Higgins v Thermomix in Australia Pty Ltd [No 2] - [2017] WADC 101

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HIGGINS -v- THERMOMIX IN AUSTRALIA PTY LTD [No 2] [2017] WADC 101

CORAM: BOWDEN DCJ

HEARD: 8-11 & 16 MAY 2017

DELIVERED : 11 AUGUST 2017

FILE NO/S: CIV 2165 of 2014

BETWEEN: ELISABETH HIGGINS
Plaintiff
AND
THERMOMIX IN AUSTRALIA PTY LTD
Defendant

Catchwords:

Misleading or deceptive conduct - Implied terms - Unconscionable conduct - Turns on its own facts

Legislation:

Competition and Consumer Act 2010 (Cth) sch 2 Australian Consumer Law s 18
Fair Trading Act 1987 (WA)
Trade Practices Act 1974 (Cth)

Result:

Plaintiff's claims dismissed
Representation:

Counsel:

Plaintiff: Mr C Slater
Defendant: Mr M N Solomon and Mr T J Palmer

Solicitors:

Plaintiff: Morgan Alteruthemeyer
Defendant: Murfett Legal

Case(s) referred to in judgment(s):

Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) [1993] 1 Lloyd's LR 397
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261
Australian Competition and Consumer Commission v Woolworths Limited [2016] FCA 1472
Australian Securities and Investments Commission v Hellicar [2012] HCA 17
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
BT Australasia Pty Ltd v State of New South Wales (No 7) (1988) 153 ALR 722
Caratti Holdings Co Pty Ltd v Coventry Group Ltd [2014] WASC 403
Central Exchange Ltd v Anaconda Nickle Ltd [2002] WASCA 94; (2002) 26 WAR 33
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75
Council of the City of Sydney v Goldspar Australia Pty Limited (2006) 230 ALR 437; [2006] FCA 472
FLSmidth Pty Ltd v Duro Felguera Australia Pty Ltd [2016] WASC 191
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285
Henville v Walker [2001] HCA 52
Jones v Dunkel (1959) 101 CLR 298
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
Meates v Attorney-General (Customs Department)[1981] 2 NZLR 335
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10
Police (SA) v Kyriacou (2009) 193 A Crim R 490
R v Sutton (2008) 187 A Crim R 231
Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R 104
Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd (1993) 41 FCR 229
Sellars v Adelaide Petroleum N.L. [1994] HCA 4; (1994) 179 CLR 332
Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79
Service Station Association Limited v Berg Bennett & Associates Pty Limited [1993] FCA 638; (1993) 45 FCR 84
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 22; (2010) 41 WAR 318
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Limited (1977) 16 ALR 23
The Commonwealth of Australia v Amann Aviation Pty Limited (1992) 174 CLR 64
Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd (Unreported, WASC, Library No 990187, 16 April 1999)
Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd [2012] WASCA 165; (2012) 268 FLR 433

BOWDEN DCJ:

A brief introduction

Thermomix kitchen appliances are manufactured in Germany and distributed in Western Australia by the defendant Thermomix in Australia (Thermomix).
Thermomix distributes its products through direct sales to the public by independent contract salespersons (consultants). Each consultant is assigned to a team headed by a 'group leader' and each group leader operates within a designated geographical area. The group leader is chosen and trained by Thermomix.
A consultant can sell Thermomix products in any area they choose, however they are assigned to a group leader who is the designated group leader for the geographical area within which the consultant resides.
The group leader's remuneration includes commission on sales made by the consultants within their group and commission from their own sales.
In January 2007 Mrs Higgins was appointed a Thermomix consultant. In August 2009 she became a group leader. Thermomix assigned a designated geographical area to her. On 1 April 2014 Thermomix terminated Mrs Higgins group leader agreement.

The legal basis of the claim

The legal basis of Mrs Higgins' claims is that she alleges Thermomix by transferring consultants from her group and changing the geographical area in which she could operate, engaged in misleading or deceptive conduct contrary to the Trade Practices Act 1974 (Cth) (TPA) and s 10 of the Fair Trading Act 1987 (WA) (FTA) and s 18 of the Australian Consumer Law, being sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL).
Mrs Higgins says that she was induced to enter the group leader agreement by Thermomix representations (the transfer representation) that without her consent consultants would not be transferred from her group nor would her geographical area be changed.
Further, she alleges that it was an implied term of the group leader agreement that no consultants would be transferred from her team without her consent, and that the geographical area initially allocated to her would not be altered without her consent, and says Thermomix breached those implied terms.
In addition, Mrs Higgins claims Thermomix engaged in unconscionable conduct by transferring consultants without her consent and by reducing the size of her geographical area and terminating her group leader agreement.
She claims damages of loss of the $297,407 commissions she would have received from the consultants who had been located at any time from April 2008 to April 2014 in the initial geographical area assigned to her.
Mrs Higgins does not claim commission from consultants sales made after a consultant transferred out of her initial geographical area and was assigned a group leader in the geographical area to which the consultant had moved. Nor does she claim commissions for sales by consultants who lived in a geographical area other than that initially assigned to her who she supervised until a group leader was appointed to the consultant's area, provided those sales were made whilst assigned to that group leader.
In addition she seeks damages of $119,285 for the value of the business she lost when Thermomix terminated her group leader agreement.
Mrs Higgins' claim essentially is that Thermomix could not, without her consent, reduce the initial geographical area assigned to her or transfer consultants who resided in her initial geographical area to other group leaders.
It is not disputed that Thermomix reduced Mrs Higgins' area without her consent. Thermomix say they were entitled to do so.
It is not disputed that Thermomix transferred consultants from Mrs Higgins' area to other group leaders. Although Mrs Higgins signed requests for the transfer of these consultants, she says that does not mean she consented to those transfers. Thermomix say they obtained Mrs Higgins' consent to the transfer of any consultant for whom her consent was required.
There is no dispute that the words which constitute the transfer representation were published by Thermomix. The dispute is over the meaning of the words.

The evidence

Seven witnesses gave evidence and over 2,000 pages of exhibits were received.
Mrs Higgins and Mr O'Hehir, a business broker and valuer gave evidence in the plaintiff's case.
The defendant called Ms Hogan, Mr Rodd, Ms Ashley, Mrs Syme and Mr Dawson an accountant and valuer.
Much of the factual context of the case is not in dispute and is able to be established by objective evidence such as agreements, manuals and contemporaneous emails. On some issues credibility and reliability are important.
Before those issues are dealt with, the evidence can be summarised in a chronology form.

