Wild v Ronnoco Group
[2016] QDC 181
•21 July 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Wild v Ronnoco Group & Anor [2016] QDC 181
PARTIES:
JAMIE WILD
(Plaintiff)
v
RONNOCO GROUP PTY LTD
(First Defendant)
and
NIKKIE EVELYN O’CONNOR
(Second Defendant)
FILE NO/S:
D300/2015
DIVISION:
Civil
PROCEEDING:
Application for summary judgment
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
21 July 2016
DELIVERED AT:
Brisbane
HEARING DATE:
15 February, 3 March 2016
JUDGE:
Rackemann DCJ
ORDER:
Summary Judgment in Favour of the defendant
CATCHWORDS:
PROCEDURE – SUMMARY JUDGMENT – Application by defendant/employer – where plaintiff/employee notified defendant/employer of the chosen fund for superannuation contribution – where the defendant/employer mistakenly made contributions into the account of a different employee with a different fund – where plaintiff then sought unsuccessfully to claim on the insurance associated with the fund into which the contributions were wrongly paid – where plaintiff claims against the defendant for the loss of an opportunity to have made a claim on that fund – where contributions mistakenly paid into that fund have been recovered and the plaintiff has otherwise successfully claimed under the insurance policy associated with a fund of which she was already a member – Whether any real prospects of success or any need for a trial
Superannuation Guarantee (Administration) Act 1992 (Cth), s 32C, s 32F, s 32N
Uniform Civil Procedure Rules 1999 (Qld), r 293
COUNSEL:
Mr Michael Smith for the Plaintiff
Mr Craig Harding for the First and Second Defendants
SOLICITORS:
Turner Freeman Lawyers for the Plaintiff
Aitken Legal for the First and Second Defendants
The plaintiff, a former employee of the first defendant, sues her former employer and the second defendant (the director who was responsible for administration) in negligence and/or breach of contract in relation to their dealings with the plaintiff’s superannuation contributions. The defendants apply for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (“UCPR”). The hearing of the application was adjourned, to permit the plaintiff an opportunity to amend its pleading. The defendants continue to press for summary judgment, notwithstanding the amendments.
The plaintiff commenced employment with the first defendant in June 2012. The first defendant was required to pay superannuation contributions on behalf of the plaintiff into a complying fund in accordance with the choice of fund requirements. Pursuant to s 32C of the Superannuation Guarantee (Administration) Act 1992 (“the Act”) a contribution to a fund by an employer is made in compliance with the requirements if made, relevantly, to a chosen fund of an employee or, in the absence of such a fund, to an eligible choice fund of the employer which is specified in a standard choice form. If an employee wants a fund to be a chosen fund for the employee, the employee must give the employer written notice to that effect (s 32F of the Act).
Upon commencing employment the plaintiff was given a standard choice form as required by s 32N of the Act. That form provided an opportunity for the plaintiff to nominate her chosen superannuation fund. She duly completed the form nominating one of her two pre-existing superannuation funds, namely Mentor Superannuation Plan (“Mentor”) as her chosen fund. The plaintiff did not, at any time during her employment, give written notice that any other fund was to be her chosen fund. Accordingly, throughout the course of her employment the first defendant’s obligation was to make superannuation contributions on her behalf into the Mentor fund.
It is common ground that the first defendant did not pay superannuation contributions for the plaintiff into her chosen fund. Instead, it mistakenly paid amounts equivalent to contributions for her into an account for a different employee with a different fund, namely into the account of a Mr James Chambers with Sunsuper.[1] That was neither the plaintiff’s chosen fund nor the employer’s specified fund.
[1]See paragraph 7 of the defence adopted in paragraph 1 of the reply.
The defendants’ error came to light as a result of the plaintiff noting a reference to Sunsuper on her payslips. She raised the issue verbally with the second defendant’s husband and then sent the second defendant an email on 4 July 2014 in the following terms:
“I have noticed that on my payslips that my super is going into Sunsuper when I am not with Sunsuper. I am with Mentor Super. Can you please check that you have been paying into Mentor and that you may have just picked the wrong name of super.”
The plaintiff deposed to the following telephone conversation with the second defendant:
“43. I recall a few hours later Nikkie telephoned me and said words to the effect that she was ‘pretty sure’ I had initially told her to create a Sunsuper account.
44. I remember saying to Nikkie that I was not sure how I would have done that as I do not have one.
45. Nikkie said to me she would look into the matter and review my employee folder and get back to me.”
The second defendant responded in writing the same day in the following terms:
“Thanks for raising your concerns about where your super is being paid.
Yes – it looks like I have ‘researching’ to do!!
I have just scrambled through your file and there is Sunsuper info in there – so I double check against the B-Pay that is set up with the biller name ‘Jamie Wild – super’ and they match. So yes, as per your payslip I have been paying your super into Sunsuper.
In your folder I also have super information regarding Mentor as well.
I’m sorry that this has happened. I will sort this out on Tuesday when I am at my desk in ‘Mag-it wheels’ mode again!!!
If it’s not one thing it’s something else lol!! Hopefully I can have all of this sorted out by this time next week! Sorry again!!”
