Weller v McDonald

[2000] NSWCA 243

CITATION:	WELLER v. McDONALD & ORS. [2000] NSWCA 243
FILE NUMBER(S):	CA 40590/98
HEARING DATE(S):	14 March 2000
JUDGMENT DATE:	14 September 2000
PARTIES :	Stephen Weller (Appellant) Roy McDonald (First Respondent) Macroy Holdings Pty. Limited (Second Respondent) Macroy Group of Companies (Third to Twentieth Respondents)
JUDGMENT OF:	Powell JA at 1; Stein JA at 84; Giles JA at 85

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 11774/92
LOWER COURT JUDICIAL OFFICER :	Murray AJ

COUNSEL:	R.J. Colquhoun and T. G. Howard (Appellant) F.P. Carnovale (Respondents)
SOLICITORS:	Colquhoun & Colquhoun (Rozelle) (Appellant) Gillis Delaney Brown (Respondents)
CATCHWORDS:	CONTRACT - Parties - Offer and Acceptance - Terms of contract - Whether contract of employment or retainer of independent contractor. ND
DECISION:	Appeal dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL


CA 40590/98
CLD 11774/92

POWELL JA
STEIN JA
GILES JA

14 September 2000

WELLER v. McDONALD & ORS.


JUDGMENT

1    POWELL JA: This is an appeal by an unsuccessful Plaintiff against a judgment for the Defendants entered by Murray AJ sitting in the Common Law Division of the Court.

2    In the proceedings the Appellant ("Mr. Weller") - adopting what appears to be becoming a commonplace practice these days - relying upon a multiplicity of cumulative and alternative "causes of action" sought to recover from the First Respondent ("Mr. McDonald"), the Second Respondent, Macroy Holdings Pty. Limited, ("Holdings") and the Third to Twentieth Respondents, a group of companies of which Holdings appears to have been the holding company (the "Macroy Group") damages for what was alleged to have been the breach by Holdings and the Macroy Group of an agreement alleged to have been made in October 1989 between Mr. Weller and Mr. McDonald acting on behalf of Holdings and the Macroy Group.

3    Paragraphs 5-10 of the Third Further Amended Statement of Claim which was filed on behalf of Mr. Weller on the commencement of the hearing before Murray AJ sufficiently indicates the general nature of the primary case which Mr. Weller sought to establish. Those paragraphs (RAB 2-4) were as follows:

"5. On or about 14 or alternatively 16 or alternatively 23 October 1989 (Mr. McDonald), for and on behalf of and as agent for (Holdings and the Macroy Group) and each of them or alternatively one or more of them entered into an agreement with (Mr. Weller) whereby (Mr. Weller) was employed and/or his services were retained as the 'Macroy Group Controller' for (Holdings and the Macroy Group) (the 'Agreement').
6. The Agreement contained the following expressed terms:
(i) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum salary or fee of $50,000.00 per annum;
(ii) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum bonus of $20,000.00 per annum;
(iii) that (Holdings and the Macroy Group) give to (Mr. Weller) and allow him to acquire shares in (Holdings and the Macroy Group) at the rate of two per cent (2%) per annum over a period of five (5) years from the date of commencement;
(iv) that (Holdings and the Macroy Group) pay to (Mr. Weller) a share of the increased pre-tax profits earned by (Holdings and the Macroy Group) from year to year at the rate of ten per cent (10%) per annum from the time of commencement;
(v) that (Mr. Weller) receive from (Holdings and the Macroy Group) a minimum income to be derived from (i) to (iv), of $100,000.00 per annum; and
(vi) that (Mr. Weller) or (Mr. McDonald) may terminate the Agreement upon one (1) month's notice to the other.
7. On or about 15 January 1990 (Mr. Weller) commenced employment and/or provided services to (Holdings and the Macroy Group) as the 'Macroy Group Controller', pursuant to the Agreement.
8. On and from 15 January 1990 (Holdings and the Macroy Group), pursuant to the Agreement:
(a) paid to (Mr. Weller) a minimum salary or fee of $50,000.00 per annum;
(b) paid to (Mr. Weller) a bonus in the sum of $10,000.00 in or about July 1990;
(c) paid to (Mr. Weller) a bonus in the sum of $10,000.00 in or about January 1991.
9. On or about 30 August 1991 and in breach of the Agreement, (Mr. McDonald) for and on behalf of and as agent for (Holdings and the Macroy Group), terminated (Mr. Weller's) employment and/or services (the 'date of termination').
PARTICULARS OF BREACH OF AGREEMENT
(a) Failing to give (Mr. Weller) one (1) month's notice of termination and paying to (Mr. Weller) monies in lieu of notice;
(b) Failing to pay to (Mr. Weller) annual leave entitlements pursuant to the Annual Holidays Act 1944 (NSW);
(c) Failing to pay to (Mr. Weller) a minimum bonus at the rate of $20,000.00 per annum from 15 January 1991 to the date of termination;
(d) Failing to give to (Mr. Weller) and allow him to acquire shares in (Holdings and the Macroy Group) from 15 January 1990 to the date of termination.
(e) Failing to pay to (Mr. Weller) a share of the increased pre-tax profits earned by (Holdings and the Macroy Group) at the rate of ten per cent (10%) per annum from 15 January 1990 to 30 August 1991.
10. Further and in the alternative and on or about 30 August 1991 (Mr. McDonald) for and on behalf of and as agent for (Holdings and the Macroy Group), repudiated the Agreement and/or wrongfully dismissed (Mr. Weller) from his employment and/or services as the 'Macroy Group Controller'."