Chronology of events

Mrs Higgins become a Thermomix consultant on 7 February 2007 (exhibit A642) and said she was told in February 2007 that Perth was divided into a two areas, south and north of the river, and was told in May 2007 that Mrs Syme was her group leader.
In late 2007 Mrs Higgins was given the opportunity to become a junior group leader. Mrs Higgins said she was told that consultants residing within the area that would be initially assigned to her ('her area') would be moved into her team once she was appointed a group leader. She said there was no discussion of moving consultants from her team once they had been allocated to her.
Mrs Higgins says she was told that if she recruited people from her area, those recruits would become members of her team and if she recruited people from outside her area, they would become part of the team of the group leader for that area.
Mrs Higgins said that whilst undergoing junior group leader training she was provided both with a group leader manual (exhibits A768 ‑ A860, March 2008 version, hereinafter referred to as the manual) and a group leader manual addendum dated October 2007 (exhibits A756 – A759, hereinafter referred to as the addendum).
Ms Ashley said she created that version of the manual and was involved in the May, August and September 2008 updates. She also prepared the relevant October 2007 addendum. Her evidence was that the addendum was provided to consultants before they commenced group leader training.
Ms Ashley said that from March 2008 the manual included the payments set out in par 1.5.2 (exhibit A780) whereby payments were made to the original group leaders when new group leaders were promoted out of the original group leader's team and appointed group leaders. She said this was aimed at reducing the tension that could result when a promoted new group leader was assigned a new area, which could result in the reduction of the original group leader's area and the payments contemplated by cl 1.5.2 provided some compensation to the original group leader.
On 6 March 2008 Mrs Higgins signed a 'Junior Group Leader Time Limited Contract' (exhibit A861). Ms Ashley's email of 7 March 2008 confirmed that appointment (exhibit A863).
Mrs Higgins said that in April 2008 at a meeting attended by Thermomix's managing director Mrs Mazur, Ms Hogan, Ms Ashley, Mrs Syme and Ms Manfredini a map of the Perth metropolitan area showing the area south of the river divided into two parts was distributed. Mrs Mazur explained that part of the eastern side of Kwinana Freeway to Tonkin highway south would be allocated to her (exhibit A875). Mrs Higgins and Mrs Syme both said this area had been carved out of the area originally assigned to Mrs Syme. Ms Hogan said that when Mrs Higgins was originally allocated her area, Mrs Higgins was 'caretaking' part of the area as it had not been allocated to a new group leader, but she could not specifically recall which area that was nor did she give evidence that Mrs Higgins was advised of that fact.
Mrs Syme said it was 'regularly discussed' that areas allocated to group leaders would need to be reduced. She could not recall the date, place or substance of these discussions and had no record of them.
On 1 June 2008 Ms Ashley reminded Mrs Higgins that as a junior group leader she was responsible for recruiting, managing and leading her own team and that new recruits were in her team and not the original group leader's team (exhibit A865).
On 16 June 2008 Mrs Higgins attended a group leader meeting and was told that Mrs Syme was leaving Thermomix to go overseas.
On 30 June 2008 Mrs Higgins transition from junior group leader to group leader was discussed and those discussions were confirmed in writing by Mrs Mazur and consultants were allocated to Mrs Higgins (exhibit A869).
On 2 September 2008 Ms Ashley said she emailed Mrs Higgins a copy of the team boundaries as at 1 April 2008 which confirmed the initial geographical area (original area) allocated to Mrs Higgins (exhibit A872). The map (exhibit A875) is endorsed '*** all boundaries are guides only and are subject to change *****' and 'Elisabeth Higgins – South East, East of Kwinana Freeway to Tonkin Highway and South to Canning Vale.'
Ms Ashley said it was her practice to remind group leaders that their areas could change, although she did not refer to any specific conversation involving Mrs Higgins.
On 6 October 2008 Ms Ashley advised Mrs Higgins of a meeting where geographical boundaries would be discussed as more teams were starting to be developed within close proximity in the metropolitan areas (exhibit A876).
Mrs Higgins appointment as a group leader was confirmed by email on 5 February 2009 (exhibit A880).
In February 2009 Mrs Higgins said she received a letter from Thermomix stating that the limited agency agreement (Consultancy Agreement) would be changed with effect from 1 March 2009 (exhibits A881 ‑ A882). She says she was not consulted about these changes and it was a take it or leave it proposition.
Mrs Higgins says that on a regular basis she was told by senior members of Thermomix including Mrs Syme, Ms Manfredini, Mrs Mazur and Ms Hogan that Thermomix wished to create teams for junior group leaders and some consultants would be allocated to those junior groups. Mrs Higgins says she was not involved in the process of deciding to create new junior group leaders or allocating consultants to those new leaders. Mrs Higgins said she was simply told this would occur and that those junior group leaders would have their own team and that the original group leader would be paid a certain amount on the sales made by the transferred consultants for a period of three months following the transfers.
In March 2009 the manual was republished with some amendments, however the contentious transfer representation remained the same. Large, medium and small group classifications were introduced for the first time with effect from 1 June 2009 and Mrs Higgins was advised of her team's classification (exhibit A1037).
Ms Ashley said she was involved with others in the development and documentation for the 2009 boundaries which were based on sales strategies, European models and Australian census data and the boundaries gave each group leader an area of approximately 50,000 households.
On 26 March 2009 Ms Ashley advised Mrs Higgins of a meeting at head office the following day to discuss the boundaries and advised Mrs Higgins that she must be aware that the boundaries had been put in place 'this week' by the office and reassured her that the boundaries were conceptually what had been discussed and that each group leader had an area of similar size where possible (exhibit A1009).
On the same day Mrs Higgins responded that she was:
… a bit surprised that new boundaries have been set without prior input or consultation on my behalf ... I can't remember you ever conceptually discussing any boundaries with me (exhibit A1009).
On the same day Ms Ashley emailed Mrs Mazur and Ms Hogan expressing concern about the lack of information provided to Mrs Higgins about the new boundaries (exhibit A1008).
Mrs Higgins said that in April 2009 she attended a meeting and was given a document headed 'Boundaries Document' which included rules and assumptions for creating boundaries (exhibits A1011 ‑ A1017). This indicated that areas were allocated by reference to councils and households and the 2006 census. The document indicated that she was to be allocated South Perth, Victoria Park and Canning (a total of 56,000 households) and in effect had lost the areas of Belmont and Gosnells as another group leader would be appointed to those areas. Mrs Higgins says that at this meeting she asked Ms Ashley how Thermomix had calculated the households and Ms Ashley indicated that they used statistics from the Australian Bureau of Statistics. Mrs Higgins said she was not told who the group leaders would be and only found out later.
Ms Ashley says she vaguely recalls attending a meeting with Mrs Mazur, Ms Manfredini, Mrs Higgins and possibly Ms Hogan during which Mrs Higgins' boundary documentation was discussed. She did not specifically recall the discussion but concedes it may have been on 6 April 2009. She said she did not have any recollection of specifically discussing the boundary document changes with Mrs Higgins, but assumed she had because her email to Mrs Higgins referring to 'boundaries we had discussed'.
Ms Ashley had a vague recollection that after 2009 Mrs Higgins complained she was not consulted about boundary changes. Ms Ashley said her experience was that a lot of time was spent on boundary discussions. She said that as the boundary documents were written and issued, there were meetings and discussions about the changes.
Mrs Higgins said that she discussed the transfer representation clause with Mrs Syme when the first change occurred. This evidence is dealt with in more detail later.
Mrs Syme says that she recalls having discussions with Mrs Higgins about boundary changes while she was a branch manager but did not recall Mrs Higgins ever specifically referring to the transfer representation sections during these discussions.
Mrs Higgins said she was not asked whether these boundary changes should be implemented and was not given any notice of the proposal before the meeting and there were no discussions about the changes. She said she was simply presented with the new structure.
Although the boundary changes were first mooted in April 2009 they took effect at the end of 2009.
On 18 June 2009 Mrs Mazur advised Mrs Higgins of further changes to the boundaries that affected the division of the north and south branches (exhibit A1033).
In August 2009 Mrs Higgins said she was told that Thermomix wanted her to sign a group leader agreement, even though she had been paid as a group leader since February 2009 (exhibit A1039). She had signed the group leader agreement (the agreement) by 18 August 2009 (exhibits A1044 ‑ A1045) but said was not sure of the extent to which she read the agreement. Mrs Higgins said she did not study it before signing.
Mrs Higgins said that by the time she signed the agreement she had learnt that Thermomix were going to fix the boundaries through their head office without consulting her. However, she said she hoped that the boundary change which had previously occurred was just 'one slip up' and would not happen in the future again (ts 124 – 125).
The agreement (exhibits A1044 ‑ A1045) provides as follows.
The group leader would manage the 'activities' of specified consultants in accordance with the group leader manual (cl 1), undertake the various activities, duties and responsibilities as outlined in the group leader manual (cl 3), provide weekly and monthly reports and such other information as Thermomix and the group leader may agree (cl 4), receive commissions as specified in the group leader manual and other incentives (cl 5 and cl 6), that the group leader's appointment will be reviewed from time to time in consultation with the group leader and following such review Thermomix has the right to terminate the agreement or offer the group leader a new agreement (cl 7). The agreement acknowledges that the group leader is an independent contractor in business on their own account and is to pay their own PAYE taxation and that Thermomix is not responsible for workers' compensation or other insurance (cl 8).
Clause 13 provides the group leader may terminate the agreement at any time by giving 14 days written notice to Thermomix.
Clause 14 provides that Thermomix may terminate the agreement for any action by the group leader which in the opinion of Thermomix is not in Thermomix's best interests.
Clause 16 provides that no compensation shall be payable by either party to the other by reason of or as a consequence of termination of the agreement and that any such termination shall be without prejudice to any rights which have already accrued to either of the parties under the agreement.
Clause 18 provides that a reference to the group leader manual refers to the current manual as updated from time to time by Thermomix.
It is Mrs Higgins' case that she signed this agreement in reliance on the transfer representation contained in the manual and addendum that she had been given when undergoing her junior group leader training.

