Bond v Rees Corporate Advisory Pty Ltd
[2013] VSCA 13
•7 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0089
| IAN RICHARD BOND | First Appellant |
| and | |
| BURKE BOND FINANCIAL PTY LTD (ACN 005 150 961) | Second Appellant |
| v | |
| REES CORPORATE ADVISORY PTY LTD (ACN 105 088 099) and REES SECURITIES LTD (ACN 063 950 649) | First Respondent |
| Second Respondent |
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| JUDGES | MAXWELL P and TATE JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 August 2012 |
| DATE OF JUDGMENT | 7 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 13 |
| JUDGMENT APPEALED FROM | Rees Corporate Advisory Pty Ltd and Rees Securities Pty Ltd v Ian Richard Bond and Burke Bond Financial Pty Ltd (Unreported, County Court of Victoria, Judge Coish, 18 May 2011) |
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CONTRACT – Whether trial judge erred in finding that the appellant was a party to Consultancy Agreement – Restraint of trade clause – Whether 12 month period of restraint of trade reasonable – Whether restraint of trade clause survived termination of Consultancy Agreement – Whether the respondent had repudiated the Consultancy Agreement – Repudiation not raised at trial – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Self-represented | |
| For the Respondents | Mr D R Luxton | Consult Solicitors |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons of Tate JA. I agree with the orders which her Honour proposes, and with her reasons.
TATE JA:
Introduction
This is an appeal from a judgment given in the County Court whereby the trial judge upheld a claim by the respondents, Rees Corporate Advisory Pty Ltd (‘RCA’) and Rees Securities Pty Ltd, against the appellants, Mr Ian Bond and Burke Bond Financial Pty Ltd (‘BBF’),[1] for damages for breach of contract and entered judgment in favour of the respondents in the sum of $275,000.[2]
[1]Mr Bond is the sole director of BBF.
[2]Rees Corporate Advisory Pty Ltd v Bond (Unreported, County Court of Victoria, Judge Coish, 18 May 2011) (‘Reasons’).
Sale of business
The respondents are members of a group of associated companies known collectively as the ‘Rees Group’. The Rees Group provides accounting and taxation services, specialist corporate advisory services, wealth management and financial planning services. The managing director and the ultimate owner of the Rees Group through a corporate structure is Mr Justin Mastores.
In 2004, Mr Mastores was introduced to Mr Ian Bond by a business broker. The Rees Group was interested in purchasing an accountancy firm, then called ‘Burke Bond Securities Ltd’ (‘Burke Bond Securities’) which operated a corporate advisory business. Mr Bond was a director of Burke Bond Securities and its principal employee. In the first meeting between Mr Mastores, the other partners in the Rees Group and Mr Bond, Mr Bond said that he was wanting to ‘wind down’ his
professional activities. Mr Mastores and the other partners were interested in taking over Mr Bond’s clients and continuing to work with those clients.
Following negotiations between the partners and Mr Bond and a due diligence process, the Business Acquisition Agreement dated 16 December 2004 was entered into. This agreement provided for the sale of the business conducted by Burke Bond Securities to Rees Managed Investments Pty Ltd (‘RMI’), another Rees Group entity. The purchase price was $250,000. Schedule 1 to the Business Acquisition Agreement apportioned the purchase price between the goodwill and the chattels purchased by RMI, with the price for the goodwill stated to be $210,000 and that for the chattels $40,000. With respect to payment of the purchase price, the agreement provided for a deposit of $50,000, $5,000 of which was to be paid by 1 December 2004 and the balance of which was to be paid by 1 February 2005. The residual purchase price was the subject of a vendor loan, which was to be repaid by RMI in instalments. The first instalment of $50,000 was due on 1 February 2006 and two further instalments of $75,000 were due on 1 February 2007 and 1 February 2008 respectively.
The Business Acquisition Agreement also provided that Burke Bond Securities agreed to procure the services of Mr Bond as a consultant in accordance with a consultancy agreement to be entered into by Mr Bond and RMI. Some of the terms of this consultancy agreement were set out in the Business Acquisition Agreement. These terms required Mr Bond to do no less than 800 hours consulting work per year for at least three years. They also provided for the remuneration of Mr Bond for this consulting work. The purpose of these provisions was to ensure that Mr Bond’s services as a consultant were retained so that his relationships with clients could be handed over to staff within the Rees Group.
A Shares Acquisition Agreement dated 16 December 2004 was also entered into. This agreement provided for the sale of all of the shares in Burke Bond Securities to RMI. The vendors of the shares were BBF, then called Burke Bond & Company Pty Ltd, and Custodial Ltd (‘Custodial’), another entity associated with Mr Bond. The purchase price was $50,000.
Pursuant to the Business Acquisition Agreement, Mr Bond and Bond Burke Securities entered into a consultancy agreement. The commencement date of this consultancy agreement was 1 February 2005. Reflecting the terms set out in the Business Acquisition Agreement, it required Mr Bond to provide consulting services for no less than 800 hours per year for at least three years from the commencement date. It also contained a ‘non-competition clause’ which prohibited Mr Bond from providing, or being interested in the provision of, consultancy services of a similar nature to those provided by Bond Burke Securities, to a person or entity in competition with Bond Burke Securities, or to clients of Bond Burke Securities.
On 1 February 2005, Mr Bond commenced work as a consultant for the Rees Group. In 2005, relations between Mr Mastores and Mr Bond were generally amicable and income targets that the Rees Group had set upon its acquisition of Bond Burke Securities were met. In 2006, relations between the two men were not as smooth. A salaried partner in the Rees Group expressed concern to Mr Mastores that client relationships were not being handed over by Mr Bond to Rees Group staff as quickly as had been anticipated.
In April 2006, a new consultancy agreement was entered into. One of the principal purposes of this agreement was to provide some more detail about the ‘parameters’ of Mr Bond’s performance as a consultant. This agreement also contained a restraint of trade clause. There appeared to be a continuing concern by the Rees Group about the speed at which clients were being handed over by Mr Bond. The Rees Group was seeking to protect its position in relation to the business that it had acquired.
The Consultancy Agreement and the restraint of trade clause
In March 2007, the Rees Group offered to pay out the vendor loan in full. It had fallen behind in its repayments and Mr Mastores believed that Mr Bond was using this as an excuse for not achieving performance targets. Burke Bond Securities changed its name to ‘Rees Bond Securities Limited’ (‘RBSL’). On 21 June 2007, RBSL, BBF, Mr Bond, Custodial and RMI entered into a heads of agreement (‘the Heads of Agreement’). Clause 1 of the Heads of Agreement provided that RMI would pay BBF the balance of the vendor loan (approximately $205,000), except for the sum of $50,000, which was to be placed in a three-year first ranking note with GR Finance Ltd, with RMI’s interest in that note to be transferred to BBF on 30 June 2010. Clause 3 provided as follows:
IAN RICHARD BOND shall on [the] 21st day of June, 2007 enter a yearly consultancy agreement in the form annexed hereto.[3] He acknowledges the Restraint of Trade clause in that agreement and confirms that new work will be brought into [RBSL] or [RCA].
[3]In their notice of appeal, the appellants referred to the agreement annexed to the Heads of Agreement as the ‘Bond Consultancy Agreement’.
The Heads of Agreement was signed by Mr Bond in his capacity as director of BBF and also signed by him in his personal capacity.
