Purcell v Tullett Prebon (Aust) Pty Ltd

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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…

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Details
Case
[2010] NSWCA 150
Decision Date

CaseChat Overview and Summary

Purcell v Tullett Prebon (Aust) Pty Ltd concerned a dispute between an employee, Mr. Purcell, and his employer, Tullett Prebon (Aust) Pty Ltd. Mr. Purcell had been employed under a fixed-term contract and had walked out of his employment. The central issue was whether Mr. Purcell's actions constituted a repudiation of the contract, thereby terminating it, or if the contract remained on foot. The matter was heard on appeal.

The Court of Appeal was required to determine whether Mr. Purcell's conduct in walking out of his employment amounted to a repudiation of his fixed-term employment contract. This involved considering the legal consequences of such an action in the context of an employment agreement that had a specified duration.

The Court reasoned that a repudiation of a contract requires conduct that demonstrates an intention no longer to be bound by its terms. In this instance, the Court found that Mr. Purcell's walkout, while a breach of contract, did not necessarily evince an intention to abandon the contract entirely or to refuse to perform its essential obligations for the remainder of its term. The Court applied the principle that a mere breach, even a serious one, does not automatically amount to repudiation. The employer's acceptance of the repudiation is also a necessary step for termination.

The appeal was dismissed, and the employer was awarded costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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