Clarke v Australian Outdoor Living (Victoria) Pty Ltd

[2019] FCCA 1234

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v AUSTRALIAN OUTDOOR LIVING (VICTORIA) PTY LTD [2019] FCCA 1234

Catchwords:
INDUSTRIAL LAW – Commission – applicant claimed entitled to commission – disagreement as to amount of commission owed – applicant claimed commission owed for large number of transactions – respondent agreed that all transactions were complete (save as to five such transactions) – respondent contends that the applicant has been paid for all completed transactions – dispute as to payment – set-off – respondent claims that amounts due by applicant in respect of unrelated transactions were set-off against commission that was payable – whether set-off available – whether payments made – relief granted.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 139, 323-324, 548, 548(1A)

Cases cited:

L J Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52

Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351

Textile Clothing and Footwear Union of Australia v Givoni v Pty Ltd [2002] FCA 1406

Texts referred to:

Creighton & Stewart, Labour Law (The Federation Press, 6^th Ed, 2016)

Derham, The Law of Set-off, (Oxford University Press, 4^th Ed, 2010) 

Sappideen, O'Grady and Riley, Macken’s Law of Employment (Lawbook Co, 8^th Ed, 2016)

Treitel, The Law of Contract (Sweet & Maxwell, 14^th Ed, 2015)

Applicant: KARL CLARKE

Respondent: AUSTRALIAN OUTDOOR LIVING (VICTORIA) PTY LTD

File Number: MLG3437 of 2018

Judgment of: Judge A Kelly

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Melbourne

Delivered on: 16 May 2019

REPRESENTATION

The Applicant: In person

The Respondent: Mr Taylor

Amicus curiae: Ms Kelly, Fairwork Ombudsman

THE COURT ORDERS THAT

1. The respondent pay the applicant the sum of $13,450.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3437 of 2018

KARL CLARKE

Applicant

And

AUSTRALIAN OUTDOOR LIVING (VICTORIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 14 November 2018, Mr Clarke claims for the recovery of compensation for amounts that are claimed to be due in respect of unpaid commission on orders obtained from customers for the sale of outdoor blinds.

2. At the hearing of the application, Mr Clarke was self-represented.  The respondent was represented by its Chief Executive Officer, Mr Taylor from its South Australian branch.  By its submissions, the respondent contended that the applicant had been overpaid and that the claim for unpaid commission arose from a misunderstanding on the part of the applicant.  It contended that certain sales had never been made because some transactions were never completed as a result of the customers cancelling their orders.  It further contended that commissions that were otherwise payable on the orders which were the subject of this application had been set-off and applied in discharge of certain sums, which it was claimed were repayable by the applicant in relation to other unrelated orders which had been cancelled by customers and upon which the applicant had been paid an advance of commission on such orders (Advances) and which Advances were said to be repayable.

3. These reasons for judgment explain why I have concluded that Mr Clarke is entitled to relief on his application.

4. On 14 November 2018, the applicant filed a Form 5 Small claim and annexed a series of documents which are addressed below.

5. The applicant elected for his claim to be determined as a small claim under the FairWork Act 2009 (Act). Division 3 of Part 4-1 in Chapter 4 of the Act provides a small claims procedure. Sub-section 548(1) prescribes the circumstances in which a proceeding may be dealt with as a small claim. By force of sub-s 548(3), in the conduct of a small claims proceeding, the court is not bound by rules of evidence or procedure. Moreover, the court is entitled to act in an informal manner and without regard to legal forms or technicalities.

6. A claim for commission is a claim which may be made under the small claims procedures provided by the Act. Such a claim is authorised to be heard as a small claim because it is for recovery of a Safety Net Contractual Entitlement as defined by s 12 and within the meaning of par 548(1A)(a)(ii) of the Act. Relevantly, a Safety Net Contractual Entitlement includes an entitlement under a contract between an employee and employer that relates to a subject matter that is addressed by s 139(1) and which deals with Modern Awards. By par 139(1)(a)(ii), a Modern Award may include terms about incentive based payments. Commission is an incentive based payment. The Commercial Sales Award provided by cl 10.1(a) states that there must be a written statement relating to the remuneration which is payable.

