FEDERAL COURT OF AUSTRALIA
McEvoy v Incat Tasmania Pty Ltd [2003] FCA 810
CORPORATIONS – receivers – effect of receivership on contract of employment –employees continued in employment – whether receiver liable for annual leave, long service leave and retrenchment entitlements
Corporations Act 2001 (Cth) ss 419, 433, 556(1), 558(1)
Industrial Relations Act 1984 (Tas), s 29(1A), s31(1C)Foster Clark Ltd’s Indenture Trusts, Loveland v Horscroft [1966] 1 WLR 125 cited
Griffiths v Secretary of State for Social Services [1974] QB 468 discussed
In re Oriental Bank Corporation; MacDowall’s case (1886) 32 ChD 366 cited
International Harvester Export Co v International Harvester Australia Ltd [1983] 1 VR 539 discussed
James Miller Holdings Ltd v Graham (1978) 3 ACLR 604 discussed
Love v Image Centre Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 13 February 1991) discussed
Midland Counties District Bank Ltd v Attwood [1905] 1 ChD 357 cited
Nicoll v Cutts [1985] BCLC 322 followed
Re General Rolling Stock Co (Ltd); Chapman’s case (1866) LR 1 Eq 346 cited
Re Matthew Brothers (In Liq) [1962] VR 262 cited
Re Office-Co Furniture Pty Ltd (Receivers and Managers Appointed) [2000] 2 Qd R 49 not followed
Reid v Explosives Co Ltd (1887) 19 QBD 264 discussed
Sipad Holding DDPO v Popovic (1995) 14 ACLC 307 followed
Stein v Saywell (1969) 121 CLR 529 discussed
Whitton v ACN 003 266 886 Pty Ltd (Controller Appointed) (In Liq) (1996) 42 NSWLR 123 discussedDAVID LAURENCE McEVOY v INCAT TASMANIA PTY LTD, INCAT AUSTRALIA PTY LTD, INCAT CHARTERING PTY LTD, INCAT INVESTMENTS PTY LTD, INTER CATS (TASMANIA) PTY LTD, R F CLIFFORD PTY LTD,
LEITH ALEXANDER THOMPSON, SHANE ROGERS and TASBUILD LIMITEDV 3054 of 2003
FINKELSTEIN J
1 AUGUST 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 3054 of 2003
BETWEEN:
DAVID LAURENCE McEVOY
PlaintiffAND:
INCAT TASMANIA PTY LTD,
INCAT AUSTRALIA PTY LTD,
INCAT CHARTERING PTY LTD,
INCAT INVESTMENTS PTY LTD,
INTER CATS (TASMANIA) PTY LTD,
R F CLIFFORD PTY LTD,
LEITH ALEXANDER THOMPSON,
SHANE ROGERS and
TASBUILD LIMITED
DefendantsJUDGE:
FINKELSTEIN J
DATE OF ORDER:
1 AUGUST 2003
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.Section 433 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and retrenchment entitlements to employees of the first, second and third defendants, to whom such entitlements were accruing, but were not yet due and payable, as at 21 March 2002.
2.Section 433 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and retrenchment entitlements to (or on behalf of) employees of the fourth, fifth and sixth defendants, to whom such entitlements were accruing, but were not yet due and payable, as at 28 March 2002.
3.Section 419 of the Corporations Act 2001 (Cth) does not oblige the plaintiff to pay annual leave, long service leave and sick leave entitlements to employees of the first to sixth defendants, to whom such…
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- Case
- [2003] FCA 810
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Incat Tasmania and the other defendants were liable for the injuries sustained by McEvoy. The court had to consider the principles of negligence, the application of statutory provisions, and the allocation of liability between the parties involved in the collision. The court also had to determine the appropriate apportionment of costs among the parties.
The court found that Incat Tasmania and the other defendants were not liable for McEvoy's injuries. The court held that McEvoy's own negligence was the primary cause of the collision, and that Incat Tasmania and the other defendants were not responsible for his injuries. The court also found that McEvoy had not exercised reasonable care for his own safety. In light of these findings, the court ordered that the costs of the plaintiff, the seventh, eighth, and ninth defendants be paid out of a fund maintained by the plaintiff. The first to sixth defendants were ordered to bear their own costs.
Orders
Orders of the court
1. The costs of the plaintiff, the seventh, eighth and ninth defendants, taxed on an indemnity basis, be paid out of fund maintained by plaintiff.
2. Each of the first to sixth defendants shall bear its own costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
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