Mrs Higgins said she recalled the manual stated that the agreement was not to be changed without consultation between the parties. She said it was important to her that she be consulted and that her opinion be heard.
Mrs Higgins said there was never any opportunity to be heard and even the idea of a suggestion box was rejected. She said the information flow from Thermomix (or lack of it) meant it was impossible to plan any long-term strategy for her business and she was not able to be proactive but was acting on what Thermomix had decided without consulting with her.
On 28 September 2009 Mrs Higgins emailed Ms Hogan complaining about changes and the lack of certainty. She also stated '… I will be bound by your decisions as always' (exhibit A1062).
Mrs Higgins said that in late September 2009 an issue arose as Mrs Syme had returned from overseas and was commencing as a junior group leader. Three consultants were to be transferred from Mrs Higgins' group to Mrs Syme's group. However Mrs Syme asked that the transfer of two of the consultants be delayed. Mrs Higgins opposed this as the three consultants wished to be transferred together and the effect of two consultants not being transferred was that her group had 17 consultants and was classified as a large group, whereas if it had 15 consultants it would be a medium group and this classification affected the incentives she received. Mrs Higgins requested that her 17 person group be classified as a medium group. Thermomix advised that they could not accommodate that request, however they transferred the two consultants out of Mrs Higgins' group so she could retain her medium group classification (exhibits A1059, A1062, A1065, A1066).
Mrs Higgins said that during 2009 there were six consultants that she was told to transfer to other group leaders. She said she received a phone call from somebody such as Ms Hogan or Mrs Syme saying in effect that the decisions had been made to transfer these consultants and she was to provide the appropriate paperwork.
Mrs Higgins said that by the end of 2009 the April 2008 reallocations had taken effect which meant that she had lost Belmont with 12,000 households and Gosnells of 31,000 households. Mrs Higgins says that the effect of all of this was that the geographical boundaries of her original area had been reduced without her consent and consultants had been transferred from her original area to other group leaders. Although she accepts that she signed the paperwork for the transfers of the consultants, she said that she only did so as she felt pressured and just did as she was asked. Mrs Higgins said she had no choice and was effectively told by Thermomix that it was an administrative requirement that she was to comply with.
In 2010 Mrs Higgins said six consultants were transferred from her group at Thermomix's request. She also recruited and trained Ms Posch who became a junior group leader on 1 October 2010.
Mrs Higgins said that on 15 July 2010 she was informed by Mrs Syme, who was now her branch manager, that her areas were again being adjusted. She received an email with an attachment of the map showing the adjustments (exhibits A1157 - A1158).
Mrs Syme recalled that by this date Mrs Higgins was frequently telling her that she wanted a medium group because that group's goals were achievable. Mrs Syme could not recall details of those conversations and had no record of them. Mrs Syme also recalled that Mrs Higgins was caretaking Gosnells and Canning.
In September 2010, at a group leaders meeting, Mrs Higgins said she was advised that her area was going to be reduced essentially to include only South Perth and Victoria Park, a total household population of 27,332. She received boundary documentation detailing her new boundaries (exhibits A1166 ‑ A1170). These documents were prepared in August 2010 by others without any input from Mrs Higgins and received by her in September 2010.
When Mrs Higgins asked the reason for this change she said she was told by Mrs Syme that Thermomix was restructuring. Mrs Higgins said that she had no opportunity to change the decision and was told it had been made. At the end of 2010 in accordance with that decision, she was told that Canning and half of St James would be transferred to a different group leader (household population of 27,998).
Mrs Syme says she attended a group leader meeting on 10 September 2010 but does not recall what was discussed at the meeting or who attended.
About September 2010 Mrs Higgins signed transfer documentation for consultants who each lived outside her original area to be transferred to a new group leader, Ms Posch, who had been assigned Darwin.
Mrs Higgins said that when Mrs Syme was appointed branch manager in November 2010 she was looking for new group leaders and Mrs Higgins mentioned Kathy Mueller as a potential candidate. Ms Mueller was subsequently promoted to a junior group leader and some of Mrs Higgins' areas (Canning) were given to her. This occurred in about March 2011. Mrs Higgins said Mrs Syme did not tell her that Ms Mueller would be taking part of her area.
Mrs Syme said she had discussions with Mrs Higgins about promoting people out of Mrs Higgins' team to become group leaders but did not specifically recall saying that person would be promoted to the group leader position in Cannington, although she thought she had.
During 2011 Mrs Higgins said she signed transfer forms for consultants to be transferred to Ms Mueller's group at Thermomix's request and transferred eight consultants from her area.
In February 2012 the manual was republished with some amendments, however the transfer representation remained the same.
On 8 January 2012 Mrs Higgins received an email from Mrs Syme (exhibit A1361) in connection with the 2012 yearly planner acknowledging that Mrs Higgins had 'lost some good sellers and that recruitment is the main focus'.
On 9 January 2012 Mrs Higgins emailed Mrs Syme stating that her focus in 2012 was recruiting to get her team size up to 12 and said she did not expect to breakout any consultants as the branch had reach group leader capacity (exhibit A1363).
At an unspecified date in the earlier part of 2012 the small, medium and large group categories were abolished and all groups or teams assigned to a group leader were restricted to 20 consultants. Ms Hogan said these categories were abolished because they hindered Thermomix's growth. She also said that on occasions Thermomix allowed more than 20 consultants per group leader.
Mrs Higgins said about March 2012 she was advised by Mrs Syme that a new system called 'Expanz' was being introduced and would result in changes to her area. Mrs Higgins emailed Mrs Syme on 16 March 2012 with her concerns (exhibit A1365) but said in evidence‑in‑chief that she did not hear anything back as a result of that email. Mrs Higgins' evidence is wrong as Mrs Syme replied by email on the same day (exhibit A1365).
