Garth Carter v Geoff Layton & Co Pty Ltd

Re: GARTH CARTER
And: GEOFF LAYTON and CO. PTY LTD
No. Q G118 of 1990
FED No. 276
Contract - Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Contract - terms of option agreement uncertain - not possible for court to fix terms in absence of agreement between the parties - option unenforceable.

Contract - wrongful termination of employment contract - implied term that either party could terminate the employment on reasonable notice - damages for inadequacy of notice.

Trade Practices - misleading and deceptive conduct - representation by employer that he was or would be taking legal action to recover client base - a statement of present intention is not shown to be misleading by proof that what was intended did not occur.

Trade Practices - misrepresentation - inducement to enter employment contract - representation that client base would be recovered by legal action not a factor in employee's decision to accept offer of employment.

Trade Practices Act 1974 (Cth) ss. 52, 53, 53B

Godecke v. Kirwan (1973) 129 CLR 629

Meehan v. Jones (1982) 149 CLR 571

South Coast Oils (Qld and NSW) Pty Ltd v. Look Enterprises Pty Ltd (1988) 1 Qd R 680

HEARING

BRISBANE

#DATE 13:3:1992

Counsel for the applicant : Mr C. Newton
instructed by : D.A. Arcuri and Associates

Counsel for the respondent : Mr J. Bell
instructed by : Hopgood and Ganim

ORDER

The Court orders that:

(1) Judgment for the applicant against the respondent in the sum of $4,650.00.

(2) No order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a claim for damages based on alleged contraventions of ss. 52, 53 and 53B of the Trade Practices Act 1974 ("the Act"), for breach of contract and for deceit. The claims arise out of dashed expectations concerning the operation of a photocopier business on the Gold Coast.

The applicant, Mr Garth Carter, alleges that he was induced by representations made by Mr Geoffrey Layton, on behalf of the respondent, to leave his employment as a dealer/manager with Nashua Australia Pty Limited ("Nashua") and take up employment with the respondent as the manager of the respondent's Gold Coast operation, with an option to purchase the franchise of that business. Mr Carter alleges that a number of representations made by Mr Layton, who was the managing director of the respondent, were untrue and that the applicant has suffered loss and damage in consequence.
Mr Carter says that he earned in excess of $80,000 per annum while employed with Nashua, but was unable to earn a commission because of lack of sales in his employment with the respondent, causing him to earn far less than $80,000 per annum. His employment was terminated by the respondent on 14 June 1990 and he has been forced to seek other employment in which he has earned far less.
I proceed on the basis of the issues as defined in the Amended Statement of Claim and the Further Amended Defence.
Mr Carter alleges that the representations made by Mr Layton were that if the applicant moved to the Gold Coast to take up the position, it would be a long term proposition rebuilding Nashua's goodwill on the Gold Coast; that the respondent was or would be taking legal action to recover the client base from Archie Fraser Pty Ltd ("Fraser"); that action would be taken by the respondent to ascertain where machines are located; that the Fraser client base was the property of the respondent; that the Gold Coast operation should carry $50,000 to $60,000 in sales per month once established and the applicant would then earn $80,000 per year; that the respondent did not care whether the Gold Coast operation was run as a branch or a franchise; that the applicant could purchase the franchise at any time but would "want to buy it because it will be profitable"; that the applicant need not purchase the franchise until it was profitable; that the respondent had a signed franchise agreement with Fraser which had been terminated; and that Mr Fraser had provided such poor service to his customers that they would not stay with him.
Paragraph 11 of the statement of claim is in these terms:

" The said representations were not in fact true particulars of which allegation are as follows:-

(a) The Respondent was not prepared to treat the employment as a long term proposition and required conversion to a franchise arrangement as soon as possible.

(b) The Respondent was under threat of loss of the Gold Coast area at the behest of Nashua Australia Limited if it did not have a viable branch operating quickly.

(c) The Respondent never took legal action to recover the client base from Fraser.

(ca) The Fraser client base was not the property of the Respondent.

(d) The Respondent's dealings with Fraser caused considerable ill will towards Nashua's standing and products on the Gold Coast and Fraser's clients were happy with the service being provided.

(e) Nashua Australia Limited is and was not prepared to allow the Respondent to sub-franchise the Gold Coast area.

(f) The Respondent's settlement of proceedings against Fraser prevented the Applicant following up Nashua service users who were clients of Fraser.

(g) The Respondent had never had a signed franchise agreement with Fraser. "

It is to be noted that that the representation that action was or would be taken to recover the client base from Fraser is said to be "not in fact true", because the respondent "never took legal action to recover the base from Fraser".
The making of a statement of present intention is not shown to be misleading or deceptive merely by proof that what is said to be intended did not come about. Further, no allegation is made which relies on a failure to inform that an earlier stated position has altered. In particular, no case is raised asserting that silence on the part of Mr. Layton concerning any change in his intentions about legal action after the making of the representation, constituted conduct by the respondent in contravention of s. 52 of the Act.
The applicant says in reliance on the pleaded representations, he entered into an agreement with the respondent to manage the Gold Coast operation of the respondent. In so far as the agreement was in writing, the parties are agreed that it is contained in a letter from the respondent to the applicant dated 15 February 1989; a letter from the respondent to the applicant dated 24 February 1989 and a letter from the respondent to the applicant dated 8 March 1989. The applicant says in addition the agreement included the terms of an unsigned and undated franchise agreement between the respondent and Fraser. Further oral terms are agreed between the parties, but the respondent denies that there was an oral term "(t)hat it was a matter for the Applicant when the franchise was purchased, but it need not be until the operation was profitable" and further denies that there was an oral term "(t)hat the Gold Coast operation would recover the client base from Fraser by action by the Respondent and/or Nashua Australia Limited". The respondent asserts that there was an additional oral term, namely "the Applicant was prohibited from selling on his own account Nashua brand photocopiers but was entitled to retain non-Nashua brand photocopiers traded in by customers as his own property for sale or use".
As to the time at which the option to purchase the franchise might be exercised by the applicant, the statement of claim says, somewhat disjointedly:

" Insofar as the terms may require to be implied relative to time for exercise of the option to purchase the franchise, which is not admitted, the time is a reasonable time but not until the Gold Coast operation was profitable and the parties agreed at the discussions in January and February, 1989 that it was expected the Applicant would manage the branch for 3 to 5 years. "

The case for the respondent concerning the proposed franchise is that in the letter of appointment of 15 February 1989 the following was provided:

" FRANCHISE: If you wish to buy the business as a franchise you may do so at any time. Terms will be negotiated at that time. "

The respondent says that in the absence of agreed terms to any such acquisition, that provision does not constitute an enforceable option to purchase the franchise, and is void as being uncertain.

