Mayers v Next Contact Pty Ltd

[2007] NSWDC 121

CITATION:	Mayers v Next Contact Pty Ltd [2007] NSWDC 121
HEARING DATE(S):	30/04/2007 - 04/05/2007
JUDGMENT DATE:	17 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $110,187
CATCHWORDS:	Contract - contract for services or contract of employment - repudiation - damages
CASES CITED:	Bostik (Australia) Pty Ltd v Gorgevski (no 1) (1992) 36 FCR 20 at 32 Bruce v AWB Limited [No 2] [2000] IR 296 Byrne and Frew v Australian Airlines (1995) 185 CLR 410 Gunton v Richmond LBC [1981] 1 Ch 448 Walker v Citigroup Global Markets Australia Pty Limited [2006] FCAFC 101 Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 at 520-523 Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 Robinson v Harman (1848) 1 Ex 850, at p 855 (154 ER 363, at p 365) Wenham v Ella (1972) 127 CLR 454 Hadley v Baxendale (1854) 9 Exch 341, 354 Murray Irrigation Limited v Balsdon [2006] NSWCA 253 New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 Alexander v Cambridge Credit Corporation Limited (1987) 9 NSWLR 310, 365 Martin v Tasmania Development and Resources [1999] FCA 593; 89 IR 98, 120-121 Czarnikow Ltd v Koufos [1969] 1 AC 350, 385
PARTIES:	Stephen Mayers (Plaintiff) Next Contact Pty Limited (Defendant)
FILE NUMBER(S):	5582 of 2005
COUNSEL:	Mr R. Royle (Plaintiff) Mr M. Easton (Defendant)
SOLICITORS:	Home Wilkinson Lowry (Plaintiff) Thomson Playford (Defendant)

JUDGMENT

The issue

1 HIS HONOUR: The issue in this case is whether the defendant had proper grounds to terminate its contract with the plaintiff. It says that the plaintiff's performance of the contract was "unsatisfactory". If that is not the case, then it is common ground that the defendant's conduct amounted to a repudiation of the contract, which the plaintiff accepted. There may be a question as to when the plaintiff accepted the repudiation.

Witnesses

2 The only witnesses in this case were the plaintiff, Mr Kukura and Mr Wilde. In a series of mentions and pre-trial hearings before the Judicial Registrar of this Court, the parties agreed that all evidence would be presented by affidavit, and these should be served within a specified timeframe. When the defendant sought to read Mr Kukura’s and Mr Wilde's affidavits, the plaintiff’s counsel objected to what purported to be extensive quotations from statements by officers of Westpac, particularly Mr Dennis. These passages were clearly hearsay and I admitted them for the strictly limited purpose of establishing that the persons named had made statements to the witnesses, but not as evidence of the truth of what they purported to state. Thereupon counsel for the defendant sought leave to serve a subpoena on Mr Dennis on short notice. The plaintiff opposed this application. The plaintiff said that if Mr Dennis were to be called, he would have to call other Westpac employees. This would require an adjournment and delay in the proceedings, which were otherwise ready. It was common ground…