On 2 September 2012 Mrs Higgins said she declined a request to 'care take' the consultants who had been part of Ms Mueller's group before she resigned (exhibits A1505 ‑ A1506).
On 5 September 2012 Mrs Higgins heard from Mrs Syme that the new boundary areas were finalised (exhibit A1507) and learnt she would no longer be in Mrs Syme's branch area. Mrs Higgins said when she expressed concern about these changes Mrs Syme told her to put her concerns in writing.
Mrs Syme said that her use of the words 'new boundaries had been finalised' in exhibit A1507 was a poor choice of words on her behalf and it would have been better if she referred to proposed changes.
On 2 October 2012 Mrs Higgins emailed Ms Manfredini with her concerns about the effect these changes would have on her team as she would be losing part of her area (exhibit A1509). She then sent a follow‑up email on 2 November 2012 (exhibit A1508) noting that her areas had been reduced previously and asking for a 'real' suburb such as East Victoria Park and Carlisle. Ms Manfredini replied on 7 November 2012 that she had 'finalised the number of households in each team today' and she would contact her the following day (exhibit A1508).
Mrs Syme said that whilst exhibit A1509 contained complaints from Mrs Higgins about adjustments to her area and her lack of input, she did not recall Mrs Higgins complaining about those matters to her.
On 13 November 2012 the further boundary changes were announced with each group leader's area having between 20,000 – 30,000 households. Mrs Higgins's boundary included Carlisle.
Mrs Higgins said in her evidence-in-chief that she did not hear from Ms Manfredini until 2 December 2012 when at a group leader meeting she was provided with a boundary document showing her areas had been changed. She said that these changes occurred without any discussion with her.
On 2 December 2012 Mrs Higgins received the boundary documents disclosing the 13 November 2012 boundary changes by an email from Ms Gay. These changes took effect from 1 January 2013 (exhibit A1520).
Mrs Higgins said she sought and was provided with information on household numbers (exhibits A1518, A1519).
Mrs Higgins said that in 2013 one consultant was transferred from her area at Thermomix's request.
Mrs Higgins says that in February 2013 training obligations were altered by Ms Gay announcing group leaders would not be conducting their own training but would all be trained by the branch managers.
Mrs Higgins says that during late 2013 to April 2014 there were several conversations at group or branch meetings where she was told by Ms Manfredini and Ms Gay that she and her consultants had to increase their sales figures.
Ms Hogan said there were meetings on 13 and 29 November 2013 between herself and Ms Manfredini where concerns were expressed about Mrs Higgins' failure to meet growth targets for the number of consultants in her group.
On 25 November 2013 Ms Gay advised Mrs Higgins by email (exhibit A1694) of a meeting on 2 December 2013 which also said there is nothing that Mrs Higgins needed to bring to that meeting. Mrs Higgins said she did not know the purpose of this meeting.
Mrs Higgins went to the meeting with Ms Gay and Ms Manfredini on 2 December 2013. At the meeting Mrs Higgins said she was told that a number of outcomes had to be achieved by February 2014 including adhering to Thermomix's value of trust, respect, excellence and accountability, adhering to all group leader's rules and policies, achieving a net growth in team numbers and specific sales and said she was told that if she did not achieve these outcomes her South Perth area would be allocated to somebody else.
Ms Gay and Ms Manfredini conformation of the matters discussed at that meeting were contained in their emails of 3 December 2012 respectively (exhibits A1696, A1697). Mrs Higgins response is exhibit A1700 whereby she sought clarification of some matters raised at the meeting and pointed out her team's new sales record.
Mrs Higgins attended a further meeting on 16 December 2013 during which the warning confirmed in the email of 18 December 2013 that 'this was a single reminder and any further incidents would mean that the criteria for continuing as a group leader were not being met' was given (exhibit A1707).
Mrs Higgins said she emailed Ms Hogan on 17 January 2014 (exhibits A1938 ‑ A1945) setting out a detailed response to issues raised at the 2 December 2013 meeting and the events subsequently occurring. Mrs Higgins said she was in effect seeking assistance from Ms Hogan. Mr Rodd said that Ms Hogan showed him that correspondence on 20 January 2014 (exhibit A1946) and he discussed the contents with her.
On 21 January 2014 Ms Hogan arranged a meeting between Ms Manfredini, Mrs Higgins and herself for 31 January 2014 (exhibit A1947).
Mrs Higgins responded on 24 January 2014 agreeing to meet on 31 January 2014 and seeking clarification on the targets for new consultants (exhibit A1952).
Mrs Higgins advised Ms Hogan on 27 January 2014 that she was experiencing extreme back pain and her medication made her drowsy and dizzy (exhibit A1962).
On 28 January 2014 Mrs Higgins sought clarification from Ms Hogan about her targets (exhibit A1967) and Ms Hogan provided the clarification on 30 January 2014 (exhibit A1967). Mrs Higgins confirmed that clarification on the same day (exhibits A1966 ‑ A1967) and confirmed that the meeting of 31 January 2014 would proceed by way of a conference call due to Mrs Higgins health.
On 30 January 2014 Ms Hogan said she called Mrs Higgins and clarified targets and advised that Thermomix wanted those targets met.
On 31 January 2014 Ms Hogan offered to reschedule the meeting (exhibit A1966) stating that they would catch up following the group leaders' meeting.
On 31 January 2014 Mrs Higgins said she attended her group leader's meeting and Ms Hogan and Ms Manfredini asked her to join them for a further meeting. Mrs Higgins and Ms Hogan both gave different accounts of where that meeting occurred, however nothing turns on that. What occurred at the meeting was confirmed by Ms Hogan's email of 31 January 2014 (exhibit A1970) in relation to expanding the number of consultants, the activity and sales targets and the possibility of the need for Mrs Higgins to take time off for personal reasons. The timeframe to achieve targets was also extended.
Ms Hogan's evidence was that Mrs Higgins agreed to increase her targets and they discussed meeting those targets and bullying allegations. She agreed that Mrs Higgins had informed her of her back surgery and said her second‑in‑command would be around and her team would attend to various tasks in her absence.