7. When the matter was listed for hearing on 4 March 2019, the respondent appeared and was afforded an opportunity to confer with the applicant and a representative of the Fairwork Ombudsman so as to see whether the matter was capable of resolution.  It proved not to be so.  The respondent’s representative stated that the claim for commission was opposed in part by reason that certain of the sales orders had been cancelled.  Orders were made to regulate the preparation of the matter for trial.  Each party filed an affidavit to which was annexed a series of documents, each of which I have examined in detail.  The applicant also served a subpoena on the respondent which was not answered until very shortly before trial. 

8. The applicant gave evidence and was cross-examined.  I found him to be a generally honest and forthright witness.  No evidence was called by the respondent.  The respondent’s representative, Mr Taylor, presented the respondent’s defence to the case in a forthright manner.

Background

1. Much of what follows was common ground. 

2. The respondent is engaged in the business of selling and installing outdoor blinds and patios, verandahs and decking (PVD’s).  It engages persons to liaise with prospective customers and to secure an order for the sale and installation of blinds and PVD’s. 

3. The applicant was engaged as a sales representative selling the respondent's products via home visits to prospective customers.  He was engaged to execute contracts for the sale of manual and automated blinds thereby earning an entitlement to commission.  When the respondent obtained inquiries from prospective customers it would assign one of its sales personnel to attend the prospective customer’s home with a view to securing an order.  If no order was secured, the matter might proceed to a point where the sales person would secure an entitlement to some remuneration for having obtained a ‘lead’.  Where an order was secured, the sales person became entitled to certain commission. 

4. In general, the entitlement to commission depended upon the order being completed and the works installed and paid for.  The respondent said that where an order was placed, the deposit paid and the requisite paper work completed, the sales person would be paid an amount equal to 50% of the commission payable on the order with the balance payable upon completion of the order and payment by the customer. 

5. On occasions a customer might cancel an order as for example when a delay in installation occurred and the customer lost patience.  It was apparent that the respondent would, on occasion, encounter difficulty in securing the supply of blinds which it sold.  It also emerged that where a customer cancelled an order, the respondent employed a practice of clawing back the advance payments of commission on that order from the commission which was otherwise payable on other orders.

6. The applicant commenced in the role of sales representative after being interviewed by the General Manager and completing a training course. Upon completion of that course he was told that remuneration was on the basis of commission only.  He was given a contract which he signed.

7. The applicant worked from the respondent's place of business in Campbellfield.  His period of employment was from 1 August 2016 to 25 May 2017.  He claimed to be employed on a full-time basis contending that his employment had not been terminated.  The applicant's ordinary hours of work were Mondays – Saturdays, from 8.30am-9.00am until 6.00pm-8.00pm on weekdays and until 1.00pm on Saturdays.  The applicant gave evidence, which was not contradicted, that he would often work 10 hour days.

Contract

1. The applicant was engaged under an agreement styled Employee Service Agreement. The agreement incorporated a number of schedules.

2. The agreement provided a series of definitions including:  

   “Advance” means any Gross payment made against bonus/commissions that may be owing at Balancing Date.  Advances are repayable by the Employee and withholding tax applies.

   “Balancing date” means a date every 6 months whereby commission from the prior 6 months sales are added together and compared against FMW Gross Wages and Advances paid during the same period, in order to determine any further Bonus/commission payments due to the Employee.

   “Sale” means a completed contract between the Company and the Customer including that the products have been provided and installed/completed and the Customer has paid the Contract Price in full.

   The term Gross payment was not defined.

3. The subject Remuneration was addressed by cl 7 which reads:

   7.1     Total remuneration

   (a)The Employer will pay the Employee remuneration as specified in Schedule 1, in accordance with FMW (Federal Minimum Wage) which may change from time to time, as well as Commissions calculated in accordance with Schedule 1.