A further consultancy agreement was also entered into on 21 June 2007 (‘the Consultancy Agreement’). Whether Mr Bond was a party to the Consultancy Agreement is a matter of controversy between the parties. The first page of the agreement states that it is between ‘[RCA] … (The Company)’ and ‘The Consultant (Whose details are listed in the Individual Schedule at the end of this Agreement)’. In Schedule 1, ‘the Consultants [sic] Name’ is described as ‘Burke Bond & Company Pty Ltd. A.C.N. 005 150 961 (in particular Ian Bond)’. On the execution page, the parties are stated to be ‘[RCA] and [RBSL] A.C.N. 063 950 649 (The companies)’ and ‘IAN BOND & BURKE BOND & CO. PTY LD. [sic] A.C.N. 005 150 961 (The consultant)’. The agreement was executed as follows:
FOR THE COMPANIES:
Name in full (printed): J. Mastores
Signature: [Signature of Justin Mastores] Date: 21 June 2007
Position: Director
…
FOR THE CONSULTANT:
Name in full: Burke Bond & Co P/L
Signature: [Signature of Ian Bond] Date: 21/7/2007
…
The Consultancy Agreement came into effect on 1 July 2007. Clauses 10 and 11 provided for the payment of ‘Consultants [sic] Fees’ in accordance with Schedule 1, at a base package for the period from 1 July 2007 to 30 June 2008, a ‘Contractor Package per Annum’, of $120,000 plus GST at $12,000, for a total of $132,000. The base package was subject to various key performance measures being passed by Mr Bond providing quarterly performance reports to verify a range of achievements. Schedule 1 also provided for additional incentive payments to the Consultant of 25 per cent of the fees paid by clients referred for external statutory audit services.
Clause 5 of the Consultancy Agreement provided that its ‘nominal expiry date’ was 12 months from the date on which it was executed by the parties. It further provided that the agreement would remain in force beyond the nominal expiry date until replaced by another agreement or terminated in accordance with the Workplace Relations Act 1996 (Cth).
Clause 19 of the Consultancy Agreement was a restraint of trade clause. It was in the following terms:
19RESTRAINT OF TRADE
19.1… you will not in respect of any organisation or enterprise with whom the Rees Advisory Group Pty Ltd, including any subsidiary company, and in particular [RBSL] and [RCA] (Rees Group), has had direct dealings or is in the process of actively attempting to secure business (‘Client’), for a period of twelve (12) months after the termination of your engagement, directly or indirectly by any means whatsoever, without the prior written consent of the Company –
(a)provide or hold yourself out as being able to provide services of the nature provided by Rees Group to any Client who is a Client of Rees Group or was a Client of Rees Group at any time during the period of twelve (12) calendar months immediately prior to the termination of this Agreement and with whom you had direct dealings in the course of engagement by the Company;
(b) solicit or attempt to solicit from any Client work of the nature of a request for proposal, deal or sale of work, either in progress or being provided to a Client by Rees Group at the time of termination of your engagement;
(c)attempt to persuade a Client to cease doing business with or to reduce the amount of business which that Client has customarily done with Rees Group; …
Clause 19 was included because the Rees Group wanted to protect the asset that it had acquired – namely, the clients and goodwill of RBSL.
At some later point in time RBSL changed its name to ‘Rees Securities Pty Ltd’ (‘RS’).
Termination of the Consultancy Agreement
In mid-2008, Mr Bond told Mr Mastores that he did not have the resources that he needed to continue to perform consulting work for the Rees Group. This led to Mr Bond’s remuneration being increased by $10,000 per annum. As a short term measure, the Rees Group also agreed to increase the hours worked by Mrs Lucy Bond, Mr Bond’s wife.[4] The Rees Group sent Mr Bond a two-page letter dated 15 July 2008 entitled ‘Burke Bond and Company Revised Package with Rees Group’ (‘the 15 July 2008 letter’). The 15 July 2008 letter discussed the increase in Mr Bond’s remuneration and the extra hours to be worked by Mrs Bond. It also dealt with various other matters, including the hours to be worked annually by Mr Bond and the need for Mr Bond to become ‘one of the Responsible Officers’ in respect of ‘the new Rees Group licence application’. It was signed by Mr Mastores and Mr Bond.
[4]Mrs Bond was employed by BBF on a part-time basis to assist with the consulting work which Mr Bond performed for the Rees Group.
About eight months later, on 11 March 2009, Mr Bond wrote to Mr Mastores purporting to terminate what was described in the letter as ‘the Burke Bond & Company agreement’. The letter stated:
One months’ notice is given to terminate the Burke Bond & Company agreement to the 30th June 2009.
The reason for termination is lack of resources in regards to operational staff, poor technical quality and non-compliant work submission to me …
Client files are being prejudiced by the above.
I am primarily responsible for the above as:
Responsible Person – Advisory Operational – Managing Director
Further [RS] is seriously non-compliant with as to [sic] capitalization, ASIC corporate governance, audit and lodgement requirements.
Mr Mastores also received notices of Mr Bond’s resignation as a director of RS and RCA. On 12 March 2009, Mr Mastores and a salaried partner in the Rees Group met with Mr Bond. Mr Mastores expressed concern at the notice period provided by Mr Bond and proposed that Mr Bond work until the end of April to allow for a ‘proper and commercial’ handover of Mr Bond’s relationships with clients to Rees Group staff. Mr Mastores also offered to ‘sell’ these clients back to Mr Bond. Mr Bond declined this offer. Subsequently, by letter dated 16 March 2009, Mr Mastores informed Mr Bond that the Rees Group accepted his termination of the Consultancy Agreement. The letter also stated that it was the belief of the Rees Group that it was in the interests of all parties that Mr Bond work until 30 April 2009.
Notwithstanding Mr Mastores’ proposal that Mr Bond work until 30 April 2009, Mr Bond did not work for the Rees Group after 31 March 2009. Following Mr Bond’s departure, Mr Mastores had concerns about the Rees Group’s relationships with the clients that it had acquired when it purchased the business. He wrote to each of these clients to inform them that Mr Bond was no longer working for the Rees Group. The letters stated that Mr Bond had retired from practice, that he had given ‘a commitment to work until 30 April 2009 … [but] of his own accord … [had] chosen not to honour this commitment’, and that the Rees Group, ‘[a]s a proactive service provider’, had managed to procure the services of ‘Australia’s leading compliance … practitioner’. Mr Mastores also personally contacted the clients by telephone and sought to arrange meetings with them to discuss the Rees Group continuing to provide services to them. Despite these efforts, five clients terminated their relationship with the Rees Group following Mr Bond’s departure and instead engaged BBF to perform the work that the Rees Group had been performing for them. These clients were: GDA Securities Ltd, The Moorings Developments Ltd, CS Heritage Securities Ltd, Australian Property Custodial Holdings Ltd and Victorian Olive Oil Project Ltd (‘the BBF Clients’).
Proceedings below
Late in 2009, the respondents commenced proceedings against the appellants in the County Court. On 12 May 2011, the respondents were granted leave to file an amended writ and statement of claim. The amended statement of claim pleaded the Consultancy Agreement and alleged that the appellants had breached clause 19.1 of the agreement, the restraint of trade clause. It alleged that both BBF and Mr Bond were parties to the Consultancy Agreement and that, alternatively, if Mr Bond was not a party to the Consultancy Agreement, then he was a party to an agreement in the form of the Consultancy Agreement by virtue of his entry into the Heads of Agreement. The amended statement of claim alleged that BBF and Mr Bond gave notice of termination of the Consultancy Agreement on 11 March 2009, with termination effective from 11 April 2009. It alleged that the appellants had breached clause 19.1 in that, within 12 months of the termination of the Consultancy Agreement, they had: (a) provided, or held themselves out as being able to provide, services of the nature of those provided by the Rees Group to existing clients of the Rees Group with whom they had had direct dealings in the course of their engagement by RCA; and (b) attempted to persuade, and had persuaded, clients of the Rees Group to cease doing business with, or to reduce the amount of business which those clients had customarily done, with the Rees Group. The allegation identified each of the BBF clients and also a sixth client of RS, Mainland Resort Trust, but the respondents’ claim in respect of this client was abandoned during the trial.
The respondents alleged that, had the appellants not breached clause 19.1, the respondents would have earned $525,893.88 in fees from the BBF Clients (along with Mainland Resort Trust) in the period from 11 April 2009 to 11 April 2012. The respondents claimed damages, an account of profits and injunctive relief to restrain the appellants from continuing to breach clause 19.1 of the Consultancy Agreement.[5]
[5]The claim for an account of profits was based on an alternative cause of action pleaded in the amended statement of claim. This cause of action involved an allegation that the appellants had breached their equitable obligations of confidence. (It was also pleaded that the appellants had breached clause 20 of the Consultancy Agreement, which dealt with confidential information.) The judge did not deal with this alternative cause of action in the Reasons because the respondents were successful on the primary claim.