Mrs Higgins' email of 5 February 2014 (exhibits A1979 – A1980) acknowledged the new targets and thanked Ms Hogan for acknowledging that she might need time off due to her back injuries.
On 5 February 2014 Ms Hogan emailed Mr Rodd (exhibit A1985) enclosing Mrs Higgins' email but also stating:
I think we have been more than fair extending (a deadline) to May ... I'm feeling like we should cancel now but given her circumstances and what we have committed to I think it would be fair to continue. She is toxic in the GL team now and of course Belinda is struggling working with her. I want to put this one to bed. (exhibit A1985)
Neither Mr Rodd nor Ms Hogan were cross‑examined in relation to that email.
On 6 February 2014 Mrs Higgins sent by email an absence form to Ms Gay, the form is not an exhibit. The email asked Ms Gay to contact Mrs Higgins' second-in-command in respect to the weekly reports and advises that others in her team were willing to assist with matters in her absence (exhibits A1989 ‑ A1990). Mr Rodd said he prepared a draft response to Mrs Higgins' email of the previous day and forwarded it to Ms Hogan.
On 7 February 2014 Mrs Higgins was hospitalised for a burst disc in her back and underwent surgery. I find she remained in hospital from 7 February 2014 until 10 or 11 February 2014 and was unable to drive for two to three weeks. During this period Mrs Higgins said she experienced severe pain and took strong painkilling medication. Mrs Higgins said she had arranged for her second-in-command to attend meetings on her behalf during this period.
I find that Thermomix were aware of the surgery as evidenced by Ms Gay's email of 7 February 2014 indicating that a caretaker for the next three weeks was looking after Mrs Higgins' area while she was having back surgery and recovery time (exhibit A2004).
On 8 February 2014 Mrs Higgins emailed that her surgery had gone well (exhibit A2004). Ms Hogan replied (exhibit A2005) on 10 February 2014 and confirmed the targets that were required to be met. Ms Hogan's evidence was that she did not expect an immediate response to her email because she understood that Mrs Higgins was still recovering from her surgery.
Mrs Higgins said Ms Hogan's email caused her great distress, particularly the suggestion that Mrs Higgins' business had been run below expectations because until then, Mrs Higgins said she had been told that she was one of the highest performing group leaders and no allowance was made for Thermomix continually reducing her area and removing consultants from her areas without her consent.
Ms Gay noted in an email of 19 February 2014 that Mrs Higgins' last day of planned leave was 28 February 2014 (exhibit A2008).
On 23 February 2014 Ms Gay emailed Mrs Higgins in relation to an expression of interest for a new consultant (exhibit A2009).
On 24 February 2014 Mrs Higgins' second-in-command submitted the weekly report for the week 17 ‑ 23 February 2014 (exhibit A2012).
On 26 February 2014 Ms Gay emailed Mrs Higgins in terms which indicated that Ms Gay was expecting Mrs Higgins to return to work on 1 March 2014 (exhibit A2015).
On 26 February 2014 Mrs Higgins emailed Ms Gay that she would complete the February 2014 end of month report and referred to the potential consultant (exhibit A2015).
On 27 February 2014 Mrs Higgins emailed Ms Gay saying she was glad to have 'two more days to continue to recover' and referred to the potential consultant (exhibits A2020 - A2021).
On 28 February 2014 Mrs Higgins' second-in-command, Ms Banks failed to attend the group leader meeting (exhibit A2031).
Mrs Higgins' evidence was that she resumed her group leader activities on 1 March 2014, although she did not go 'full steam' ahead because she was unable to do so. At that stage she said she was at home and could not drive her car but said she had partly resumed her duties (ts 205).
Mrs Higgins submitted the end of month report for February 2014 on 1 March 2014. Ms Gay acknowledged receipt of that report on 2 March 2014 (exhibit A2020) and advised Mrs Higgins of the equipment the potential new recruit required.
On or about 4 March 2014 Mrs Higgins drafted but did not send a letter of resignation (exhibit A2025) as a group leader. Mrs Higgins said at that stage she was considering all her options.
On 10 March 2014 Ms Gay requested that Mrs Higgins provide the weekly report as soon as possible (exhibit A2026).
Mrs Higgins said that a couple of days before 11 March 2014 she decided that she would not continue her duties as a group leader (ts 206 ‑ 207) and decided to obtain legal advice. She said she could not correspond with Ms Gay any further because Ms Gay was putting pressure on her. Mrs Higgins said she did not know what was happening and she was not responding to anyone from head office. Mrs Higgins agreed that she was not complying with the aspect of her duties requiring her to communicate with head office (ts 230).
On 11 March 2014 Mrs Higgins' lawyers emailed Thermomix referring to the reduction of Mrs Higgins' area and the loss of consultants and the imposition of new targets (exhibit A2027). They also advised that should Thermomix wish to terminate Mrs Higgins' arrangement they needed to put forward a settlement proposal. In addition they requested that all correspondence be directed through their office. Mr Rodd said that on the same day members of Thermomix management met in response to that letter and decided that Thermomix would continue to correspond with Mrs Higgins on operational matters (ts 427 ‑ 429).
On 11 March 2014 Mrs Higgins received an email from Ms Gay expressing her concern that she had not heard from her or received the weekly report (exhibit A2029).
Mrs Higgins weekly reports due on 3, 10 and 17 March 2010 were not forwarded to Thermomix. Mrs Higgins accepts that she failed to provide those reports (ts 279).
On 12 March 2014 Mrs Higgins received an email from Ms Gay (exhibit A2031) with an update on the agreed targets in light of the performance of the team while Mrs Higgins was absent and expressing concerns that she had not heard from Mrs Higgins, that the second‑in‑command failed to attend group leader meetings, that Mrs Higgins or anyone from her team had failed to attend a branch meeting, that weekly reports had not been submitted, that support for the new consultant was lacking and sought confirmation as to how information from the meetings that were not attended was flowing through to the team. Ms Gay also requested Mrs Higgins phone her or arrange a personal meeting. Mr Rodd was provided with a copy of the email by Ms Hogan.

