Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) v Rabbi Benzion Milecki [2018] NSWCA 141

Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) v Rabbi Benzion Milecki [2018] NSWCA 141

The reference to "congregation" in clause 2 was not a reference to the Company but to the community of worshippers, and clause 2 was in the nature of a recital concerning the religious relationship between the Rabbi and congregation rather than an enforceable contractual term. Hazakah was not expressly incorporated into the contract. Nor was Hazakah implied: there was no evidence of a relevant Australian custom or usage, and a life tenure term was neither necessary for business efficacy nor so obvious that it went without saying where the contract was otherwise terminable on reasonable notice. If it had been necessary to decide, the purported incorporation of Halacha would also have...

Jurisdiction
Australia
Judgment Date
27 June 2018
Procedural Posture
Appeal / Court of Appeal From Orders Made by Brereton J in the Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed with costs.
Legal Topics
['contractual Interpretation' 'incorporation by Reference' 'implied Terms' 'custom or Usage' 'termination of Employment' 'orthodox Jewish Law' 'hazakah']
['contract Law' 'employment Law' 'corporations Law'] ['contractual Interpretation' 'incorporation by Reference' 'implied Terms' 'custom or Usage' 'termination of Employment' 'orthodox Jewish Law' 'hazakah']

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Procedural Posture

Appeal / Court of Appeal From Orders Made by Brereton J in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the term "congregation" in clause 2 should be construed as referring to the Company.' 'Whether clause 2 was effective to incorporate expressly Hazakah into the contract.' 'Whether a term in the nature of Hazakah should be implied into the contract, as either necessary or by custom.']

Ratio Decidendi

The reference to "congregation" in clause 2 was not a reference to the Company but to the community of worshippers, and clause 2 was in the nature of a recital concerning the religious relationship between the Rabbi and congregation rather than an enforceable contractual term. Hazakah was not expressly incorporated into the contract. Nor was Hazakah implied: there was no evidence of a relevant Australian custom or usage, and a life tenure term was neither necessary for business efficacy nor so obvious that it went without saying where the contract was otherwise terminable on reasonable notice. If it had been necessary to decide, the purported incorporation of Halacha would also have...

Court Disposition

Appeal allowed with costs.

Orders

  • ['Time for filing and serving the notice of appeal extended until 28 September 2017.' 'Appeal allowed with costs.' 'Orders 1, 2 and 3 made on 22 June 2017 set aside.' "Declare it was not a term of the respondent's contract of engagement with the second appellant that his appointment as Rabbi could not be terminated...