Lunt v WRS Pacific Pty Ltd - [2003] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LUNT -v- WRS PACIFIC PTY LTD [2003] WADC 165

CORAM: O'SULLIVAN DCJ

HEARD: 14-17 & 20 JANUARY, 11-14 MARCH & 3 APRIL 2003

DELIVERED : 31 JULY 2003

FILE NO/S: CIV 1131 of 2001

BETWEEN: LOIS ANN LUNT
Plaintiff
AND
WRS PACIFIC PTY LTD (ACN 009 248 999)
Defendant

Catchwords:

Contract - Quantum meruit - Restitution - Claim for remuneration based upon an alleged express contract of employment - Alternative claims upon implied contract and in restitution

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr B W Duckham
Defendant: Mr K S Pratt

Solicitors:

Plaintiff: B W Duckham & Co
Defendant: Vincent Partners

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

ABB Power Generation v Chapple (2001) 25 WAR 158
Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251

Case(s) also cited:

Nil

O'SULLIVAN DCJ: The plaintiff claims that she was employed by the defendant company as a secretary from 1990 until 1996 and that she is entitled to be paid for her services. She seeks an amount calculated at rates which she says were agreed from time to time and in the alternative brings an action upon a quantum meruit.

Background

The plaintiff attended Harthills Business College after leaving school and was employed in a number of positions between 1961 and the birth of her first daughter in 1975. After having her second child in 1977 she returned to work for her husband in the business of a chartered loss adjuster, performing secretarial and bookkeeping duties.
In the late 1980's the plaintiff and her husband invested $25,000 in a company known as Australian Basic Industries Pty Ltd which produced a fertiliser called "Dynamic Lifter". They became interested in the business and Mr Lunt became a director of companies formed in Hong Kong and Australia to promote its product. The Hong Kong company was called Waste Recovery Systems Limited and the Australian company was called WRS Australia Pty Ltd ("WRS"). The plaintiff carried out secretarial work for it but also remained working in the firm of loss adjusters.
In about 1990 WRS was expanding rapidly and Mr and Mrs Lunt ceased to be involved in the loss adjustment business and became engaged on a full‑time basis in the activities of WRS. An agreement to build a plant in Pakistan was entered into and there was a need to raise finance and for that purpose Mr Lunt entered into negotiations with a Mr Peter Briggs.
After some months of discussions a letter dated 7 May 1990 (Exhibit 2) was signed. The letter which was described in the evidence as a "letter of intent" sets out a conditional offer to acquire the interest of Waste Recovery Systems Limited in certain intellectual and other property. The offeror is the defendant.
Following the signing of the letter of intent there were protracted negotiations which resulted in the execution of an agreement dated 21 May 1991 between the defendant company, Waste Recovery Systems Limited, WRS and other entities, whereby all of the undertakings and assets of Waste Recovery Systems Limited were sold to the defendant and WRS agreed to administer and manage its affairs.

The defendant

The defendant started life on 24 June 1987 registered as a public company and a no liability company under the name of Pacific Platinum N.L. On 29 July 1991 it became registered as an unlisted public company limited by shares and its name was changed to WRS Pacific Ltd. On 28 July 1997 it became registered as a proprietary company known as WRS Pacific Pty Ltd.
A company search tendered in evidence shows the defendant to have had a number of directors over the years including the plaintiff's husband, William T Lunt, who was appointed on 27 June 1991 and ceased on 31 December 1996, Kevin Bond (27 June 1992 to 29 November 1996), Peter Briggs (26 July 1993 to 22 December 1994 and 15 February 1996 to 11 March 1996), Robin Yvonne Briggs (18 December 1990 to 22 December 1994 and 15 February 1996 to 11 March 1996), Edmund Czechowski (28 April 1991 to 2 November 1992) and David Malcolm Fuller (28 December 1988 until 27 June 1991).