   (a)(sic) . . .

   (b)The total remuneration includes all payments and benefits that the Employee is legally obliged to provide.

   7.2     Remuneration Payments

   The Employer will pay the Employee’s weekly remuneration in arrears into a bank account nominated by the employee, or at such other intervals as agreed between the parties.

4. Clauses 8-10 addressed: Superannuation, Other entitlements and Leave entitlements and are not relevant. Otherwise, the agreement was silent as to commission or how the contractual entitlement was to be regulated.

5. The agreement contained an entire agreement clause and proscribed any variation of its terms unless that had occurred in writing: cll. 14, 15.

6. Schedule 1 to the agreement entitled Employee Details recorded that the agreement was made on 3 August 2016 and that the applicant was engaged as a sales representative having the status of a casual employee with a remuneration package that was to be “in accordance with attached Victorian Commission Plan” and contained a reference to Schedule 3.  Otherwise Schedule 1 contained no additional terms which are of any relevance to the issues in this proceeding.

7. Schedule 2 was entitled Position Description and is not relevant.

8. Schedule 3 was entitled Commission Agreement and relevantly contains the following provisions:

   1.  Purpose – The purpose of the Sales Commission Plan (PLAN) is to define the basis for compensation of the sales personnel of Australian Outdoor Living (the Company). All provisions of the PLAN are effective as of 17^th November 2014, and will remain in force unless otherwise modified or amended in writing by the Company.

   2.  Objective – It is the objective of the PLAN to provide a sound basis by which sales personnel are motivated and rewarded for achieving and exceeding all sales goals as set by the Company.

   3.  Eligibility – All sales employees classified in a position of Sales Consultant are eligible to participate in PLAN. This eligibility will remain unless the employee is terminated or transferred to a role, where commissions are not earned.

   The sales contracts requirements must be fully executed, with payment received, before this plan is valid or any commissions are paid.

   4.  Definitions and interpretation

   “Advance”:    – means any Gross payment made against bonus/commissions that may be owing at Balancing date. Advances are repayable by the Employee & withholding tax applies.

   “Sale” – means a completed contract between the Company and the Customer for AOL products will have been provided, installed and completed and the Customer has paid the Contract price in full.

   5.-6.  . . .

   7.  Commission payment structure

   Compensation for each Sales Consultant shall consist of a base rate and incentive component consistent with the laws of the state of Victoria.

   The Remuneration and Commission Payments Structure is calculated:

   7.1 The Sales Commissions Component will be calculated on every Sale as per the commission rate schedule published by the Company. Every week from the Employee’s official start date, the calculated commissions on installed sales will be added and compared with the total FMW Gross payments already received by the Employee over the same period.

   i.If the Commission calculated are higher than the Total FMW Gross payments already made – a further Bonus/Commission Gross payment can be made at the Employees request. Appropriate withholding taxes will apply.

   ii.If the Commission calculated are lower or equal to the Total FMW Gross payments already made in the agreed period (specific to your location) – no bonus/Commission payment will be made.

   7.2 Commissions are paid when all revenue recognition criteria have been satisfied. Commissions paid out prior to the Company’s receipt of payment and/or revenue recognition criteria, are considered an advance against future earned commissions and are fully recoverable in cases where payment is not received.

   7.3 When expected contract revenue is debited for any reason, which was within the control and responsibility of the Sales Consultant i.e, customer refusal to pay due to contractual error, cost omission, product performance, litigation, etc., the additional costs or omissions earned are the same as if the completed sales was correctly prepared in the first instance. Where the changed in revenue was not in the control and responsibility of the Sales Consultant their commissions will not be affected.

   7.4 Special bonuses for the sales of specifically identified products may be paid during a given time frame with the approval and at the sole discretion of the Company’s Chief Executive Officer.

   8.  . . .