Mr Carter's first association with the respondent was in late 1984 or early 1985 when he was appointed as sales manager for the northern suburbs of Brisbane for the respondent. The respondent has the right to supply and is involved in supplying Nashua brand photocopiers, facsimiles and related products throughout the Brisbane and Gold Coast areas under a franchise agreement with Nashua. Mr Carter left that employment and was subsequently employed by Hunter Douglas and then Adler. In about September 1987, Mr Carter commenced employment with Nashua, working from an office which was next door to Mr Layton. He recommenced employment with the respondent in March 1989.
The respondent carries on the businesses of "Nashua Brisbane" and "Nashua Gold Coast". The respondent's business commenced in 1976 when it entered a franchise agreement with Nashua in respect of the Brisbane area. That franchise has been extended several times. The respondent is a trading corporation and it is not in issue that in the events with which these proceedings are concerned, it was acting in trade or commerce.
In 1981 the respondent was granted the franchise for the Gold Coast area and that business was carried on by the respondent as a branch office between 1981 and 1985. On 1 March 1985, the respondent entered a sub-franchise agreement with Fraser in respect of the Gold Coast operation. On 22 December 1988, Mr Layton was informed that Fraser wished to terminate the sub-franchise at the Gold Coast and Mr Layton made inquiries with his own sales persons and employees of Nashua as to a suitable replacement.
Mr Carter had discussed the Gold Coast operation with various sales personnel from the respondent's business and was subsequently personally approached by Mr Layton in late 1988. Mr Carter had seen a document provided by Fraser which showed that there were only thirty or forty machines on the Gold Coast service list. He had also ascertained that Mr Layton wanted $80,000 for the sub-franchise. When Mr Layton offered Mr Carter the sub-franchise, Mr Carter says that his response was that it was ridiculous for anyone to take over the operation as a franchise because the service base was far too small for anyone to be able to make a living out of it. Mr Carter was clearly aware of the difficulties caused by the depleted client base, and the need for that to be addressed if profitability of the Gold Coast operation was to be restored.
There were further discussions in January 1989. Mr Layton indicated that he had offered the sub-franchise to his salespersons in Brisbane, but they had all declined the offer. Mr Carter was the first person who expressed interest in being involved with the Gold Coast operation.
Mr Carter indicated that he was not interested in purchasing the Gold Coast sub-franchise and Mr Layton offered to employ Mr Carter as the manager of the branch, with an option to purchase the sub-franchise in the future. Discussions then took place concerning the terms of employment and of the option.
During the discussions, Mr Carter was shown an unexecuted franchise agreement between Geoff Layton and Co. Pty Ltd ("Geoff Layton and Co.") and Fraser and Archibald Hugh Fraser and Leanne Margaret Fraser. This document was expressed to be a standard agreement and it was indicated that the terms of that document would be part of the agreement should Mr Carter decide to purchase the sub-franchise.
Against certain parts of that document, Mr Carter placed notations and there were further discussions concerning the areas marked. On page 31 of the unexecuted agreement appears a hand-written notation: "Is the agreement with Archie Terminated?" Mr Carter explained that he did not want to accept the position on the Gold Coast as branch manager with the option to purchase the sub-franchise if Mr Fraser had an agreement which had not been terminated. According to Mr Carter, Mr Layton said that the agreement had been terminated. Mr Carter discussed several other concerns with the franchise agreement with Mr Layton.
It was eventually agreed that Mr Carter would run the business as a branch manager employed by the respondent, and I am satisfied that there was an imprecise understanding about an option to purchase the franchise. According to Mr Carter, it was agreed that the business would initially be run as a branch, but when the branch was running profitably he would have the option to take it over as a franchise or to continue to run it as an employee. According to Mr Carter, Mr Layton said that he did not really care whether or not he ran it as a branch or a franchise because either way both of them would be making money. Mr Layton admits that he told Mr Carter that he could purchase the franchise when he wanted to but denies that he agreed that Geoff Layton and Co. would bear losses regardless of magnitude until Mr Carter elected to purchase the franchise.
In the events that happened, the Gold Coast operations for the period 1 July 1989 to 30 June 1990 sustained a loss to the respondent of $141,321, and during that period monthly sales averaged less than $24,000. In May 1990 and June 1990, the respondent offered an agency agreement concerning the Gold Coast operations to Mr Carter which offer was refused. It is common ground that a letter of 14 June 1990 from the respondent to the applicant terminated the applicant's employment with the respondent. The applicant claims that the respondent was not entitled to terminate his employment. The respondent denies that the termination was wrongful. It was submitted by the respondent that it was entitled to terminate Mr. Carter's employment because he was in breach of the alleged term of his employment contract concerning the sale of second hand Nashua products.
Mr Layton denies that he told Mr Carter that it would be a long term proposition rebuilding Nashua's goodwill on the Gold Coast as alleged in the statement of claim. Mr Carter did not give any evidence that this representation was made. The circumstance of its being pleaded, however, sits uncomfortably with the applicant's case that he had been assured that the Fraser client base would be promptly recovered.
Mr Carter alleges that Mr Layton said that because of the amount of money the applicant could be making by running it as a franchise rather than managing a branch, he would want to purchase it. Mr Layton admits that he said that Mr Carter would want to purchase the franchise because it would be profitable.
The admitted oral terms of the employment agreement included that Mr Carter would be supplied with a Tarago van; that in the event of the business being taken over as a franchise, the franchise fee would only be payable for machinery and service, not paper; that in the event of the franchise being granted, it would be acceptable to sell products other than Nashua products so long as they were not competing with Nashua products and that in the event of the franchise being granted, Mr Carter would not be required to pay a fee for the use of the business name.
Mr Layton denies that there was any set period within which the franchise was to be purchased. In the unexecuted franchise agreement referred to earlier, paragraph (c) on page 2 read:

"'Commencement Date' means the date set out in Part B of the Second Schedule."