Mr Bond was granted leave to file an amended defence on 12 May 2011. The amended defence denied that he was a party to the Consultancy Agreement or any agreement in the form of the Consultancy Agreement that was created by virtue of his entry into the Heads of Agreement. It asserted that no consideration had been provided in respect of any restraint of trade clause. The amended defence also alleged that the Consultancy Agreement was terminated according to its terms, or by mutual agreement, on or about 30 June 2008 and that it had been replaced by a new consultancy agreement evidenced by the 15 July 2008 letter. The amended defence denied that the respondents had suffered loss as a result of any breach by the appellants of the Consultancy Agreement. It alleged that the BBF Clients would not have stayed with the Rees Group following Mr Bond’s departure for reasons including the fact that the respondents did not have sufficient or adequate specialist staff to service those clients. The amended defence also alleged that clause 19.1 contained a restraint on trade that was unreasonable and went beyond what was necessary to protect the legitimate interests of RCA and that it was therefore void or unenforceable against the appellants. Finally, the amended defence asserted that, in the alternative, any restraint of trade clause operated only for a period of 12 months after the Consultancy Agreement was allegedly terminated on 30 June 2008 and that it operated, if at all, up until but not beyond 30 June 2009.
The trial took place over four days in May 2011. Mr Bond appeared in person. He sought but was refused leave to represent BBF. Consequently there was no appearance by BBF. Mr Mastores gave evidence for the respondents. He described the dealings between the Rees Group and Mr Bond and the circumstances in which the various agreements between the parties had been negotiated. He also described the circumstances of Mr Bond’s departure from the Rees Group and gave evidence that the Rees Group had the requisite staff to continue to provide services to the BBF Clients beyond April 2009. The other witness called by the respondents was Mr Steven Manias, an employee of the Rees Group in 2009. His evidence generally corroborated Mr Mastores’ account of the events surrounding the departure of Mr Bond. Mr Manias also gave evidence regarding the corporate advisory work that the Rees Group had performed for clients following Mr Bond’s departure.
Mr Bond gave evidence. He tendered an affidavit of documents sworn by him on 18 May 2011 and explained the relevance of each of the documents attached to that affidavit. He stated that his view was that the Consultancy Agreement had been executed by BBF but not by him personally. He said that he was not a party to the agreement, although he was a ‘key person’ in relation to BBF, one of the parties. Mr Bond’s evidence was that the Consultancy Agreement had been replaced by a new agreement whose terms were set out in the 15 July 2008 letter. This agreement contained no ‘heritage clauses’ – that is, it did not incorporate any of the terms of the Consultancy Agreement. Rather, clause 5 of the Consultancy Agreement had the effect that the Consultancy Agreement was terminated once it was replaced by the new agreement. Mr Bond gave evidence that, in any event, his understanding was that the letter from the Rees Group to him dated 16 March 2009 released him from any restraint of trade obligations.[6] He also challenged as inappropriate the basis upon which the respondents had calculated the loss they had suffered as a result of the appellants’ alleged breach of clause 19.1. He said that there had been no prospect of the BBF Clients remaining with the Rees Group following his departure. This was said to be because the Rees Group did not have the resources to retain those clients.
[6]That is, the letter referred to in [19] above.
During both his cross-examination of Mr Mastores and his own evidence-in-chief, Mr Bond accepted that BBF had started performing work for the BBF Clients in April or May 2009. He said:
The clients in question in the month of May, but for the quarter to the end of June, temporarily used my services via [BBF]…
And later:
So I filled a temporary void for May-June, did virtually nothing in April. … fulfilled a temporary function and then was [sic] a new letter of engagement for [the BBF Clients] from 1 July 2009 for the 12 months …
He confirmed that the work he performed for the BBF Clients after April 2009 was of a similar nature to the work he had performed for these clients when he worked for the Rees Group.
In the course of the trial, Mr Bond also made a number of allegations to the effect that the Rees Group had asked him to engage in illegal or improper conduct. For example, during his cross-examination of Mr Mastores, Mr Bond put to Mr Mastores that he, Mr Bond, had been ‘expected to sign off reports that were not compliant with SIS or ASIC reporting requirements’. The context in which the allegation was put made it clear that by ‘reports’ Mr Bond meant superannuation fund tax returns. Subsequently, during his evidence-in-chief, Mr Bond explained that some of the documents attached to his affidavit of documents sworn on 18 May 2011 were evidence of the fact that he had been expected to sign superannuation fund tax returns that were ‘non-compliant’.
In his opening and closing addresses, counsel for the respondents explained how the sum of $525,893.88 referred to in the amended statement of claim had been arrived at. He said that the respondents had taken the most recent monthly or quarterly invoices for each of the BBF Clients (along with Mainland Resort Trust) and had used these invoices to determine the amounts that the Rees Group would have earned in fees from each of the clients over a 12-month period. These amounts had then been added together to determine the total amount that the Rees Group would have earned in fees from these clients over a 12-month period. The sum of $525,893.88 represented the amount that it would have earned in the period from 11 April 2009 to 11 April 2012 – that is, over a three-year period. Counsel for the respondents conceded that this amount would have to be reduced to take into account the respondents’ abandonment of their claim in respect of Mainland Resort Trust. He also conceded that the amount claimed did not take into account the cost to the Rees Group of continuing to provide services to the BBF Clients after April 2009. Mr Mastores gave evidence that the cost of continuing to provide services to these clients would have been $48,400 per annum. In an exchange between the judge and counsel for the respondents regarding the calculation of damages, the judge noted that if these matters were taken into account (the abandonment of the claim in relation to Mainland Resort Trust and the costs of providing the services after April 2009), then the financial loss that the respondents had allegedly suffered as a consequence of the appellants’ breach of clause 19.1 was approximately $114,000 over a 12-month period. When questioned by the judge as to why the respondents sought damages representing the loss that they had suffered over a three-year period, rather than the 12 months covered by clause 19.1, counsel responded that it should not be assumed that the BBF Clients would have left the Rees Group immediately upon the expiry of the restraint of trade period and submitted that the three-year period represented ‘a reasonable period’ which ‘properly reflect[ed] what [could] reasonably be expected as the outcome of an ongoing relationship with [the BBF Clients]’.
Trial judge’s reasons
The judge delivered an ex tempore judgment on the last day of the trial. After summarising the pleadings and the evidence, he stated that he found Mr Mastores and Mr Manias to be ‘impressive, straightforward and honest witnesses’.[7] By contrast, he found Mr Bond to be ‘a most unimpressive witness’.[8] Mr Bond’s evidence with respect to the Consultancy Agreement was, he said, ‘entirely disingenuous’.[9] To the extent that there was any conflict between the evidence of, on the one hand, Mr Mastores and Mr Manias and, on the other hand, Mr Bond, the judge preferred and accepted the evidence of the former witnesses.
[7]Reasons [32].
[8]Ibid [33].
[9]Ibid [33].
He summarised the issues in dispute between the parties as follows: [10]
The issues in dispute are therefore, (1) who are the parties to the consultancy agreement, (2) is the restraint of trade clause reasonable, and therefore enforceable, (3) has there been a breach of this clause, and (4) if there has been a breach of this agreement, what is the loss and damage suffered by the [respondents].
With respect to the first issue, he found that both Mr Bond and BBF were parties to the Consultancy Agreement. This was because ‘the document on its face covered both defendants’.[11] He referred to the descriptions of the parties in Schedule 1 to the Consultancy Agreement and on the signature page.[12] He also noted that there were numerous references to Mr Bond within the body of the Consultancy Agreement.[13] He rejected Mr Bond’s submission that the Consultancy Agreement had been replaced by a new agreement whose terms were set out in the 15 July 2008 letter.[14] The 15 July 2008 letter, he said, simply described a new remuneration package that had been negotiated between the parties.[15]
[10]Ibid [6].
[11]Ibid [34].
[12]Ibid.
[13]Ibid.
[14]Ibid [36].
[15]Ibid.