The plaintiff's evidence

The plaintiff gave evidence that while working in the business of William T Lunt Loss Adjusters she carried out typing and other secretarial duties for WRS. From 1990 she worked from home typing correspondence as well as other documents, answering the telephone, sending and receiving messages and keeping records. At first this work was done using equipment originally provided by WRS but later a new computer and a photocopier and facsimile machine were provided by the defendant.
Mrs Lunt referred to a long list of people with whom she dealt on behalf of the defendant. Many of these were individuals who lived overseas and to whom she spoke on the telephone on evenings and weekends. Her daily work routine would involve starting at about 8.30 or 9.00 am. She would stop at about 1.00 pm and attend to her domestic duties until about 2.30 pm after which she would return to work until about 6.00 pm. Her husband was away a great deal and there was no one else involved in the day‑to‑day running of the business.
Mrs Lunt said that sometime before June 1990 or in that month she asked her husband for a written agreement confirming her employment by the defendant. She did this, the plaintiff said, because she was aware that the negotiations with Mr Briggs had been protracted and she had concerns about a "lack of progress".
In or about July of 1990 the plaintiff said that her husband brought to her a letter dated 29 June 1990 which reads as follows:
"Dear Madam
I refer to our discussion today with Mr Briggs and now confirm your employment with Pacific Platinum N.L. (ACN 009 248 999) as follows:
1.Position:  Secretary
2.Location:                   Either at our office or level 15 Griffin Centre, 28 The Esplanade Perth or such other place as may be mutually agreed.
3.Office hours:
3.1Normal 40 hour week generally between the hours of 0900 and 1700 Monday to Friday.
3.2It is expressly agreed between us that you will be required to work occasionally on Saturday and Sundays due to our association in Moslem countries.
You will not be paid overtime in respect to this anticipated work but time off in lieu will be allowed.
4.     Probation:                 3 months, following which you will be considered a permanent full time employee of WRS Pacific Limited.
5.     Notification:              A minimum of 1 month of termination of employment will be given by each party.
6.     Travel:Should you be required to travel on behalf of the Company then such duty will be undertaken in a Company provided vehicle.
7.     Leave:All West Australian state public holidays are allowed along with 20 days annual leave. Sick leave will be paid up to 10 days per annum and accumulative for the term of your employment.
8.     Salary:Your nett commencing salary after tax will be $18,000.
9.     Salary Review:           Your salary will be reviewed annually on 30 June.
10.    Superannuation:       The Company has no superannuation policy for its employees but will contribute 5% of your salary to an authorised fund if you hold such a policy.
11.    Confidentiality:         It is understood that neither the rate of pay or activities on which you are employed are to be disclosed or discussed with any other party.
12.    Starting Date:            Your starting date is 2 July 1990.
13.    Duties:To perform such secretarial tasks as the directors may require which will include but not limited to:
1.Shorthand & word processing
2.Office Administration
3.Telephone Answering
14.    Long Service Leave:  Long service leave will become due after 10 years of continuous service.
We welcome you to the staff of Pacific Platinum N.L. which will soon undergo name change to WRS Pacific Limited and hope that our time together will be enjoyable and mutually satisfying."
This letter bears the letterhead "WRS Australia Limited" and is signed by the plaintiff's husband who is described therein as managing director. When it was given to her the plaintiff said that she filed it in a drawer in her desk. She said that she was happy with the terms of it and upon receipt of it continued to perform her duties as she had done in the past.
There is no express reference to pay periods in the letter but the plaintiff said that she expected to be paid monthly. When she was not she said that she became concerned and spoke to her husband but he convinced her that although the defendant had no money to pay her the prospects of the business were great and it was better to "look to the bigger picture". The plaintiff said that she accepted that and carried on working.
After some time the plaintiff said that her husband told her that he had discussed her outstanding salary with Mr Briggs and that it had been agreed that because the defendant still had no funds to pay her, she would be paid annually in arrears rather than on a monthly basis. She said that she was prepared to accept that and she carried on working. To the best of the plaintiff's recollection this was at about the end of 1991.
At the end of the first full year of her employment the plaintiff said that she asked her husband for written confirmation of the moneys due to her by way of salary and of her continuing employment by the defendant. In response he brought to her a letter dated 31 July 1991 which is in the following terms:
"Dear Mrs Lunt
Re Annual Salary and Employment by WRS Pacific Ltd
I refer to our discussion today and regret to advise that neither the company nor its major shareholder Mr Peter Briggs {Essex Properties Pty Ltd} is in a position to meet your salary now due however, both the company and Mr Briggs are prepared to pay interest on the debt until such time as it is paid in full.
The debt now due to you is summarised as follows:
Salary  $18000
Super  $   900
Interest  $   945
$19845
Your salary for next year is increased to $19000.
WRS Pacific Ltd, Essex Properties Pty Ltd and Mr Briggs now confirm that the terms and conditions of your employment as negotiated on 29 June 1990 are accepted as now applying between you and themselves."
Again, the letter is headed "WRS Australia Limited" and is signed by the plaintiff's husband, who is described as managing director.
At the end of the third year of her employment the plaintiff still remained unpaid and she said that she again requested a letter. On this occasion Mrs Lunt said that her husband dictated it and she typed it. The earlier letters had not been typed by her. Upon completion of it the plaintiff said that her husband took it away and brought it back a short while later duly signed by him. He gave it to her and she filed it with the other letters. It is dated 10 July 1992 and is headed WRS Pacific Limited. It reads:
"Dear Mrs Lunt
RE ANNUAL SALARY
I refer to our discussion today and now regret to again have to advise you that we are unable to meet your current salary or the past debt due to you from last year.
As agreed by Mr Briggs our total debt to you is now:
Past due  $19845
Salary  $19000
Superannuation  $   950
Interest  $ 2188.72
$41983.72
Your salary for next year is increased to $20000.
As agreed, you will carry the total debt of $41983.72 on the clear understanding that you will be paid in full by Mr Briggs in the near future.
Thank you for your consideration."
The plaintiff said that she received further letters from her husband after each year of her employment until July 1996. Each letter was on WRS Pacific Limited letterhead and was requested by her, dictated and signed by him and typed by her. On each occasion he took the typed document away and returned it to her duly signed a few days later. She then filed each letter in a drawer in her desk.
The letter dated 27 July 1993 reads as follows:
"Dear Lois
In accordance with our discussion today we confirm that neither WRS Pacific, Essex Properties Pty Ltd or Mr Briggs are able to meet the debt owed to you, but if you are willing to continue to carry the debt then Mr Briggs gives his personal guarantee that you will be paid shortly.
Our indebtedness to you is as follows
Past due  $41983.72
Salary  $20000.00
Super  $ 1000.00
Interest  $ 3779.02
Total due  $66762.74
Your salary has been increased to $21,000 for the coming year."
The letter dated 15 July 1994 reads:
"Dear Lois
Unfortunately we are once again unable to meet the debt owed to you and Mr Briggs sends his apology but assures you that he is working on getting money into the company at which time we will be paying you in full.
Our indebtedness to you is as follows
Past due  $66762.74
Salary  $21000.00
Super  $ 1050.00
Interest  $ 5772.83
Total due  $94585.57
Please be assured that we appreciate your consideration in carrying the debt and that Mr Briggs will make it up to you in due course."
In addition to the letter of 15 July 1994 there is a further letter dated 16 August 1994 which reads as follows:
"Dear Mrs Lunt
This is to confirm our discussion today in which you agreed to carry our debt for another period. We also confirm that you will be paid in full as soon as possible however in the meantime your nett salary is increased to $22000 for the coming year.
We confirm that your salary is nett of tax and that you have no tax liability as our agreement is for us to pay you nett.
Thankyou for your continued support which we are sure will pay off in due course."
The letter dated 15 July 1995 reads as follows:
"Dear Lois
We are once again unable to meet the monies owed to you in the amount of $94585.57 nor your current salary of $22000.
We agree your total amount now due and payable as:
Past due  $94585.57
Salary  $22000.00
Super  $ 1100.00
Interest  $ 8237.99
Total due  $125923.56
Mr Briggs has indicated that he is fully aware of your debt and appreciates that you are continuing under very difficult circumstances.
Mr Briggs reiterates that you will eventually be paid in full."
In addition to this letter there is another letter dated 26 July 1995 which reads:
"Dear Mrs Lunt
We have pleasure in confirming your salary increase for the coming year at $23000."
The letter dated 12 July 1996 reads as follows:
"Dear Mrs Lunt
We are unfortunately unable to meet your accumulated salary or interest etc. as promised by Mr Briggs in the sum of $125923.56 or your current salary of $23000.
We are trying to remedy our financial position through a capital raising Mr Briggs is currently attending and you may be assured that when completed you will be paid in full but notwithstanding this promise you have Mr Briggs personal guarantee that you will be paid.
Our total debt to you is now agreed at $161 329.08 calculated as follows:
Past due  $125923.56
Salary  $ 23000.00
Super  $ 1150.00
Interest  $ 11255.52
Total due  $161329.08"
The plaintiff said that by September 1996 she still had not been paid and had become completely dissatisfied with Mr Briggs and accordingly resigned by letter dated 20 September of that year. A copy, the original of which Mr Briggs denied ever receiving, was tendered. It reads:
"Dear Sir
I am not prepared to continue working for you without payment so I am submitting my resignation with effect from one month from today.
Furthermore I require payment of the full amount due to me of $161,329.08 at the time I cease work on 20th October 1996.
I think the way you have treated me is absolutely appalling and you should be ashamed.
I look forward to you honouring your past promises to me so that we can part amicably."
The plaintiff said that she received no reply to this letter.