Mr Carter said that he was to specify the commencement date of the franchise. Mr Carter said that the terms of the agreement had not been discussed in detail, but in general franchise terms were for five years with an option for a further five years or for three years with an option for a further three years. A number of other terms of any franchise agreement to be executed in the future were left unresolved. The unexecuted franchise agreement required certain guarantees and the identity of the potential guarantors does not appear to have been discussed. The unexecuted franchise agreement also defined "Reserved Customers" to be:

"... the customers (or potential customers) specified in Part E of the Second Schedule or agreed upon in writing by Nashua and the Franchisee from time to time."

Mr Carter said that the list of reserved customers would change from time to time. There does not appear to have been any discussions as to who the reserved customers might be.

Of major concern in these proceedings are the discussions between Mr Carter and Mr Layton concerning the client base of the Gold Coast operation.
A sub-franchise agreement in writing between Fraser and the respondent had been executed on 23 July 1985. The sub-franchise agreement was in the standard form of agreement prepared by Nashua, with the appropriate amendments to suit the circumstances. The respondent did not obtain legal advice prior to the agreement being executed. Subsequently, its solicitors, Hopgood and Ganim, advised the respondent of concerns in relation to stamp duty and sales tax implications of the agreement. In consequence, a fresh agreement was prepared and certain provisions of the agreement were deleted and one further clause added.
The fresh agreement was presented to Mr Fraser for his consideration and execution and subsequently the respondent and Fraser dealt on the basis of the fresh agreement. It appears that Mr Fraser did not ever execute that agreement. Management fees were charged in accordance with those stipulated in the fresh agreement and Fraser commenced to pay a fee of $6,000 per month for the use of the business name as stipulated in the new agreement.
In about December 1987, Mr Layton became aware that service contracts with customers were being entered into in the name of Fraser, rather than in the name of the respondent and in fact that about 80% of the service contracts had been transferred to Fraser. Mr Layton said that he did not become concerned about that fact because under the fresh agreement he believed those contracts `belonged' to Geoff Layton and Co. in any event.
On 26 October 1988, Mr Layton wrote to Hopgood and Ganim indicating that he may wish to terminate the sub-franchise because of various circumstances, including Fraser's refusal to sign a sub-franchise agreement. He sought legal advice in view of the fact that there was no written agreement. Hopgood and Ganim replied on 19 December 1988, advising, inter alia, that the written agreement may be binding notwithstanding that it had not been signed.
On 22 December 1988, Mr Fraser attended Mr Layton's office and indicated that he wanted to terminate the sub-franchise. On 19 January 1989, Mr Fraser informed Mr Layton that he was attempting to sell the business, but had not been able to locate a buyer. Mr Layton informed him there was little to be gained by the sale of the business because all the customers under service contracts belonged to Geoff Layton and Co. According to Mr Layton, Mr Fraser did not disagree with this.
By letter to Mr Fraser dated 19 January 1989, Mr Layton indicated that his company would take over the operation of the franchise from 1 February 1989 and made demand for certain amounts which were owing to Geoff Layton and Co. The letter also said:

"As the business belongs to us we would expect all service and meter billing records on customers to be available on or before the takeover date."

A letter dated 3 February 1989 from Hopgood and Ganim to Fraser requested copies of the relevant service contracts with customers of the Gold Coast operation.
Greg Kelly and Company, solicitors, wrote to Hopgood and Ganim on behalf of Fraser on 9 February 1989. That letter provided, in part:

" We have not taken full instructions from our client at this stage, but our preliminary discussions indicate that there may have been some sort of contractual arrangement between the parties whereby our client acted as an agent for your client who had the Nashua Franchise. Our client then conducted business on an amicable basis for a considerable length of time, before your client submitted a 'Franchise Agreement' to our client for his consideration. Our client was not agreeable to the terms and conditions contained in the 'Franchise Agreement', and rejected your client's offer.

We refer to the telephone attendance between our offices, at which time Mr Kelly of our offices was advised that your client appears to be relying upon this rejected and unsigned agreement, to enforce certain rights contained in such agreement. Your client is well aware that our client declined to enter into the 'Franchise Agreement' as such agreement was not suitable for the conduct of our client's business. At the time that our client formed a contractual relationship, our client was not even aware as to what terms and conditions were contained in the 'Franchise Agreement'. We feel that it is important that you clarify with your client the terms and conditions of a original agreement between the parties."

On 15 February Hopgood and Ganim wrote to Geoff Layton and Co. enclosing a copy of the letter from Greg Kelly and Company. Hopgood and Ganim said:

" In relation to the Solicitor's contentions as to the basis of the arrangement between yourselves, we are of the view that there is some force in these contentions. If the conduct of Archie Fraser Pty. Ltd. is consistent with some alternative agreement then that alternative agreement must be considered."

On 15 February, Geoff Layton and Co. sent a letter to Mr Carter with details of the terms of his employment.
In a telephone discussion between Mr Layton and Mr Gavin O'Sullivan of Hopgood and Ganim on 16 February, Mr O'Sullivan reiterated his concerns as to the basis of the arrangement which existed between the parties and said that it would be difficult successfully to claim the recovery of service contracts without the fresh sub-franchise agreement having been executed.
Mr Layton said that as a result of the advice he received, he decided not to pursue legal action against Fraser in respect of the service contracts because of the time and expense involved. He said that prior to receiving that advice, it was always his intention to litigate to recover the client base.
Mr Layton said that he spoke to Mr Carter and a Mr Peter McCluskey, an employee of the respondent, shortly after receiving that advice and told them: "Listen, there's not much chance we're going to get - recover these service contracts by legal action." Mr Layton said that he gave Mr Carter that information because otherwise Mr Carter would not be able to do his job properly at the Gold Coast. Mr Carter denies being told shortly after 15 February 1989 that legal action in respect of the service contracts was not going to occur, or was unlikely to proceed. Mr McCluskey was not called by either party.
Correspondence flowed between the two firms of solicitors concerning both the amounts said to be owing by Fraser and the existence of the franchise relationship. In my opinion, that correspondence is not consistent with a definite decision on the part of Mr Layton to forego legal action in respect of the service contracts. In that correspondence Hopgood and Ganim continued to press matters concerning the franchise relationship. For example, in a letter of 9 March 1989, Hopgood and Ganim enclosed an extract from the records of Fraser, which had been given to the solicitors by Mr Layton, in which Fraser resolved to approve and execute a franchise agreement on 12 June 1985, and asked for a copy of the franchise agreement referred to. Mr Layton said that they were "clutching at straws" and that if they were able to obtain a copy of the signed franchise agreement, then the position might have been different. A letter from Hopgood and Ganim to Geoff Layton and Co. dated 12 April 1989 confirms Mr Layton's instructions not to proceed in relation to the rental agreements. That letter relevantly stated:

"We also confirm you (sic) instructions that you do not wish to proceed in relation to the rental agreements at this stage because of the difficulties in establishing who, if anyone, has right against the Defendant in respect of same."

