Maghnus P Byrne v Macquarie Group Services Australia Pty Ltd

[2011] HCASL 167

MAGHNUS P BYRNE
v
MACQUARIE GROUP SERVICES AUSTRALIA PTY LTD
[2011] HCASL 167
S164/2011

1. The applicant was employed by the respondent.  The employment contract provided for the employer to allocate discretionary profit share bonuses and for the employer to retain, and pay in future years, a part of allocated profit shares.  The contract provided that "[i]f the employee ceases employment" with the respondent "any retained profit share allocation that has not vested to them will be forfeited".

2. The parties litigated in the Supreme Court of New South Wales whether this provision of the contract (for forfeiture of retained profit share allocation) applied when the employment ceased, as the applicant's employment had, at the employer's behest.  The applicant failed at first instance (Tamberlin AJ) and in the Court of Appeal (Campbell, Macfarlan and Whealy JJA).  He now seeks special leave to appeal to this Court.

3. No disputed point of general principle would fall for consideration if special leave to appeal were granted.  An appeal would enjoy insufficient prospects of success to warrant a grant of special leave.

4. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
6 October 2011 S.M. Crennan