John Burke Mulford v AW Butterell and Others as Partners of Grant Thornton Chartered Accountants [2001] NSWIRComm 137

John Burke Mulford v AW Butterell and Others as Partners of Grant Thornton Chartered Accountants [2001] NSWIRComm 137

The applicant was not an employee but a salaried B partner: the partnership deed, the parties' conduct, the indemnity arrangements, profit distribution arrangements and the absence of PAYE deductions were inconsistent with employment. However, the respondents repudiated the agreement and acted unfairly by departing from the November 1997 repayment arrangement and asserting a unilateral right to decide when and how much the applicant would be paid during the year. The unfairness was to be remedied by varying the agreement ab initio to require regular payments and 12 months' notice, and by monetary compensation calculated by reference to salary, notice, leave entitlements, set off for the...

Jurisdiction
Australia
Judgment Date
18 June 2001
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Application allowed in part; agreement varied ab initio and monetary compensation to be ordered, with costs generally to the applicant subject to liberty to apply.
Legal Topics
['unfair Contract' 'salaried Partner' 'whether Partner Was Employee' 'repudiation' 'notice of Termination' 'annual Leave' 'long Service Leave' 'set Off' 'monetary Compensation']
['industrial Relations' 'partnership Law' 'contract Law'] ['unfair Contract' 'salaried Partner' 'whether Partner Was Employee' 'repudiation' 'notice of Termination' 'annual Leave' 'long Service Leave' 'set Off' 'monetary Compensation']

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant was an employee of the partnership or a salaried partner after April 1991.' 'Whether the respondents repudiated the agreement by reducing payments and imposing repayment arrangements contrary to the November 1997 agreement.' 'Whether the agreement or arrangement was unfair within s105 and s106 of the Industrial Relations Act 1996.' 'What monetary relief, notice, leave entitlements, set off and interest should be allowed.']

Ratio Decidendi

The applicant was not an employee but a salaried B partner: the partnership deed, the parties' conduct, the indemnity arrangements, profit distribution arrangements and the absence of PAYE deductions were inconsistent with employment. However, the respondents repudiated the agreement and acted unfairly by departing from the November 1997 repayment arrangement and asserting a unilateral right to decide when and how much the applicant would be paid during the year. The unfairness was to be remedied by varying the agreement ab initio to require regular payments and 12 months' notice, and by monetary compensation calculated by reference to salary, notice, leave entitlements, set off for the...

Court Disposition

Application allowed in part; agreement varied ab initio and monetary compensation to be ordered, with costs generally to the applicant subject to liberty to apply.

Orders

  • ['Agreement varied ab initio to provide for regular payments to the applicant in accordance with his directions.' "Agreement varied ab initio to require the respondents to give the applicant 12 months' notice of termination." "Monetary compensation to reflect a salary of $115,000, deducting the applicant's earnings...