Cook v Chesterton International Pty Ltd

Service of the Notice of Intention to Appeal

1. In his affidavit of 24 July 2015, Mr Abboud said that on 10 April 2015, he sent an instruction to his firm's agent. On 7 September 2015, Mr Cook tendered in Court a memorandum dated 10 April 2015 from Mr Abboud to the agent, Legalstream Australia Pty Ltd (Legalstream) asking Legalstream to "attend the Supreme Court Sydney and file and serve … notice of intention to appeal". Mr Abboud's instruction informed Legalstream that the document must be filed on Monday, 13 April 2015. No instructions concerning the manner or place of service were included. The notice of intention to appeal specified an address of Chesterton that had not been current since late June 2012.
2. On 15 April 2015, Mr Abboud received a tax invoice from Legalstream in respect of the filing of the notice of intention to appeal specifying that the document had been urgently lodged at the Supreme Court. The invoice contained the following notation, which was dated 14 April: Duly filed, stamped copy herewith. Please be advised that we only received it today. There is nothing in the tax invoice to indicate that any attempt at service had been made by Legalstream.
3. In his affidavit, Mr Abboud said that, when his firm forwards documents to Legalstream, Legalstream attends to the filing and then attends to the forwarding of the documents to a process server in order to have them personally served on the appropriate entity. He also said that he was not aware that the notice of intention to appeal had not been served on Chesterton until he received the email from Mr Dalzell on 24 June 2015. Mr Abboud said that he had assumed that service had been effected, as that had been the procedure for the past five years.
4. Mr Abboud said in a later affidavit sworn on 17 September 2015 that he telephoned Legalstream on 15 September 2015 to enquire as to why the notice of intention to appeal was not forwarded to the process server in order to be served. Legalstream was unable to explain why that was not done. The process server in question subsequently sent an email to Mr Abboud explaining in more detail the process normally undertaken on receiving service documents from Legalstream. The process server set out the steps that are normally taken in circumstances where documents are unable to be served because the relevant party is no longer at the address supplied. That material is, of course, entirely hypothetical in these circumstances.
5. The explanation that has been proffered on behalf of Mr Cook and his advisers for the failure to serve the notice of intention to appeal in time is not particularly satisfactory. The circumstances demonstrate a significant failure to attend diligently to the requirements of the UCPR. On the other hand, the failure does appear to be the result of oversight and it has not been suggested on behalf of Chesterton that any specific prejudice has been suffered by it, other than the prejudice that flows by reason of a party's believing that finality in relation to litigation has been reached and then finding that, after all, the litigation is to continue. Ultimately, however, I consider that, if the appeal is at least arguable, the interests of justice require that leave to continue the proceedings be granted. It is therefore necessary to consider whether the appeal would have any prospects of success.

