Korunich v Holliday

[2013] QCATA 42

CITATION: Korunich v Holliday [2013] QCATA 42

PARTIES:	Mark Nathan Korunich
v
Terrance Michael Holliday

APPLICATION NUMBER: APL252-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where employment agreement – where dispute between employer and franchisor – where offer of redundancy if employee stayed on – whether consideration – whether good consideration - whether grounds for leave to appeal

Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87

APPEARANCES and REPRESENTATION (if any):

This matter was heard determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Holliday was employed by PGO Enterprises Pty Ltd, a company that supplied financial services, as a branch manager. Mr Korunich was a director of the company.

2. In August 2011, PGO was in dispute with its franchisor. At Mr Korunich’s request, Mr Holliday agreed to stay at PGO until the dispute was finalised. He says that Mr Korunich agreed to pay him two months salary if he stayed until the end of the dispute. Mr Holliday did stay until the end but Mr Korunich did not pay him anything. Mr Holliday brought an application for minor debt and the Tribunal ordered that Mr Korunich pay Mr Holliday $10,000, which was the equivalent of two months salary.

3. Mr Korunich wants to appeal that decision. He says the learned Member made two errors. Firstly, he says that the learned Member did not think about whether there was consideration for the agreement. Secondly, if the learned Member did think about consideration, he was wrong in finding that there was consideration because Mr Holliday was simply complying with the terms of his employment agreement.

1. Because this is an appeal from a minor civil dispute, Mr Korunich must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Korunich shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.

1. Mr Korunich says that the learned Member’s statement[1] that: “likely there was an agreement that involved the payment of two months’ salary” indicates that the learned Member had the employment agreement in mind. Mr Korunich says that, because Mr Holliday was already being paid his salary to work, the promise to stay on could not be good consideration.

   [1] Reasons for decision at [28].

1. The learned Member did not make any specific finding about consideration but Mr Korunich did raise the issue at the hearing[2] and it is implicit in the learned Member’s findings[3] that the consideration for the payment was Mr Holliday’s agreement to stay.

   [2]        Transcript at page 31.

   [3]        Reasons for decision at [26] and [27].

1. PGO’s business had closed by the time of the conversation between Mr Korunich and Mr Holliday. Mr Korunich acknowledged that Mr Holliday did not have to “stick around” and that the dispute was causing extra difficulties[4]. It is clear from the emails between Mr Korunich and Mr Holliday[5] that the offer of two months redundancy was because Mr Holliday agreed to stay until the end. If Mr Holliday had not stayed then, clearly, he would not have been entitled to the payment.

   [4]        Exhibit 1.

   [5]        Exhibit 5.

1. Good consideration does not need to have a value comparable to the promise[6]. Mr Korunich promised to pay Mr Holliday if he stayed on. The employment agreement was between Mr Holliday and PGO. The agreement in question was between Mr Holliday and Mr Korunich. It was likely that PGO could not have paid Mr Holliday anything had he stayed on. Mr Holliday’s decision to stay on was linked to the personal offer by Mr Korunich. I find, therefore, that Mr Holliday did provide consideration.

   [6]        A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn.’ Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87.

1. The learned Member was not in error. There was consideration for the payment and, at least at the time of the agreement, Mr Korunich thought that the consideration - Mr Holliday staying on – was valuable.

1. There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Member was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.