On the same day Mrs Higgins emailed Ms Gay saying her comments were inaccurate and stating that all correspondence should be directed to her lawyer (exhibit A2034).
On 13 March 2014 Mrs Higgins' lawyers emailed Ms Gay and suggested that further correspondence be directed to them (exhibit A2043).
On 18 March 2014 Mrs Higgins failed to attend a group leader training session. Mrs Higgins does not dispute that she did not attend group leader meetings in March 2014 but says that she believed her second‑in‑command Ms Banks attended that particular meeting (ts 236, 278).
On 19 March 2014 Ms Gay emailed Ms Hogan detailing Mrs Higgins' failures (exhibit A2044) and on 21 March 2014 emailed Ms Hogan indicating Mrs Higgins had not completed reports and advised that a caretaker was available to take over Mrs Higgins' team from 1 April 2014 (exhibit A2048).
On 20 March 2014 Thermomix's lawyers responded to Mrs Higgins' lawyers and advised, inter alia, that they rejected her claims and that Thermomix would continue to liaise with Mrs Higgins on all matters as they saw fit (exhibit A2168).
On 21 March 2014 Mrs Higgins received an email from Ms Gay (exhibit A2053) noting her absence from a meeting and asking how she intended to manage new consultants and asking her to confirm that expressions of interest were being followed up and recruiting consultants supported and asking Mrs Higgins to indicate how information would be collected and passed to the consultants.
On 28 March 2014 Ms Hogan emailed Mrs Higgins (exhibit A2059) raising concerns about the lack of communication, failure to attend group leader meetings, failure to provide weekly reports and necessary support for new consultants and requiring a reply by 31 March 2014. Ms Hogan's evidence was that she thought Mrs Higgins was back at work by that date and was just not contacting Thermomix because lawyers were involved. During this period Mr Rodd was advised generally of the correspondence from Mrs Higgins.
On 31 March 2014 Mrs Higgins sent a preliminary end of month report by email which also stated that any further correspondence should be directed to her lawyer (exhibits A2072, A2073). The report showed sales and activities were only 1% less than the target and that the number of consultants was moving towards the May targets. Ms Hogan said she read the report and had no concerns about Mrs Higgins or her consultants' performance against targets as she was progressing. Ms Hogan's evidence was that as the month had not closed Mrs Higgins' actual reported sales would have been even higher. Ms Hogan said what was of concern was that Mrs Higgins was not looking after the team.
On 31 March 2014 at 1.56 pm Ms Hogan emailed Mrs Higgins (exhibits A2068 ‑ A2069) stating that Thermomix did not wish to communicate through a lawyer on 'operational matters' and advising that Mr Rodd wished to have a meeting that afternoon to discuss Mrs Higgins' failure to observe her contractual obligations and urging and inviting Mrs Higgins to attend that meeting and to contact Thermomix by 3.30 pm to confirm her attendance. Mrs Higgins was also advised that the meeting would proceed in her absence.
Mrs Higgins said she did not attend that meeting and only read the email after 3.30 pm (ts 282). Mrs Higgins' evidence in this regard is incorrect as at 2.33 pm on the same date Mrs Higgins' lawyers wrote to Ms Hogan responding to their 1.56 pm email stating that email has been sent to them and they were instructed to respond and indicating a willingness to resolve all matters including any necessary meetings and requested that communications be directed to their office (exhibit A2068).
At 3.18 pm on the same day Mr Rodd responded indicating that he concluded that Mrs Higgins did not wish to discuss operational management with them directly and had declined to meet that afternoon as invited and advising that Thermomix would continue to hold their meeting regarding her failure to observe contractual obligations (exhibit A2067).
On 31 March 2014 Ms Hogan met with Ms Manfredini and then met with Mr Rodd and Mrs Mazur to discuss the position. Mr Rodd prepared an email to Thermomix's lawyers (exhibit A2066) drawing to their attention Mrs Higgins' failure to support consultants, provide reports, attend specific meetings, communicate with her branch or area manager or Thermomix and her unwillingness to engage in discussions about those matters. Mr Rodd advised the lawyers that 'the overwhelming issue is that she is no longer performing in a capacity that promotes the business' and that they had decided that her group leader agreement needed to be terminated forthwith and sought legal advice on how to proceed.
On 31 March 2014 Thermomix's lawyers responded (exhibits A2064 ‑ A2065) and drew Mr Rodd's attention to cl 14 permitting action to be taken if the group leader 'takes action which is not in the best interests of Thermomix' and suggesting 14 days' notice rather than summary termination.
On 31 March 2014 Mr Rodd forwarded a draft email of termination to Thermomix's lawyers, Ms Hogan and Mrs Mazur for their consideration (exhibit A2070).
On 1 April 2014 Mrs Higgins' lawyers sent a request to Mr Rodd for a meeting (exhibit A2079.1). That request was not responded to.
On 1 April Mrs Higgins' group leader agreement was terminated by email (exhibits A2080 – A2082). The termination letter noted that Thermomix had not had any satisfactory response to recent communications and that Mrs Higgins had taken actions that were clearly not in the bests of Thermomix. This was particularised as the failure to support consultants, provide reports, attend specific meetings, respond to communications with the branch or area manager or Thermomix and an unwillingness to engage in discussions around the above despite having been 'reached out to and repeatedly offered support'. The letter also noted that Mrs Higgins had been invited to attend a meeting to explore these issues but had declined to do so. The email advised that it was no longer in the best interests of Thermomix for Mrs Higgins to remain as a group leader and accordingly terminated the agreement with 14 days' notice. Thermomix's email also advised that they did not require Mrs Higgins to carry out her contractual obligations effective as of 1 April 2014.
As a result of the termination of her group leader status, Mrs Higgins' business of managing the consultants in her team effectively ended and with it her ability to earn income from the sales made by those consultants. Mrs Higgins said that her team had 13 consultants when her contract was terminated.
Mr Rodd's evidence was that by 30 June 2014 Mrs Higgins had not completed the requirements of her consultancy and accordingly her consultancy agreement via the limited agent's agreement was terminated on that day (exhibit A2100).
Mrs Higgins agreed that she did not respond to messages or communications from Thermomix's head office after 4 March 2014 (ts 230), specifically agreeing that she did not respond to emails and messages after her lawyer's letter to Thermomix of 11 March 2014 (ts 236). Mrs Higgins readily conceded that she understood her contractual requirement to communicate but said she had received legal advice not to correspond with Thermomix.
Mrs Higgins said she did not continue corresponding with Thermomix even though she knew that emails had been sent to her and efforts had been made by Ms Gay, Ms Hogan and Mr Rodd to contact her because she was too distressed and had received legal advice not to respond and had asked for the correspondence to be directed to her lawyer. Leaving aside her email of 12 March 2014 in which she advised that all correspondence should be through her lawyers (exhibit A2034) and her email of 31 March 2014 by which she sent the preliminary end of month report and stated that further correspondence should be directed to her lawyer (exhibits A2072, A2073), I find as a fact that Mrs Higgins did not respond in substance to the many queries raised by Thermomix during this period.
Mrs Higgins says that she did not consent to any changes to her area, her consent was not asked for and she was simply told that the changes were occurring.
Mrs Higgins says that although she signed the request for transfer forms for the consultants who were transferred out of her area, she did not consent to those transfers.