William Trevor Lunt

The plaintiff's husband, William Trevor Lunt, gave evidence that he was appointed managing director of the defendant's business and was responsible for running it on a day‑to‑day basis. He said that in May 1990 he sought and obtained from Mr Briggs an undertaking that all the employees of WRS, including the plaintiff, would be kept on by the defendant. Later in his evidence he said that he had discussed the question of his wife's employment with Mr Briggs "between January and May the 7th 1990".
Mr Lunt said that he told Mr Briggs: "Lois was a material part of the business" and that Mr Briggs "thought it was a good idea that Lois be engaged in the business." He said Mr Briggs "wanted it kept in the family."
Mr Lunt said that he sought some written confirmation of the agreement but "initially Mr Briggs declined to do that". However he said that on 29 June 1990 the letter of appointment of the plaintiff was prepared and signed by him with Mr Briggs' agreement.
Mr Lunt said that on that day he had a meeting with Mr Briggs in his office. Mr Bowen, a solicitor of the firm of Robinson Cox and a Mr Graeme Nind were present. Mr Lunt said that at that meeting he told Mr Briggs that he had "no further funds to carry on the business" and that "it was explicitly agreed between us that my wife would carry on in her existing employment but she wouldn't be paid by WRS Australia, in other words myself, but she'd be paid by Pacific Platinum".
According to Mr Lunt a draft of the letter of 29 June 1990 was brought into Mr Briggs' office by Mr Nind. The original draft did not have in it the second paragraph of cl 3.2 which reads:
"You will not be paid overtime in respect of this anticipated work but time off in lieu will be allowed."
Mr Lunt said these words were added to the draft at Mr Briggs' insistence.
Mr Lunt said that he and Mr Briggs had agreed on a salary for the plaintiff in January 1990. The figure of $18,000 per annum after tax was struck because that was what she was already getting. According to Mr Lunt this sum represented:
"The net amount which my wife received in a salary‑splitting arrangement between myself and our previous loss adjuster's practice and carried on into WRS Australia."
It is common ground that the plaintiff's salary does not appear in the accounts of the defendant and Mr Lunt said that that was because it was agreed between himself and Mr Briggs that "she was never to be on the books." Mr Lunt said:
"Between January 1990 and the formal letter of 7 May, it was always understood by Peter and I that Lois wouldn't be on the books; that it was just strictly a private matter between he and I and Lois – more between Pete and I."
As to the signing of the document Mr Lunt said:
"Well actually we were having a glass of white wine with Michael Bowen and Graeme brought the document in and he said 'here it is finished'. We all looked at it and I said 'I am signing it.' I think we had another glass of wine or two and then I signed it in front of everybody."
Mr Lunt said that following the signing of this letter the plaintiff continued to work as she had in the past, operating from home. A second phone line was installed so that business calls could be taken and made on it and facsimiles received. He said that this was the only point of telephone and facsimile contact for the defendant and that the accounts for the phone lines were paid for by or through Mr Briggs.
In about July of 1991 Mr Lunt said that he discussed his wife's continued employment with Mr Briggs. He said:
"Mr Briggs and I were meeting very regularly in cafés and restaurants in order that he had an understanding of the business as it was progressing, what he required of me to do and in the course of the discussion on or about that day I said we needed to sort Lois out and he said, 'Well, I just don't have any money.' I said, 'Well she's going to want something why don't we do ‑ why don't we do a letter of comfort for her?' and he said, 'Yeah that's all right.' "
Mr Lunt said that after this the letter of 31 July 1991 was prepared by Graeme Nind and after signing it he told Mr Briggs that he had done so and then gave it to the plaintiff.

Mrs Lunt continued to work in the business and in due course requested another letter confirming her employment and the monies owing to her. Mr Lunt said:
"By this time I was clearly acting as managing director of the company. I consider (sic) it well within my prerogative to write such a letter. My wife asked me for such a letter, I produced this letter. I dictated this letter to my wife, she typed it, then I took it down to Mr Briggs at his home, showed it to him, signed it and brought a signed copy back to my wife."
Mr Lunt confirmed the plaintiff's evidence concerning the preparation of letters in subsequent years relating to her continued employment and the monies owing to her. On some occasions he was overseas and he said that when he received a request from his wife to provide the letters he would dictate them to her and sign them upon his return.
Mr Lunt said that between 1990 and 1996 he spent a great deal of time travelling. In the early part of that period he was away for about 200 days a year and later for 300 days a year. When he was away the plaintiff was "the only point of contact" for the defendant. She answered the phone, took and relayed messages, typed correspondence and other documents including lengthy joint venture agreements and on frequent occasions was required to work on weekends and after normal office hours.

Peter Briggs

Mr Peter Briggs was a director of the defendant from 26 July 1993 until 22 December 1994 and from the 15 February 1996 until 11 March 1996. He gave evidence that he had met Mr Lunt a long time ago and was reintroduced to him by Graeme Nind some time in about 1990 when Mr Lunt was looking for finance.
Mr Briggs said that "one of (his) accountants;" a Mr David Fuller, had a company, the defendant which was then called Pacific Platinum NL (PPNL), and after negotiations with Mr Lunt the "letter of intent" dated 7 May 1990 was signed by Mr Fuller and Mr Lunt. It seems that it was not signed by Mr Briggs because, at that time he had, as he put it, "a restriction on being involved with management which took to the end of 1992."
Following the signing of the "letter of intent" there were protracted negotiations between Mr Lunt and Mr Briggs until the agreement of 21 May 1991 was executed. As a result of it Mr Briggs said that he became "not a lender of money but an equity participant through an interest that (he) had in PPNL."
Mr Briggs said that in the course of the negotiations leading up to the agreement of the 21 May 1991 there was never any mention of employing the plaintiff in the business once it had been acquired by the defendant. There was however discussion of engaging others as consultants and agreements were entered into with the plaintiff's husband and Mr Robert Skidmore, the owner of the intellectual property in the technology used by the business.
Mr Briggs denied that there was any meeting between himself and Mr Lunt and Mr Graeme Nind when the terms of the letter to the plaintiff dated 29 June 1990 were discussed and agreed upon. He said that the first time he saw that letter and the subsequent letters purporting to renew the plaintiff's employment by the defendant was after the commencement of these proceedings.
As to Mr Lunt's claim to have been a managing director of the defendant Mr Briggs said:
"He was working for his own company, whatever he called himself working for his own company I don't know. Nothing to do with me. I was lending money to them and to get the Pakistan plant built. What he called himself ‑ I don't know what he called himself, probably was. I don't know. Certainly he was never appointed the managing director on the boards or the minutes of the company at any time…"
Mr Briggs did acknowledge that from time to time he made payments into the joint bank account of the plaintiff and her husband but denied that those payments were in respect of any salary due to the plaintiff. They were in respect of expenses due to Mr Lunt or for other recognised items of expenditure unrelated to any employment of the plaintiff.
As to the evidence of Mr Lunt that it was agreed that the plaintiff's employment would be "off balance sheet", Mr Briggs said:
"I understand what off balance sheet means. If you have a lease ‑ for instance in the old days people used to lease everything and that was off balance sheet because it was just a payment, but we weren't certainly leasing Lois Lunt, and as far as salary, where a person has to pay tax ‑ has to advise the tax office‑you have to pay insurance, workers compensation, and all the other things that a proper person would have in the business of being employed, why on earth would you be off balance sheet? We had an audited‑independently audited company run by Kevin Bond of which Trevor Lunt was on the board and signed off the accounts in 93 and 94 saying there was no related party transactions. Now related party is your wife and he signed off those accounts in 93 and 94 along with Kevin Bond. If Kevin Bond knew about it, he would get severely reprimanded by the audited authorities and so would the auditors."

