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Lavert Pty Ltd v Boyd

Lavert Pty Ltd v Boyd

Case [2013] NSWDC 319 8 August 2013

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Lavert Pty Ltd v Boyd [2013] NSWDC 319
Hearing dates: 2, 3, 4 and 5 October 2012; 13 November 2012; 4 December 2012; 8 February 2013; 12 April 2013; 17 May 2013; 5 June 2013 (submissions)
Decision date: 08 August 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant against the plaintiff.
(2) Judgment for the cross-claimant against the cross-defendant.
(3) Liberty to the cross-claimant to bring in Short Minutes of Order reflecting the mathematically agreed sum, inclusive of interest, in relation to the cross-claim.
(4) Plaintiff/Cross-defendant pay defendant/cross-claimant's costs.
(5) Liberty to restore in relation to costs and interest.
(6) Exhibits retained for 28 days.

Catchwords: CONTRACT - claim by employee for unpaid superannuation, holiday pay and long service leave - whether plaintiff had standing to bring a claim for unpaid superannuation (Akmeemana v Murray [2009] NSWSC 979) - whether District Court had jurisdiction to hear a claim for unpaid superannuation - claim by employee for unpaid profit share - cross-claim asserting profit share payments made under a mistake of fact - whether defendants/cross-claimant entitled to raise unpleaded challenge to jurisdiction - whether defendants/cross-claimant should be granted leave to amend during the hearing
Legislation Cited: Corporations Act (Cth)
Fair Work Act 2009 (Cth), ss 26, 27, 548
Industrial Relations Act 1966 (NSW)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Superannuation Guarantee Charge Act 1992 (Cth)
Cases Cited: Akmeemana v Murray [2009] NSWSC 979
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Hookway v Racing Victoria Ltd (2005) 13 VR 444
Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710
Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135
Lee v Keddie [2011] NSWCA 2
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690
Moore v National Mutual Life Association of Australasia Ltd [2011] NSWSC 416
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59
TRA Global Pty Ltd v Kebakoska [2011] VSC 480
Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988
Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550
Watson v Meyer [2013] NSWCA 243
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Lavert Pty Ltd
Defendant: Paul Boyd
Representation: Plaintiff: Mr T Saunders
Defendant: Mr G A Rich
Plaintiff: Turks Legal
Defendant: Byrnes & Cox Lawyers

File Number(s): 2010/101340
Publication restriction: None

Judgment

The plaintiff (Lavert Pty Ltd, hereafter "Lavert"), by amended statement of claim filed on 26 March 2012, seeks reimbursement of profit shares and other non-salary sums paid to the defendant ("Mr Boyd"), a former employee of Lavert, made on 17 September 2009. Mr Boyd brings a cross-claim for unpaid superannuation, unpaid amounts of profit share…

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 Lavert Pty Ltd v Boyd

Details

AGLC: Lavert Pty Ltd v Boyd [2013] NSWDC 319
Case: [2013] NSWDC 319
Decision Date: 08 August 2013

CaseChat Overview and Summary

Lavert Pty Ltd and another party, referred to as the defendants, were involved in a legal dispute with the plaintiff, an employee, who sought to recover unpaid superannuation, holiday pay, long service leave, and a profit share. The case was heard in the District Court of New South Wales. The defendants raised a cross-claim, asserting that the profit share payments were made under a mistake of fact, and questioned the jurisdiction of the court to hear the claim for unpaid superannuation.

The court needed to determine whether the plaintiff had standing to bring the claim for unpaid superannuation, a matter previously considered in Akmeemana v Murray. Additionally, the court had to decide whether the District Court had jurisdiction over the claim for unpaid superannuation. The court also needed to assess whether the defendants/cross-claimant were entitled to raise an unpleaded challenge to jurisdiction and whether they should be granted leave to amend during the hearing.

The court ruled in favour of the defendants on the plaintiff's claim, finding that the plaintiff did not have standing to bring the claim for unpaid superannuation due to the principles outlined in Akmeemana v Murray. The court also found that it did not have jurisdiction to hear the claim for unpaid superannuation. Regarding the cross-claim, the court determined that the defendants/cross-claimant were not entitled to raise an unpleaded challenge to jurisdiction. However, the court granted leave for the defendants/cross-claimant to amend their pleadings during the hearing.