The qualified nature of the instructions is not consistent with a firm decision in mid-February not to take legal action in respect of the service agreements.

In about April 1989, Mr Layton became aware that Fraser had sold its business, together with the relevant service contracts, to a company called D.B.E. Australia Limited. That company now employs Mr Fraser.
By a plaint dated 7 April 1989 presented in the District Court in Brisbane, proceedings were commenced against Fraser for the moneys for which demand had earlier been made. The matter was settled in May 1989 when terms of settlement were executed on behalf of the parties to the proceedings.
Clause 5 of those terms of settlement provided:

" The Plaintiff and the Defendant their transferees and assigns hereby forever release and discharge the other from all future claims, suits, actions or demands arising out of or incidental to the commercial relationship which existed between the Plaintiff and the Defendant and which gave rise to the claims, the subject of these proceedings. "

Mr Layton said that in about August 1989, the original executed sub-franchise agreement was found when an employee of Geoff Layton and Co. was throwing out old files. Mr Layton said that he recalled that he had filed that agreement away in a box with other papers, never expecting or intending to rely on that agreement again and it was only by chance that the document came to light. He took further advice from Hopgood and Ganim and in a letter dated 28 August 1989 they advised that clause 5 of the terms of settlement was likely to preclude any claim by the respondent in respect of the return of the maintenance service contracts. It appears to me that even as late as 28 August 1989, Mr Layton was still exploring the possibility of legal action against Fraser in respect of those contracts.
The discussions between Mr Carter and Mr Layton included discussion about the client base which had been `poached' by Fraser and the location of those machines. The evidence as to the content of these discussions in relation to the client base is not extensive. Mr Carter said that he had assumed that there were in the vicinity of 250 to 300 photocopiers which had been sold in the Gold Coast area by Mr Fraser. Mr Carter was asked:
"...did you discuss that with Mr Layton?---

Yes, I did.

Tell us about that discussion?---Well, my discussion relating to that was that base would obviously make the branch quite a profitable operation, because the service revenue from that base would cover overheads, service technician, rent, etcetera, and that because those - there was an agreement between Ricoh Japan and Nashua Australia and DBE Australia, that neither could service the other's machines, that it was obvious that we would get that base back. Therefore, as soon as that came back, we would be a very good branch, and if that happened in six months to 12 months, then maybe I would take it as a franchise. If it took a bit longer, then I would take it as a franchise, but once that base was re-acquired, which Nashua had informed me they would acquire, as well as Mr Layton had informed me they would acquire---

Well, let's just stick to your discussions with Mr Layton, right?---Sorry, right. That Mr Layton--- In what words did Mr Layton tell you he would acquire that client base?---That action was being taken against Archie Fraser to re-acquire that base.

All right. Now, as distinct from just that theoretical Archie Fraser base, was there any discussion about where the machines were located?---There was no - Mr Layton informed me that Mr Fraser hadn't given him all the documents relating to where the machines were located; that he could try and get that but he didn't know whether or not he could. But he gave me a list which had been handwritten by a technician that used to work on the Gold Coast and I could possibly use that to endeavour to find where the existing machines were.

All right. And was there any discussion about who owned that client base?---Well, its self-evident that - - - No?---I'm sorry?

I want you to tell me the discussion you had with Mr Layton?---The machines belonged to Geoff, as part of his franchise agreement."

It is clear from the context that these statements by Mr Layton, qualified as they were, were made before the letter of appointment dated 15 February 1989. The qualifications are important.

In the discussions as to the client base, Mr Carter later said "... that client base always did and always would belong to Geoff Layton as the franchisee", and, to an enquiry "would he be taking action against Fraser to recover that base, the answer was, you know, most positively yes, because it belonged to him, and it was almost a laydown misere that he would get it".
However, it was also asked of Mr. Carter:

" Did you have any discussions with Mr Layton - now I'm going back before 15 February - about the attitude of Nashua users on the coast to Archie Fraser? "

to which he replied:

" Yes, I did, and Mr Layton informed me that Archie didn't have a very good service reputation on the coast and therefore it wouldn't be too terribly difficult for me to obtain the service base back. "

Mr Carter said that if Mr Layton had come to him on 16 February 1989 and said that the client base may no longer be the property of Geoff Layton and Co., that would have made a difference in his attitude towards the appointment and that he would probably have asked Mr Layton to postpone the decision until such time as he was sure that it was his property.
Mr Carter said that in the discussions it was said that the Gold Coast operation would carry $50-$60,000 in sales per month after it was established and that he would earn $80,000 per year as a result.
In consequence of these discussions, Mr Carter received a letter from Geoff Layton and Co. dated 15 February 1989 confirming details of his appointment. That letter provided as follows:

"This letter will confirm the details of your appointment as Gold Coast Manager for our company.

COMMENCEMENT DATE: 28th March, 1989 but subject to your current employers wishes.

SALARY: $42,000 p.a.

COMMISSION:

(a) On sales made by you, 50% of the difference between a bottom line and the selling price after franchise fee (6%) for copiers, 40% for faxes.

(b) Any salesmen employed by you, 45% of the figure as calculated in (a).

(c) Total Commission earned will be reduced by $3,500.00 each month on a cumulative basis. 100 CLUB: You and/or your salesmen will qualify for the annual sales prize. I believe budget should be $60,000 per month including faxes. However, you must achieve 90% of total budget with copiers.

MOTOR VEHICLE: A vehicle will be made available for company use during business hours and your personal use after hours. It was agreed that a van or station wagon should be acquired. Running expenses will be met by the company. REMOVAL EXPENSES: The company would meet reasonable expenses for your transfer.

FRANCHISE: If you wish to buy the business as a franchise you may do so at any time. Terms will be negotiated at that time.

OTHER EQUIPMENT: If you decide to take the business over you have my permission to sell other office equipment provided similar such equipment is not sold by Nashua. In the future users of this other equipment will remain your property if you wish to leave the business. I trust this covers the main points of our discussion. I would take this opportunity to thank you for accepting my offer and I have no doubt that you will be very successful on the Coast."