4    Although the form of those paragraphs is sufficient to indicate at least a degree of uncertainty on the part of Mr. Weller as to the proper categorisation of his relationship with, and of his rights against, Holdings and the Macroy Group, I record, here, that the alternative claims advanced on behalf of Mr. Weller in the Third Further Amended Statement of Claim asserted:

(a) that Mr. McDonald, Holdings and the Macroy Group had been guilty of misleading or deceptive conduct in the course of trade (Trade Practices Act 1974 (Cth) ss. 51A, 52);

(b) that Mr. McDonald, Holdings and the Macroy Group had been guilty of negligent, or, alternatively, fraudulent, misrepresentations which caused Mr. Weller financial loss; and

(c) that Mr. McDonald, Holdings and the Macroy Group had been guilty of unconscionable conduct which had led to Mr. Weller sustaining financial loss.

As if the form of the Third Further Amended Statement of Claim were not sufficient to indicate that uncertainty I note, as well, that, after Murray AJ had delivered his principal Judgment, application was made on behalf of Mr. Weller (inter alia) for leave further to amend the Third Further Amended Statement of Claim so as to raise a quantum meruit claim, and to have Murray AJ "vary his Judgment and find or declare that at the time (Mr. Weller) commenced work with the Defendants there was no contract or agreement as to remuneration" (RAB 24).

5    It is necessary, first, to provide some of the factual background out of which the matters in issue in these proceedings arose.

6    Mr. McDonald, in mid-1989, had a direct or indirect shareholding interest - in most, albeit not all, cases a 100% beneficial interest - in Holdings and the Macroy Group, and was a director of most of those companies.

7    The activities of Holdings and of the companies in the Macroy Group are said to have fallen into five broad divisions, they being:

1. the Real Estate Agency Division - companies operating a real estate agency business;

2. the Real Estate Development Division - companies buying land or old properties and redeveloping the site;

3. the Property Holding Division - companies holding rental properties as long-term investments;

4. the Financial Planning and Management Consulting Division - companies providing financial planning and investment advice, as well as management advice, training programmes, and general business advice to small business;

5. the Travelling Agency and Tour Division - a company in the business of a travel agency and an inbound tour operator.

8    It would seem that, in about August 1989, Mr. McDonald conceived the idea of retaining or appointing a person to fulfil the role of "Group Controller" for Holdings and the Macroy Group, that person to assume an accounting role for all of the companies and, as well, a management role with one or more of the companies in the Real Estate Agency Division and the Real Estate Development Division. Having done so, Mr. McDonald instructed McCallum Consultants Pty. Limited ("McCallum Consultants"), a company which carried on business as "Human Resources Consultants", to search for a person who could assume that role.

9    McCallum Consultants caused to be published in (inter alia) the Sydney Morning Herald of date 12 August 1989 an advertisement which read, in part, as follows (Blue AB 103):

" GROUP
CONTROLLER
$85,000 Package (neg.)
A new position in a very successful and expanding small to medium sized company in Sydney's lower North Shore providing consulting services through several commercial offices in:
PROPERTY DEVELOPMENT &
REAL ESTATE SALES
THE ROLE: Responsible to M.D. for operations of each section of group, development of business plans, expansion of operations, budget preparation and cost control. Liaise with managers in each of the functional areas of Real Estate, financial planning, property acquisitions and development and accounting.
………
THE REWARDS: Remuneration would be negotiated in line with experience and qualifications. Equity participation or project participation and/or profit sharing would be provided."