   9. Administration

   9.1 Commission payment will coincide with the Company’s recognition pf the respective revenue when the following criteria are met. All products must meet the Company’s revenue recognition policy before any commission credit will be given to a commissioned Sales consultant.

   9.2 The responsibility of accurate documentation is assigned to the Sales Manager. Responsibility for the calculation of commissions and for all audit and verification of the PLAN payments is assigned to the Chief Financial Officer (CFO).

   9.3 The final decision on the disposition of the sales, salary amounts. Commission amounts and on all options of the PLAN and on all other irregular situations that may arise, it is the responsibility of the Senior Manager.

   9.4 Nothing in this PLAN shall be construed to amply the creation of a contract between the Company and any participant, nor a guarantee of employment for and specific period of time.  The PLAN is a method of measurement, commission calculation and payment. No participant will have any right to the money accrued through the PLAN unless and until all terms, provisions and conditions are set forth in the PLAN have been met.

   9.5 Sales Consultant eligibility for participation in this PLAN must be identified by written acceptance of this Sales Commission Plan & Agreement.

   9.6 The Company may reverse commission payment and credit to the Sales Consultants in instances where the expected contract revenue is changed for any reason, which was within the control and responsibility of the Sales Consultant i.e., customer refusal to pay due to contractual error, cost omission, product performance, litigation, etc., the additional costs or omissions will be debited to ensure that total commissions earned are the same as if the completed sales contract was correctly prepared in the first instance. Where the change in revenue was not in the control and responsibility of the Sales Consultant their commissions will not be effected.

   Schedule 3 contained no definition of the expressions agreed percentage or Contracted Sales Amount.  Nor did it define the expression Company’s revenue recognition policy: see cl 9.1.

9. Clause 8 of Sch 3 addressed the subject Commission basis and was arranged so as to provide separately for Standard Sales, Non-Standard sales and Customer transfers.  The parties were agreed that this clause was not relevant.

10. No other provision of the agreement or in Sch 3 is relevant.

11. Attached to Sch 3 were two documents which were said to address the calculation of commission.  The first dealt with commission on PVD sales and the second with commission on sales of blinds.  A sliding commission was payable which depended in part upon the discount which it was within the discretion of sales personnel to negotiate.  No other provisions in the commission schedules is relevant.

Applicant’s sales

1. The applicant gave evidence that he worked up to 10 hours per day and achieved sales in excess of $1.4m for the respondent.  He worked as a sales representative making calls to prospective customers of both PVD and blinds products. 

2. The applicant would complete a sales order with a customer, give the customer a copy of that sales order and supply the respondent with the original.  Using the data in the contract the applicant would prepare a standard form summary of the sales order which included a calculation of the commission payable.  The respondent expressed surprise that the applicant was not provided a copy of those sales and commission records.  It appeared that the practice in the Adelaide division of the respondent’s business was to supply those records to sales personnel at monthly intervals.

3. It appears that the only record which the applicant was provided was a pay slip which recorded, amongst other things, the identity of the particular customers whom he had secured orders.

4. In the event, the amount of the commission that was payable upon the subject sales orders was not in dispute.  The applicant worked in both the respondent’s PVD and Blind’s divisions.  As noted above, the basis on which commission was payable was regulated by different schedules to the agreement.  In particular, it was common ground that the commission payable on PVD sales orders was generally higher than that which was payable on contracts for the sale and installation of blinds.

5. The applicant was not challenged upon his evidence that the respondent’s Victorian division engaged 3-4 builders to install the patios, verandahs and decks once it secured PVD orders.  The evidence before me indicated that there was a series of PVD and Blind contracts respectively which were cancelled on account of significant delay.

6. The respondent treated the cancellation of a contract as giving rise to an obligation in a sales representative to reimburse a commission that had been paid by way of Advance.  This created a number of problems.  First, sales personnel were being required to effect reimbursement of monies that had already been paid to them. Secondly, the commission entitlements payable on other unrelated contracts was treated as a source of funds from which reimbursement was effected.  The applicant expressed his significant frustration that his entitlements to commission were repeatedly lost and denied by reason that customers lost patience with the respondent and its inability to install PVDs or blinds and so cancelled their orders, thereby resulting, it was said, in the respondent then seeking to recover any Advance of commission which the respondent had been paid on those orders.