Shortly after he received that letter, Mr Carter undertook a final trip around Australia on behalf of Nashua. Either before he went or after he returned, he had further discussions with Mr Layton and matters of concern to Mr Carter were clarified in writing by letters from Geoff Layton and Co. dated 24 February 1989 and 8 March 1989. It is unnecessary to set out the contents of those letters.
Mr Carter gave evidence that apart from the written terms contained in those documents, it was an unwritten term that he would not purchase the franchise until such time, whether that was in the short term or long term, that the business was running profitably. He said that he "wouldn't be interested in taking the franchise over if it was a loser".
Mr Carter commenced employment at the Gold Coast on about 1 March 1989, but was paid by Nashua until 1 April 1989, after which time he was paid by Geoff Layton and Co. Mr Carter found premises at Burleigh Heads which were leased for $16,000 per annum and recruited a technician and a receptionist. He said that he would not have set up such an office for the existing service base, as that service base could easily have been serviced from the Brisbane operation. It would not have been necessary, either, to employ a secretary. Mr Carter said that for that service base he would probably have hired a small showroom to put copiers in and would have worked from his home. He said that that operation was set up to cope with a couple of hundred machines.
Mr Carter said that he received approval from Mr Layton prior to hiring the technician and receptionist and prior to leasing the premises.
Mr Carter circulated a document to various Nashua users on the Gold Coast to attempt to recover the lost service base. Mr Carter also made personal visits to Nashua users on the Gold Coast. These attempts were generally unsuccessful and in fact Mr Carter did not recover any of the big machines, which were the most financially lucrative photocopiers. The response of clients was that there was no reason for them to change from Fraser to Geoff Layton and Co. They had been with Fraser for three years, knew the technicians, the service was good, the price was right and Fraser was the agent for Ricoh, and could get the Ricoh parts before Geoff Layton and Co. could, because Fraser traded as "Ricoh Gold Coast".
A campaign by correspondence occurred between Fraser and Geoff Layton and Co. At one point, Mr Carter asked Nashua to assist in recovering the client base and Nashua sent about 100 copies of a letter to Mr Carter for distribution. That letter, dated 25 May 1989, on Nashua Australia Pty Limited letterhead and signed by the Marketing Director, stated that "Nashua's only authorised distributor in the (Gold Coast) area is Geoff Layton and Company Pty Limited". A letter dated 23 May 1989 was sent by Nashua's solicitors to the manager of Ricoh Gold Coast, alleging that Ricoh Gold Coast had sent letters to users of Nashua photocopiers and facsimile machines which contained a representation that Nashua Brisbane was not authorised to service Nashua photocopiers in Queensland. The letter required them to refrain from making any such misrepresentation.
Mr Carter said that throughout this period he proceeded on the assumption that he would ultimately recover the client base. As a salesman, he proceeded very aggressively to attempt to get Nashua users to switch to Nashua Gold Coast.
Mr Carter says that, having commenced on the Gold Coast, he set about trying to break into the market and get back some clients and build the business up. He said:

" My instructions on arriving there was to go hell for leather and try and go out and dig up a service base, yes, because I had a full time tech. with nothing to do. "

On 21 August 1989, a letter was sent from Greg Kelly and Company, solicitors, acting on behalf of Fraser to the respondent. Attached to that letter was a letter which Mr Carter had sent to Inge Brothers dated 8 August 1989. That letter stated:

" Hi there, now that Archie Fraser/Ricoh Gold Coast no longer exists, now that they've sold out to D.B.E., now that you no longer have a valid copier contract, (if you ever did), would not now be the right time to change your service to the only authorized Nashua Dealer on the Gold Coast.

Please ring me should you wish to discuss a change in the right direction."

The letter was signed by the applicant.

Mr Carter said that it was his understanding that Mr Fraser had sold his Ricoh Gold Coast Branch to D.B.E. Limited at that stage. The letter from Greg Kelly and Company said in part:

" We refer to previous correspondence in this matter, and note our advices to you that our client is of the opinion that all matters between Archie Fraser and Geoff Layton have now been settled, hopefully on an amicable basis. Our client is astounded to note that you appear to desire an ongoing battle for supremacy on the Gold Coast. Archie Fraser, as Manager for DBE, naturally maintains an interest in the Gold Coast Branch. Our client finds your letter both childish and offensive, not to mention untruthful."

Mr Carter said in evidence that at the time he wrote the letter of 8 August 1989, he did not have any idea that there was a problem about recovering the client base. He says that Mr Layton had not said anything to him to suggest that he was not going to recover the client base. On the other hand, the evidence suggests that there was no complaint to Mr Layton concerning the absence of legal action in respect of the client base, or that Mr Carter made any enquiry of Mr Layton in that regard.
Hopgood and Ganim replied by a letter dated 28 August 1989 to Greg Kelly and Company. That letter provided as follows:

" As you are aware we act as Solicitors for Geoff Layton and Co Pty Ltd and we have to hand your letter to our client of the 1st August 1989. We respond as follows:-

1. Our client has now located a signed Franchise Agreement (contrary to the allegations deposed to in paragraph 2 of Mr Fraser's affidavit of the 19th May 1989) and we enclose a copy of that agreement.

2. Clause 13.04 (e) of that agreement provides for your client to transfer the maintenance service contracts (the "copier contracts") to our client should it so elect. Our client reserves its rights in this regard and does not admit that your client has the right to carry on or to assign the said contracts.

3. Our client understands that your client is no longer trading and that his business is being carried on by DBE. You yourselves have indicated that Mr Fraser is a manager for DBE.

4. For the above reasons we do not accept that our client's letter is untruthful.

5. Notwithstanding the above Mr Layton has indicated that the letter enclosed in your letter was send (sic) without his knowledge and that no further letters of such a nature shall be sent."

Mr Carter said that he got in touch with Mr Layton and asked what his position was if he continued to pursue the service base in the way in which he was pursuing it. He said that he was informed that he could not actively pursue the service base as he had been doing, but that he could just continue to sell photocopiers. Mr Carter said that his response was that:

" I said that we were in trouble, that something would now have to be done. If we weren't going to get the service base as such, we were going to have to try and start selling a lot more copies and there had to be some marketing proposals, plans, projects, whatever it is put forward now to try and get the Gold Coast up and viable if the service base is not there."

Mr Carter said that it was that dispute, starting with his letter to Inge Brothers of 8 August 1989, which was the point at which he could identify having become aware that there was a problem about recovery of the client base.