The contractual claim

The plaintiff claims that she was employed by the defendant pursuant to an express agreement and in the alternative under an implied one. She pleads as follows:
"8.During a meeting on (sic) or about January 1990 between Mr Lunt, acting for and on behalf of the plaintiff and Peter Briggs ('Briggs') a director/secretary/substantial shareholder of the Defendant, acting for and on behalf of the Defendant, it was orally agreed that the defendant would retain the plaintiff to act as a secretary to it in order to perform such secretarial services as may be required by the directors, servants or agents of the Defendant from time to time for the period from 2nd July 1990 to 30th June 1991 at a salary of $18,000 net of tax and an additional 5% payable towards superannuation for the plaintiff (hereinafter referred to as 'the Agreement').
9.Alternatively, during a meeting on or about 7th May 1990 at the Defendant's then premises at Griffin Centre, 28 The Esplanade, Perth Mr Lunt, acting for and on behalf of the Plaintiff, orally requested Briggs, a director/secretary/substantial shareholder of the Defendant that the Plaintiff be retained to act as a secretary to it in order to perform such secretarial services as may be required by the directors, servants or agents of the Defendant from time to time.
10.Alternatively, the then directors servants or agents of the Defendant namely Briggs, Mr Lunt and Kevin BOND ('Mr Bond') by engaging the Plaintiff to carry out duties for the Defendant impliedly requested the Plaintiff on or about 7th May 1990 to act as a secretary to it in order to perform such secretarial services as may be required from its directors servants or agents from time to time (hereinafter referred to as 'the Request')."
Additional terms of "the Agreement" and "the Request" are then set out and it is further pleaded that those terms were "extended" in subsequent years after 30 June 1991 until 30 June 1997 and that the plaintiff resigned from her employment on 20 October 1996. It is then pleaded that:
"16.In accordance with the terms of the Agreement or alternatively the Request the plaintiff performed secretarial services for the defendant for the said period from 2nd July 1990 until the 20th October 1996 at the request of, or alternatively, with the implied acceptance of then directors, servants or agents of the defendant, namely, Mr Lunt, Mr Bond and Briggs and worked an average of 43.5 hours per week."
Particulars of the work said to have been done by the plaintiff are then set out. It is then pleaded:
"17.Further or alternatively, it was an implied term of the Agreement, or alternatively the Request that the defendant would pay the plaintiff a reasonable sum for the secretarial services supplied by her to the defendant.
Particulars
(a)The term is implied in order to give business efficacy and it is a reasonable and obvious term to be implied;
(b)The term is to be implied as an inference from the circumstances of the plaintiff's previous employment with WRS AUSTRALIA LTD, prior to commencing employment with the defendant whereby she received a net salary of $18,000.00 for her secretarial services for that related company for the period from 1 July 1989 to 30 June 1990;
(c)There are implied terms pursuant to restitution law;
(d)The rate for secretarial services provided to a company, according to the Clerks Commercial, Social and Professional Award applicable for the period 1990 ‑ 1991, was $8.56 per hour.
18.The total of the sums pleaded in paragraph 14 above is reasonable for the secretarial services supplied by the Plaintiff to the Defendant for the relevant period.
Particulars
(a)The total sums represents (sic) a reasonable increment to the Plaintiff's secretarial salary for WRS Australia Ltd for the period 1st July 1989 to 30th June 1990;
(b)The plaintiff should be entitled to the sum of $19,362.72 for the total of 43.5 hours per week at the aforesaid scale rate of $8.56 per hour for the services supplied by her as pleaded in paragraph 17(d) herein and the total sums represents (sic) a reasonable increment to this.
19.Alternatively, the Plaintiff's services as pleaded in paragraph 16 herein were carried out with the express, or alternatively, the implied acceptance of the then directors, servants or agents of the Defendant by its receipt and use of the services and the production of correspondence, telephone messages, collections and deliveries resulting from the aforesaid services for the relevant period."