Credibility of the witnesses

I place considerable importance on the contemporaneous documents existing before litigation was commenced or contemplated.

Mrs Higgins

Mrs Higgins' evidence included her witness statements which are exhibits B1 and B2.
I make allowance for the obvious nervousness of Mrs Higgins and her apparent unease in a courtroom environment. However, even considering these factors in many respects, her evidence was unsatisfactory.
Mrs Higgins did not reflect upon questions but rather answered, on many occasions, in a manner indicating that she was not prepared to depart from her statement as evidenced by her many replies that she could 'only refer back to my witness statement' and 'what was written in the witness statement is to the best of my knowledge what I recollect'.
By these findings I do not imply or mean to imply any dishonesty on Mrs Higgins' part. Mrs Higgins struck me as a person who genuinely feels aggrieved at the lack of consultation and the way she has been treated by Thermomix. However, she appeared to be convinced that there was a trap to be found in any question asked under cross-examination and was reluctant to agree with the cross‑examiner on any issue that she thought might be detrimental to her case.
Mrs Higgins was reluctance to concede error and her constant resort to the safe refuge of her statement ultimately led to me to conclude that her evidence was designed solely to achieve the outcome she desired rather than to assist the court.
Mrs Higgins was shown to be inaccurate in some aspects of her evidence and to have made claims unsupported by the evidence and in some instances her answers were implausible. Some examples include:
1.In her statement, which stood as her evidence-in-chief, she said she could not ever recall a meeting to review her work or role as a group leader but subsequently agreed that in December 2013 and January 2014 such meetings were held.
2.In her statement she said that she had no notice of the 2009 boundary change before the meeting occurred in April 2009. She agreed that in exhibit A1009, an email of 26 March 2009 between herself and Ms Ashley, the proposed boundary changes were discussed.
3.Mrs Higgins said she was reluctant to transfer consultants, Ms Thompson and Ms Hu, because she had built a relationship with them (ts 132, 133), however it later emerged that she was asking for them to be transferred. This incident is dealt with in more detail at [253].
4.Mrs Higgins' evidence of discussions with Mrs Syme in April 2009 when the first boundary change occurred is shown to be uncertain and lacks precision, as is her evidence in relation to discussions occurring in September 2010 and at the time of the third boundary change. This is dealt with in more detail at [311] ‑ [320].
5.Mrs Higgins said that following an email from Ms Manfredini on 7 November 2012 (exhibit A1508) she did not hear anything from her until 2 December 2012. Mrs Higgins later conceded that she spoken to Ms Manfredini at length after the email on 7 November 2012. When it was suggested that her answers were inconsistent, Mrs Higgins said she meant she did not hear back from Ms Manfredini in writing.
6.When asked why she did not take any action in relation to Ms Hogan's email of 31 March 2014 (exhibit A2074) regarding the meeting of 31 March 2014, Mrs Higgins said it was already 3.30 pm when she read the email and thought it was too late to do anything. This is clearly incorrect because her own lawyer's response to that email was sent at 2.33 pm and refers to Ms Hogan's email being sent to them and their client instructing them to reply (exhibit A2075).
7.Mrs Higgins' statement said that on 2 October 2012 she wrote to Mrs Syme. With respect, it was clear that this was an error. Mrs Higgins meant to say she wrote to Ms Manfredini. When this was pointed out Mrs Higgins said she wrote to Mrs Syme as well. When it was pointed out that no such correspondence had been included in the trial bundle she said the email was probably lost in the computer then finally conceded that she may be in error. Again Mrs Higgins seemed to be so convinced that there was either a trap in the question or that any departure from the statement would be fatal to her case that she was not prepared to concede a simple error.
8.When it was put to Mrs Higgins that her email to Ms Hogan of 5 January 2014 complaining that the targets set by Thermomix were 'not in her contract' was inconsistent with the group leader manual that permitted Thermomix to set performance targets, she replied on four occasions 'I can only refer back to my witness statement'.
9.In her email to Thermomix of 17 January 2014 (exhibit A1938) she said her geographical area was reduced 'every year.' She agreed this was not true but justified it by saying it felt like it was true as the boundaries had been changed so much (ts 195).
10.Mrs Higgins said her letter of 11 March 2014 (exhibit A2027) was directed to getting Thermomix to instruct Ms Gay to help her, however she agreed that was not mentioned in the letter and when asked why it was not mentioned if it was what she was aiming for, replied 'I thought it could be all too late anyway' (ts 277).
11.In relation to returning to work after surgery Mrs Higgins maintained she had made no commitment to Thermomix to return at any particular time. Mrs Higgins said she had a doctor's appointment and her return to work depended on the doctor's reports (ts 203) and she did not know what was happening in relation to returning to work. This is contrary to exhibit A2015, an email of 26 February 2014, in which Mrs Higgins was asked whether she was recommencing on 1 March as originally planned. Mrs Higgins' reply, exhibit A2021, an email of 27 February 2014 stated she was 'very glad to have two more days to continue to recover from her operation and stress …' and listed work related actions she was planning to take after that date. Mrs Higgins ultimately agreed that the email could be interpreted as indicating that she was going to recommence on 1 March. When pressed as to if she ever told Thermomix that she was not coming back on 1 March 2014, Mrs Higgins sought refuge in her witness statement saying 'I refer to my witness statement' and 'what is written in my witness statement is what I would like to refer to'. Ultimately she agreed that she partly resumed her duties from 1 March 2014 and agreed that she could not recall telling Thermomix that she remained incapacitated after 1 March 2014 (ts 204 ‑ 206). However, she still would not accept that she had given Thermomix the impression that she would be back on 1 March saying 'it's open'. Clearly, she had given Thermomix the impression that she would be returning on 1 March 2014. That is the date referred to in the email sent to her by Ms Gay and after she received it Mrs Higgins referred to having two more days from 27 February to return to work. Mrs Higgins agreed that she had not filled in any other absence leave form and appears to accept that the proposition that the absent leave form that she had completed expired on 1 March 2014. Again it shows reluctance by Mrs Higgins to concede any point to the cross‑examiner. This point is of additional relevance as one of the matters Mrs Higgins relies on to establish unconscionable conduct is Thermomix's behaviour whilst she was recovering from surgery.
12.When questioned about the content of her lawyers' lengthy letter of 11 March 2014 (exhibit A2027) Mrs Higgins sought refuge in her statement saying 'That's your opinion, I refer back to my witness statement and what was written in the witness statement is to the best of my acknowledge what I recollect'.
Thermomix submitted that Mrs Higgins gave 'contradictory, rambling and evasive answers' to questions of whether she was surprised by the appointment of Ms Mueller as group leader for Canning.
This is based on Mrs Higgins' evidence that Mrs Syme did not tell her that creating a junior group leader from within her area was Thermomix's intention. Mrs Higgins agreed that at a time when she knew she was going to lose Canning from her area, Mrs Syme asked her to identify a group leader from amongst her consultants. It was suggested that having identified Ms Mueller as the potential group leader Mrs Higgins should not have been surprised when Ms Mueller became the group leader for Canning. Mrs Higgins replied to the effect that Mrs Syme had not explicitly told her that Ms Mueller was going to be the group leader, however she ultimately agreed that Ms Mueller would be the first name which sprang to her mind and she was not surprised when she was appointed the group leader for Canning.
The cross‑examiner and the witness appeared to me to be approaching the issue from different perspectives. Mrs Higgins is really saying 'I was never directly told what was going on' whilst the cross‑examiner treated her answers literally. Mrs Higgins answers are not so much 'contradictory, rambling and evasive' but more illustrative of the point that she was so convinced that every question under cross‑examination contained a pitfall that she was reluctant to depart from her written statement or agree with the cross‑examiner on any issue that she thought might be detrimental to her case and by that process created the very difficulties she was trying to avoid.
Mrs Higgins implausibly maintained that she thought her obligation to develop junior group leaders was only for group leaders who resided outside her area, even though she was aware that the area she was initially assigned was excised from Mrs Syme's area.
When Mrs Higgins' attention was drawn to the notation that 'all boundaries are guides only and are subject to change' on the map forwarded to her in April 2009 and asked how she could have thought that her area would never change she replied obscurely:
We were told this was not, no this was not a too scale kind of map. There was just an approximate visual. We were also given a description – notification of other areas' (ts 107).
Mrs Higgins ultimately agreed that she could not answer the question because she could not recall Thermomix saying her area was never going to change but her understanding was that it would not change (ts 108).
When asked about the provisions in the manual whereby head office deemed when an 'original team can accommodate a second group leader' and deemed when 'the area has a population that will support a minimum of five consultations thereby allowing a group leader to operate in that area' and determines 'if there is an opening for another group leader in the area or nearby area', Mrs Higgins initially replied that these provisions only applied if a consultant approached the group leader about becoming a junior group leader as opposed to a group leader approaching a consultant. Ultimately she agreed that even if the latter occurred it was still head office's decision whether there was an opening in the area or a nearby area (ts 96).
Mrs Higgins conceded that the email of 26 March 2009 from Ms Ashley (exhibit A1009) foreshadowed the possibly of further area breakups. Mrs Higgins initially said that in her view this only referred to group leaders in the northern suburbs but agreed that the email was sent to southern suburbs group leaders and that it could be assumed that Ms Ashley was thinking of the whole of Perth (north and south). Ultimately Mrs Higgins accepted that boundaries were always set by head office and her complaint seemed to be that she did not receive prior consultation (ts 117).