The Proceedings before the Primary Judge

1. The dispute between Mr Cook and Chesterton arises out of a contract of employment whereby Mr Cook was employed as "Associate Director, Commercial Leasing" with the North Sydney office of Chesterton. Mr Cook's employment by Chesterton was confirmed by a letter of 27 September 1993 (the Employment Letter) that contained the terms of his employment. Under cl 4.0, Mr Cook's remuneration was to be $35,000 per year, including up to $16,000 per year that could be taken as a "locomotion allowance". In addition, under cl 5.0, commission was to be paid by Chesterton to Mr Cook in accordance with Chesterton's incentive scheme. The Employment Letter contemplated that Mr Cook would derive income consisting of a base salary, under cl 4.0, and commissions, under cl 5.0. Clause 11.0 of the Employment Letter provided as follows: Chesterton International will pay your Superannuation Guarantee Levy, as required by recent legislation, (presently 4.0% of your 1992/93 salary) to a nominated superannuation fund. This is in addition to your salary.
2. Mr Cook was employed by Chesterton from September 1992 until 27 June 2011. During that period, Chesterton made contributions to a nominated superannuation fund on behalf of Mr Cook. It is common ground that the amount of the contributions paid by Chesterton to the superannuation fund exceeded the amounts required by the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA). The thrust of Mr Cook's complaint, as he now formulates it, is that, in breach of cl 11.0, Chesterton did not pay to him the full amount of the commission to which he was entitled under the terms of the Employment Letter. Rather, he says, Chesterton only paid him the amount of commission less the amount of the superannuation contributions that it paid to his superannuation fund. Mr Cook claims that his commission was underpaid by an amount of $180,121. In essence, he seeks to recover that amount, together with interest on that amount.
3. Mr Cook's statement of claim in the Equity Division underwent several iterations. The first three versions of it asserted that Chesterton had miscalculated Mr Cook's superannuation contributions under the SGAA. The primary judge conducted a directions hearing on 11 March 2015, several days before 16 March 2015, which was the day fixed for the final hearing of the proceedings. At that directions hearing, counsel for Mr Cook proffered a fourth version of the statement of claim, which the primary judge did not consider was "sufficiently well phrased in order to produce meaningful questions to be tried". [3] Chesterton opposed leave being granted to amend the pleadings further at that stage. His Honour accepted that, if the amendment were allowed, Chesterton would be entitled to an adjournment in order to adduce further evidentiary material. Accordingly, his Honour indicated that, if leave to amend were granted, it would be necessary to vacate the hearing date and Mr Cook would be ordered to pay the costs thrown away by the adjournment.
4. After some argument, counsel for Mr Cook indicated to his Honour that he would withdraw the application for leave to rely on the fourth version of the statement of claim. In that regard, the following exchange occurred: ELLIOT [counsel for Mr Cook]: […] Rather than press on in the face of the difficulties I seem to be facing in respect to this document, your Honour, which - I will proceed with the document that's previously been filed as an amended statement of claim and proceed on that. HIS HONOUR: Are you ready to go on Monday? ELLIOT: Yes. OWENS [counsel for Chesterton]: As long as it is very clearly understood that the case that is pleaded on that document is a claim for underpayment of superannuation. It has no element of a claim for underpayment of commission and on that basis I am ready to go ahead. The pleading referred to by counsel for Mr Cook as having been previously filed was a further amended statement of claim dated 18 March 2014 (the Third Statement of Claim). No objection to the stance adopted by counsel for Chesterton was raised by counsel for Mr Cook.
5. In the Third Statement of Claim, Mr Cook claimed relief that might relevantly be summarised as follows: (1)-(3) A declaration that cl 11.0 of the Employment Letter required Chesterton to pay superannuation on "ordinary time earnings", including total earnings from commissions paid by Chesterton; 1. A declaration that Mr Cook's entitlement to be paid and to receive employer contributions to his superannuation payments was in addition to his salary and not deductible from his commission or other payments received or earned from Chesterton; 2. A declaration that Chesterton's method of calculation of employer contributions to Mr Cook's employee superannuation entitlements was in breach of the SGAA and of cl 11.0 of the Employment Letter, in that the employer contributions were payable in addition to salary and commission payments received or earned from Chesterton; 3. An order that Chesterton recalculate Mr Cook's superannuation entitlements in accordance with cl 11.0 of the Employment Letter; 4. An order that Chesterton pay to Mr Cook's nominated superannuation account the sum recalculated, together with such interest and such accretions as would have accrued had Chesterton correctly calculated and paid Mr Cook's superannuation based on the correct "ordinary time earnings" figure; 5. Directions as to the determination of the accretions that would have accrued from 1992 to 2011 on such recalculated sum.