The letters

The authenticity of the letters which are said to evidence an agreement to employ the plaintiff is in issue.
Counsel for the plaintiff submitted that it was not open to the defendant to dispute them by reason of directions made prior to trial which were in the following terms:
"1.Within 14 days each party do serve on the other a notice in writing specifying the documents the party intends to tender at trial.
2.Within 14 days thereafter each party do inform the other party by notice in writing which of the documents specified in the notice may be tendered by consent and whether the authenticity of any of the remaining documents is disputed and in respect of each document so disputed, give reasons as to why the consent to tender is withheld."
By par 8(f) of its defence the defendant has always pleaded:
"(f)if the letters referred to in paras 14(a) through to 14(f) inclusive of the statement of claim were issued (which is denied):‑
(i)the defendant denies that they were issued on the date or substantially close to the date those pleaded letters respectively bear;
(ii)… and;
(iii)the defendant further denies the authenticity of those letters."
It was my ruling in the course of the trial that the defendant should be permitted to attack the authenticity of the letters.
The first of the letters of appointment which is dated 29 June 1990 refers to the defendant by its former name of Pacific Platinum NL and quotes its Australian Company Number (ACN). Section 119 of the Corporations Law which requires the ACN of a corporation to be quoted is a measure which only came into force on 1 January 1991 just over six months after the letter of 29 June 1990. Mr Lunt said in evidence that Mr Bowen or Mr Ranson solicitors of Robinson Cox informed him of the ACN of the defendant "probably in May" of 1990. Neither Mr Bowen nor Mr Ranson were called to give evidence.
John Charles Buggins is a former employee of the Corporate Affairs Department of Western Australia and of the Australian Securities and Investment Commission. In 1990 he was in charge of the secured charges area of the state's department and in 1991 became a team leader in the Perth Business Centre of the Australian Securities and Investment Commission.
Exhibit 62 is a letter from Mr Buggins dated 11 February 1990 to the plaintiff's solicitor. It reads:
"To whom it may concern,
Please be advised Australian Company Numbers (ACN) were provided to companies at the commencement of 1990."
However, Mr Buggins gave evidence that as far as he was able to recall ACN's were not issued to Western Australian companies until late in 1990. They did issue to companies in other states earlier in that year but there was a delay in the case of Western Australia. The state's legislation joining the national company scheme was not in fact passed until a special sitting of parliament held on 27 December 1990.
Exhibit 63 is a letter from Mr Bernard Faigen, counsel Public Information Program of the Australian Securities and Investment Commission dated 7 March 2003 and addressed to the defendant's solicitors. It states:
"WRS Pacific Pty Ltd ACN 009 248 999 ('WRS')
I refer to your query regarding the distribution of the Australian Company Number (ACN) for Western Australian companies with the National scheme laws coming into operation on 1 January 1991 and, in particular, to WRS.
Companies registered already were first informed by the Australian Securities Commission (as it then was) of the ACN on its pre‑printed 1990 annual returns sent to the company. In the case of WRS, ASIC's database shows that the 1990 pre‑printed annual return was sent to the company on 9 October 1990 with the ACN endorsed on the Annual Return."
Exhibit 64 is a further letter from Mr Faigen to the plaintiff's solicitor. It states:
"Dear Mr Duckham
WRS Pacific Pty Ltd ACN 009 248 999
I refer to our telephone conversation this morning and confirm that the ACN for the company was provided to the company in its annual return mailed to the company on 9 October 1990 (as stated in my letter to Vincent Partners dated 7 March 2003).
The ACS (as it then was) generated the ACN for each registered company prior to that date in or about July 1990."
Edmund Chechowski is a qualified accountant and has been an employee of Mr Briggs for a number of years. He is a director and secretary of the defendant and has been responsible for attending to requirements under the Corporations Law in relation to about 30 companies with whom Mr Briggs is connected. His duties have included the preparation and lodging of documents required to be filed under the Corporations Law and taxation returns.
Mr Chechowski gave evidence that he became aware of the defendant's ACN when he received the company's annual return in 1990 for preparation and lodging by 31 January 1991. It was his recollection that the form of the return which contained the ACN on it was received just after Christmas 1990 or in the first week of 1991. All the Briggs companies for which he was responsible received notification of their ACN's when their annual returns were received.
In attacking the authenticity of the letters said to evidence an agreement to employ the plaintiff the defendant also pointed to the address of the defendant as shown on Exhibits 12 and 13 which are the letters purporting to renew of Mrs Lunt's appointment dated 10 July 1992 and 23 July 1993 respectively.
The earlier of these letters bears a letterhead which both Mr and Mrs Lunt said was "computer generated". Mrs Lunt said that Mr Kevin Bond, a chartered accountant and one time director of the defendant, installed a template showing the defendant's address in the word processor which she used to type correspondence and other documents for the defendant. The template which was installed before 10 July 1992 showed the address of the defendant to be Level 15, Griffin Centre, 28 The Esplanade, Perth. When the letter Exhibit 12 was prepared by her she used it to generate the letterhead. The address shown was not the correct one and her husband therefore amended it by hand. By 1993 Mrs Lunt said she had been provided with a stock of letterheads but again the address shown was not correct and accordingly her husband amended it.
A document entitled "Historical Company Extract" was tendered in evidence and became Exhibit 9. The document purports to be a record showing the registered office of the defendant from time to time. The record shows that the address which has been deleted on Exhibits 12 and 13 namely 15th Floor, 28 St George's Terrace WA 6000 did not become the address of the registered office of the defendant before 20 April 1994. Prior to that date and between 16 July 1991 and 14 November 1993 it was c/- Barrington Partners, 1st Floor, London House, 216 St George's Terrace, Perth. Other entries in the historical company extract refer to the address of Barrington Partners as being 214 – 216 St George's Terrace, Perth. The addresses which Mr Lunt set out in his own hand on Exhibits 12 and 13 were, 214 St George's Terrace and 214 – 216 St George's Terrace respectively.
The address Level 15, Griffin Centre, 28 The Esplanade, Perth was in fact the address of a firm of solicitors McPhee Sillar Myer.
Mrs Lunt gave evidence that when she noticed the address on these documents was not the registered office of the company she insisted that the address be changed. She said:
"I am a pedantic type of person. I like things to be correct. … I wanted the actual registered address of the company."
Both Mr and Mrs Lunt were challenged to produce any other letter or document of the company showing the use of the address: Level 15, Griffin Centre, 28 The Esplanade Perth and bearing a date earlier than April 1994. They were unable to do so.
In my view the evidence concerning the quoting of the defendant's ACN on Exhibit 10 and the address of the registered office of the defendant on Exhibits 12 and 13 are matters of some significance. It was clear to the plaintiff and her legal advisers from the pleadings and from the manner in which the defendant's case was conducted at trial that the letters were hotly disputed. The trial took place over six days in January and March of this year, and by the time of the adjournment in January it would have been abundantly clear that the plaintiff was being challenged to produce further evidence to dispel doubts about the authenticity of the letters. The plaintiff has clearly failed to meet that challenge.

The Porsche

It is common ground that while working for the defendant the plaintiff's husband was provided with the use of a Porsche motorcar. It is the plaintiff's case that Mr Briggs in effect acknowledged the plaintiff's claim when he entered into an agreement to settle it and other claims of the Lunt family in about November 1996.
The plaintiff gave evidence that in late 1996 when the business of the defendant was in the process of being sold to Max Resources Limited she and her husband decided that they wanted nothing more to do with Mr Briggs and that in one last effort to settle matters between them they would offer to accept the Porsche motor car in full and final satisfaction. She said that she typed and her husband dictated a letter containing the offer which was in the following terms:
"3 Crocker Place
Karrinyup WA 6018
16 December 1996
Essex Properties Pty Ltd
and Mr Peter Briggs
5 Ocean Court
CITY BEACH WA 6015
Dear Sirs
RE: WRS PACIFIC LIMITED
As you are aware I have accepted employment with Max Resources Limited from 1st January 1997 and consequently I would like to dispose of all matters between us prior to my termination.
Myself and members of my family are owed a very considerable amount of money for which we are entitled to seek an appropriate remedy should the amount not be paid upon demand.
Rather than resort to litigation my wife and I are prepared on behalf of ourselves and our daughters to accept, in full discharge of all sums owed or claimed to be due, clear title to Porsche registration number Y.01. If this option is acceptable to you I am attaching hereto completed transfer papers for your signature. If this option is unacceptable to you then be advised that legal action will be immediately commenced.
By signing at the foot of this letter and the attached transfer paper each party agrees that there are no further monies due to either or each of them in any respect as at 31st December 1996 and each party is completely clear of any financial encumbrance to the other.
Yours faithfully
William Trevor Lunt Lois Ann Lunt
Peter Briggs
for and on behalf of Essex Properties Pty Ltd
Peter Briggs

