Superannuation & Corporate Services Pty Ltd v Turner

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246
Hearing dates: 11 September 2020
Decision date: 02 October 2020
Before: Basten JA at [1]
Gleeson JA at [2]
Leeming JA at [150]
Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs.

Catchwords:

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where respondent employed by the appellant as an accountant – where respondent resigned following bullying and harassment in the workplace – respondent contacted the appellant’s clients – where no covenant not to compete and no restraint of trade – appellant claimed respondent misused client information and contact list – where appellant made overbearing threats of litigation including criminal prosecution – deed of settlement and release entered into – where clause provided that respondent pay ‘agreed fee’ to appellant – whether deed was unjust in the circumstances – Contracts Review Act ss 7 and 9(2) – challenge to discretionary decision to refuse to enforce the deed

AMENDMENT – appeal – notice of appeal – whether new ground of appeal should be permitted – late attempt to rely upon constraint in granting relief contained in Contracts Review Act, s 6(2) – amendment refused

Legislation Cited:

Annual Holidays Act 1944 (NSW), s 8

Contracts Review Act 1980 (NSW), ss 4, 6, 7, 9

Crimes Act 1900 (NSW), s 156

Fair Work Act 2009 (Cth), ss 44(1), 61(2)(d), 87(1)(a)

Long Service Leave Act 1955 (NSW), s 7

Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 41.2, 51.18(1)(e), 51.36(2)

Cases Cited:

Al-Maha Pty Ltd v Coplin [2017] NSWCA 318

Australian Bank Limited v Stokes (1985) 3 NSWLR 174

Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309

Chen v Song [2005] NSWSC 19

Commercial Bank Co of Sydney Ltd v Pollard (1983) 1 NSWLR 69

Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 165 IR 148

Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited (2009) 75 NSWLR 42; [2009] NSWCA 186

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1996) 114 CLR 437; [1996] HCA 6

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Metwally v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481

Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41

Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36

Quickfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70

Quintano v B W Rose Pty Ltd & Ors [2008] NSWSC 793

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Ring Tread Systems (Australasia) Pty Ltd (Receiver and Manager…

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Details
Case
[2020] NSWCA 246
Decision Date

CaseChat Overview and Summary

Superannuation & Corporate Services Pty Ltd (the appellant) appealed a decision concerning a deed of settlement and release entered into with the respondent, who had been employed as an accountant. The dispute arose after the respondent resigned due to alleged bullying and harassment, subsequently contacting the appellant's clients. The appellant claimed the respondent misused client information and contact lists, despite the absence of any non-compete or restraint of trade covenants. The appellant had made threats of litigation, including criminal prosecution, leading to the execution of the deed, which stipulated the respondent would pay an 'agreed fee' to the appellant.

The primary legal issues before the court were whether the deed of settlement and release was unjust under the *Contracts Review Act 1980* (NSW), and whether the court should exercise its discretion to refuse enforcement of the deed. Additionally, the court considered whether to permit a new ground of appeal, which sought to rely on a constraint in granting relief under section 6(2) of the *Contracts Review Act*, noting this was a late attempt.

The court reasoned that the appellant's conduct, including overbearing threats of litigation and criminal prosecution, contributed to the circumstances surrounding the execution of the deed. Applying sections 7 and 9(2) of the *Contracts Review Act*, the court found that the deed was unjust in the circumstances. The court also refused the amendment to introduce the new ground of appeal, deeming it to be a late attempt to rely on a constraint in granting relief.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent’s 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

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