7. In time, the applicant became increasingly dissatisfied with the opaque nature of the respondent’s commission structure and the manner in which it was administered by the respondent.  He complained of being paid paltry sums in the order of $50 to $75 in respect of days on which he had worked ten hours and had secured a number of sales orders.

1. In cross-examination, he applicant claimed that he remonstrated with the respondent’s Victorian senior management.  He said that he had been assured by the respondent’s Chief Operating Officer, Mr Chim, that management would see he was paid his accrued entitlements.  He said that he never heard another word from management. 

2. In due course the applicant became one of a number of persons who pursued a class action against the respondent for contravention of s 324 of the Act for the making of unauthorised withdrawals in respect of commission payments otherwise payable upon completed orders.  The parties were agreed that the gravamen of the complaint arose from the respondent’s practice to claw back Advances which had been made on sales orders which had been cancelled by a customer.  The applicant said that the class action foundered because the sales personnel lost interest by reason of the delay in the determination of the proceeding.

3. On 17 May 2017, the applicant requested a printout of his commission entitlements which remained outstanding.  He made this request of, and was provided this document by, Mr Ninos Emmanuelle, the then Sales Manager of the respondent’s Victorian operations.  He was provided a document, entitled Estimated Commission Report – Blinds, which was arranged in columns so as to identify the date of sale, customer, suburb, contract and value.  The document contained a list of some 44 sales contracts.  Of those, ~ 7 sales contracts had a notation ASAP, 11 had the notation Hold and the remainder were designated Work in Progress.

4. It was common ground that the Estimated Commission Report – Blinds was a document, the entries in which were made and controlled at management level and that sales personnel were ordinarily not provided and had no access to such documents.  It was not disputed that the document had been supplied to the applicant and that the entries which it contained were prepared by management.

5. Mr Emmanuelle, who is now the General Manager of the respondent’s Victorian division, was not called to give evidence.  Nor was the respondent’s Chief Operating Officer, Mr Chim.

Consideration

1. The applicant claims the sum of $16,294.77 for unpaid commission.  The claim is for the recovery of commissions on blind’s sales alone.  The applicant submitted that with the effluxion of time it was now not possible to establish any wider entitlement to commission.

2. It was not in dispute that the sum claimed was a proper calculation of the commission that would have been payable on all of the sales’ contracts upon which the applicant relied.  That this was not in dispute may be explained by the supply by Mr Emmanuelle of the Estimated Commission Report – Blinds summary of outstanding sales contracts on which commission was payable.  The resolution of disputes in relation to such matters fell within his field of responsibility: see cl 9.2, Sch 3.

3. In the course of the hearing both parties were afforded an opportunity to address and isolate the issues in dispute.  Each is to be commended by the practical and candid way in which the issues were refined.  The result of that discussion reduced the scope of the dispute to three issues.

1. Cancelled contracts

1. The respondent accepted that the entitlement to commission had accrued on all but five of the 44 contracts relied upon.   

2. The applicant maintained that he was entitled to be paid commission in respect of contracts that had been cancelled.  The evident basis for that submission was that he attributed significant blame to the respondent for the tardy nature of its business operations and as being the underlying cause of the customer’s decisions to cancel those contracts.

3. The respondent identified the five contracts in respect of which the customer had cancelled the sales order such as to deny an entitlement to commission.  The customers who had cancelled their contracts and the commission otherwise payable on those contracts was identified.

4. The customers whose contracts had been cancelled were: Delcampo, Lockyer, Rossitto and Ho.  The total sum of the commission payable on those contracts was $2,847.64.