It was the plaintiff's evidence that she signed the letter and her husband then took it off to a meeting with Mr Briggs to discuss the proposal in it. After that meeting he returned with it duly signed by Mr Briggs and himself. When she saw the returned document it was in the form of Exhibit 20 (a better copy of which is Exhibit 20A), and had on it the following words handwritten by Mr Briggs:
"Subject to the right to buy back within 180 days or before that time the Porsche at $35,000 – or after payment of ($150,000) $Australian at which time the car automatically to me."
The figures in parenthesis are mine because Mr Briggs claims that the sum is $15,000 not $150,000.
Mr Lunt confirmed the plaintiff's evidence as to how the letter came to be prepared and signed by his wife. He said that he and Mr Briggs signed it over a lunch at Coco's Restaurant where "we'd had a fair bit to drink".
Mr Lunt said that after the signing of the letter he continued to drive the Porsche around for some time but money, which Mr Briggs was supposed to have paid, was owing in respect of it and upon Mr Briggs's failure to discharge the debt the car was re‑possessed. Mr Lunt said:
"I think I used it maybe for two months when I got notice from the finance company that the payments were in arrears. I told Pete the payments were in arrears. He said words to the effect too bad. I said the car is about to be re‑possessed. He said too bad. The car was repossessed and then he went to the financiers and negotiated to buy the car out. What I mean is he negotiated the payout of an acceptable amount to them."
Mr Briggs gave a very different version of these events. He gave evidence as follows:
"…Trevor was resigning from WRS to take up his new job with Max Resources. For some considerable time he had been driving my Porsche car around … In his new job with Max Resources they weren’t giving him a car and, having driven a Porsche around for some time, he liked the idea of being able to drive it around for another period of time and he requested that he be able to drive it around for six months in which time hopefully the Max people would probably buy him a car. He came to me with this letter that I give him the car and I said 'well, I don't know what forever reason I should give you the car and which I am not going to do'. He said 'well, then, really what I would like to do is I'd like us to make it look like you entered into this agreement and we can sign up the real deal on the second piece of paper and that will convince my wife that we are not getting anything, but we have got a Porsche car.' So I am sorry, but I was a conspirator in deceiving his wife into believing that the car would be his…"
The "second piece of paper" to which Mr Briggs was referring was the letter signed by Mr and Mrs Lunt and himself but containing no handwriting as earlier described. Instead the only handwriting which appears is that of Mr Briggs and reads "see original attached". This document is Exhibit 53. Curiously it was an exhibit to an affidavit sworn by Mrs Lunt in proceedings in the Supreme Court. The exhibit was of two pages and was in the form of Exhibit 53 and Exhibit 20.
It was Mrs Lunt's evidence that she only signed one document and that she saw Mr Briggs's handwriting as it appears on Exhibit 20 on that document when it was brought back by her husband after his meeting with Mr Briggs.
Mr Lunt said that the disputed handwritten figure on Exhibit 20 is $150,000. As to the suggestion that it could be $15,000 he said:
"This was a seriously exciting car … this was a turbo wide bodied Porsche Cabriolet ‑ a quarter of a million dollars replacement value I'd imagine around that time."
Mr Briggs, on the other hand was adamant that the figure that he had written on Exhibit 20 was $15,000. He explained what he had written in these terms:
"I've just said this is subject to the right to buy back within 180 days to six months that Lunt wanted to have the car for, for $35,000 and a transfer was signed saying that he was buying the car off me for $35,000, so one wrote out the other and at the top, because if I wanted the car back within six months I would give him $15,000 in lieu of the right to use the car, which I was happy to do because I was going to let him have it for six months."
Mr Briggs said that in breach of his arrangement with Mr Lunt the latter in fact borrowed money on the car and then defaulted in making payments on the advance. The bank which had advanced the money attempted to re‑possess the car and when Mr Briggs learned of the attempt he wrote to it demanding that the car be returned to him. Exhibit 52 is a letter to the bank of Western Australia Limited dated 4 June 1999 asserting Mr Briggs's right to the car. Mr Briggs said that he ultimately obtained the car back after payment of $17,500 to the bank.
I have set this evidence out as some length because the issue to which it relates was regarded being as of some considerable significance to the parties in the course of the trial but I have to confess that having reviewed it and thought about it for some time it does not appear to me to be of much weight one way or the other. To the extent that the plaintiff contends that the transaction concerning the Porsche is evidence of a debt owed to the plaintiff in respect of her employment it is patently clear that it is not. The letter signed by Mr and Mrs Lunt and Mr Briggs does not refer to any specific claim.
The explanation for the transaction remains something of a mystery but it is unnecessary for me to attempt to resolve it in these proceedings.