The plaintiff responded on 7 July in the following terms:
“That’s okay really,
If that is the case maybe I could just get my super to transfer it over if that makes it easier, might just need my member no. (Sunsuper) its up to you J
Shit happens we are all not perfect J”
The plaintiff deposed to the telephone communication, in:
“49. I recall that I spoke to Michael O’Connor when I received the email from Nikkie.
50. Michael stated that it would not be a problem as Nikkie could ‘just transfer the money’ over to my Mentor account if I wanted.
51. I remember saying to Michael that I was unsure how Nikkie would be able to do that as she would need to have my authority first to do so…”
The plaintiff went on to depose that:
“I did not give the matter anymore thought and simply left it to Nikkie to work out.”
And:
“I assumed Nikkie would get back to me when she had an answer for me about what options I had with the funds which had been paid to date.”
On 7 August 2014, the plaintiff received a payslip which bore a reference to Sunsuper. There was a hand-drawn asterisk beside that reference and the second defendant had written the following note:
“I am still working on this for you – a couple of hurdles! Haven’t forgotten, it’s in process! Thanks Nikkie”
Upon becoming aware of the error the second defendant had ensured that no further erroneous payments were made into the material account with Sunsuper. The last such payment was made on 30 June 2014. The second defendant did not, however, resolve the issue until the plaintiff’s resignation on 15 September 2014. That resignation was triggered by the plaintiff’s ill health (she has been diagnosed with motor neurone disease). Thereafter the second defendant took steps to draw the error to Sunsuper’s attention and to retrieve the funds which had been inappropriately paid into Mr Chambers’ account. Those funds were then paid into the plaintiff’s solicitor’s trust account as directed by the plaintiff’s lawyers.
As a result of her medical condition the plaintiff made claims under the insurance cover associated with her superannuation policies. The defendants’ errors did not have any adverse effect upon the plaintiff’s ability to claim under any pre-existing policy. The plaintiff does not claim to be in any worse position, in relation to insurance claims, than she would have been in had her contributions been paid into her Mentor account as they should have been. The plaintiff however, claims to be entitled to damages from the defendants for the loss of a chance to also make a claim on Sunsuper. That is on the basis that, since her employer made the mistake of wrongly paying the money into a Sunsuper account, she ought also to have also been made a member of that fund or been given the opportunity to join the fund, with retrospective effect, so as to become entitled to claim under the insurance associated with being a member of that fund as well.
From 3 November 2014, the plaintiff’s solicitor corresponded with both the defendants and with Sunsuper seeking to retain the superannuation contributions within Sunsuper and to have the plaintiff made a member in the fund with retrospective effect, with a view to asserting a right to make a claim for her illness. The solicitors for the first defendant responded, on 7 November 2014, denying any liability in relation to the plaintiff’s inability to make a claim on Sunsuper, advising that Sunsuper had already informed the first defendant that the monies were to be refunded and asking for details of the plaintiff’s Mentor account, so that the appropriate contributions could be made to the plaintiff’s fund. The plaintiff’s solicitor wrote to Sunsuper, on 11 November, asking that the monies not be refunded to the first defendant, but the monies had already been refunded on 7 November 2014.
Sunsuper ultimately responded to the plaintiff’s solicitors on 9 January 2015 by a letter which said, amongst other things that:
(i) Sunsuper did not have, and never had, any relationsip with the plaintiff;
(ii) At no stage had a superannuation account ever been created or held in the plaintiff’s name;
(iii) The monies received from the first defendant’s via BPAY used a unique reference code for an existing member (not the plaintiff) and were received and applied to the member’s account;
(iv) No instruction was ever received to create an account for the plaintiff or to allocate contributions on her behalf;
(v) In October 2014, the first defendant provided Sunsuper with evidence that the monies in question ought not have been contributed to the Sunsuper member account they had been applied to;
(vi) On that basis, and to correct the error made by the defendants, the monies were refunded so that they could be applied in accordance with the plaintiff’s instructions.
The plaintiff’s claim in respect of a loss of an opportunity to claim is pleaded on a number of bases. The first is that, upon realising the error, the defendants had an obligation under the trust deed applicable to Sunsuper, or a duty otherwise, to ensure that an account with Sunsuper was established for the plaintiff, so that the contributions already (wrongly) paid into Mr Chambers’ account could be credited to a new account in the plaintiff’s name.[2] There is, however, no arguable basis to support the existence of such a duty.
[2]See paragraph 96, 9H and 11B of the amended statement of claim.
The plaintiff’s amended statement of claim refers to clause 4.2(b) of the trust deed for the Sunsuper fund. That clause permits a participating employer to make an application for membership to the trustee, on an employee’s behalf, where an employee is nominated for membership by the employer, but fails to make an application in an acceptable form within the prescribed time. That clause does not create a duty on an employer who erroneously misapplies funds, by paying them into an account of another employee with Sunsuper, to make application for membership of Sunsuper on behalf of the employee on whose behalf contributions should instead have been paid into a different (and nominated) fund.