5. It is clear, contrary to the applicant’s submission, that the respondent was not liable to pay sales personnel commission on contracts which were not completed.  So much was evident from the defined meaning of the term ‘Sale’ as provided by both the terms of the agreement and Sch 3 (notwithstanding that those definitions are slightly different).  Clause 3 of Sch 3, Commission Agreement, recorded that contracts must be fully executed, with payment received, before commission was payable. 

6. While the terms of the agreement respecting the entitlement to commission were drafted in highly confusing terms they generally reflect common law principles relating to payment of commission.

7. The entitlement to commission is usually determined upon whether the agent’s conduct should be seen as constituting the real or effective cause of the sale: L J Hooker Ltd v WJ Adams Estates Pty Ltd;[1] Moneywood Pty Ltd v Salamon Nominees Pty Ltd.[2] 

   [1] (1977) 138 CLR 52, 60 (Barwick CJ), 66-68 (Gibbs J), 76-78 (Stephen J), 86-87 (Jacobs J)

   [2] (2001) 202 CLR 351, [37],[45] (Gleeson CJ), [86] (Gummow J), [199]ff (Kirby J);

8. The precise time at which the agent becomes entitled to commission will turn upon the proper construction of the parties’ Agreement.[3]

   [3]            see generally, Treitel, The Law of Contract (Sweet & Maxwell, 14^th Ed, 2015), at [16-085]ff.              14^th Ed, (2015)

9. In my opinion, on no proper reading of the agreement and its many schedules could it be concluded that a sales representative had an entitlement to commission on a contract which had been cancelled.

10. It follows that the claims to commission on those five contracts must be rejected.  As the commission claimed by the applicant ($16,295) was common ground and the commission payable on the contracts that were cancelled was $2,845 for the reasons above, it follows that the applicant’s maximum claim for commission is $13,450.

1. Set-off

1. As noted above, an area of significant frustration to the applicant was the respondent’s practice of deducting amounts from accrued entitlements to commission and applying them in reduction of amounts representing an Advance on other contracts which had been cancelled.

2. As indicated in the course of the hearing, there was a large question over the respondent’s adoption of this practice.  In this case, the respondent sought to deduct some $6,267.20 by reason of its attempts to claw back Advances on earlier cancelled contracts.

3. Putting to one side any question of insolvency or mutuality, there may be circumstances in which, a debt owing by a plaintiff to a defendant, which was presently existing and payable may be set-off in reduction or extinguishment of a plaintiff’s claim.[4] However, the right to do so in the face of an express legislative provision which proscribes the making of unauthorised deductions from an employee, of amounts payable in respect of the performance of work is doubtful: cf ss 323-324 of the Act.

   [4]See generally, Derham, The Law of Set-off, (Oxford University Press, 4^th Ed, 2010), [2.08]. 

4. Mr Taylor correctly submitted that the respondent’s administrative arrangements in relation to commission were ‘confusing’.  The applicant said that the respondent's wage and commission structure was the most complex which he had ever come across.  The force of those submissions was underlined by the terms of cl 3 of Sch 3, Commission Agreement, which are, at best confusing, and at worst ambiguous or uncertain.

5. Clauses 7D. 7E  and 9.5 of cl 3 of Sch 3, coupled with the definition of ‘Advance’ in the agreement might lend some support to a conclusion that the respondent was entitled to recover an Advance of commission which had been made under the individual contract.  However, on no fair reading of those provisions, whether individually or in the context of the agreement as a whole, can they be construed as supporting an entitlement in the respondent to deduct from a commission which it was contractually obliged to pay to a sales representative on that contract, any amount or to apply it in satisfaction of any claim for recovery of commission paid in advance on another contract that had been cancelled.

