Foster v Parbery;Foster v Elliott [2009] NSWSC 1304

Foster v Parbery;Foster v Elliott [2009] NSWSC 1304

The plaintiff did not assent to a novation of his employment before October 2002, but by continuing to work after becoming aware that Contractors was paying him and treating him as its employee, he assented by conduct to Contractors becoming his employer from 1 October 2002. Contractors took over and enjoyed Transala's business, including possession of equipment, existing contracts, goodwill and employment of employees, so the business was transmitted to Contractors. Accordingly the plaintiff could prove against Transala for unremitted superannuation contributions to 30 September 2002 and against Contractors for contributions from 1 October 2002, and Contractors was liable for redundancy...

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Appeals From Rejection of Proofs of Debt / Principal Judgment
Outcome
Appeals from the rejection of proofs of debt in both companies allowed; counsel directed to bring in short minutes of order in accordance with the reasons.
Legal Topics
['proofs of Debt in Liquidation' 'identification of Employer' 'transfer of Employment' 'transmission of Business' 'employee Entitlements' 'superannuation Contributions' 'redundancy Pay' 'annual Leave' 'rostered Days Off' 'sick Leave']
['corporations' 'industrial Law' 'employment Law'] ['proofs of Debt in Liquidation' 'identification of Employer' 'transfer of Employment' 'transmission of Business' 'employee Entitlements' 'superannuation Contributions' 'redundancy Pay' 'annual Leave' 'rostered Days Off' 'sick Leave']

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Procedural Posture

Appeals From Rejection of Proofs of Debt / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was employed by Transala Contractors Pty Ltd after 1 July 2002, and if so from what date.' 'Whether the plaintiff was entitled to any payment on account of redundancy pay or sick leave.' "Depending on the findings as to the plaintiff's employer, and from what date, the quantum of the plaintiff's entitlement to prove for unpaid superannuation contributions and annual leave." 'Whether the business, or part of the business, of Transala Pty Ltd was transmitted to Transala Contractors Pty Ltd for the purposes of redundancy entitlements.']

Ratio Decidendi

The plaintiff did not assent to a novation of his employment before October 2002, but by continuing to work after becoming aware that Contractors was paying him and treating him as its employee, he assented by conduct to Contractors becoming his employer from 1 October 2002. Contractors took over and enjoyed Transala's business, including possession of equipment, existing contracts, goodwill and employment of employees, so the business was transmitted to Contractors. Accordingly the plaintiff could prove against Transala for unremitted superannuation contributions to 30 September 2002 and against Contractors for contributions from 1 October 2002, and Contractors was liable for redundancy...

Court Disposition

Appeals from the rejection of proofs of debt in both companies allowed; counsel directed to bring in short minutes of order in accordance with the reasons.

Orders

  • ['The plaintiff is entitled to prove in the liquidation of Transala for unremitted superannuation contributions calculated on the basis that his employment with Transala continued until 30 September 2002.' 'The plaintiff is entitled to prove in the liquidation of Contractors for unremitted superannuation...