Cadbury Pty Ltd v Mercer Investment Nominees Ltd [2010] NSWSC 385

Cadbury Pty Ltd v Mercer Investment Nominees Ltd [2010] NSWSC 385

There is no evidence regarding the circumstances of employment cessation which would affect construction of the relevant contract terms. Accordingly, the Court determines it is appropriate for the first two preliminary questions to be decided separately and in advance of the remaining issues, to save time and cost.

Parties
Plaintiff: Cadbury Pty Limited; First Defendant: Mercer Investment Nominees Limited; Second Defendant: Luke Mulkearns; Third Defendant: Joe Ferraro; Fourth Defendant: Rodney John McNeil; Fifth Defendant: Michael Keenan; Sixth Defendant: Andrew Nowicki; Seventh Defendant: Patricia Fields; Eighth Defendant: Michael Magee
Jurisdiction
Australia
Judgment Date
04 May 2010
Procedural Posture
Application for Separate Preliminary Determination / Decision on Application for Separate Determination of Questions
Outcome
Order for separate preliminary determination of first two questions; costs ordered against first defendant.
Legal Topics
Separate Determination of Preliminary Questions, Construction of Contract Clauses, Superannuation Scheme
Practice and Procedure Employment Law Equity Separate Determination of Preliminary Questions Construction of Contract Clauses Superannuation Scheme

Case Brief

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Parties

Cadbury Pty Limited

Plaintiff

Mercer Investment Nominees Limited

First Defendant

Luke Mulkearns

Second Defendant

Joe Ferraro

Third Defendant

Rodney John McNeil

Fourth Defendant

Michael Keenan

Fifth Defendant

Andrew Nowicki

Sixth Defendant

Patricia Fields

Seventh Defendant

Michael Magee

Eighth Defendant

Procedural Posture

Application for Separate Preliminary Determination / Decision on Application for Separate Determination of Questions

Legal Issues

  1. 1 Whether the UK Internal Restructure constituted a 'Change of Control' within the meaning of Clauses 3.1.2 and 3.8.3 of the Superannuation Plan
  2. 2 The meaning of 'following' in Clause 3.8.3: does it require a causal connection between leaving employment and change of control
  3. 3 Whether further evidence is required to assist in determination of contract clauses; whether determination of preliminary questions will save time and cost

Ratio Decidendi

There is no evidence regarding the circumstances of employment cessation which would affect construction of the relevant contract terms. Accordingly, the Court determines it is appropriate for the first two preliminary questions to be decided separately and in advance of the remaining issues, to save time and cost.

Court Disposition

Order for separate preliminary determination of first two questions; costs ordered against first defendant.

Orders

  • First two questions in Notice of Motion to be decided separately from other questions before any hearing in proceedings.
  • First defendant to pay plaintiff's costs of application.