SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0016
| ANTHONY STEVENS | Applicant |
| v | |
| SPOTLESS MANAGEMENT SERVICES PTY LTD | Respondent |
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| JUDGES: | KYROU and McLEISH JJA and ELLIOTT AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 October 2016 |
| DATE OF JUDGMENT: | 30 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 299 |
| JUDGMENT APPEALED FROM: | [2015] VSC 746 (Digby J) |
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CONTRACT – Employment – Dispute over applicant’s entitlements upon leaving employ of respondent – Judge found parties did not reach oral agreement – Appellate review of primary judge’s findings of fact – Whether payment made by respondent to applicant for failed or no consideration – Whether payment made due to mistake of fact or law – Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, applied – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N J O’Bryan AM SC with Mr J B McDougall | A J Macken & Co |
| For the Respondent | Mr P J Jopling AM QC with Mr E A Gisonda | Rigby Cooke |
KYROU JA
McLEISH JA
ELLIOTT AJA:
TABLE OF CONTENTS
The applicant’s employment arrangements
The meeting of 23 August 2012 (the applicant and Dixon)
Developments after 23 August 2012
The meeting of 17 September 2012 (the applicant, Dixon and Pepe)
Events after the meeting of 17 September 2012
Events of October 2012
The trial judgment
Proposed grounds of appeal
Appeals against findings of fact
Ground 1 — the 23 August meeting
Ground 2 — the events of 17 September
Ground 3 — Consideration
Ground 4 — Mistake
Conclusion
This application for leave to appeal concerns a dispute about the amount due to be paid to the applicant following the termination of his employment as a senior executive with the respondent. The applicant was employed pursuant to a contract of employment and associated arrangements. His case at trial was that there was a subsequent oral agreement entered into between the parties regarding the termination of his employment, which the respondent failed to honour. The trial judge did not accept that such an agreement had been entered into, and dismissed the applicant’s claim accordingly.
The proposed grounds of appeal principally involve challenges to findings made by the trial judge in respect of two critical meetings. It is convenient to explain the contractual basis for the applicant’s employment before turning to the circumstances giving rise to the dispute.
The applicant’s employment arrangements
The applicant was employed by the respondent as Chief Information Officer (‘CIO’) for Spotless Group Ltd (‘Spotless’) from 2 March 2009 under a contract of employment entered into on 17 December 2008. By cl 4.2(a), it was provided that the applicant would report directly to the Managing Director and Chief Executive Officer of Spotless. Clause 22.4 stated that the contract ‘supersede[d] all previous agreements in respect of the [applicant’s] employment by the [respondent] and embodie[d] the entire Agreement between the parties’. By cl 24, the contract could only be altered in writing signed by…
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- AGLC
- Stevens v Spotless Management Services Pty Ltd [2016] VSCA 299
- Case
- [2016] VSCA 299
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether there was an oral agreement between the parties concerning the applicant’s entitlements and, if so, whether the payment made by the respondent was for failed or no consideration, or due to a mistake of fact or law. The court applied the principles from Fox v Percy and Robinson Helicopter Co Inc v McDermott to determine whether a binding contract existed. The primary judge had found that there was no oral agreement, and the applicant appealed this decision.
The court held that the primary judge's findings of fact were not flawed and that there was no oral agreement as claimed by the applicant. The court found that the respondent's payment to the applicant was not for failed or no consideration and was not due to a mistake of fact or law. The court dismissed the appeal and upheld the primary judge's decision.
The court made no orders for costs.
Orders
Orders of the court
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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
Towards the bottom of the document, under the heading ‘Bruce:Requested For Consideration Only ’, there were three numbered paragraphs, the first of which stated ‘Agreement that my current and future employment entitlements will remain unchanged’. As to this, the applicant gave the following evidence in chief: The third numbered paragraph referred to ‘detailed insight in relation to a P&L role’. The applicant said that at this point Dixon explained his proposed restructure of the organisation and the applicant made notes on his copy of the discussion document. The applicant wrote ‘Airports’ next to the numbered paragraph and more detailed notes on the reverse of the document, including ‘AS’ above ‘Air’. The applicant said that Dixon had told him that he thought he should run airports, and that the applicant had replied that he would do so on a trial basis and report to Dixon and Pepe. The concluding paragraph of the document, headed ‘Proposed Next Step’, referred to a written commitment ‘covering the above’. The applicant said that he and Dixon had agreed that an agreement would be a good idea, but this was never done. Dixon’s evidence was markedly different. He said that the applicant had telephoned him about two weeks before the change in ownership and asked him if he intended removing his responsibility for payroll and having him report to the CFO, as Dixon had done in the previous organisation he managed. Dixon said that he told the applicant that this was his present intention but he did not yet have a firm position and they should talk about it when he started. After Dixon started, the applicant gave some presentations to the Board concerning Project Springboard. Dixon was very concerned about the possibility that addressing problems associated with the project would cost $120 million. In relation to the meeting on 23 August 2012, Dixon said that he took control of the meeting and told the applicant that he wanted him to concentrate on controlling the implementation of Project Springboard, as his sole responsibility, reporting to the CFO rather than to Dixon. Dixon told the applicant that the SAP system was ‘an absolute mess’ and not to worry about other IT issues in the business. He told the applicant he would not be responsible for payroll. The applicant told him he saw this as a demotion, and Dixon replied that it was not, but that if he helped fix the problems with Project Springboard he would give him a senior operating job in the business. Dixon’s evidence in chief continued: Dixon denied telling the applicant that, if he became redundant, he would be paid his full termination benefits, including cash under the retention plan, totalling twice his FAR. He said that, to the contrary, he needed to retain the applicant and his priority was getting him to commit to fixing the SAP system, which remained ‘the number one issue we had’. Further, Dixon said that the CIO position continued to exist, with the role and reporting line foreshadowed to the applicant.