With respect to the legality of the restraint of trade clause, the judge found that clause 19.1 of the Consultancy Agreement was reasonable and therefore enforceable.[16] In reaching this conclusion, he took into account the nature of the work performed by the Rees Group, the nature of the transactions entered into between the respondents and the appellants, and the evidence of Mr Mastores regarding these transactions.[17] He also found that the 12-month restraint of trade period provided for in clause 19.1 was reasonable in all the circumstances.[18]
[16]Ibid [38].
[17]Ibid [39]. The judge referred to and relied upon the principles relevant to the validity of restraint of trade clauses as summarised by McDougall J in Stacks/Taree v Marshall (No 2) [2010] NSWSC 77.
[18]Reasons [40].
With respect to the questions of breach and loss and damage, the judge found that the appellants had breached clause 19.1(a) of the Consultancy Agreement and that the respondents were entitled to damages for breach of contract.[19] He stated that he was satisfied that the respondents had the requisite personnel, skills and expertise to continue to perform work for the BBF Clients following Mr Bond’s departure.[20] He found that an ‘appropriate sum’ representing the loss and damage suffered by the respondents was $275,000,[21] adopting an approach to the calculation of damages broadly consistent with that submitted for by counsel for the respondents.[22]
[19]Ibid [40]–[41].
[20]Ibid [42].
[21]Ibid [44].
[22]Ibid [43].
After delivering judgment, the judge ordered, as mentioned above, that judgment be entered for the respondents in the sum of $275,000. He also ordered that the appellants pay the respondents’ costs and made a number of ancillary orders relating to costs.[23]
[23]On 23 September 2011 Mandie JA and Whelan AJA ordered a stay of execution of the County Court judgment until the hearing and determination of the appeal.
The appeal
In their notice of appeal the appellants identified the following four grounds of appeal:
1.The learned trial judge erred in fact and in the application of legal principle in finding that the first and second appellants … were liable to the first and second respondents … in the sum of $275,000, or in any sum, and should have found that:
(a) the First Appellant [Mr Bond] … was not party to the Consultancy Agreement dated 21 June 2007 (Consultancy Agreement);
(b)notwithstanding the First Appellant … was a signatory to the document in title [sic] ‘Heads of Agreement’ dated 21 June 2007, (Bond Consultancy Agreement[24]) he was not personally subject to the terms of the Consultancy Agreement and, in particular, that there was no consideration in any event which related to the restrictive trade provision as contained in clause 19.1 of the Consultancy Agreement;
[24]This was the agreement annexed to the Heads of Agreement. See [11] above.
(c)the Consultancy Agreement expired according to its terms on or about 30 June 2008;
(d)the Consultancy Agreement was terminated by mutual agreement on or about 30 June 2008.
2.Further or alternatively, the learned Judge erred in fact and in the application of legal principle by failing to find that the:
(a) Consultancy Agreement; and/or
(b)Bond Consultancy Agreement
were and each of them was lawfully terminated by the second appellant … by written notice to the first and second respondents … and each of them, dated 11 March 2009, and to such extent as any liability may have applied (which is not accepted) under clause 19.1 of the Consultancy Agreement concerning restraint of trade, was limited to a maximum period of:
(c)3 months; alternatively
(d)6 months; alternatively
(e)12 months,
after the date of notice of termination of the said Consultancy Agreement.
3.Further or alternatively, the learned Judge erred in fact and in the application of legal and equitable principle in not taking into account the fact that the first and second respondent … had acted in breach of material terms of the:
(a) Consultancy Agreement; and/or
(b)Bond Consultancy Agreement
for the reasons referred to in the letter of termination from the second appellant … dated 11 March 2009, to the first and second respondents … [and] should have found that such contractual obligations and each of them (which are not accepted) were or became in the prevailing circumstances to be of such a nature that the learned Judge should have, but failed to conclude and apply the maxim ex turpi contractu non oritur, such that the first and second respondents … were barred as a matter of law from maintaining the alleged claims against the first and second appellants … , and upon which the learned Judge, (with respect, apparently) [sic] based his judgment in the sum of $275,000.
4.Further or alternatively, the learned Judge erred in the application of legal principle in that he should have, but failed to:
(a) inform the first appellant …, at the outset of or prior to the commencement of the trial at first instance, that as he was representing himself in the action at trial, he was entitled to request a transcript of the trial be kept and made available to him; and/or
(b)give any reasons for judgment in written form, thereby not acting in due compliance with the rules of natural justice, which in the circumstances of the decision of the learned Judge as pronounced by ex temporae on 18 May 2011, required such reasons for decision to be given in writing or subsequently reduced to writing and provided to the parties,
with the result that such omission has denied to, relevantly, the first and second appellants … a fair and reasonable opportunity to consider their position as a matter of law, insofar as potential grounds of appeal are concerned.
The appellants, in their outline of submissions, alleged that the respondents, in ‘requesting the [appellants] to act in a manner directly inconsistent with accepted accounting practice, and in a manner proscribed by statute’, had repudiated the Consultancy Agreement. In answer, the respondents contended that the issue of repudiation did not form part of any of the grounds of appeal in the appellants’ notice of appeal and the appellants had not sought leave to amend their notice of appeal.
At a Callover[25] to list a date for the hearing of the appeal, Nettle JA permitted Mr Bond to make an application ore tenus[26] for leave to add a ground of appeal to the notice of appeal. The proposed ground of appeal was to the effect that the judge had erred in failing to hold that the respondents had repudiated the Consultancy Agreement and the appellants had accepted this repudiation, with the consequence that the appellants had been released from any restraint of trade obligations that existed under the Consultancy Agreement. Nettle JA refused the application, on the basis that the issue had not been pleaded in the County Court and that Mr Bond had been unable to point to any evidence adduced, or submission made below, which otherwise raised the point. However, he granted Mr Bond leave to make a further application for leave to amend his grounds of appeal, given that Mr Bond was unrepresented at the Callover and expressed an intention to brief senior counsel to represent him at the appeal. He made directions that any application by Mr Bond to further amend his grounds of appeal be filed and served by 4:00pm on 18 May 2012.
[25]On 16 May 2012.
[26]That is, orally.
Mr Bond did not file any application to amend by the stipulated date. Rather, under cover of a letter dated 1 June 2012, Mr Bond filed with the Court a document entitled ‘Notice of Amended Appeal’. This document reproduced the first two grounds of appeal in the notice of appeal dated 1 June 2011. In lieu of grounds 3 and 4, however, it contained a section entitled ‘Grounds of Amended Addition’ in which it was alleged, inter alia, that the issue of ‘Repudiation by illegality’ had been raised in the County Court by the appellants.
On 28 June 2012, Mr Bond filed a summons seeking leave:
To further amend the grounds of Appeal and provide Sworn Evidence lodged (at the County Court) in the matter set down for hearing on 29th August 2012 as approved by the Honourable Justice Nettle on 16th May 2012.
An affidavit sworn by Mr Bond on 19 June 2012 was filed in support of the application to amend the grounds of appeal to which was annexed several documents including extracts from the records of the Australian Securities and Investments Commission which showed that GR Finance Ltd, a company associated with Mr Mastores, was under administration and that Mr Mastores ceased to be a director and the secretary of a company called RAC Group Finance Pty Ltd on 7 February 2012 and a document entitled ‘Memorandum of Report and Observations’ by Mr Richard McCormack of counsel addressed to Mr Justin O’Keefe (a solicitor formerly retained by the appellants).
Despite the fact that Mr Bond had not complied with the order by Nettle JA, at the hearing of the appeal the Court permitted Mr Bond to make oral submissions in support of his application for leave to amend his notice of appeal. That application was heard together with the appeal. At that hearing Mr Bond appeared in person. There was no appearance for BBF.
Application for leave to amend notice of appeal
It is convenient to deal first with the application for leave to amend the notice of appeal. Mr Bond did not commit to writing the terms of the ground of appeal that he sought to add. However, it became clear from the oral submissions he made at the hearing of the appeal that the ground was the one foreshadowed before Nettle JA, namely, that the judge erred in failing to hold that the respondents repudiated the Consultancy Agreement and that this repudiation was accepted by the appellants as bringing the Consultancy Agreement to an end, with the consequence that the appellants were released from any restraint of trade obligations that they had under the Consultancy Agreement.[27]
[27]It was implicit that the ground would extend to any restraint of trade obligation to which the appellants were subject under any earlier consultancy agreement, including the so-called Bond Consultancy Agreement.
