Kosserkas v Reymer Pty Ltd - [2020] WADC 139

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KOSSERKAS -v- REYMER PTY LTD [2020] WADC 139
CORAM:   VERNON DCJ
HEARD:   3, 4 & 5 SEPTEMBER, 3 DECEMBER 2019 & 17 FEBRUARY 2020
DELIVERED          :   6 NOVEMBER 2020
FILE NO/S:   CIV 4074 of 2015
BETWEEN:   TOM KOSSERKAS
Plaintiff
AND
REYMER PTY LTD
Defendant

Catchwords:

Employment contract - Breach of contract - Unpaid wages and entitlements - Oral agreement for percentage of research and development tax rebate

Legislation:

Limitation Act 2005 (WA)
Long Service Leave Act 1958 (WA)
Minimum Conditions of Employment Act 1993 (WA)

Result:

Judgment for the plaintiff and counterclaim dismissed.

Representation:

Counsel:

Plaintiff	:	Mr A P Hershowitz
Defendant	:	Mr J Ramachandran

Solicitors:

Plaintiff	:	D'Angelo Legal
Defendant	:	Deva & Jeyen Barrister And Solicitor

Case(s) referred to in decision(s):

Fazio v Fazio [2012] WASCA 72
Re Bias Boating Pty Ltd [2017] NSWSC 1524
Willis v Health Communications Network Ltd [2007] NSWCA 313

VERNON DCJ:

The plaintiff, Tom Kosserkas, makes two claims totalling $203,339.70, and interest, against the defendant, Reymer Pty Ltd, his former employer, as follows:
(a)$142,732 for wages and accrued entitlements said to have been unpaid between 13 May 2011 and 11 November 2011 (the employment claim);[1] and
(b)$60,194, and interest, said to be owed as a result of an oral agreement with Reymer, whereby Mr Kosserkas alleges that Reymer, by its director, Mr Paari Vell,[2] agreed to pay Mr Kosserkas a sum equal to 5% of any research and development tax rebate (R & D tax rebate) received by Reymer from the Australian Taxation Office (ATO), in consideration for Mr Kosserkas successfully obtaining the R & D tax rebates on Reymer's behalf, in each and every year the rebate was successfully obtained (the rebate agreement).[3] This claim is limited to amounts said to be owing to Mr Kosserkas pursuant to the rebate agreement on R & D tax rebates received by Reymer for the 2010 and 2011 financial years.
[1] Plaintiff's closing submissions dated 17 February 2020 at par 1 refer to 20 May 2011, this being the first pay day after the last payment was made to Mr Kosserkas on 12 May 2011.
[2] Paari Vell is referred to in these reasons as Mr Paari, as he was referred to as such by his counsel throughout the trial, rather than Mr Vell.
[3] See the substituted statement of claim dated 19 September 2019, at par 4A.
At the commencement of trial:
(a)Mr Kosserkas withdrew a claim for entitlements said to arise from his alleged constructive dismissal by Reymer; and
(b)Reymer accepted that:
(i)Mr Kosserkas had been employed by Reymer to 31 July 2011, and had not been paid the amounts claimed for wages and other entitlements during that period; and
(ii)Mr Kosserkas was entitled to receive wages and other entitlements to 31 July 2011.[4]
[4] ts 31, ts 32. See also the defendant's closing submissions at 10B and ts 415 - ts 417.
However, Reymer said that:
(a)Mr Kosserkas…

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 Kosserkas v Reymer Pty Ltd

Details

AGLC: Kosserkas v Reymer Pty Ltd [2020] WADC 139
Case: [2020] WADC 139
Decision Date: 6 NOVEMBER 2020

CaseChat Overview and Summary

In the matter of Kosserkas v Reymer Pty Ltd, the respondent, Kosserkas, sought compensation from the appellant, Reymer Pty Ltd, for unpaid wages and entitlements. The dispute arose from an oral agreement whereby Kosserkas was to receive a percentage of the research and development tax rebate. The case was heard by the Supreme Court of Queensland. The primary issue before the court was whether the oral agreement between Kosserkas and Reymer Pty Ltd was enforceable and if Kosserkas was entitled to the unpaid wages and entitlements as per the agreement.

The court examined the nature of the agreement and the circumstances surrounding its formation. It considered whether there was a valid and enforceable oral contract and if the terms of the agreement were sufficiently clear to be binding. The court also had to determine if there was any evidence to support Kosserkas's claim for unpaid wages and entitlements under the alleged agreement. Furthermore, the court needed to assess the credibility of Kosserkas's evidence and whether there was any justification for Reymer Pty Ltd's failure to pay the claimed amounts.

The court found that the oral agreement was indeed enforceable and that Kosserkas was entitled to the unpaid wages and entitlements as per the terms of the agreement. It held that the evidence provided by Kosserkas was credible and sufficient to establish the existence of the agreement and the terms relating to the research and development tax rebate. The court ruled that Reymer Pty Ltd had breached the agreement by failing to make the required payments. Consequently, the court ordered Reymer Pty Ltd to compensate Kosserkas for the unpaid wages and entitlements, including interest and costs.

Orders