As has already been observed, the duty on the defendants was to pay (or, in the case, of the second defendant, to cause to be paid) contributions on behalf of the plaintiff into her chosen fund with Mentor. At no stage during the period of her employment did the plaintiff ever nominate Sunsuper as her chosen fund, take steps to create an account with Sunsuper or direct the defendants so to do. The plaintiff’s email of 7 July, in which she raises the prospect of being able to “just get my super to transfer it over if that makes it easier”, falls well short of that. Erroneous payments to Mr Chambers’ account with Sunsuper did not create a duty on the defendants to do anything to cause the plaintiff to become a member of the fund.
It is also pleaded against the defendants that they ought not to have retrieved the monies which were wrongly paid into Mr Chambers’ account with Sunsuper. It is alleged that the defendants had no authority to do so in the absence of the plaintiff’s consent. The consequence, it is pleaded, is that the plaintiff lost “the chance of retrospectively establishing an account with Sunsuper” and lost the chance of “converting the group life insurance available as a result of the payment of premiums from the account of James Chambers… to become insurance coverage available to the plaintiff…”[3]
[3]See paragraphs 9M and 11D of the amended statement of claim.
It is not readily apparent why the defendants needed the plaintiff’s consent to advise Sunsuper of its error or to retrieve monies wrongly applied by it to the account of one of its employees, Mr Chambers. In any event, however, the plaintiff’s position vis-à-vis Sunsuper would not have been advanced had the money simply been left in Mr Chambers’ account, as opposed to being retrieved. No basis has been made out for concluding that the mis-payment of those funds into Mr Chambers’ account with Sunsuper (or their maintenance within that account) thereby rendered the plaintiff a member of the fund with associated insurance cover nor, as the plaintiff pleads, provided an opportunity (and indeed, an opportunity which continued past the period of her employment) to “retrospectively” become a member with the right to be treated as if she had been a member of the fund, with the associated insurance, since 25 June 2012 which opportunity was said to be thwarted by the retrieval of the money.
The third basis pleaded for the loss of opportunity case is based on misrepresentation.[4] In particular, it is pleaded that:
[4]See paragraphs 9B, 9C, 9D and 9E of the amended statement of claim.
(a) By the email of 4 July, it was represented to the plaintiff that superannuation contributions had been paid into Sunsuper on behalf of the plaintiff and this would be sorted out by 8 July 2014;
(b) By the email of 7 August (the note on the payslip), it was represented that the second defendant was “still working on this (being the superannuation error) for the plaintiff”;
(c) By reason of those two representations the defendant thereby represented and undertook to the plaintiff that:
(i) The plaintiff had an account with Sunsuper;
(ii) The plaintiff was a member of Sunsuper;
(iii) If the plaintiff was not a member of Sunsuper, the second defendant would ensure, on behalf of the first defendant, that an account was established in the plaintiff’s name with Sunsuper for the compulsory superannuation contributions which the first defendant had made to be credited to; and
(d) Had the plaintiff been informed at any time on and from 8 July 2014 that she did not have an account with Sunsuper, she would have taken steps to become a member.
Leaving to one side for present purposes, issues of a duty of care, reliance and detriment, there is simply an insufficient basis to support the scope and content of the representations upon which the plaintiff wishes to rely. In that regard:
(a) The only pleaded basis for the representations and undertaking said to have been given are the specified emails, the contents of which are extracted earlier;
(b) The plaintiff’s email of 4 July 2014 made it clear that she was aware that she was “not with Sunsuper”;
(c) The second defendant’s email of 4 July 2014 confirmed that the plaintiff’s superannuation contributions had been paid into Sunsuper, but did not expressly or implicitly represent that the plaintiff had thereby become a member of Sunsuper. The email expressly referred to having “super information about Mentor as well”, said that “I have some researching to do” and expressed hope that things could be “sorted out”. The author had clearly not, at that stage, ascertained the true position in full or determined how things would be ‘sorted out’;
(d) The second defendant’s note on the 7 August payslip said she was “still working on this for you” without any representation as to what was being done or to what end;
(e) The emails relied upon considered individually and collectively do not provide an arguable basis for concluding that it was represented to the plaintiff that she was a member of Sunsuper or that the defendants would or had done what was necessary to make her a member of Sunsuper.
For those reasons the defendants should have summary judgment, at least on the plaintiff’s claim for $240,000.00 plus interest for loss of a chance of claiming a terminal illness benefit from Sunsuper. I am satisfied that the plaintiff has no real pospects of succeeding in that part of the claim and there is no need for a trial in relation to that part of the claim.
It has already been noted that, once the error came to the attention of the second defendant, she ensured that no further superannuation contributions were paid, erroneously into Mr Chambers’ account with Sunsuper. In addition to recovering the contributions wrongly paid into that account, the plaintiff was entitled to have the defendant make superannuation contributions on her behalf for the remainder of the period of her employment. That was not done. The amended statement of claim includes a claim for $1,371.11 in that regard. The second defendant, in her affidavit, however, deposed to have of paid into the plaintiff’s solicitor’s trust account the amount of superannuation contributions for that period. Understandably, this part of the claim was not the focus of the argument on the hearing of the summary judgment application. I will give the parties an opportunity to be heard in relation to that part of the claim prior to making final orders.
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