Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd & Anor

[2018] SASCFC 44

South Australia Full Court

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Summary judgment for defendant
4. › Whether reasonable basis for claim
5. › Whether appropriate to determine matter summarily given lengthy litigation history
6. › District Court Civil Rules 2006 (SA), r 232
1. Contract
2. › Privity of contract
3. › Exceptions to privity
4. › Trust of contractual promise
5. › Whether contract between two parties created express trust in favour of non-party
6. › Whether intention to create trust inferred from terms of contract and surrounding circumstances
7. › Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
1. Contract
2. › Vitiating factors
3. › Non est factum
4. › Whether signed document radically different from document believed to be signed
5. › Whether signatory under relevant disability
6. › Petelin v Cullen (1975) 132 CLR 355
1. Workers Compensation
2. › Contracting out
3. › Whether settlement agreement purported to exclude, modify or restrict operation of Act
4. › Whether statutory anti-avoidance provision applied to claim not governed by Act
5. › Workers Rehabilitation and Compensation Act 1986 (SA), s 119

Quick Take

A covenant not to sue contained in a settlement agreement between an employee and employer can be enforced by a non-party superannuation fund where the agreement, objectively construed, discloses an intention to create a trust of that promise in favour of the fund. Section 119(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) does not render such an agreement void where the claim against the fund is not governed by the Act.