Mr Carter said that Mr Layton at that time disclosed that he had settled his dispute with Fraser, but did not tell Mr Carter on what terms he had settled.
Mr Carter was asked whether it would have made any difference to his attitude towards the appointment if Mr Layton had told him on 16 February, the day after Mr Layton received the letter from Hopgood and Ganim advising that there was force in the contentions of Fraser, that he was not going to take any legal action to recover the client base. Mr Carter's reply was "Absolutely; I would not have resigned. There was - I wouldn't have gone. I had too good a position where I was to take the chance of going somewhere where in my opinion it was not viable; it didn't become anymore viable that day than it was when I accepted the position."

Mr Layton admitted that he told Mr Carter initially in the discussions that he would be taking legal action to recover the service contracts, but said that within a few days of 16 February 1989 he told Mr Carter that no legal action would be taken. He had considered that the terms of the fresh sub-franchise agreement entitled his company to the service contracts. Mr Layton said that that position changed when he received the letter of 15 February 1989 from Hopgood and Ganim and had the subsequent telephone conversation with Mr O'Sullivan. He said that Mr O'Sullivan emphasised that Geoff Layton and Co. would be better off just trying to recover the debt owed by Fraser.
Mr Layton said that he spoke to Mr Carter and Mr McCluskey:-

"...because they were the two people directly involved in this and said: `Listen, there's not much chance we're going to get - recover these service contracts by legal action,' because if Carter hadn't known that he couldn't go down the coast and do his job properly. "

In response to the question -

" Did you say anything else about how you would attempt, or how you thought you would attempt obtain these service contracts, or how the three of you should? "

he said:

" Well, we'd - we agreed that by and large we would now have to go down there and through a marketing exercise or just by running our own business the way that we normally run it to go back and go and approach all these people, which was what Carter was supposed to do, and get as many of them back as we can - as we could. "

Mr Layton said that between 16 February and 9 March:

"...we'd basically been put in the situation where we looked like we were not going to get these agreements back by legal action, ..."

and counsel for the applicant put to him that at about 12 April:

"...you really weren't in a position to know whether you had a recoverable client base or not in terms of whatever the law might ultimately find was the agreements subsisting? "

to which Mr. Layton replied, "Sure."

Mr Derek Bremer was called by the respondent. I regard him as an important witness, whose evidence I accept. In 1989 and 1990 Mr Bremer was employed by Nashua as a divisional manager, wholesale and export, which involved sales. Mr Bremer was Mr Carter's direct superior prior to March 1989, when Mr Carter was employed by Nashua. Mr Bremer said he attended a training course in Bundaberg in March 1989 and had a conversation with Mr Carter at that time. Mr Carter informed Mr Bremer that he was resigning to take up the position with Geoff Layton managing the Gold Coast office. Mr Bremer said that he asked Mr Carter: "Do you know what you're letting yourself in for? Are you fully aware of the situation there? Do you understand the mess the Gold Coast is in?"
Mr Bremer said that Mr Carter indicated that he was confident that he could cope with the situation and use his selling skills to overcome the problems. Mr Carter gave Mr Bremer a written resignation on the same day.
Mr Bremer said that it was his responsibility to achieve sales budgets nationally and in that context spoke to Mr Carter frequently by telephone and visited the Gold Coast on 7 May 1989 and 27 September 1989. Mr Bremer said at the first meeting they discussed the problems associated with getting the service contracts back and the problems associated with getting new business and new sales. Mr Carter indicated that it was proving harder to get the service contracts back than he had thought. He said that most of the customers in respect of whom the service contracts had been transferred to Fraser did not seem interested in changing and were happy with the situation as it was.
Mr Bremer said at the second meeting he indicated to Mr Carter that it was necessary to concentrate on obtaining new customers because they were not obtaining the sales results that they wanted to achieve on the Gold Coast. Mr Bremer indicated that on the second visit Mr Carter did discuss that he was disappointed that Nashua had not taken legal action. Mr Bremer told Mr Carter that Nashua could not take legal action and the action would have to be taken by Geoff Layton. Mr Bremer said that he thought that Mr Carter may have complained that Geoff Layton and Co. had not taken any legal action to recover the contracts, but did not remember Mr Carter making that complaint on the first visit.
Mr Carter alleges, and Mr Layton admits, that he did say during the discussions that Mr Fraser had provided poor service to his customers and that Mr Carter should find that a number of those customers would want to leave Fraser. Mr Carter said that when he attempted to recover the service base he found that the clients generally considered Mr Fraser's reputation in pretty much the same light as they would anyone else's - some were unhappy, some were quite happy and some were very happy.
Mr Carter said that from August 1989 he proceeded to try to sell photocopiers by canvassing and knocking on doors rather than pursue the customers serviced by Fraser. Mr Carter hired a salesman for two months and he canvassed the north end of the Coast while Mr Carter took the south end of the Coast. He also hired a telephone canvasser. Mr Carter was energetic in his attempts to generate sales, including seeking help from Nashua. Mr Carter wrote to Mr Derek Bremer at Nashua on 18 October making a proposal as to what could be done to increase sales. Mr Bremer agreed to implement some aspects of that proposal.
After January 1990, Mr Carter had discussions with Mr Layton as to the future of the branch. As a result of those discussions, Mr McCluskey, the marketing director for Nashua Brisbane, was put in charge of the sales operations on the Gold Coast, with a view to selling big photocopiers, which were the most profitable machines. Mr McCluskey was unable to penetrate the big machine market. After Mr McCluskey returned to Brisbane, all the staff at the Gold Coast branch, apart from the salesman, were given a wage rise.
Mr Layton raised the possibility of Mr Carter taking over the franchise in the early months of 1990. On 8 May 1990 Mr Layton indicated that he had decided to sell the Gold Coast operation and said that Mr Carter would be given the first option to buy it. On 16 May 1990, there was a further discussion in which Mr Carter says that he told Mr Layton that it was his understanding that he was to run the Gold Coast operation with the Fraser client base, that he could take over the franchise when it was profitable and that Mr Layton had assured him that he would recover the client base by action. Mr Carter says that Mr Layton agreed that it was his opinion that he would get all the machines back from Fraser. He says that Mr Layton also agreed that if he had done so the branch would have been running profitably and that if he had not settled out of court with Fraser he would have been in a position to recover the client base. Mr Carter says that Mr Layton acknowledged that without the client base it was going to be difficult to get the branch profitable in the short term. Mr Carter said that he indicated that he had left an $80,000 a year job in Brisbane to take the position on the Gold Coast expecting the opportunity to be consistent with that type of income and Mr Layton acknowledged that that was true and that he would probably not have considered taking on the branch had he been aware that he was not going to recover the service base from Fraser. Mr Carter says that he put to Mr Layton that the difficulties on the Gold Coast were his fault and Mr Layton admitted that that was so but said that as he had financed the dealings in the last twelve months, he was entitled to sell it if he wanted to. Mr Carter said that he complained that Mr Layton was not giving him the opportunity to carry out the original arrangement and Mr Layton said words to the effect that Mr Carter should put his money where his mouth was. Apparently Mr Layton agreed to look at certain proposals Mr Carter had put to him about seeking assistance from Nashua to obtain market penetration, but maintained that if he could find somebody to take over the branch he would do so. Mr Carter transcribed a tape at his solicitor's office on 17 May as to the content of that discussion.
On 17 May Mr Carter wrote a detailed letter to the respondent which referred, inter alia, to representations:

" ...

(b) That you were taking legal action against Archie Fraser for breach of his Agreement with you and accordingly the Service Agreements serviced by Fraser would revert to the Gold Coast Operation headed by me.

(c) That Nashua Corporation would also be taking action against Archie Fraser.

(d) That once Nashua Gold Coast became a viable financial operation I could purchase same as per your correspondence of 15th February, 1989. I note in your letter of the 15th February, 1989 you state 'If you wish to buy the business as a Franchise you can do so at any time'. No specific time limit was mentioned and the option to purchase was to be left with me. "

The letter referred to the settlement of the dispute with Fraser with the service contracts expected to flow to Nashua Gold Coast not being returned. The letter later said:

" I am now concerned that you have offered to sell me the Gold Coast Franchise and that you have advised me that if I did not wish to purchase the Franchise that you will negotiate a sale with someone else. Further on the 9th May, 1990 Peter McClusky advised me that should I not decide to purchase the Franchise from you he had two 'mates' in Sydney who would be interested. "

And later:

" I recall specifically that you advised you did not care as to whether the Gold Coast Operation was a branch run by you or a Franchise operated by me personally. The Option to Purchase was left to be exercised at my discretion. Your proposed sale therefore comes as a shock. "

After further correspondence Hopgood and Ganim, on behalf of the respondent, replied saying, inter alia:

" We note your client's assertion that he is under no obligation to acquire the business as a franchise until it first becomes financially viable and until that time, the option to purchase vests solely with him. On that basis, your client is alleging that it would be unlawful for our client to sell the business as a franchise to some other person at this time. With respect, such a condition was never agreed and certainly cannot be implied. The term headed `FRANCHISE', referred to in our client's letter to your client of the 15th February, 1989 (`the Franchise Condition'), provides in effect that if your client wishes to buy the business as a franchise, he `may do so at any time'. For that condition to be certain however, your client could not expect to have an unlimited period of time within which to decide whether or not to purchase the business. Even if your client could establish that he was not obliged to do so until the business became financially viable (which is denied), there is no certainty as to when that will occur. "

And later the letter said:

" Although our client does not believe it has any obligation to do so, as a matter of ultra caution, our client again offers the business to your client on the following terms:

(a) Your client takes over the business as a going concern.

(b) Your client will be entitled to all the profits made though he will be liable, inter alia, for the operating expenses.

(c) Our client will provide finance to fund the current levels of the account receivables, inventory and fixed assets.

(d) All those other terms and conditions referred to in our client's letter to your client dated the 8th March, 1989.

This offer remains open for acceptance until 5pm this Friday the 8th June, 1990 and if your client is not prepared to accept that offer, then we give you notice that our client will be selling or otherwise dealing with the business as it pleases. "

On 14 June, a letter of termination was sent to the applicant by the respondent. It stated:

" I wish to advise that your position as Gold Coast Manager is terminated effective from today 14th June 1990. Your entitlement for salary and holiday pay is $4,282.32. In view of the circumstances I have decided that the company will pay you a further two months salary of $7,700.00 and $1,600.00 for two months motor vehicle expenses. I believe this will compensate you for a sufficient period to enable you to find alternative employment. "

The first matter for decision concerns the nature of the understanding concerning the grant of an option to acquire the sub-franchise of the Gold Coast operations and whether that agreement was sufficiently certain to be enforced. As the correspondence just referred to makes plain, Mr Carter says that the choice of when to exercise the option to purchase was a matter for him alone and that it was not competent for the respondent to require him to make a decision concerning acquisition in either May or June of 1990.
The Profit and Loss Account for the period ended 30 June 1990 earlier referred to showed a loss over that period of $141,321. But moreover it shows that for each month in that period the Nashua Gold Coast operation operated at significant loss and the trend for the period April, May and June was one of increasing losses. If the contention of the applicant be right, the respondent was obliged to continue the employment of Mr Carter indefinitely notwithstanding serious financial haemorrhage.
In my view the terms of the so-called option agreement are so uncertain as to make it unenforceable. In this case not only is the commencing date of the franchise uncertain, but the question of guarantors, the question of reserved customers, and the term of the franchise, are all unresolved. Mr Carter himself acknowledged that the term might be five years with a clause for a further five, or it might be three with a clause for another three.
In my opinion, it would not here be possible for the court to fix upon a term in the absence of agreement by the parties; cf. Meehan v. Jones (1982) 149 CLR 571. In my opinion the position is as stated by Gibbs J. in Godecke v. Kirwan (1973) 129 CLR 629 at 645-6:

" It is well established that the parties to a contract may leave terms - even essential terms - to be determined by a third person...In such a case the contract is not bad for uncertainty because if the third person settles the terms the contract will thereby be rendered certain... I should perhaps make it clear that it does not necessarily follow from what I have said that an agreement which left further terms to be settled by one of the parties, rather than by his solicitors, will be treated as a concluded contract. In May and Butcher Pty Ltd v. The King (1934) 2 KB at 21, Viscount Dunedin suggested that a sale of land which left the price to be settled by the buyer himself would be good. With great respect, it seems to me that there would be no binding contract in such a case, which would fall within the principle that 'where words which by themselves constitute a promise are accompanied by words which show that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought".