10    At the time when this advertisement was published, Mr. Weller, who was then aged 42 years, who held the Degree of Bachelor of Commerce from Newcastle University and who appears to have been an Associate of both the Institute of Chartered Accountants and the Australian Society of Accountants, was employed by Turner Corporation Limited ("Turner Corporation"), then a listed public company involved in construction and property development, as General Manager Finance and Company Secretary. Whether or not, as was suggest on the hearing before Murray AJ (Black AB 32), Turner Corporation was then in financial difficulties, it is the fact that, in the resume which Mr. Weller provided when responding to the advertisement, he recorded as "reason for change", "Unsure of economic situation", a reason which, when one has regard to the fact that, in his resume (Blue AB 5) he recorded his "salary" as "$100,000.00 package" as compared with the amount indicated in the advertisement, suggests that Turner Corporation might, at that time, have been in financial difficulties.

11    Having responded to the advertisement, Mr. Weller was interviewed by Mr. Rees, an officer of McCallum Consultants, and underwent some form of psychological assessment testing, following which he was informed that the prospective employer was Holdings, a company controlled by Mr. McDonald, as to whose business interests he was also given some information.

12    Mr. Weller and Mr. McDonald met for the first time on 3 October 1989 at Mr. McDonald's then office at 30 Atchison Street, St. Leonards. The detail of what was discussed at that meeting given by Mr. Weller (Exhibit "A") and Mr. McDonald (Exhibit "6") in their respective statements varied. As the meeting was clearly a preliminary, or exploratory, one, that does not appear to me to be a matter of any great consequence in the long run although, in the light of what was later to occur, it might be noted that, in his statement (Blue AB 314), Mr. McDonald said that, when he asked Mr. Weller what notice he would be obliged to give the Turner Corporation in the event that he were successful in obtaining the position advertised, Mr. Weller indicated that he believed that he would have to give one month's notice.

13    Mr. Weller and Mr. McDonald met again on 10 October 1999. Again, their respective versions of what was discussed at this meeting vary, but, as discussion was clearly inconclusive I do not consider the variations between them to be of any great moment.

14    Although the matter is not referred to in either version of the conversation given by Mr. Weller and Mr. McDonald in their statements, the form of the case which Mr. Weller sought to advance at trial leads me to record here that in a memorandum dictated by Mr. McDonald to his secretary following that meeting, the following (inter alia) appears (Blue AB 343-344):

"STEPHEN WELLER
I made a tentative arrangement not telling him yet for saturday (sic) 14 say 1.00 that is flexible I wouldn't mind seeing him sometime on Friday afternoon if I could too (sic) see how we go he will ring and you can tell him the times.
PRIVATE AND CONFIDENTIAL
What we see Steve (sic) being involved with is the overall responsibilities of administrational (sic) functions, accounting and finance particularly treasury within the corporate finance area, special projects and funding.
………
Stephen Weller would like to be in a compnay (sic) structure corporate in sense of tax minimisation. I would like to show him what our asset base is and where we are with things on a meeting next time and have a good look at that. To do that successfully I think we need a group of accounts from Brian or an overview from Brian and to put that together so that we can show him. So Deb. give these notes to me for Brian to settle up."

15    Mr. Weller and Mr. McDonald met yet again on 14 October 1989. As before there are variations between them as to the detail of what was discussed at that meeting. On this occasion, however, while Mr. Weller was still with him, Mr. McDonald dictated a memorandum - in his statement (Blue AB 92), Mr. Weller described it as a "Memorandum of some of the matters we had discussed at that meeting", while in his statement (Blue AB 322), Mr. McDonald said that after he had concluded dictating the memorandum, he said to Mr. Weller "Stephen, if you're wondering why I dictate these notes in your presence, it's just a habit that I have so that we both have a record of what we've discussed and what requires further discussion." - a copy of which memorandum, when engrossed, was given to Mr. Weller on 16 October 1989.