Express agreement

Counsel for the plaintiff submitted that I should find that the plaintiff's husband was the managing director of the defendant company and that in that capacity he had the authority, which he exercised, to enter into an express agreement to employ the plaintiff.
However, as I pointed out in the course of the hearing, that is not how the claim based upon an express agreement is pleaded. The statement of claim alleges an agreement between Briggs acting for an on behalf of the defendant company and the plaintiff's husband as agent for the plaintiff.
There is no plea of an express agreement to employ the plaintiff made between the plaintiff herself and the defendant through its agent the plaintiff's husband.
It is clear that the plaintiff does not claim that she personally entered into any express agreement with Mr Briggs or any other person acting on behalf of the defendant to employ her. She says that she relied upon her husband to conclude an employment contract with the defendant and thus the finding that there was an express agreement to employ her depends upon an acceptance of the evidence of Mr Lunt.
I did not find Mr Lunt to be a satisfactory witness. He was at times vague and inconsistent in what he said, particularly in regard to important matters of detail concerning the circumstances in which the alleged express agreement came into existence and the letter of 29 June 1990 came to be drafted and signed.
For example, early in his evidence Mr Lunt said that in May 1990 he sought an undertaking from Mr Briggs that all the employees of WRS Australia including his wife would be employed by the defendant. Later he said that the employment of all staff including the plaintiff was "a condition of the overall agreement" and the matter was discussed between himself and Mr Briggs between January and 7 May 1990. Still later he said that a number of terms of his wife's employment were in fact agreed between Mr Briggs and himself as early as January 1990. It seems odd that this should have occurred some months before the "letter of intent" dated 7 May 1990 and over a year before the final agreement to take over the business.
In relation to the letter of 29 June 1990 Mr Lunt was asked if there was more than one meeting "in regard to the drafting" of it and he replied:
"No, I think the letter was drafted up on one day."
His evidence was also as follows:
"Have you seen this letter before Mr Lunt?‑‑‑Yes I have.
Were you involved in its preparation?‑‑‑Yes I was.
Who prepared it?‑‑‑One of Mr Briggs's staff members.
How do you know that?‑‑‑I was present when it was drafted.
Who was the staff member?‑‑‑Graeme Nind.
When do you say it was drafted, where was it drafted?‑‑‑In Mr Briggs's office.
Did you have any discussions with Mr Briggs prior to it being drafted?‑‑‑There was an initial draft that was brought to him for approval.
Who brought the draft to him for approval?‑‑‑Graeme.
Graeme who?‑‑‑Nind.
Were you there when it was brought in for approval?‑‑‑Yes."
A little earlier in his evidence Mr Lunt spoke of the letter of 29 June 1990 being "drafted up by Charlie" a reference to Charles Ranson, a solicitor of Robinson Cox.
The role of Mr Ranson and his part in the preparation of the letter only really came out in cross‑examination when Mr Lunt said in answer to my questions:
"But do I understand this to be the position Mr Lunt; there was a meeting in May of 1990 at which Charles Ranson, Mr Briggs, Mr Nind and you were present during which the terms upon which your wife should be employed were discussed ‑ ‑ ?‑‑‑Yes, from memory he ‑ ‑ ‑
‑ ‑ ‑ and Charles Ranson made suggestions as to certain terms?‑‑‑Yes. The headings were the principal things that he gave us. It was considered by all of us as a fairly minor issue.
Which headings?‑‑‑The headings that are in bold on the left hand side of this letter here, sir. These ones down here.
But I thought a number of these had been discussed in January of ‑ ‑ ‑? ‑‑Yes. Nothing had been put in document form."
I was left with an incomplete picture of the circumstances in which Mr Ranson discussed the plaintiff's employment with Mr Briggs and Mr Lunt and precisely what was said.
Mr Lunt's evidence as to the agreement concerning the salary the plaintiff was to receive also struck me as unconvincing. He said initially that a figure of $18,000 net was agreed between Mr Briggs and himself in January 1990. He said:
"The 18,000 represented the approximate net amount … which my wife received in a salary splitting arrangement with myself and our previous loss adjuster's practice and carried on into WRS Australia."
When asked if he recalled the conversation he had with Mr Briggs when the salary was agreed he said:
"Absolutely. I said to Peter that Lois was getting about 24 or 25 thousand dollars a year as per arrangements with me and he said, 'Okay. Well, we're happy to go along with that. What's the net amount?' I said, 'The net amount is about 18,' because he wanted to manage the tax position himself. He always wanted to manage his own tax positions."
When asked to confirm that Mr Briggs agreed to a figure of $18,000 net for the plaintiff for her employment Mr Lunt stated:
"That was a general agreement that went over the months leading up to this letter, Mr Pratt.
So that 18,000 net kept coming up?‑‑‑It was always going to be that sort of sum.
O'SULLIVAN DCJ: Mr Lunt, I thought you said they had been agreed in January?‑‑‑Yes, but preliminary agreement. Each time we discussed it, it was the same amount. When we got to this June letter, that was the amount that was installed."
I have already commented, in terms unfavourable to the plaintiff's case, upon the significance of the evidence concerning the quoting of the defendant's ACN number of 29 June 1990. Mr Lunt's evidence in relation to that matter was that he knew the ACN number in June of 1990 and he said that "We all did." He was then asked and said as follows:
"How did you come to know what the ACN number was?‑‑‑Because Mike Bowen told me.
When did he tell you that?‑‑‑I'd say probably in May when we were putting out, forming (sic) out asset purchase agreement, our consultancy agreements. He said that there was this new thing that came about, I'd never heard of an ACN number.
So in May 1990 Michael Bowen told you about the ACN number of Pacific Platinum. Is that correct?—It would have been either Michael or Charlie Ranson, certainly someone from Robinson Cox. They had a letter from the ASIC and we've tendered that letter in evidence to Mr Bredmeyer.
…
So your position is that for some reason or another Ranson or Bowen told you what the ACN number was?‑‑‑Yes.
Why would that be of any concern to you?‑‑‑I was inquisitive to properly discharge my corporate responsibilities as managing director and I asked many questions of Charlie and Michael."
I do not accept this evidence and I am not persuaded to the appropriate standard that the ACN number of the defendant was available on 29 June 1990.
In my opinion the evidence of Mr Lunt concerning the address of the company as shown on the letters of 10 July 1992 and 23 July 1993 (Exhibits 12 and 13) was also unsatisfactory.
I have already noted the evidence of the plaintiff which was to the effect that it was she who noticed the address on these letters and that she insisted they be changed because she was "a pedantic sort of a person". That was not the evidence of her husband. Mr Lunt gave evidence that he changed the address on these letters because he wanted a prestigious address with which to impress visitors from overseas. When asked why, in a letter addressed to the plaintiff he thought it necessary to change the address he said: "Maybe I just thought it was the correct thing to do at the time."
There are a number of other comments which should be made about Mr Lunt's evidence.
Firstly, in my view it is strange that he should have signed the letters purporting to confirm an agreement to employ his wife at all. Leaving aside for the moment any question of his authority to do so on behalf of the defendant the lack of wisdom in such a course is obvious. Even if Mr Briggs was himself unwilling or unable to sign on behalf of the defendant company there were other officers who could have done so and there was no shortage of witnesses who might have been called upon.
Secondly, the absence of any record of the plaintiff's employment in the books of the defendant is difficult to understand. If, as the evidence suggests, the defendant appeared to have a bright future in the early 1990's it is difficult to see why the expense of employing the plaintiff would not have been recorded in the book so as to be available in due course for tax purposes. I reject Mr Lunt's explanation that Mr Briggs wished to conceal the wages of the plaintiff so as to avoid giving the impression that the defendant was burdened by excessive debt. In the scheme of things any liability to the plaintiff would not have been large.
Thirdly, the absence of any witness to support Mr Lunt in his account of how the letter of 29 June came to be signed is, I think, significant. Mr Nind is deceased but Mr Lunt said that Mr Bowen was present at the time the document was signed and yet he was not called and no reason was given for his absence. Similarly, Mr Ranson who could have given evidence about discussions which allegedly took place concerning the terms of the plaintiff's employment and Mr Bond who might have shed some light on the question of the defendant's address were not called.
Fourthly, if the employment of the plaintiff by the defendant was a matter of such great importance to Mr Lunt that concern not reflected in the so‑called "letter of intent" or in any other document concerning the agreement to acquire the business of WRS. The continued employment of other officers and employees of WRS was provided for. In my view the absence of any reference to the plaintiff's employment is significant.
Fifthly, I do not accept that it is likely that Mr Briggs personally or his company Essex Properties Pty Ltd would have been parties to any agreement to employ the plaintiff. In my view it is clear from the evidence that Mr Briggs would have been astute to avoid incurring any personal liability as a guarantor or any liability on behalf of Essex Properties. Against this background the words which appear in the letters of 31 July 1991 and 27 July 1993 (Exhibits 11 and 13) which suggest the incurring of responsibility by Mr Briggs and Essex Properties for any debt to the plaintiff are in my view terms upon which it is very unlikely Mr Briggs would have agreed.
It follows that for all these reasons I am not satisfied that there was any express agreement for the employment of the plaintiff made between Mr Lunt acting on her behalf and Mr Briggs acting on behalf of the defendant.