6. The relevant allegations in the body of the Third Statement of Claim may be summarised as follows: (1)-(6) Chesterton employed Mr Cook on the terms of the Employment Letter; (7) By cl 11.0 of the Employment Letter, Chesterton agreed to pay to the account of Mr Cook certain superannuation payments, which were to be "in addition to your salary"; (8) At all material times, Mr Cook's "salary" for the purposes of the Employment Letter included his total earnings of both remuneration (pursuant to cl 4.0) and commission (pursuant to cl 5.0); (9) The terms and conditions of the Employment Letter required Chesterton to make payments of employer superannuation contributions "in addition" to Mr Cook's salary; 1. Throughout Mr Cook's employment with Chesterton, Chesterton made employer superannuation contributions on his behalf, such that payments of employer superannuation contributions were wrongfully deducted from Mr Cook's earnings and not, as required by cl 11.0 of the Employment Letter, paid "in addition" to such earnings; 2. Such calculation and payment by Chesterton was in breach of Chesterton's obligations pursuant to cl 11.0 of the Employment Letter to make superannuation payments in addition to salary; 3. As a result of Chesterton's breaches, Mr Cook's employer superannuation contributions have been wrongfully underpaid in breach of cl 11.0 of the Employment Letter and Mr Cook has suffered loss, being the contributions underpaid and the accretions to such payments as would have accrued throughout the course of his employment from 1992 to 2011.
7. The language of the Third Statement of Claim indicates a confusion of thought. The question is whether it adequately raised the question of Mr Cook's entitlement to be paid the full amount of his commission, as well as to have Chesterton make contributions to the superannuation fund. Prayer 4 and paragraphs 9, 10 and 11 certainly suggest that that is Mr Cook's complaint. That is to say, they assert that there was a breach of the Employment Letter in so far as the contributions to the superannuation fund were not paid in addition to his entitlement to salary and commissions.
8. The formulation of Mr Cook's case in an earlier iteration of the statement of claim was the subject of exchanges of correspondence designed to clarify the issues. On 14 January 2014, Chesterton's solicitors wrote to Mr Cook's solicitors referring to an allegation, in the then current version of the statement of claim, that Mr Cook was "underpaid his salary, superannuation entitlements and accretions thereon". That appears to be equivalent to the allegation in paragraph 12 of the Third Statement of Claim. The letter asserted that, in the relief sought in the statement of claim, Mr Cook did not seek any underpayment of salary. The letter then sought confirmation that Mr Cook did claim any underpayment of salary and sought provision of the facts, matters and circumstances relied upon in alleging that any such amount is payable by Chesterton.
9. Following receipt, on 14 January 2014, of a report from Polemic Forensic Accountants dated 28 November 2014, which identified how Mr Cook calculated his claim, Chesterton's solicitors wrote again to Mr Cook's solicitors on 16 January 2014. In that letter, Chesterton's solicitors asked whether the allegations in the statement of claim amounted to the following: 1. That the deductions made by Chesterton of Mr Cook's superannuation entitlements from his commission income resulted in an underpayment of his commission income; and 2. That payment of the amount of such deduction was being claimed by Mr Cook.
10. Mr Cook's solicitors responded on 16 January 2014 saying: Yes that's half right. We contend that, under the revised terms, [Mr Cook] was due to receive employer superannuation contributions "in addition" to his retainer, car allowance and commission income. In fact super was deducted from the commission income. […] Our further contention is that it was not an authorised deduction under [the Employment Letter] and was unilaterally imposed by [Chesterton] and should be reimbursed with accretions.
11. On 20 January 2014, Chesterton's solicitors replied as follows: Your response that the question set out in our letter of 16 January is 'half right' is unclear and does not adequately address our request for particulars. […] we need to know with certainty what it is that your client is claiming for. The question is this: Is your client claiming that he did not receive the correct statutory superannuation? Or, if he did receive the correct superannuation, is he in face claiming that he was underpaid commission? The response, also on 20 January 2014, in its entirety was: Our client did not receive the correct statutory superannuation on his commission earnings. This should have been paid on top of the commissions received.
12. That exchange is not entirely conclusive. The last response from Mr Cook's solicitors again appears to confuse matters by referring to "the correct statutory superannuation" on commission earnings. However, by saying that "this should have been paid on top of the commissions received", the letter of 20 January 2014 appears to be reiterating that the complaint was that Mr Cook had not been paid his full commission. That is the contention that the primary judge concluded was not open on the pleadings.