At the hearing of the appeal, the parties were invited to provide further written submissions to the Court (and they did so) dealing with the question of whether restraint of trade obligations in a contract survive the termination of the contract where termination is effected by one party accepting the other party’s repudiation and the repudiatory conduct consists of a request that the first party engage in illegal or improper conduct.
The general rule is as stated by this Court in Sopov v Kane Constructions Pty Ltd (No 2):[28]
When a contract is terminated at common law by the acceptance of a repudiation, both parties are discharged from the further performance of the contract, but rights which have already been unconditionally acquired are not divested or discharged unless the contract provides to the contrary.
To consider otherwise is to commit ‘the “rescission fallacy”, that is, the notion that the acceptance of a repudiation had the effect of rescinding the contract ab initio’.[29] A contractual term will survive termination of the contract if the contract, properly construed, indicates that it was the intention of the parties that this term would operate following termination.[30] As clause 19.1 of the Consultancy Agreement had as its manifest intention that of restraining the appellants ‘for a period of twelve (12) months after the termination of [their] engagement’ from providing services to clients of the respondents, the very purpose of the clause was to operate as a restriction on the appellants’ conduct after the termination of the Consultancy Agreement. Indeed, this is likely to be the very purpose of most restraint of trade clauses in an employment or consultancy context, namely, they are intended to restrain one contracting party from trading in competition with the other contracting party, after the contract has come to an end.
[28](2009) 24 VR 510, 514 [10], citing McDonald v Dennys Lascelles Ltd (1993) 48 CLR 457, 476-7. See also Mason P in Trimis v Mina (1999) 16 BCL 288, 296 [55]: ‘Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. … Termination for breach or repudiation does not divest the party in breach of rights accrued unconditionally before termination’.
[29]Ibid 514 [10].
[30]Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848-50; Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1980) 144 CLR 300, 305–7 (Privy Council).
It was plain from Mr Bond’s submissions at the hearing of the appeal that he disputed that the general rule applied in the circumstances of this case; that is, he argued that the restraint of trade clause in clause 19.1 of the Consultancy Agreement did not survive the termination of that Agreement. It was unclear precisely on what basis Mr Bond rested his claim. It may have been because he considered that: (1) the parties did not intend the restraint of trade clause to survive the termination of the Consultancy Agreement if the termination was brought about by the acceptance of a repudiation, or (2) more specifically, the parties did not intend the restraint of trade clause to survive termination of the Consultancy Agreement if the repudiatory conduct consisted in a request for a contracting party to engage in unlawful conduct, or (3) the respondents’ right to restrain the appellants’ from trading in competition with them had not been unconditionally acquired by the time the Consultancy Agreement was terminated or (4) restraint of trade clauses are in general an exception to the general rule.
The respondents accepted that, in an employment context, requests by an employer that an employee engage in illegal or improper conduct may constitute repudiation of the employment contract if the requests are likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee envisaged by the employment contract,[31] and they accepted that this may also apply in the context of a consultancy relationship. They further accepted, for the sake of argument, that an employee, in certain circumstances, might be released from a post-employment restraint of trade obligation if the employment contract is terminated as a result of the employer repudiating the contract and the employee accepting this repudiation. They relied upon General Billposting Company Ltd v Atkinson[32] as authority for this proposition.
[31]The respondents relied upon Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20 (‘Malik’). Malik is authority for the proposition that there is a term implied by law in employment contracts to the effect that the employer must not, ‘without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’: at 45 (Lord Steyn). For a recent discussion of whether a term of mutual trust and confidence is implied by law into employment contracts in Australia, see Shaw v New South Wales [2012] NSWCA 102, [35]–[44]; see also Barker v Commonwealth Bank of Australia [2012] FCA 942, [323]–[330].
[32][1909] AC 118 (‘General Billposting’).
In General Billposting, the respondent’s employment with a Newcastle billposting company was terminated without notice. This was in breach of the respondent’s employment contract, which required the company to give him 12 months’ notice of termination of the contract. The appellants, the company’s assignees, subsequently brought proceedings against the respondent seeking to enforce a restraint of trade clause in his employment contract.[33] In the House of Lords, the appellants submitted that the respondent’s restraint of trade covenant and the company’s covenant to give notice of termination were ‘independent’, so that performance of the latter was not a ‘condition precedent’ to enforcement of the former.[34] Their Lordships rejected this argument. Lord Robertson stated: [35]
[33]The restraint of trade clause operated for a period of two years following termination of the employment contract: General Billposting, 118–19.
[34]Ibid 119–20.
[35]Ibid 121.
It seems to me that the covenant not to set up business is not only germane to but ancillary to the contract of service, and that once the contract of service is rescinded the other falls with it.
Lord Collins, with whom the Earl of Halsbury agreed, also found that the covenants were not independent. He went further, however, stating:[36]
But I think this case may be, and in fact has been, decided on broader lines than those laid down in the notes to Pordage v Cole as to mutual and independent covenants. I think the true test applicable to the facts of this case is that which was laid down by Lord Coleridge CJ in Freeth v Burr, and approved in Mersey Steel Company v Naylor in the House of Lords, ‘That the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.’ I think the Court of Appeal had ample ground for drawing this inference from the conduct of the appellants here in dismissing the respondent in deliberate disregard of the terms of the contract, and that the latter was thereupon justified in rescinding the contract and treating himself as absolved from the further performance of it on his part.
[36]Ibid (citations omitted).
In Kaufman v McGillicuddy,[37] the High Court applied General Billposting. In Kaufman, the respondent was employed as a dentist by Metropolitan Dental Co. (a partnership firm). The employment contract contained a restraint of trade clause whereby until the expiration of five years after the termination of the contract the respondent agreed that he would not practise as an operating and prosthetic dentist within twenty miles from the company’s premises in Perth. The respondent was subsequently assaulted without provocation by one of the partners, Kaufman. He purported to terminate the employment contract and ceased to work for the partnership. Approximately five weeks later, on 1 April 2014, one of the partners resigned from the partnership and began to practise as a dentist in conjunction with the respondent. The appellants, the remaining partners, instituted proceedings against the respondent seeking to enforce the restraint of trade clause. The High Court dismissed an appeal by the appellants against the trial judge’s refusal to grant the injunctive relief sought. Barton J held, relying upon General Billposting and a later case, Measures Brothers Ltd v Measures,[38] that, irrespective of whether the employment contract had been terminated by the parties following the assault, or upon the dissolution of the partnership by the resignation of the outgoing partner, the respondent’s restraint of trade obligations had not survived the termination of the contract. He stated:[39]
[I]f the contract was lawfully terminated when the respondent left the service on the earlier date, either by his having and exercising the right to terminate it or by the assent of the appellants to an abandonment of it, the appeal fails, for it rests on the subsistence of the contract; while, if it did subsist, as the appellants contend, it was ended by dissolution on 1st April, and the cases of General Billposting Co Ltd v Atkinson and Measures Brothers Ltd v Measures show that the maintenance by injunction (as by specific performance) of such a restrictive clause as that in question is hopeless in face of a breach of the stipulations by the appellants which are the respondent’s consideration for agreeing to the restriction, and which the contracting partnership could no longer perform on its part, since it had been dissolved.
In a separate concurring judgment, Gavan Duffy and Rich JJ held, citing General Billposting and Measures Brothers, that the respondent’s restraint of trade obligations would only have survived the termination of his employment contract if the restraint of trade clause had formed an ‘independent contract’[40] which bound the respondent even in circumstances where the employment contract had been terminated. The Court further held that, properly construed, the restraint of trade clause was not such an independent contract. Rather, the provisions of the employment contract, including the restraint of trade clause, had to be read as ‘one contract containing a number of reciprocal stipulations and the [appellants] cannot ask for what is in effect specific performance of one part of the contract while claiming to be exempt from the performance of the duties under another part’.[41]
[37](1914) 19 CLR 1 (‘Kaufman’).