Implied contract

I do not accept the plaintiff's contention reflected in paragraph 9 of the statement of claim that at a meeting on or about 7 May 1990 Mr Lunt acting for and on behalf of the plaintiff orally requested Mr Briggs "that the plaintiff be retained to act as a secretary to it in order to perform such secretarial services as may be required by the directors, servants or agents of the defendant from time to time." This plea depends upon an acceptance of the evidence of Mr Lunt and I am not persuaded to the appropriate standard to do so.
If the plea in par 10 of the statement of claim is to the effect that at a meeting held on or about the same date Messrs Briggs, Lunt and Bond expressly engaged the plaintiff to act as a secretary for the defendant then again I do not accept that this was the case. Mr Bond was not called as a witness and I am not persuaded on all the evidence that there was such a meeting or such an engagement.
Nevertheless I do accept the plaintiff's evidence that she performed work of a secretarial nature for the defendant over a number of years and while it is clear that for the most part that work would have been done at the request of her husband she also gave evidence, which I accept, that she dealt with other officers of the defendant as well as Mr Briggs and performed tasks requested by them.
I am also quite satisfied on all the evidence that the services provided by the plaintiff were quite extensive in nature. It is clear that between the years 1990 and 1996 the defendant's business was conducted from the home of the plaintiff and her husband; that Mr Lunt was away a great deal of the time; that the plaintiff was as she put it, effectively "the only point of contact" for people wanting to deal with the defendant and that the plaintiff and no‑one else attended to a range of tasks which would have been necessary for the purpose of the defendant's business including answering and making telephone calls, typing correspondence and other documents, running errands, sending and receiving facsimile messages and keeping records.
In the light of these findings the question which arises is whether it should now also be found that there came into existence a contract for the employment of the plaintiff by the defendant and if so whether it was a term of that contract that she should be paid a reasonable sum for her services.
The principles relating to a question of this sort are not in doubt. If the parties have conducted themselves upon the basis that a contract exists between them a court will readily infer one. And a term will be found to be implied in the agreement if it meets the test expounded in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 346 – 347. However the conclusion that an agreement should be implied must be firmly rooted in the evidence and not simply based upon an arbitrary notion of what is fair and just.
Clearly any consideration of this matter must take into account the relationship between the parties and the factual context in which they acted as they did.
In that regard it is relevant to observe that the plaintiff was a person interested, directly or indirectly, in the business of the defendant. The precise nature of that interest was not greatly canvassed in the evidence but it is clear that there were significant benefits she, along with her husband and perhaps other family members, stood to gain if the business of the defendant succeeded. Against this background it seems to me that it is by no means fanciful to observe that the plaintiff already had a motive to do the work which she did and the expectation of being paid a wage in addition may not have operated upon her mind. This view of the matter, is perhaps strengthened by the observation that while her husband and others were expressly engaged to provide services to the defendant for reward the plaintiff was not. Instead she continued to work from home, taking instructions principally (albeit it not exclusively) from her husband and doing much the same as she had done before the defendant had acquired the business.

Added to these considerations are those concerning the conduct of the parties themselves. No record of the plaintiff's employment was ever kept, not even by the plaintiff, whose job, it might be thought it would have been. No wages and no tax was paid. No separate office was provided and no claim was made by the plaintiff that she was employed until after the acrimonious dispute arose between herself and her husband on the one hand and Mr Briggs on the other.
In my view in all these circumstances it cannot be now be inferred from the evidence that there must have been an agreement between the parties for the employment of the plaintiff.

Restitution

There is, of course, no room for a remedy in restitution if there is a valid and enforceable contract express or implied (Pavey & Matthews Pty Ltd v Paul (supra) at 255 per Deane J; Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 at 260; Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 275). However in the light of my findings it is appropriate to consider such a claim.
Counsel for the plaintiff did not expound upon the precise basis upon which a case in restitution is put forward but clearly, one is and, in addition to the paragraphs of the statement of claim already set out it is further pleaded as follows:
"20.The Defendant has derived a benefit from the Plaintiff's services pleaded in paragraph 16 herein in that it has not been required to engage an independent secretary to carry out the various services pleaded in paragraph 16 at the commercial rate/scale pleaded in paragraph 17(d).
21.Notwithstanding having been requested to do so, the Defendant has failed to pay the Plaintiff the agreed sum in respect of the relevant period or any part thereof.
22.Alternatively, the Defendant has failed to pay any reasonable sum or any sum at all for the said services pleaded in paragraph 16 herein, and has been unjustly enriched or benefited thereby."
The starting point here is of course the case of Pavey & Matthews Pty Ltd and the judgment of Deane J with whom Mason and Wilson JJ substantially agreed. In an oft‑quoted passage at 255 his Honour drew attention to the distinction between a claim based upon a genuine agreement and one arising in circumstances "where the law itself imposed or imputed an obligation or promise to make compensation for a benefit accepted." He continued:
"In that second category of case, the tendency of common lawyers to speak in terms of implied contract rather than in terms of an obligation imposed by law (see, e.g, per Salter J, Scott v Pattison) should be recognized as but a reflection of the influence of discarded fictions, buried forms of action and the conventional conviction that, if a common law claim could not properly be framed in tort, it must necessarily be dressed in the language of contract. That tendency should not be allowed to conceal the fact that, in that category of case, the action was not based upon a genuine agreement at all. Indeed, if there was a valid and enforceable agreement governing the claimant's right to compensation, there would be neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration. The quasi‑contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution."
In Brenner (supra) Byrne J said at 257 that in cases of this kind:
"… the gist of the claim is that the defendant has actually or constructively accepted the benefit of the plaintiff's services in circumstances where it would be unjust for that party to do so without making restitution to the plaintiff's case; Pavey's case at 227 (per Mason and Wilson JJ) and 256 – 257 (per Deane J). the circumstances in which the law considers it unjust to accept the benefit without payment are to be discerned from the principles to be extracted from the decided cases. For present purposes these indicate that an obligation will not arise where there is a subsisting enforceable contract between the parties for the performance of the services in question: Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 275. The obligation will not arise where the services were provided 'officiously' (Goff and Jones, Law of Restitution 3rd ed (1986) pp 42 ff) or where they were volunteered (Birks, An Introduction to the Law of Restitution (1985) pp 100 ff)."
It is clear from the authorities that in examining whether the law requires payment to be made for services rendered in the absence of an agreement the expectation of the parties who gave and received the services is not to the point. (See Brenner at 259 –260; ABB Power Generation v Chapple (2001) 25 WAR 158 at 162 per Murray J.) The question is:
"… whether the recipient of the services as a reasonable person should have realised that a person in the position of the provider of the services would expect to be paid for them and did not take a reasonable opportunity to reject those services: Jones, Restitution in Public and Private Law 1991 p 108." Brenner (supra) per Byrne J at 260.
In my opinion in the light of these principles the plaintiff's claim again is faced with difficulties. In my view, just as it cannot be said that a contract should be inferred from the evidence so it cannot be concluded that the defendant ought reasonably to have appreciated that the plaintiff ought to be paid for her services. Neither the circumstances in which she came to render them nor any conduct on the part of the plaintiff points to the contrary conclusion. As I have already noted the plaintiff had a direct or indirect interest in the success of the business of the defendant and in my view there was no reason to think that in those circumstances she ought also have been treated as an employee. On the contrary, as the years went by the assumption which the defendant as a reasonable company was entitled to make would only have been reinforced by the absence of any claim for remuneration.
In all the circumstances I am not satisfied that any claim in restitution has been made out.

Conclusion

In my opinion the plaintiff's claim should be dismissed.