13. At the final hearing, Mr Cook tendered, apparently without objection, the report by Polemic Forensic Accountants in which the opinion was expressed that the amount of underpayment of remuneration amounted to $180,121 and that interest on the underpayments amounted to $184,171. The report made tolerably clear that it was intended as an assessment of the amount of remuneration underpaid by Chesterton to Mr Cook.
14. In addition, two written submissions were provided to the primary judge on behalf of Mr Cook. The first submission included the following propositions: By cl 11, [Chesterton's] superannuation contribution payment at the then applicable rate, is to be made "in addition" to salary, but was in fact, deducted from salary. […] [Mr Cook] should have his declarations at 1-4 [of the Third Statement of Claim] It follows that [Mr Cook] should have the order for payment sought at 7 [of the Third Statement of Claim]
15. In a further, more expansive written submission, apparently handed to the primary judge by senior counsel for Mr Cook following the end of oral argument at the final hearing, the following propositions were advanced: (a) [Chesterton] had an obligation to pay from its own money to a Fund nominated by [Mr Cook], superannuation contributions on behalf of [Mr Cook] in accordance with the SGAA; (b) The SGAA contained a statutory requirement that [Chesterton] pay contributions based on [Mr Cook's] "ordinary time earnings" as defined in s. 6 of the SGAA; (c) [Mr Cook's] ordinary time earnings included: (i) [Mr Cook's] remuneration as defined in clause 4; (ii) The commissions as defined in cl 5; (d) The rate of contributions would be as fixed by the Federal Government from time to time […]
16. In the course of oral argument at the final hearing, counsel for Chesterton referred to "a big argument about possible amendments to pleadings" over the previous two weeks. That was clearly a reference to the hearing on 11 March 2015. Counsel said that the end result of that "big argument" was that a claim would be put forward for underpaid commission, being "the effect of the deduction not being paid to [Mr Cook] as income". Counsel for Chesterton referred to Mr Cook's application to amend, which had been withdrawn, and reminded his Honour that Chesterton had indicated that it was ready to go ahead on the basis that the current version of the pleading was a claim for underpayment of superannuation and did not involve, in any respect, "an underpayment of commission". Counsel asserted that, even putting aside the events of the last two weeks, "the pleading itself is limited to a claim for underpayment of superannuation".
17. Counsel for Chesterton also pointed out that, because it was thought, when the original statement of claim had been received, that there was some uncertainty about its meaning, Chesterton's solicitors had written to Mr Cook's solicitors in the terms to which I have referred above, asking Mr Cook's solicitors to confirm "whether or not your client claims any underpayment of salary". Counsel observed that the response received was "our client did not receive the correct statutory superannuation on his commission earnings".
18. Counsel for Chesterton then asserted that it had been clear "right from the start" that what was in issue was underpaid superannuation, not underpaid commission. He said that that was the basis upon which Chesterton's advisers had prepared the case, the basis upon which Mr Cook was not cross-examined, the basis upon which cross-claims against Mr Cook were not considered and the basis upon which Chesterton's advisers had not investigated the actual amount of commission payable to Mr Cook. Counsel for Chesterton ended by saying that the effect of the events just recounted was that Chesterton was in court "on the pleaded case" and that Chesterton would not consent in any way to having the case expanded in final address.
19. Counsel for Chesterton later reiterated that his primary submission was that cl 11.0 of the Employment Letter did not have any contractual effect and was no more than an acknowledgment of a statutory obligation that something would happen. He then said: When we're talking about a case which is pleaded on the basis of ["]have you paid less superannuation than I am entitled to[?"] and everyone agrees the answer is ["]no, you haven't underpaid me, you've overpaid me if anything["], with respect the whole case seems like a very confusing fight about nothing. Counsel then went on to say that, when Polemic Forensic Accountants accepted that there was no underpayment of superannuation and that Mr Cook's case was limited to claiming underpayment of superannuation, "one has to ask, well, what's it all about".
20. In reply, senior counsel for Mr Cook said: […] there's no issue that super was paid; there's no issue about breach of the [SGAA]. The dispute is about the source of the payment. There's no issue about the calculation of commission. The dispute is about the use of that commission to fulfil [Chesterton's] obligation … The relief that I have been addressing on appears to have been covered, at least in general terms, in cl 4 of the relief claimed. It doesn't win a prize for attractive and helpful pleading, but it is there.
21. The net effect of those exchanges was that Mr Cook was asserting an entitlement to payment of the amounts that had been deducted from his commissions and paid to the superannuation fund, while Chesterton was asserting that that claim was not open to him on the Third Statement of Claim. Moreover, Chesterton was asserting that it had agreed to the final hearing only on the basis that such a claim was not being asserted by Mr Cook.

