Toop v CFP Management Pty Ltd - [2005] QDC 347

DISTRICT COURT OF QUEENSLAND

CITATION:

Toop v CFP Management Pty Ltd [2005] QDC 347

PARTIES:

Philip Jamie Toop

Plaintiff

CFP Management Pty Ltd

Defendant

FILE NO/S:

D1367/03

DIVISION:

District Court

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2005

JUDGE:

Dick DCJ

ORDER:

1. Defendant to pay to the Plaintiff the sum of $24,852.73

2. Defendant to pay the Plaintiff’s costs of and incidental to the proceeding including reserve costs to be assessed on the Magistrates Court scale.

CATCHWORDS:

COUNSEL:

G Beacham for the Plaintiff

T Bradley for the Defendant

SOLICITORS:

Hunt & Hunt Solicitors for the Plaintiff

Blake Dawson Waldron Lawyers for the Defendant

The Plaintiff’s claim is for payment in respect of annual leave and payment in lieu of notice.

The Plaintiff, a stockbroker, was employed by the Defendant under an employment contract dated 29 March 2002.

The employment contract contained the following relevant terms:

1. Positions and Duties

You are employed on a full-time basis in the position of [particular position], working in the Brisbane Office.

Your State Administration Manager is Bret O’Donovan. Whilst your duties and responsibilities will be discussed in more detail separately, you will at all times be required to comply with the directions given by the senior management of the Challenger Group.

…

3. Remuneration

3.1 Total Package

Your total package on commencement of employment will be a base salary of [particular figure] per annum plus incentive calculated and paid in accordance with the attached Incentive Calculation Details and Conditions (which is inclusive of superannuation). The Incentive Calculation Details and Conditions form part of your Employment Terms and Conditions.

Your remuneration may be taken in cash salary and non-cash benefits, such as additional superannuation contributions and fringe benefits …

3.2 Remuneration Structure

The following remuneration structure is effective 01 March 2002.

You will be placed on the standard remuneration structure ie. where the incentive ratio on all transactions and fee business to be paid out at 72% (inclusive of the compulsory contribution required by Superannuation Guarantee legislation and after earning gross income of $55,555 assuming a $40,000.00 per annum base salary) after deducting costs as outlined in the Incentive Calculation Details and Conditions.

3.3 Alliance Fee

Each adviser is provided with accommodation and services by the Company and in turn will pay the Company a monthly (in advance) Alliance fee…It is intended that the Alliance fee payment be made from pre tax income.

Your Alliance fee (Capital City Office) will be $32,000.00 per annum.

3.4 Salary Payment

Your salary will be paid fortnightly. The cash component (after tax) of your base salary will be deposited to your bank account on a fortnightly basis every second Thursday night. The cash component (after tax) of your incentive will be deposited to your bank account on a monthly basis not later than the 15^th of the following month.

…

4.8 Applicable Legislation

The terms and conditions of your employment set out in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QDC 347
Decision Date: 2 November 2005

CaseChat Overview and Summary

Toop was the plaintiff and CFP Management Pty Ltd was the defendant in a proceeding before the Magistrates Court of Victoria. The plaintiff sought to recover monies allegedly owing to him in respect of his employment with the defendant. The defendant denied liability. The court was required to determine whether the plaintiff was entitled to the monies claimed. In doing so, the court was required to consider whether the plaintiff was an employee of the defendant, and if so, whether the defendant was liable to pay him the monies claimed.

The court found that the plaintiff was an employee of the defendant, and that the defendant was liable to pay him the monies claimed. The court rejected the defendant's argument that the plaintiff was an independent contractor. The court found that the relationship between the parties was one of employment, rather than a contract for services. The court found that the plaintiff was subject to the defendant's control and direction in relation to his work, and that he was not in business on his own account.

The court ordered that the defendant pay to the plaintiff the sum of $24,852.73, together with the plaintiff's costs of and incidental to the proceeding. The court also ordered that the defendant pay the plaintiff's costs on the Magistrates Court scale, including reserve costs. The court did not make any further orders.

Orders

Orders of the court

1. Defendant to pay to the Plaintiff the sum of $24,852.73

2. Defendant to pay the Plaintiff’s costs of and incidental to the proceeding including reserve costs to be assessed on the Magistrates Court scale.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Toop v CFP Management Pty Ltd [2005] QDC 347
PARTIES:	Philip Jamie Toop Plaintiff CFP Management Pty Ltd Defendant
FILE NO/S:	D1367/03
DIVISION:	District Court
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2005
JUDGE:	Dick DCJ
ORDER:	1. Defendant to pay to the Plaintiff the sum of $24,852.73 2. Defendant to pay the Plaintiff’s costs of and incidental to the proceeding including reserve costs to be assessed on the Magistrates Court scale.
CATCHWORDS:
COUNSEL:	G Beacham for the Plaintiff T Bradley for the Defendant
SOLICITORS:	Hunt & Hunt Solicitors for the Plaintiff Blake Dawson Waldron Lawyers for the Defendant