[38][1910] 2 Ch 248 (‘Measures Brothers’).
[39]Kaufman, 11–12 (citations omitted).
[40]Ibid 14.
[41]Ibid.
The decisions in General Billposting and Kaufman have been interpreted as standing for the proposition that an employee’s post-employment restraint of trade obligations do not survive the termination of the employment contract where termination is effected by the employee accepting the employer’s repudiation of the contract.[42] However, the reason why the general rule does not apply and why these obligations do not survive termination of the employment contract is not clear,[43] particularly given the development of the law since General Billposting and Kaufman with respect to the consequence of the acceptance of a repudiation upon continuing obligations.[44] It may be that the rationale for the proposition for which General Billposting and Kaufman stand is that parties to an employment contract will be presumed to have intended that the employee’s restraint of trade obligations will not survive termination of the contract where termination is effected by the employee accepting the employer’s repudiation of the contract.[45] Alternatively, it may be that the enforcement of a restraint of trade clause in an employment contract following termination, where termination is brought about by the employer’s repudiatory conduct, is contrary to public policy.[46] Further, it may be that the right of one contracting party to restrain the other contracting party from engaging in competitive conduct after the termination of the contract is not unconditionally acquired until the whole of the contract has been performed.
[42]See, eg, Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 450 (Latham CJ); Geraghty v Minter (1979) 142 CLR 177, 187 (Gibbs J); Rock Refrigeration Ltd v Jones & Anor [1997] 1 All ER 1, 5–9 (Simon Brown LJ), 10–12 (Morritt LJ); BearingPoint Australia Pty Ltd v Hillard [2008] VSC 115, [142] (Habersberger J (obiter)); Tullett Prebon (Australia) Pty Ltd v Simon Purcell (2008) 175 IR 414, 430 [54] (Brereton J). In Geraghty v Minter, Gibbs J described the principle as one relating to the circumstances in which equitable relief will be granted and stated (at 187) (citing Measures Brothers):
He who comes to equity must do equity, and parties who seek equitable relief by injunction to enforce a covenant in restraint of trade ‘cannot obtain such relief unless they allege and prove that they have performed their part of the bargain hitherto and are ready and able also to perform their part in the future’.
In general, however, the cases considering General Billposting and Kaufman have treated an employee’s acceptance of his or her employer’s repudiation of the employment contract as bringing to an end any post-employment restraint of trade obligations of the employee and not merely as limiting the ability of the employer to seek equitable relief to enforce these obligations.
[43]See JW Carter, Elisabeth Peden and GJ Tolhurst, Contract Law in Australia (LexisNexis Butterworths, 5th ed, 2007) 747.
[44]See, eg, Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138, [36]–[38] (Hasluck J); Rock Refrigeration Ltd v Jones & Anor [1997] 1 All ER 1, 15 (Phillips LJ who expressed significant reservations about the proposition for which General Billposting stands).
[45]See, eg, Carter, Peden and Tolhurst’s statement that General Billposting and Kaufman ‘would be more compelling if they had been based on the view that the parties must have intended the restraint clause to be enforceable only if the employers were not in breach’: see Carter, Peden and Tolhurst, above n 43, 747.
[46]Carter, Peden and Tolhurst state (at 747): ‘an alternative (and perhaps more compelling) basis for cases such as General Billposting Co Ltd v Atkinson is that it is against public policy to permit an employer to enforce a restraint clause where the employer’s breach has led to termination’.
In any event, it is unnecessary to resolve this question here. Irrespective of whether the ground of appeal sought to be raised by Mr Bond is one based upon legal principle, I would refuse the application for leave to amend the notice of appeal to include the additional ground of appeal. I have reached this conclusion for three reasons.
First, the allegation that the respondents repudiated the Consultancy Agreement was not pleaded by Mr Bond. A party alleging that a contract has been repudiated must plead and prove this allegation.[47] The requirement that an allegation be pleaded and particularised is particularly important where the allegation involves an imputation that another party has engaged in some form of misconduct.[48] In this case, Mr Bond was given ample opportunity at trial to amend his defence to reflect any allegations that he wished to make.
[47]Lombard North Central Plc v Butterworth [1987] QB 527, 545 (Nicholls LJ).
[48]Wootton v Sievier [1913] 3 KB 499, 503.
On the opening day of the trial, counsel for the respondents commenced by outlining his clients’ case and the evidence that was proposed to be adduced to prove this case. He then took the judge through the defences pleaded by Mr Bond including Mr Bond’s denial that he was a party to the Consultancy Agreement. Mr Bond confirmed with the judge that he understood the nature of the case pleaded against him and that the filed defence accurately reflected his position. He also confirmed that he did not need ‘any help with any of the legal issues’. Later on the opening day, the judge raised with Mr Bond the question of amendments to his defence that had apparently been foreshadowed the previous day during a hearing before a different judge. The proposed amendments pleaded additional defences to the effect that:
· no consideration had been provided in respect of any restraint of trade clause;
· any restraint of trade clause had operated only for a period of 12 months up until but not beyond 30 June 2009; and
· the respondents had suffered no loss or damage because the BBF Clients would not have stayed with the Rees Group for reasons including the fact that the respondents did not have sufficient or adequate specialist staff to service those clients.
Mr Bond confirmed to the judge that these were the amendments that he wished to make to his defence. The judge subsequently granted both parties leave to amend their pleadings. Following leave being granted, Mr Bond again confirmed with the judge that the matters to be included in the amended defence were the ones he wished to raise. Shortly afterwards, he again confirmed that, as far as he was concerned, the pleadings were ‘in order’. The judge then adjourned the case until the following Monday, to give the parties the opportunity to ‘draw some breath and just reflect on the situation’. Before doing so, however, he explained to Mr Bond the procedure that would be followed during the trial and said to him:
Any legal issues you want to raise, feel free to do so. Any questions you want to raise at any time, feel free to do so. Any documents you want to tender in evidence or you want to put to witnesses, you ought to have them here with you on Monday.
It is clear that Mr Bond was given every opportunity to amend his defence to plead all of the bases on which he sought to resist the respondents’ claim. Notwithstanding this, the amended defence contained no allegation to the effect that the Consultancy Agreement was repudiated by the respondents or that it was terminated by an acceptance of the repudiation by the respondents. Indeed, quite the reverse, as [9] of the amended defence contained an admission that the Consultancy Agreement ‘expired according to its terms and/or was terminated by mutual agreement on or about 30 June 2008’.
Secondly, the repudiation point was not raised at any point during the trial, either in the evidence adduced by the parties or in the submissions put to the judge. In the course of the trial, Mr Bond made a number of allegations which were seemingly unconnected with his pleaded defences and the relevance of which was unclear. He alleged, for instance, that the Rees Group did not provide him with adequate resources or support in relation to his consulting work. He also alleged that RMI had breached the Heads of Agreement because it had failed to pay BBF an amount that it owed it under that agreement. As mentioned above, some of the allegations made by Mr Bond were to the effect that the Rees Group had engaged in illegal or improper conduct or had asked him, or expected him, to engage in such conduct, for example, being expected to ‘sign off’ superannuation fund tax returns that were ‘not compliant with SIS and ASIC reporting requirements’. He also alleged that the total equity of RS was not what the company had reported it to be. At the conclusion of his cross-examination of Mr Mastores, Mr Bond said:
Justin, one final statement, the fact is this whole case is that I’m the whistleblower on this whole issue and you want me bankrupt. Is that the case, let’s cut to the chase?
Mr Mastores said that he did not regard Mr Bond as ‘the whistleblower’ and denied that he wanted to bankrupt him. He had earlier denied the allegation concerning superannuation fund tax returns, saying that he was ‘unaware of [Mr Bond] being forced to do anything under any arrangement’.
