things reasonably necessary and sign all such documents and participate in all necessary meetings so as to procure the transfer of the net proceeds of the sale of the business of Bettaway and NMPC to Ms Pollard, which transfer is conditional, inter alia, upon finalisation of the companies' affairs. Quite apart from any wider implied duty of cooperation upon the parties, the express obligation upon them under the Terms of Settlement to do all things reasonably necessary to procure the transfer of those proceeds when matters were finalised seems to me necessarily also to impose a duty upon them to do all things reasonably necessary to bring about a state of finality where that could occur. There may be many ways in which such a state of finality could be achieved. One such way might be, for example, an assignment of the companies' rights to receive trailing commissions from Westpac and ING, or of their fruit, to Ms Pollard (or indeed Mr Massaria) at fair value or an agreed price. If Ms Pollard were to take such an assignment, the amount payable by her could presumably be set off against the amount of the proceeds of the sale of the business (which would include the proceeds of that assignment) which are payable to her under the Terms of Settlement. The parties may well be able to agree an appropriate means to address this matter between themselves, consistent with their obligations under the Terms of Settlement. If a reasonable offer is made by one party and not accepted by the other then, and subject to the opportunity for further submissions in the manner noted below, it may well be appropriate for the Court to make an order under s 73 of the Civil Procedure Act so as also to bring this issue to finality, consistent with the parties' obligation to do so under the Terms of Settlement.

1. Mr and Mrs Massaria also contend that the affairs of the companies will not be finalised until necessary financial statements, together with outstanding returns for income tax and any other revenue obligations, have been prepared. I noted in my earlier judgment (at [10]) that:

"Mr Massaria has pointed out that they have received the proceeds of the sale of their business, by way of a lump sum payment and certain monthly payments and a tax obligation may well arise in respect of those payments. Mr Johnson rightly anticipates that, both as a matter of the proper construction of the terms of settlement and as a matter of public policy, the Court would be unlikely to make the orders sought without being satisfied that the companies' tax obligations had been taken into account in determining the "net proceeds" of the sale payable to Ms Pollard."

There is evidence that income tax returns have been lodged for Bettaway and NMPC up to the financial year ending 30 June 2013 and that the receipt of trailing income by Bettaway will require a further taxation returns to be filed for the financial year ended 30 June 2014. Ms Pollard's evidence in cross-examination was that, while Bettaway continues to receive trailing income from the loan books noted above, further tax returns would be prepared for the financial year ending 2014, but could not yet be prepared. It seems to me that the concept of "finalise" at least requires that appropriate arrangements be made to discharge the companies' statutory obligations in respect of the filing of income tax returns and payment of income tax. However, particularly if the remaining rights to receive commission are addressed in the manner noted above, it seems to me that this issue could well be finalised by Ms Pollard undertaking to the Court to cause any necessary income tax returns to be lodged by the companies and any consequential tax obligations of the companies to be discharged. I expect that Mr Massaria would comply with his obligations under the Terms of Settlement so far as his cooperation is required, so that it would not be necessary to make further orders under s 73 of the Civil Procedure Act in that regard

1. I should also note, for completeness, that Mr and Mrs Massaria submitted that, if the transfer of the net proceeds of the sale of the companies' business to Ms Pollard took place as contemplated by the Terms of Settlement, Bettaway would then be unable to meet its liabilities to the Australian Taxation Office. I do not accept that submission. Where the only identified tax liability of Bettaway (or the companies) arises from the receipt of the trailing commissions, I can comfortably infer that the amount of tax payable would be less than the amount of the commissions received, such that there is no reason why Bettaway (or the companies) would be unable to meet the tax payable from the trailing commissions received. In any event, that issue would be addressed by an undertaking given by Ms Pollard of the kind noted above.

1. I should also add that Mr and Mrs Massaria submitted that it would be appropriate to dismiss Ms Pollard's application subject to an undertaking by them to commence other proceedings in respect of their claimed entitlements to remuneration, annual leave and long service leave and superannuation, notwithstanding that they have not commenced such proceedings in the 18 months since the Terms of Settlement were agreed. The major issues in dispute between the parties have been determined by this judgment, with the only issues remaining being the payment of $8,500 to the superannuation trustee previously nominated by Mr Massaria of the amount referable to his superannuation for the year ended 30 June 2008 referred to in paragraphs 44-45 above, any assignment or other dealing with the rights to receive trailing income addressed in paragraphs 59-61 above, and the giving of any undertaking by Ms Pollard in respect of the matters noted in paragraph 62 above. It may be that the first matter can be resolved between the parties so that Mr and Mrs Massaria would have no need to commence separate proceedings in respect of it, and the second and third matters are already before this Court. It therefore does not seem to me necessary or appropriate to require or accept such an undertaking in respect of the commencement of any such proceedings.

Orders

1. I have, in this application, determined a number of issues as between the parties, and the findings that I have reached should be reflected in orders with binding effect upon the parties reflecting the result that I have reached. I direct the parties to bring in, within 21 days or such longer period as may be ordered on application to my Associate, agreed Short Minutes of Order to give effect to this judgment and as to costs and, if agreement is not reached between them, their respective drafts of such orders and short submissions as to any differences between them.

1. If any party then contends that the three remaining issues noted above have been resolved, or that orders should then be made by the Court to secure their resolution, those submissions should identify the basis for each order presently sought in Ms Pollard's Amended Interlocutory Process and any further consequential or ancillary orders that may then be sought. If those issues have not then been resolved between the parties and orders are not then sought to resolve them, then the orders should provide for Ms Pollard's application to be dismissed.

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Decision last updated: 02 April 2014