6. From my examination of the terms of the agreement and its many schedules the parties’ contract conferred no right in the respondent to apply commission that was payable upon one contract and apply it in satisfaction of some claim for recovery of an Advance payment of commission on another.  The respondent had no claim for recovery of such advance payments and in any event, I decline to accept that such a right existed in the circumstances of the case.[5]  

   [5]cf Textile Clothing and Footwear Union of Australia v Givoni v Pty Ltd [2002] FCA 1406, [60]-[62] (Goldberg J) albeit in an Award context; Sappideen, O'Grady and Riley, Macken’s Law of Employment (LawbookCo, 8^th Ed, 2016), [10.50]; Creighton & Stewart, Labour Law (The Federation Press, 6^th Ed, 2016), [15:59]-[15.60].

7. Here, the Award provides, by par 10.1(e), that within 14 days of the commencement of employment the employer will provide a written statement containing information including the deductions if any, which are made or to be made from the commission that is payable.  There was no evidence that the respondent had provided any such written statement authorising the deduction from commission otherwise due and payable any amount or authorising it to apply any amount inn satisfaction of any claim for recovery of any amount claimed to be due in respect of an Advance made on another contract if it was later to be cancelled.  Further, on its proper construction, the agreement did not express an entitlement to deduct Advances paid in relation to a cancelled contract from an accrued entitlement to commission under another contract.

8. Insofar as the respondent relied upon a right of set-off of past Advances upon contracts which had been cancelled in relation to accrued entitlements to commission I reject that aspect of the defence.  As noted, the respondent purported to rely upon prior Advances of $6,267.20.  Had the respondent otherwise succeeded, I would have rejected its defence based upon these unauthorised deductions.

1. Payment[6]

   [6]             The quantum of the claim is considered using rounded numbers.

1. The respondent also advanced its defence on the substantive basis that the applicant’s claims for commission had been paid.  Save as to the cancelled contracts, the respondent otherwise admitted that the contracts had been fully executed and that the quantum of the commission claimed was not in issue.  Upon the applicant giving evidence that he had not been paid the commissions which he claimed and upon the admissions made that those claims were otherwise payable, it was for the respondent to prove payment.

2. The applicant produced his bank statements for the period of his engagement as a sales representative for the respondent.  Those statements confirmed that the respondent made certain direct credits to this account over the period.  This was consistent with the parties’ agreement which provided for payment by this method: see cl 7.2.

3. The respondent produced a series of documents entitled, Accrued Estimator Commissions for the period August 2016 to May 2017 which were relied upon as proving the payments that had been made to the applicant in that period. I have examined those documents in detail.

4. The Accrued Estimator Commissions contained entries from which it was possible to identify that the respondent had made entries of certain payments relating to the subject contracts.  However, those internal company records did not prove that such payments were made to the applicant or that they were paid under the contracts the subject of this claim.  Such entries were also undermined by other evidence in the case.

5. The applicant’s bank statements for the period May 2017 – December 2017 disclosed all of the commission payments which he had received.  A review of the bank statements indicates the following deposits made by the respondent to the applicant's account:

   a)11 April 2017  $1,144

   b)18 April 2017  $1,144

   c)24 April 2017   $   817

   d)2 May 2017        $1,144

   e)9 May 2017  $1,144

   f)16 May 2017        $1,144

   g)30 May 2017   $   407

   Total  $6,944

6. No other no deposits were made by the respondent to this account.

7. It is not possible to ascertain from the entries in those bank statements to what sales contracts or other entitlements the payments relate. Having regard to the applicant’s evidence that he achieved sales of ~$1.4M over the period of his engagement by the respondent I am not prepared to infer that the monies so paid as set out at [64] above related to the claims for commission that are the subject of this application. To the contrary, the respondent did not seek to suggest that this was so. Instead, reliance was sought to be placed upon its internal records, none of which enabled the court to correlate the sums referred to in those entries against any entries in the applicant’s bank statements. Nor was any attempt to prove payment by the more direct route of producing the respondent’s bank records so as to enable a correlation of such payments to be made.

8. On the whole of the evidence, I am not satisfied upon the balance of probabilities that the commissions admittedly due on the subject contracts for the sale and installation of blinds have been paid.

9. The applicant is entitled to judgment for the sum of $13,450.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.

Date: 16 May 2019