The court ordered that judgment be given in favour of the defendant against the plaintiff, and in favour of the cross-claimant against the cross-defendant. The cross-claimant was granted liberty to bring in Short Minutes of Order reflecting the agreed sum, inclusive of interest, in relation to the cross-claim. The plaintiff/cross-defendant was ordered to pay the defendant/cross-claimant's costs. The plaintiff/cross-defendant was also granted liberty to restore in relation to costs and interest. Finally, the exhibits were retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendant against the plaintiff.

(2) Judgment for the cross-claimant against the cross-defendant.

(3) Liberty to the cross-claimant to bring in Short Minutes of Order reflecting the mathematically agreed sum, inclusive of interest, in relation to the cross-claim.

(4) Plaintiff/Cross-defendant pay defendant/cross-claimant's costs.

(5) Liberty to restore in relation to costs and interest.

(6) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lavert Pty Ltd v Boyd [2013] NSWDC 319

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Watson v Meyer
[2013] NSWCA 243 Para 1

…The obligation of a party to plead with precision was dealt with most recently in Watson v Meyer [2013] NSWCA 243 at [81]:…
Waddell v mathematics.com.au Pty Ltd (No 2)
[2013] NSWSC 988

…ran v Legal Profession Complaints Committee [2013] WASCA 59 TRA Global Pty Ltd v Kebakoska [2011] VSC 480 Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988 Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550 Watson v Meyer [2013] NSWCA 243 Texts Cited: - Category: Principal judgment Parties: Plaintif…
O'Halloran v Legal Profession Complaints Committee
[2013] WASCA 59 Para 1

…utory taxation obligations is a matter of great seriousness. The facts in this case are similar to O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 where, over a period of nearly three years, a solicitor did not pay superannuation for most of his employees. This was despite a member of staff aler…
Ware v Amaral Pastoral Pty Ltd (No 5)
[2012] NSWSC 1550

…A 59 TRA Global Pty Ltd v Kebakoska [2011] VSC 480 Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988 Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550 Watson v Meyer [2013] NSWCA 243 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Lavert Pty Ltd Defendant: Paul Boyd Representation: P…
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liquidation) (No 2)
[2011] NSWCA 331 Para 1

…The same is the case in the Court of Appeal. In McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690, orders were made for the payment of an employee which included (order 4(b)) an order for $18,493.31 for "unpaid superannuation".…
TRA Global Pty Ltd v Kebakoska
[2011] VSC 480

…wlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 TRA Global Pty Ltd v Kebakoska [2011] VSC 480 Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988 Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550 Watson v Meyer [2013] NSWCA 243…
Dr Gregory Moore v The National Mutual Life Association of Australasia Limited
[2011] NSWSC 416

…McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690 Moore v National Mutual Life Association of Australasia Ltd [2011] NSWSC 416 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 TRA Global Pty Ltd v Kebakos…
Lee v Keddie
[2011] NSWCA 2 Para 1

…will be particularly reluctant to consider an application for further amendment in circumstances which may endanger the hearing date. In Lee v Keddie [2011] NSWCA 2, the New South Wales Court of Appeal dismissed an appeal from a judgment of Nicholas J refusing the plaintiff's leave to amend a Reply some three mon…
Akmeemana v Murray
[2009] NSWSC 979 Para 1

…Having noted these matters, which I view with concern, I now turn to a consideration of the decision in Akmeemana v Murray [2009] NSWSC 979.…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 1

…y further and better particulars are difficult issues to contend with on the first day of the hearing, for the reasons explained by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.…
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd
[2008] NSWCA 206

…had acquiesced in a departure from the pleadings in the sense considered in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. I accept that it does not appear that Ms Watson pointed at the hearing to any particular prejudice that would be suffered at that stage by a conside…
Insight Oceania Pty Ltd v Philips Electronics Australia Ltd
[2008] NSWSC 710 Para 1

…lied term of good faith, although some of Lavert's submissions appear to suggest this. In Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 Bergin J explains (at [175]) the reluctance of courts to imply a term of good faith into the contract:…
Australian Hotels Association (NSW) v Tab Limited
[2006] NSWSC 293 Para 78

…contracts are not a class of contracts that, as a legal incident, have an implied obligation of good faith: Australian Hotel Assn (NSW) v TAB Limited [2006] NSWSC 293 at [78]. I remain of that view. As Gyles J said in Council of the City of Sydney v Goldspar Australia Pty Ltd at 499 para [168]: "The best way for a…
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd
[2006] FCAFC 40