The Primary Judge's Conclusions

1. The primary judge did not accept the contentions advanced on behalf of Mr Cook that the object of the Employment Letter was to record entirely the terms and conditions of employment of Mr Cook by Chesterton. His Honour concluded that cl 11.0 did not contain any promise by Chesterton, but was merely a statement of the law as to an employer's duty to pay a superannuation levy. [4]
2. However, the primary judge then proceeded to deal with Mr Cook's contentions on the assumption that cl 11.0 constituted a promise to pay the amount of the levy out of its own moneys and not out of Mr Cook's entitlements. His Honour observed that senior counsel for Mr Cook had said that he suffered two losses: 1. he received less commission, since part of his commission was used to pay the superannuation levy; and 2. there had been a breach of the contract of employment for which Mr Cook was entitled to damages. [5] Senior counsel for Mr Cook had argued that the real vice was that, because of the way Chesterton calculated the levy, Mr Cook was paid less by way of commission because, effectively, Chesterton had paid the superannuation levy out of the commissions due to Mr Cook, rather than from its own money. His Honour observed that, "assuming that this is so, and it appears it might be, that would still not on the pleadings of this present case allow me to find a verdict for [Mr Cook]". [6]
3. The primary judge went on to say that that was the reason why Mr Cook's then counsel had tried to amend the Third Statement of Claim in the way that he did. His Honour said that leave to amend had not actually been refused; rather, the indication given by his Honour had been that the fourth version of the statement of claim would be allowed only on the basis of losing the hearing date and Mr Cook paying costs thrown away. His Honour said that that alternative was not accepted by Mr Cook and, accordingly, the case that senior counsel sought to make at the final hearing was not available to Mr Cook on the pleadings. [7] Thus, his Honour accepted the assertions made on behalf of Chesterton and rejected those made on behalf of Mr Cook.
4. That is, in essence, the primary issue presently before this Court. That is to say, Chesterton contends that it was not open for Mr Cook, on the basis of the Third Statement of Claim, as it stood at the final hearing on 16 March 2015, to complain that he had not been paid his full commission, in so far as the commission had been reduced by the amount of the superannuation contribution payments. If that is not arguable by Mr Cook, there would be no utility in extending time since the appeal could not succeed.

The Heads of Agreement

1. A further issue raised by Chesterton at first instance was whether any part of Mr Cook's present claims were compromised by heads of agreement for release entered into on 27 July 2012 (the Heads of Agreement). Chesterton and Mr Cook were both parties to the Heads of Agreement. In the light of the conclusion that the primary judge reached, his Honour simply said in relation to the Heads of Agreement: "It is clear that the release does not affect the superannuation claim and I do not think anything more need be said about it." [8] However, Chesterton has filed a notice of contention that his Honour's decision should be affirmed on grounds that, to the extent that Mr Cook is entitled to recover any amount in respect of unpaid or underpaid commission, he released Chesterton from all such claims by the operation of the Heads of Agreement. Chesterton relies on that question as a further basis for concluding that there is no realistic and credible prospect that more than $100,000 would be at issue in the appeal. Mr Cook responds that the applicability of the Heads of Agreement is contentious and arguable and is therefore not appropriately the basis for what would, in effect, be summary dismissal of the appeal if Chesterton's motion is acceded to.
2. The Heads of Agreement recited that the parties had a dispute amongst themselves that was the subject of proceedings before the District Court and that the matters that were the subject of those proceedings included those referred to in a proposed further amended statement of claim that was attached to the Heads of Agreement (the District Court Pleading). Secondly, the Heads of Agreement recited that the parties had reached a resolution of all their disputes, with the exception of, relevantly, "any claim by Mr Cook in regard to superannuation and other statutory employee entitlements", which was defined as "the Cook superannuation dispute".
3. Clause 2 of the Heads of Agreement relevantly provided that, in consideration of Mr Cook's agreeing to discontinue the District Court proceedings and to release Chesterton from "any claim relating to the matters the subject of [the District Court Pleading]", Chesterton agreed to release Mr Cook from "any and all claims in relation to real estate services, actions or omissions in the performance of consulting agreements or employment with Chesterton, including any breach of confidence and any breach of contractual or equitable obligations or breach of any statutory duty", save that Mr Cook did not release Chesterton from "the Cook superannuation dispute".
4. Mr Cook was one of the plaintiffs and Chesterton was the defendant in the District Court Pleading, which, relevantly, alleged the following:

• By the Employment Letter, Mr Cook agreed to provide real estate services to Chesterton and, in consideration for Mr Cook's agreeing to provide such services to Chesterton, Chesterton agreed, inter alia, to pay to Mr Cook: 1. lump sum remuneration; 2. commission paid in accordance with Chesterton's Incentive Scheme calculated on a fee sharing arrangement of 50/50 on commissions earned by … Mr Cook …; and 3. personal incentives, together with other benefits;
• On or about 16 May 2011, Mr Cook mutually agreed with Chesterton that, in consideration for the resolution of any claim for fees payable by Chesterton for the various services provided by Mr Cook, Chesterton agreed to pay moneys for those services by way of fees as currently due and, in addition, further fees received by Chesterton, which were to be shared as agreed between Mr Cook and others and which were subsequently documented in writing in a memorandum dated 16 May 2011 (the May fee settlement agreement);
• In accordance with the May fee settlement agreement, Chesterton paid fees to Mr Cook for the transactions listed in the May fee settlement agreement;
• In the alternative, the May fee settlement agreement varied the Employment Letter;
• Chesterton has breached the May fee settlement agreement by failing to pay fees to Mr Cook;
• Alternatively, Chesterton has breached the Employment Letter by failing to pay any fees to Mr Cook and Mr Cook has suffered loss or damage due to Chesterton's breach.

1. By the District Court Pleading, Mr Cook and the other plaintiffs claimed moneys due and payable by Chesterton pursuant to the May fee settlement agreement in the amount of $496,632.24. In addition, Mr Cook and the other plaintiffs claimed that sum as being the balance of money found to be due from Chesterton to them on accounts stated between them pursuant to the May fee settlement agreement. Mr Cook also claimed moneys due and payable by Chesterton pursuant to the Employment Letter. Finally, Mr Cook claimed damages from Chesterton for breach of the Employment Letter.

The Appeal

1. After argument on 7 September 2015, I adjourned the hearing of the two motions to enable Mr Cook, if so advised, to file an amended notice of appeal clearly raising the alleged error on the part of the primary judge in concluding that the complaint that is now sought to be ventilated was not open on the pleadings. Mr Cook was also given the opportunity to file evidence that the case before the primary judge had been conducted on a basis that allowed that question to be ventilated, even if not strictly available on the Third Statement of Claim.
2. On 15 September 2015, Mr Cook provided a proposed amended notice of appeal. The proposed grounds of appeal now include that the primary judge erred in the following respects:

• by failing to take into account paragraphs, 7, 8, 9, 10 and 11 and prayers 4 and 11 of the Third Statement of Claim, in finding that the Third Statement of Claim did not allow a verdict for Mr Cook for payment by Chesterton of Mr Cook's superannuation levy out of commissions due to Mr Cook, rather than its own moneys; and
• there occurred a breach of the rules of natural justice in connection with the conduct and determination of the hearing and the judgment by the primary judge: 1. pre-determining at, or as a result of, interlocutory hearings held in advance of the trial, that the Third Statement of Claim did not support the relief claimed as subsequently put at trial by counsel, and 2. failing, having already reached such determination and having determined to make a finding adverse to Mr Cook on the pleading issue, to inform counsel appearing at the trial of the primary judge's determination and thereby to provide counsel appearing at trial with an opportunity to be heard on the pleading issues.

