Carpentaria Buffalo Club (Mt Isa) Inc v Club Plus (Qld) Pty Ltd & Anor [2003] QSC 53

[ao°32]® scos’ s State Reporting Bureau Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. revised copies issued State Reporting Bureau Date /&■ t } / 0 ^ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No S11707 of 2002 CARPENTARIA BUFFALO CLUB (MT ISA) INC Applicant and CLUB PLUS (QLD) PTY LTD First Respondent and Second Respondent TIMMOTHY JACOBSON and TIMMOTHY JACOBSON (AS THE PERSONAL Third Respondent REPRESENTATIVE OF THE ESTATE OF THE LATE ROBERT ALFRED JACOBSON) BRISBANE ..DATE 31/01/2003 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- HIS HONOUR: This is an application to continue in operation an injunction granted until 5 p.m. today by Justice Byrne on 20 December 2002. The facts are largely uncontroversial for the purposes at least of the application. Robert Alfred Jacobson, the second respondent's father, was employed by the applicant as a manager. It is alleged, and there is no material before me to contradict it at this point, that he misappropriate moneys over a fairly lengthy period of time during his employment from the applicant. The sum that was subject to the injunction represented the compulsory contributions made by the applicant under the superannuation guarantee legislation to a superannuation fund, together with accretions. The moneys were paid upon Mr Jacobson's death to the second respondent. I have been informed that the estate of Mr Jacobson is insufficient to allow recovery of any moneys that may be proved to have been misappropriated. There is no dispute that if there is a serious question to be tried the balance of convenience favours continuing the injunction. The question in issue is whether there is a serious question to be tried. Mr Newton submitted that nothing had changed since Justice Byrne originally decided that there was a serious question to be tried. However, as I observed and Mr Bland confirmed, the matter was heard urgently on the first occasion without the opportunity to analyse the relevant legal issues and, indeed, 31012003 T01/SJ3 M/T 1/2003 (Mackenzie J) 2 JUDGMENT -- 2 of 6 -- one of the parties was not legally represented. I do not think that that situation would be a critical barrier to the second respondent succeeding if all else was in his favour. The claim made in Mr Newton's submissions was that the moneys contributed by the employer and the accretions are subject to a constructive trust in favour of the applicant. Payments were made on the assumption that there were no grounds to think that Mr Jacobson had not performed his obligations under his employment contract in good faith and for the benefit of the employer. It was submitted that that assumption was wrong and had the applicant known the true situation it would have terminated Mr Jacobson's employment forthwith. It was submitted that the second respondent had been unjustly enriched and that the payments had been made into the fund by mistake . Reliance was placed on David Securities Pty Ltd v. Commonwealth Bank of Australia (1992) 175 CLR 353 at 392 and 393 in the judgment of Justice Brennan and also the joint judgment of Justices Mason, Dawson, Toohey, Gaudron and McHugh at 379. Reference was also made to a passage from Chase Manhattan Bank v. Israel-British Bank London Ltd (1981) 1 Chancery 105 at 119 and to approval of it in Woolworths Limited v. Richmond Growth Pty Ltd reported as BC 9605194. It was submitted that because of these propositions there is a serious question to be tried. The first respondent did not make any submissions in these proceedings. For the second 31012003 T01/SJ3 M/T 1/2003 (Mackenzie J) 1 10 30 40 50 3 JUDGMENT 80 -- 3 of 6 -- respondent it was submitted that there was no serious question to be tried. It was submitted that David Securities was in fact contrary to the applicant's case. The contract of employment was on foot when the superannuation guarantee contributions were paid. Even if circumstances existed entitling the applicant to summarily dismiss the respondent the contract could only be determined by an election to terminate it. It was said that it followed that, firstly, at all times the applicant was under a legal obligation to make the contributions that it made on the deceased's behalf; secondly, that the applicant could not claim to have made the contributions in the mistaken belief that it was under a legal obligation to pay the moneys; and thirdly, that there was no basis upon which the applicant could maintain that the money received by Mr Jacobson was held on constructive trust. It was also submitted that the argument of the applicant was capable of leading to an absurd result to the effect that if the argument was correct an employer of a dishonest employee could claim to have paid his or her wages by mistake and presumably recover them. I am not able to convince myself that that necessarily follows although the matter was not argued really beyond the point of stating the proposition. It might be thought that the performance of duties under a contract would give the right to a quantum meruit if for some reason there was otherwise a problem and I am not so clear 31012003 T01/SJ3 M/T 1/2003 (Mackenzie J) 1 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 6 -- that the same would necessarily apply to moneys paid by way of statutorily exacted contributions under the laws relating to superannuation. However, in the situation where the matter was not really developed to any greater degree than I have said I will say no more about that. The consequence of my considering the matter after listening to the arguments is that I have come to the conclusion that there are serious questions to be tried concerning the characterisation of the basis of the payments and as to the other issues mentioned of unjust enrichment and whether a constructive trust exists. I am of the view that these are not capable of being disposed of at this stage of the action. 31012003 T01/SJ3 M/T 1/2003 (Mackenzie J) HIS HONOUR: Upon the applicant by its counsel giving the usual undertaking as to damages I order that until the determination of the application or further earlier order the second respondent be and is hereby restrained by himself, his servants or agents or otherwise from dealing in any way with that part of any benefit, being $110,000 received by the second respondent from the first respondent relating to the death of the late Robert Alfred Jacobson and presently invested with Suncorp Metway Ltd save for the payment of any money from Suncorp Metway Ltd which would preserve the amount held by Suncorp Metway Ltd at no less than $110,000. 1 10 30 40 50 5 JUDGMENT 80 -- 5 of 6 -- I will also make directions if the parties wish that in a form that is agreed by the parties if they have done that at this stage, if not, on receipt of an initialled and signed draft on behalf of each of the parties. 31012003 T01/SJ3 M/T 1/2003 (Mackenzie J) HIS HONOUR: The second order formally will be then that I will make an order in terms of the draft initialled by me and placed with the papers. HIS HONOUR: I will make orders in terms of the drafts initialled by me and placed with the papers. 1 10 20 30 40 50 6 JUDGMENT 60 -- 6 of 6 --