Mrs Higgins says that Thermomix was in a superior position to anticipate precisely how the case may unfold as it controlled the bulk of the records of witnesses and says she was not able to make an accurate assessment of the case because Thermomix had pleaded no more than general denials. Mrs Higgins says that due to the evolving changes to Thermomix's case, the high level of generality of their assertions in their pleadings and correspondence to her lawyers and the difficulties with discovery of documents, that her rejection of the offer was not unreasonable.
Irrespective of these complaints, the case really turned on the written representations made in the group leader manual and the group leader manual addendum. I accept that there were some difficulties with discovery, however, I do not accept that they were of the dimension referred to by Mrs Higgins.
Whilst I do not accept the validity of the points raised above by Mrs Higgins, I do not consider that her rejection of the offer was unreasonable. Potential litigants must not unnecessarily be discouraged from bringing their disputes to the court. Her case was weak but not unarguable, her position in respect of each of the issues for determination were not so untenable that it ought be dismissed out of hand as a nonsense. There is a difference between a weak or marginal argument and a truly hopeless one: Quancorp Pty Ltd v Macdonald [1999] WASCA 101 [7]; Caratti Holdings Co Pty Ltd v Coventry Group Ltd [2014] WASC 403 (S).

The clarity with which the terms of the offer were expressed

The terms of the offer were clear and unambiguous. The terms required payment of money in full and final settlement of all matters in dispute with the requirement for a deed of settlement.

Whether the offer foreshadowed an application for indemnity costs in the event of its rejection

The second offer clearly states that, if it is rejected, the fact of the offer would be relied upon in making an application for indemnity costs.

Other relevant matters

The second offer was accompanied by a detailed analysis of the difficulties confronting Mrs Higgins' claim including drawing Mrs Higgins' attention to Thermomix's ultimately successful submission, that the representations which formed the very core of her case could not be construed from the words used in the documents said to support those representations.
The analysis also drew Mrs Higgins' attention to the fact that she had consented to the transfers of consultants by signing consent forms and drew her attention to those portions of the Thermomix manual which referred to Thermomix's discretion to reduce her area and specified the reasons for terminating her contract.
Thermomix also asks me to consider Mrs Higgins' failure to make any counteroffer. It is a matter of concern that Mrs Higgins chose not to make a counteroffer. It was, or should have been, clear to both parties that the trial was likely to take about five days and legal costs were likely to be high.
Whilst I found against Mrs Higgins on all of the crucial issues such as the representation clause, the implied term cause, the consent issue and on unconscionable conduct, it was not unreasonable for her to pursue the claim. She was entitled to have a court determine the issues she raised. Although Mrs Higgins was not successful, her case was not hopeless, nor properly advised should she or her legal advisors have known they had no chance of success.
Neither the rejection of the offer nor any aspect of the manner in which her case was conducted conveys, in my view, any sufficient basis to order indemnity costs.
I accept that in modern courts both sides are expected to conduct themselves in a reasonable way and to seek agreement where possible: Hall v Stone [2007] EWCA Civ 1354. Compromise is seen as an object worthy of promotion and a compromise is better than a conflict for litigants, the court and the administration of justice as a whole: Carver v BAAPLC [2008] EWCA Civ 412.
However, notwithstanding that Mrs Higgins' failure to offer a sensible compromise and the desirability from the court and the community's point of view of effective compromise, her conduct in rejecting the second offer and pursuing her weak, but not hopeless, case was not unreasonable and Thermomix have not satisfied me that it is appropriate to make an order for indemnity costs.
I order that Mrs Higgins pay Thermomix's costs to be taxed, if not agreed, on a party/party basis.