Despite levelling these allegations against the Rees Group, at no point in the trial did Mr Bond connect the allegations with the issues in dispute in the trial. He did not submit that the respondents’ alleged conduct constituted a repudiation of the Consultancy Agreement. Nor did he submit that he had accepted this repudiation, with the consequence that he was released from his post-termination restraint of trade obligations. Even granting Mr Bond the latitude that it is appropriate to grant unrepresented litigants with respect to the way their cases are presented,[49] the repudiation point was not raised at trial. As a consequence of Mr Bond’s failure to connect the allegations of illegality or impropriety with the issues relating to his post-termination restraint of trade obligations, the judge and counsel for the respondents were unable to understand the relevance of these allegations. On several occasions, the judge commented that the allegations did not appear to be relevant to any of the issues in dispute. Mr Bond’s responses to these comments did not in any way suggest that a submission was being made that the respondents had indicated by their conduct that they no longer intended to be bound by the Consultancy Agreement. The respondents, for their part, did not challenge Mr Bond’s evidence concerning the alleged illegal or improper conduct; indeed, Mr Bond was not cross-examined at all by counsel for the respondents.
[49]Robertson v Hollings [2009] QCA 303, [11], [13] (Keane JA).
In Whisprun Pty Ltd v Dixon,[50] Gleeson CJ, McHugh and Gummow JJ stated:[51]
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
In my opinion, had the repudiation point been raised by Mr Bond below, the respondents ‘could or might possibly have … met’ the point by adducing further evidence resisting the allegations of illegal or improper conduct. At the hearing of this appeal, counsel for the respondents confirmed that, had the point been raised below, the evidence adduced by the respondents would have been very different and Mr Bond would have been cross-examined in relation to the allegations. To my mind, this alone is sufficient to dispose of the application.
[50](2003) 200 ALR 447.
[51]Ibid 461, [51] (citations omitted). See also Water Board v Moustakas (1988) 180 CLR 491, 497.
Thirdly, even if the repudiation point had been pleaded by Mr Bond and raised at trial, there was no evidence before the judge that would have enabled him to find that the respondents had repudiated the Consultancy Agreement and the appellants had accepted that repudiation. With respect to the oral evidence given at the trial, the allegations of illegality or impropriety were, to the extent they were put to Mr Mastores, rejected by him. As noted earlier,[52] the judge made adverse findings regarding Mr Bond’s credit and, insofar as there was any conflict between his evidence and that of Mr Mastores and Mr Manias, preferred and accepted the evidence of the latter witnesses. In Gangemi v Osborne,[53] Warren CJ and Neave JA observed:[54]
Appellate courts are reluctant to interfere with findings of fact unless such findings were not open on the evidence. Appellate courts are even more reluctant to interfere where those findings were based on an assessment of the credibility of witnesses proffering competing or contradictory evidence.
Nor did the documents attached to the affidavit sworn by Mr Bond on 18 May 2011 establish that the respondents engaged in illegal or improper conduct or requested, or expected, Mr Bond to engage in such conduct. Taking, as an example, the allegation that the respondents asked or expected Mr Bond to sign ‘non-compliant’ superannuation fund tax returns, the documents relied on by Mr Bond do not show that the respondents made such a request or had such an expectation. Rather, these documents, which are mostly internal correspondence between Mr Bond and employees of the Rees Group, are, in my opinion, characteristic of the sorts of exchanges that might be expected to occur between auditors and their clients. There are communications from Mr Bond to the effect that certain funds are ‘non-compliant’ and that steps should be taken to achieve compliance and, in one instance, an inquiry from a Rees Group employee regarding whether a particular course of action would be ‘compliant’. None of the documents, however, shows that, Mr Bond having brought to the attention of the Rees Group the fact that a particular superannuation fund tax return was non-compliant, he was instructed to sign the tax return anyway or told that no action would be taken to achieve compliance. Mr Bond conceded at the hearing of the appeal that he did not have any documents in his possession that showed that this had occurred. There was thus no evidentiary basis at trial for a finding that the respondents had engaged in conduct that constituted a repudiation of the Consultancy Agreement.
[52]See [29] above.
[53][2008] VSCA 221.
[54]Ibid [37] (emphasis added).
For these reasons, I would refuse the application for leave to amend the notice of appeal.
Ground 1
Ground 1(a) contends that the judge erred in finding that Mr Bond was a party to the Consultancy Agreement. Mr Bond accepted at trial that he signed the agreement. He submitted, however, in effect, that he had only signed it in his capacity as a director or agent of BBF and that he was not personally bound by it.
In Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd,[55] the appellant, an insurer, had entered into an agency agreement with the first respondent, a company controlled by the second and third respondents (‘the Austins’). The agreement included a provision which provided that the Austins indemnified the appellant in respect of losses sustained by reason of any default by the company. This provision contained a separate execution clause. The execution clause was executed by the company in the same way that it executed the remainder of the agreement; that is, by the affixing of the common seal of the company, attested by the Austins. A majority of the New South Wales Court of Appeal held that, notwithstanding the fact that the indemnity provision had, at least on its face, been executed by the company alone, the Austins were bound by the provision. After reviewing relevant authorities relating to contractual formation, McHugh JA stated:[56]
The present case, therefore, depends on what the parties did and not on what they intended to do when they signed the Indemnity and the Agency Agreement. And what they did depends on the construction to be placed on the documents which they signed. A commercial document, however, must be construed in its commercial setting — in accordance with the surrounding circumstances known to the parties: Codelfa Constructions Pty Ltd v SRA of NSW … This is so whether the issue concerns construction in the strict sense or whether, as here, the issue concerns the capacity in which a person signs a document. … In some cases the contents of a document may indicate that the signatory is bound even though a qualification attaches to his signature. Expressly or by implication the body of the document may make it plain that the signatory is a party to the contract. In the examples given by Atkin LJ [in Ariadne Steamship Co Ltd v James McKelvie & Co] it would usually follow that there was no liability on the part of the person signing. But this is because the express disavowal of responsibility in those examples is so strong that no other consideration, based on the terms of the document, can overcome it. In other cases, however, the qualification to the signature may be overcome by the terms of the document and the surrounding circumstances. In the end the decision must depend upon the terms of the document including the qualification attaching to the signature together with the surrounding circumstances. This is a question of fact, not of law.
[55](1985) 9 ACLR 909 (‘Scottish Amicable’).
[56]Ibid 923–4 (citations omitted, emphasis added).
In Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd,[57] Giles J considered the approach that the Court should adopt in relation to ‘the execution of a contract where, on the face of the contract, the party executing it signified a limitation upon the measure of assent to be derived from his signature’.[58] After an extensive review of the relevant authorities, including Scottish Amicable, he concluded:[59]
the proper approach is to inquire whether there is to be found an intention that the signatory be personally bound to the contract evidenced in the document, meaning thereby not a subjective intention but an intention to be found objectively, notwithstanding a qualification attached to the signature. That intention, or lack thereof, is to be found upon the construction of the document as a whole, including but not being limited to the qualification attached to the signature, in the light of the surrounding circumstances to the extent to which evidence thereof is permissible. The inquiry is not limited to consideration of the signature and its qualification in order to determine whether or not the signature indicates an assent to be personally bound.
[57](1989) 21 NSWLR 160 (‘Clark Equipment’).
[58]Ibid 165.
[59]Ibid 174.
The approach of McHugh JA in Scottish Amicable and Giles J in Clark Equipment has been followed in a range of subsequent cases.[60]
[60]See, eg, Benson-Brown v Smith [1999] VSC 208, [20]–[21] (Ashley J); James Thane Pty Ltd v Conrad International Hotels Corp [1999] QCA 516, [59]; Rawcliffe v Bianco Hiring Service Pty Ltd (2002) 224 LSJS 266, 277-84 [91]–[128]; Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168, [50]–[56].
I have concluded that, although the inclusion of the name of ‘BBF’ above Mr Bond’s signature on the signature page of the Consultancy Agreement may have attached a ‘qualification’ to that signature in the sense referred to in Scottish Amicable and Clark Equipment, Mr Bond was a party to the agreement and personally bound by it. I have reached this conclusion for the following reasons:
· Mr Bond is referred to personally in the descriptions of the parties in Schedule 1 to the Consultancy Agreement and on the signature page.