…ross the whole spectrum of the law of contract but limited it to "commercial contracts": at [64]. The appeal from his Honour's decision was dismissed (2006) 230 ALR 56. The Full Court of the Federal Court (Finn and Sundberg JJ; and Emmett J) did not deal with this point, other than Emmett J simply referring to his H…
Hookway v Racing Victoria Ltd
[2005] VSCA 310

…v Westpac Banking Corp (1988) 164 CLR 662 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Hookway v Racing Victoria Ltd (2005) 13 VR 444 Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Lee v Keddie [2011]…
Kirby v Sanderson Motors Pty Ltd
[2002] NSWCA 44 Para 1

…efendant) to plead relevant issues so as not to take an opponent by surprise was explained by the Court of Appeal in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 as follows (at [18]-[21]):…
Nowlan v Marson Transport Pty Ltd
[2001] NSWCA 346 Para 1

…In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 the New South Wales Court of Appeal warned litigants in the District Court not to conduct trial by ambush. The history of these proceedings shows that Lavert has ignored these warnings.…
Byrne v Australian Airlines Ltd
[1995] HCA 24

…y law. In that way, a breach of the obligation did not give rise to a claim for damages on the part of the Plaintiff: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-422. Nor does the fact that the obligation imposed by law was reproduced as cl 8 of the contract convert the obligation as one arising by agre…
David Securities Pty Ltd v Commonwealth Bank of Australia
[1992] HCA 48

…CLR 175 Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Hookway v Racing Victoria Ltd (2005) 13 VR 444 Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 Kirby v Sanderson Motors…
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation
[1988] HCA 17

…Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Hookway v Racing Victoria Ltd (2005) 13 VR 444 Insight Oceania Pty Ltd v…
Amalgamated Collieries of WA Ltd v True
[1938] HCA 19

…tion as one arising by agreement rather than retaining its character as a right imposed by law: Byrne at 420; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423.…

Legislation cited in this decision · 5

Fair Work Act 2009 (Cth)
26, 27, 548 4 mentions (from Para 1)
Industrial Relations Act 1996 (NSW)
1 mention
Long Service Leave Act 1955 (NSW)
1 mention
Superannuation Guarantee (Administration) Act 1992 (Cth)
1 mention (from Para 1)
Superannuation Guarantee Charge Act 1992 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Lavert Pty Ltd v Boyd [2013] NSWDC 319
Hearing dates:	2, 3, 4 and 5 October 2012; 13 November 2012; 4 December 2012; 8 February 2013; 12 April 2013; 17 May 2013; 5 June 2013 (submissions)
Decision date:	08 August 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant against the plaintiff. (2) Judgment for the cross-claimant against the cross-defendant. (3) Liberty to the cross-claimant to bring in Short Minutes of Order reflecting the mathematically agreed sum, inclusive of interest, in relation to the cross-claim. (4) Plaintiff/Cross-defendant pay defendant/cross-claimant's costs. (5) Liberty to restore in relation to costs and interest. (6) Exhibits retained for 28 days.
Catchwords:	CONTRACT - claim by employee for unpaid superannuation, holiday pay and long service leave - whether plaintiff had standing to bring a claim for unpaid superannuation (Akmeemana v Murray [2009] NSWSC 979) - whether District Court had jurisdiction to hear a claim for unpaid superannuation - claim by employee for unpaid profit share - cross-claim asserting profit share payments made under a mistake of fact - whether defendants/cross-claimant entitled to raise unpleaded challenge to jurisdiction - whether defendants/cross-claimant should be granted leave to amend during the hearing
Legislation Cited:	Corporations Act (Cth) Fair Work Act 2009 (Cth), ss 26, 27, 548 Industrial Relations Act 1966 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee Charge Act 1992 (Cth)
Cases Cited:	Akmeemana v Murray [2009] NSWSC 979 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Hookway v Racing Victoria Ltd (2005) 13 VR 444 Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Lee v Keddie [2011] NSWCA 2 McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690 Moore v National Mutual Life Association of Australasia Ltd [2011] NSWSC 416 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 TRA Global Pty Ltd v Kebakoska [2011] VSC 480 Waddell v mathematics.com.au Pty Ltd (No 2) [2013] NSWSC 988 Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550 Watson v Meyer [2013] NSWCA 243
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Lavert Pty Ltd Defendant: Paul Boyd
Representation:	Plaintiff: Mr T Saunders Defendant: Mr G A Rich Plaintiff: Turks Legal Defendant: Byrnes & Cox Lawyers
File Number(s):	2010/101340
Publication restriction:	None