1. Mr Cook contended in further written submissions that, while the pleading amendment issue was ventilated by his then counsel at interlocutory hearings on 27 February 2015, 6 March 2015 and 11 March 2015, the point put at trial by senior counsel for Mr Cook, as elucidated in the argument referred to above, was different from the point attempted to be made by the previously proposed amendments. Mr Cook asserts that the primary judge acknowledged, in his reasons, the view that he had formed of the pleadings at the interlocutory hearings.
2. In the course of the final hearing, counsel for Mr Cook took his Honour to a typical commission payment statement, being that for January 2011. The statement provided for a commission payment of $73,127.69 "less super guarantee charge at 9%" being $6,581.49. The difference of $66,546.20 was then remitted to Mr Cook. Mr Cook contends that that statement made it plain that part of his commission had been allocated to superannuation, such that the superannuation was not paid in addition to the full commission. He complains that it was not put to counsel at the final hearing that the Third Statement of Claim did not support such a contention.
3. The second ground does not appear to have any substance, in the light of the conduct of the hearing as summarised above. There is no basis for concluding that the primary judge had predetermined the question of whether or not the Third Statement of Claim supported the relief claimed. Chesterton's position was unequivocally that such a claim was not open on the Third Statement of Claim. There can be no doubt, having regard to the exchanges summarised above, that Chesterton had made plain at the hearing its stance that the claim of underpayment of commission was not open on the Third Statement of Claim. Senior counsel for Mr Cook had ample opportunity to respond to that contention, which he did in the submission quoted above. The ground of denial of procedural fairness appears to be without substance.
4. The real question is whether the circumstances outlined above lead to the conclusion that the complaint now advanced on behalf of Mr Cook, that he was not paid his full entitlement to commissions in so far as the amounts of superannuation contributions were deducted from the amounts of commissions to which he was entitled under the Employment Letter, was not open on the Third Statement of Claim. In the light of the matters outlined above, there are significant hurdles for Mr Cook to overcome. Of particular significance is the fact that amendment of the Third Statement of Claim was ultimately not pursued in circumstances where, if it had been, the hearing would have been vacated to enable Chesterton to file further evidence.
5. Further, the first amended ground set out above does not seek to explain the allegation in the Third Statement of Claim that Mr Cook's employer superannuation contributions had been "wrongfully underpaid" in breach of cl 11.0. Nor does it seek to explain the allegation that Mr Cook had suffered loss, being "the contributions underpaid" and the accretions to such payments that would have accrued through the course of his employment.
6. However, I am not persuaded that the hurdles are such that Mr Cook should not be permitted to ventilate the grounds outlined above by way of appeal. While it is not my function to determine whether the appeal will succeed, it is necessary to form a view as to whether it could possibly succeed. It is at least arguable that prayer 4 and paragraphs 9, 10 and 11 of the Third Statement of Claim raise the issue that Mr Cook now seeks to ventilate. The appeal is certainly not a strong one, but I am not persuaded that it cannot possibly succeed.
7. It is not self-evident that the claim that Mr Cook now wishes to agitate for underpayment of commissions by reason of deduction of the superannuation contributions was the subject of the Heads of Agreement, although I acknowledge the force of Chesterton's submission to that effect. In effect, Chesterton contends that it was entitled to summary dismissal of the proceedings at first instance by reason of the Heads of Agreement. Ultimately, it may succeed on that contention. However, the matter was not decided by the primary judge. In the circumstances, I do not consider that the execution of the Heads of Agreement is a basis for refusing Mr Cook the opportunity of ventilating his proposed grounds of appeal if leave is otherwise to be granted.
8. I consider that the appropriate course is to order that an extension of time be granted. Chesterton's motion should therefore be dismissed. The grant of leave is an indulgence. In the circumstances outlined above, Chesterton was justified in resisting the grant of leave. Accordingly, Mr Cook should pay Chesterton's costs of both motions.

Endnotes

1. Cook v Chesterton International Pty Ltd [2015] NSWSC 283.
2. Uniform Civil Procedure Rules 2005 (NSW), r 51.8.
3. [2015] NSWSC 283 at [8].
4. [2015] NSWSC 283 at [18]-[19].
5. [2015] NSWSC 283 at [20]-[21].
6. [2015] NSWSC 283 at [22].
7. [2015] NSWSC 283 at [23].
8. [2015] NSWSC 283 at [27].

Amendments 30 September 2015 - Coversheet - "Medium Neutral Citation" field of decision under appeal re-inserted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2015