This is not a case where the parties agree that a term, even an essential term, is to be determined by a third person.
In South Coast Oils (Qld and NSW) Pty Ltd v. Look Enterprises Pty Ltd (1988) 1 Qd R 680, Connolly J. said at 697:

" It was said to be no more than a condition controlling the fixing of a new rent. The clause in question was valid on the footing that the parties may leave terms, even essential terms, to be determined by a third person and that the lessee was therefore entitled to have the machinery set in motion for fixing of the rent."

The second principal matter for decision is the contention by the applicant that it was induced to enter into the employment agreement by the representation by the respondent that it was or would be taking legal action to recover the client base from Fraser; that action would be taken by the respondent to ascertain where machines are located; and that the Fraser client base was the property of the respondent. I am satisfied that representations substantially in terms of those just referred to were made by Mr Layton to Mr Carter prior to 15 February 1989 and I am satisfied that there was at the time of those representations a belief in Mr Layton that the Fraser client base was the property of the respondent in the sense that Mr Fraser had no legal entitlement to assign the benefits of the service contracts from Nashua Gold Coast to Fraser and that Mr Layton intended to pursue legal action to recover the client base from Fraser and that steps would be taken to ascertain the location of the machine service contracts which had been transferred to the name of Fraser.
I do not accept Mr Layton's contention that on or shortly after 16 February he told Mr Carter that a firm decision had been made not to pursue the Fraser client base by legal action or that it was unlikely that recovery by legal action would be achieved. In my opinion the correspondence and dealings between the respondent and its solicitors are inconsistent with that decision having been made. Whether legal action would be taken to recover the client base is not the same as whether the client base would be recovered, but I am satisfied that Mr Layton expected in February and March 1989 that the client base would substantially be recovered. The leasing of premises with Mr Layton's authority in March 1989 with lease payments of $16,000 per year and the employing of a technician and secretary at an annual wages bill of $45,000 is consistent only with that expectation. In my view, it was the expectation of both Mr Layton and Mr Carter, at least until approximately the end of April, that the client base `poached' by Fraser would be recovered. Recovery by legal action was clearly not going to be pursued after the instructions of Mr Layton to Hopgood and Ganim referred to in the letter of 12 April.
The evidence of Mr Bremer in my opinion is evidence that the question of recovery by legal action was not a factor in Mr Carter's decision to accept the offer of employment by Nashua Gold Coast, but rather he had a belief that, one way or another, the former clients could be recovered and that the branch would be able to generate sufficient sales, so that the commission in respect of those sales when added to his base salary would make his possible earnings very attractive and also carry with it the opportunity of negotiating the purchase of a valuable franchise on reasonably generous terms.
I am fortified in that conclusion by the lack of complaint or enquiry by Mr Carter to Mr Layton in the period up until August 1989, and also by his conduct after he became aware that the recovery of former clients, either by legal action or by aggressive salesmanship, was unlikely. He continued his employment with the respondent.
I am satisfied that as at 15 February the statements Mr Layton had made did not amount to misleading and deceptive conduct; there was the genuine intention on the part of the respondent in those respects and the belief expressed in those representations was genuinely held. I am satisfied that as a result of the letter dated 16 February a serious question mark was placed over the likelihood of success in the recovery by legal action of the former client base, but I am not satisfied that then, or in the period immediately thereafter, the intention in respect of legal action was abandoned. While basic fairness might suggest that Mr Layton ought to have been more communicative about the legal proceedings between the respondent and Fraser, I am not satisfied that the representations, which I am satisfied were made in this regard, were misleading and deceptive.
If, contrary to my view, the making of the representations constituted misleading and deceptive conduct, then the question arises as to what, if any, damages flow from that conduct. Prior to entering into the employment contract, Mr Carter was earning a salary of $80,000 gross from Nashua. Given his work history in particular, there is no guarantee that Mr Carter would have remained in that employment indefinitely or for any period that can be identified. At best Mr Carter would be entitled to the difference between his income from Nashua Gold Coast and his previous income for the period from the commencement of his employment until August 1989 (when, at the latest, he became fully aware of the inability to recover the client base) together with an appropriate salary for a period during which he might attempt to secure other employment having resigned from Nashua Gold Coast. At its highest, that would be in my opinion a period of three months.

The final question is the question of the termination of Mr Carter's employment and whether that was wrongful and, if so, to what damages is he entitled in that regard.
The respondent in its defence denies that the termination of Mr Carter's employment by letter of 14 June 1990 was wrongful and asserts that there was a term of the employment agreement that Mr Carter was not able to sell on his own account Nashua brand photocopiers but was entitled to retain non-Nashua brand photocopiers traded in by customers as his own property for sale or use. It was said that in breach of this term Mr Carter sold Nashua brand copiers.
I do not accept that there was in fact any term as claimed and, in my opinion, at no time was Mr Carter in breach of any term of his contract of employment with the respondent. Policy memoranda in the evidence deal only with Nashua trade-ins and have no application to the present matter. It is significant that there is no written document which reflects what Mr Layton claims to have been the respondent's policy for a period in excess of ten years. The view I have of the matter is that the question of breach of the employment agreement by the sale of Nashua products was a shabby device belatedly relied on by Mr Layton in an attempt to justify the termination of Mr Carter's employment.
In my opinion, the respondent was not obliged to maintain the Gold Coast operations in circumstances of continuing and substantial loss. I reject the contention by the applicant that the term of his employment contract with the respondent was to continue at least until such time as the Gold Coast operations became profitable. There is in my view an implied term in that contract that either party could terminate the employment on reasonable notice.
As the correspondence earlier set out indicates, Mr Carter was paid two months' salary in lieu of notice and the question is whether in the circumstances of this employment contract two months should be regarded as reasonable notice. It may be that my thinking on this aspect of the matter has been coloured by the wholly unmeritorious basis for termination belatedly advanced by the respondent to justify a termination on the basis of breach, where in fact no breach had occurred. Having regard to the level of salary and the responsibilities of Mr Carter, I have reached the view that he was entitled to three months' notice. In respect of this aspect of the matter, I think the respondent should pay $4,650, being one half of the total referred to in the letter of termination of 14 June 1990.
The applicant has substantially failed and in particular I reject his contentions under the Trade Practices Act and in contract. On the other hand, the purported basis of termination advanced by the respondent was quite unworthy and in my judgment a small amount is payable by the respondent for the inadequacy of notice on the termination of the applicant's employment.
In all the circumstances I propose to make no order as to costs.

[1992] FCA 276

13 MARCH 1992