Purcell v Tullett Prebon (Aust) Pty Ltd

New South Wales

Court of Appeal

CITATION:	PURCELL v TULLETT PREBON (AUST) PTY LTD [2010] NSWCA 150
HEARING DATE(S):	01/07/2010
JUDGMENT DATE:	28 September 2010
JUDGMENT OF:	Allsop P at 1; Basten JA at 2; Handley AJA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACT – employment – fixed term – repudiation – walk out by employee – contract not terminated. - CONTRACT – performance – readiness and willingness. - EMPLOYMENT – contract for fixed term – repudiation – walk out by employee – contract not terminated. - EMPLOYMENT – repudiation – walk out by employee – negative restriction – injunction – contract not terminated – employer’s direction to return to work – whether reasonable.
CATEGORY:	Principal judgment
CASES CITED:	A-G for NSW v Perpetual Trustee Co Ltd [1952] HCA 2, 85 CLR 237 Alghussein Establishment v Eton College [1988] 1 WLR 587 HL Automatic Fire Sprinklers Pty Ltd V Watson [1946] HCA 25, 72 CLR 435 Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 Foran v Wight [1989] HCA 51, 168 CLR 385 Holland v Wiltshire [1954] HCA 42, 90 CLR 409 Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21, 136 CLR 444 R v Darling Island Stevedoring and Lighteridge Co Ltd; Ex Parte Halliday & Sullivan [1938] HCA 44, 60 CLR 601 Rawson v Hobbs [1961] HCA 72, 107 CLR 466 Suttor v Gundowda Pty Ltd [1950] HCA 35, 81 CLR 418 Visscher v Guidice [2009] HCA 34, 239 CLR 361
PARTIES:	A: Simon Purcell R: Tullett Prebon (Australia) Pty Limited
FILE NUMBER(S):	CA 2008/00282167
COUNSEL:	A: SJ Rushton SC and MS Henry R: JJE Fernon SC and RM Foreman
SOLICITORS:	A; Horton Rhodes (Neil Archer) R: Freehills (Miles Bastick)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC6304/08
LOWER COURT JUDICIAL OFFICER:	Ward J
LOWER COURT DATE OF DECISION:	09/10/09
LOWER COURT MEDIUM NEUTRAL CITATION:	[2009] NSWSC 1079

2008/282176

Allsop P
Basten JA
Handley AJA

Tuesday 28 September 2010

SIMON PURCELL v TULLETT PREBON (AUSTRALIA) PTY LIMITED

CATCHWORDS

CONTRACT – employment – fixed term – repudiation – walk out by employee – contract not terminated.

CONTRACT – performance – readiness and willingness.

EMPLOYMENT – contract for fixed term – repudiation – walk out by employee – contract not terminated.

EMPLOYMENT – repudiation – walk out by employee – negative restriction – injunction – contract not terminated – employer’s direction to return to work – whether reasonable.

HEADNOTE

The appellant, a successful finance broker, entered into a contract of employment with the respondent for a two-year term. Some months later, in breach of contract, he commenced to work for a competitor of his employer. The employer obtained an injunction restraining the appellant from working for that competitor and placed him on paid garden leave. Shortly before the injunction expired the employer directed the appellant to return to work but the appellant did not do so. The employer treated this…