· The terms of the Consultancy Agreement refer to Mr Bond and purport to impose obligations upon him; obligations which would not be binding if he were not a party to the agreement. Mr Bond is referred to personally in clause 5 of the Consultancy Agreement (period of operation based on performance criteria with Mr Bond having to provide quarterly performance reports); clause 6 (disclosure), clause 13 (superannuation) and clause 14 (WorkCover) as well as in Schedule 1 (remuneration, principal accountabilities, targets, critical competencies, and so on). Other provisions, such as clause 8 (hours of work) and 19 (restraint of trade), refer to the party upon whom obligations are imposed in the second person (‘you’), and clearly appear to be directed at Mr Bond personally rather than BBF.
· The terms of other prior or contemporaneous agreements between the parties indicate that it was intended by them that Mr Bond would enter into the Consultancy Agreement in his personal capacity. In particular, clause 3 of the Heads of Agreement imposed an obligation on Mr Bond to enter into an agreement in the form of the Consultancy Agreement.[61]
· One of the principal purposes of the Consultancy Agreement (and particularly clause 19.1) was to protect the goodwill that the Rees Group had acquired when it purchased the business operated by RS. The agreement could only be effective in achieving this purpose, however, if it bound Mr Bond personally. If Mr Bond was not a party to the agreement, then there was nothing preventing him from ceasing to provide consultancy services to the Rees Group and acting in a manner that reduced or destroyed the value of the goodwill that it had acquired.
[61]The Business Acquisition Agreement dated 16 December 2004 also provided for Mr Bond to enter into a consultancy agreement. See [6] above.
Ground 1(b) asserts that no consideration was provided which related to the restraint of trade provision in the Consultancy Agreement. This ground is misguided. Consideration need not be provided in respect of particular clauses of contracts. It merely needs to be provided in respect of the contract as a whole. In this case, the terms of the Consultancy Agreement indicate that consideration was clearly provided by each of the respondents in respect of the agreement, that consideration including the payment of consultants’ fees.
Ground 1(c) contends that the Consultancy Agreement expired according to its terms on or about 30 June 2008. This ground ignores clause 5 of the agreement, which expressly provides that the agreement ‘will remain in operation after the nominal expiry date until replaced by another agreement or terminated in accordance with the Workplace Relations Act 1996’.
Ground 1(d) contends that the Consultancy Agreement was terminated by mutual agreement on or about 30 June 2008. This appears to relate to the submission made by Mr Bond at trial that the Consultancy Agreement was replaced by a new consultancy agreement evidenced by the 15 July 2008 letter. In my view, this submission was rightly rejected by the judge, who found that the 15 July 2008 letter ‘simply described a new remuneration package which had been negotiated between the parties’.[62]
[62]Reasons [36].
Ground 2
Ground 2 contends that the judge erred in failing to hold that the Consultancy Agreement was lawfully terminated by BBF by written notice dated 11 March 2009 and that, to the extent that any liability applied under clause 19.1, such liability was limited to a maximum period of 3 months or, alternatively, 6 months after the date of the notice. Ground 2 seeks to challenge the reasonableness of the 12-month restraint of trade period provided for in clause 19.1.
In cases involving the sale of a business, the primary consideration for a court in assessing the reasonableness of a period of restraint of trade is ‘the time required for severing the relationship between the [person the subject of the clause] and those
clients who would patronize the business after its sale’.[63] This necessarily involves ‘a large element of conjecture’.[64] Where the relevant person remains involved in the business following the sale, a longer period may be justified than if his or her involvement had ceased upon the sale.[65] In this case, I am satisfied that it was open to the judge to find that the 12-month restraint of trade period was reasonable, given the nature of the professional work performed by the Rees Group, the fact that Mr Bond remained involved in the business (as a consultant) following the sale of the corporate advisory business previously operated by RS, and the time that would be needed for the relationships between Mr Bond and the relevant clients of the Rees Group to be severed, given that, as the judge said, ‘[i]t was clear from the evidence of Mr Mastores that at all stages his primary concern was to protect the client base that he had effectively purchased’.[66]
[63]IRAF Pty Ltd v Graham [1982] 1 NSWLR 419, 429. See also Cream v Bushcolt Pty Ltd [2004] WASCA 82, [53]; Birdanco Nominees Pty Ltd v Money [2012] VSCA 64. See generally Justice J D Heydon, The Restraint of Trade Doctrine (LexisNexis Butterworths, 3rd ed, 2008) 210–212.
[64]IRAF Pty Ltd v Graham [1982] 1 NSWLR 419, 429.
[65]Ibid 428–9.
[66]Reasons [39].
Ground 3
Ground 3 asserts that the judge should have applied the maxim ex turpi causa non oritur actio[67] to hold that the respondents were not entitled to the relief sought. The ex turpi maxim is commonly invoked in cases where a contract is held to be invalid or unenforceable because it is contrary to public policy.[68] A contract may be contrary to public policy if its formation involves illegality or if it was made for an illegal purpose, or its performance necessarily involves illegality.[69] Furthermore, a contract that is otherwise legal but is performed illegally may also be unenforceable as contrary to public policy. As Kirby J said in Fitzgerald v Leonhardt Pty Ltd:[70]
A distinction may be drawn between cases where there is nothing illegal in the formation of the contract or necessarily illegal in its performance and those cases where … the performance has in fact involved a breach of the law. … It is a distinction well established in legal doctrine. In such a case, it is not the contract as formed which is illegal. But the performance of the contract may be illegal if it is clear that the law in question prescribes that the contract must be performed n one way and one way only and that requirement has been breached. To ascertain whether such a breach has occurred it has been said that the illegality must affect the very core or essence of the contract.
[67]No action arises out of dishonourable cause: Peter E Nygh and Peter Butt (eds), Butterworths Australian Legal Dictionary (Butterworths, 1997) 437.
[68]N C Seddon, R A Bigwood and M P Ellinghaus, Cheshire and Fifoot Law of Contract (LexisNexis Butterworths, 10th ed, 2012) 960.
[69]Yango Pastoral Co Pty Ltd v First Chicago (Aust) Ltd (1978) 139 CLR 410; Nelson v Nelson (1995) 184 CLR 538; Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215.
[70](1997) 189 CLR 215, 244-245. See also Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374, 391.
It was claimed that the respondents’ illegal or improper conduct in the performance of the Consultancy Agreement had the consequence that the Consultancy Agreement was invalid or unenforceable on public policy grounds.
In my view, this ground of appeal must fail, for similar reasons to those given above for refusing the application for leave to amend the notice of appeal. Firstly, the allegation that the respondents engaged in illegal or improper conduct was not pleaded in Mr Bond’s amended defence yet where a defence of illegality is raised, the allegations of illegality must be pleaded ‘clearly, specifically and with detailed particulars’.[71] Secondly, the point was not raised at the trial. As mentioned above, although during the trial Mr Bond made allegations to the effect that the respondents had engaged in illegal or improper conduct, he did not identify the legal consequences that, in his submission, flowed from this conduct. In particular, he did not submit that the respondents’ alleged conduct had the consequence that the Consultancy Agreement was invalid or unenforceable. Finally, there was no evidence before the judge which would have enabled him to have made a finding that the respondents had engaged in the alleged conduct.
[71]Harry Goudias Pty Ltd v Akakios (2007) 97 SASR 93, 99–100.
Ground 4
Grounds 4(a) and (b) relate to the provision of the trial transcript.
4(a) alleged that Mr Bond, by reason of not having been told at the outset of the trial that he was entitled to request a transcript of the trial, the appellants were denied ‘a fair and reasonable opportunity to consider their position as a matter of law, insofar as potential grounds of appeal are concerned’. However, the appellants have now not only been provided with the trial transcript but have had the opportunity to seek to amend their notice of appeal following the provision of the transcript and the judge’s revised reasons, and, aside from Mr Bond’s application made by summons filed on 28 June 2012, discussed above,[72] they did not do so. In my opinion, there was no denial of the opportunity to consider their position.
[72]See [38] above.
Ground 4(b) alleged failures on behalf of the judge to provide reasons. This is no longer relevant because, as noted, following the filing of the notice of appeal, the parties were provided with a copy of the transcript of the trial and the revised reasons for judgment.
It follows that grounds of appeal 4(a) and (b) fail.
Conclusion
I would refuse the application for leave to amend the notice of appeal and dismiss the appeal.
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