16    The Memorandum (Blue AB 104-105, 348-349), when engrossed, would seem not to have been read through, or corrected, by Mr. McDonald prior to the copy of it having been given to Mr. Weller. It was in the following terms:

"STEVE WHELLER (SIC)
CONFIDENTIAL
Real estate works and assorted companies in the Beaumont Group of Companies in the development are engaging Stephen through a corporation XYZ Pty. LTd (sic) on a contractural (sic) arrangement. The contract will have a min. $50,000 pa I also see a min. bonus of $20,000 which will gurantee (sic) for the first year.
The next area should be clearly and (sic) equity participation in our Real Estae (sic) Company and development … of 10%. This should be by way of a profit share within the first year, however the shares will be given on a 2% a year over 5 years. This deals with the acquisition of those shares as they are a gift. A further option would be given for further purchasing of the company based on real value. Within 2½ months in other words Xmas time I would expect we sit down and design the business plan for all the structures that come under Stephens (sic) direct control and we should then set down the real criteria for our joint venuturing (sic) of these companies after he has fully assessed their value and worth and activity. At that time setting the time of goals for 1990 we should be able to produce the business plans for those structures with all their targets, all funding should be clear for Stephen and in place and it would continue on a monthly business management meeting. It must be a great deal of flexibility in those structures as we are in fluid times and even after 3 months it may be difficult to fully assess and consider all the aspects. These confidential notes are really to show to (sic) intention of what we are trying to create with Steve on a long-term relationship basis based on equity participation and joint venturing of our matters. It should also be noted that we need term life cover under a keyman policy to have ownership back of those shares if anything happened to Steve and other buy back clauses. Also insurance for any dependant that he has and exposure to any personal commitment. It is the intention of this structure to create an income in the axcess (sic) of $100,000 and it would be Stephens direct responsibility to see that occured (sic), as much as the support from myself. We both believe that the situation should be acheived (sic) in the 1st year with the $50,000 consultancy fee and the $20,00 guaranteed bonus thats (sic) $70,000 at the end of the 2nd year we should be looking at a $100,000 plus, and then an on-going amount from there, as we have put on limit on this earning rate. Quite abit (sic) of this money should be genrated (sic) from re-investment (sic) of capital into joint venture matters, where major profits could occur. I would like to go on record as saying that we would be happy also to stake Steve in relation to some matters he has particular interest in.
In terms of profit share -
10% profit runs from day one, this profit can be looked at in 2 ways, 1 as the overall position thats (sic) every company under the structure, bar ID Tours and this based on the increased profit form (sic) existing profits or 2 We mark down specific companies are that ones that Stephen has direct control over for example, Real Estate Works, and all the associated real estate property works managment (sic), and the Beaumont group of development companies which are the ones we will be using fopr (sic) most of the investment areas and development construction.
As a gift on the basis of 2% p.a. the capital shares of those comapnies (sic) would be given such that over 5 years 10% of the company capital is under Stephens (sic) control. There would be some buy back agreements on that if he left under 5 years or sonething (sic) but in the normal sense of the word that is the arrangement and subsequent any other purchase of shares should be done on a normal value basis and that option is there as well.
To compentenplate (sic) that whole figure the $50,000 the profit was say the excessive (sic) profit in example 1 was another ½ million dollars 10% would represent $50,000 and as $20,000 has already been granted in the guarantee (sic) profit then there is a further $30,000 we (sic) payable in that instance as an example."
(Real Estate Works was the company in the Macroy Group which operated the real estate agency business at St. Leonards; the Beaumont Group of Companies were the companies which operated the real estate development business of the Macroy Group; ID Tours - in which company Mr. McDonald held only fifty per cent of the issued shares, the balance of the issued shares being held by an associate or associates of his - was the company which operated the business of a travel agency and an inbound tour operator.)

17    In his statement (Blue AB 92-93) Mr. Weller said that, having read the copy Memorandum, he believed that it required some amendments which he duly made and that on the following day he delivered a copy of the amended Memorandum of Mr. McDonald's office. In his oral evidence (Black AB 48-50), Mr. Weller claimed that, on 17 October 1989, he called at the office of the Respondent companies unannounced, walked past the receptionist unchallenged saying "I'm just dropping something down to Roy", down a corridor, past three offices to Mr. McDonald's secretary's station and dropped the amended Memorandum in Mr. McDonald's in-tray saying "This is for Roy".

18    In his statement (Blue AB 93) Mr. Weller claimed that, on the following Monday, 23 October 1989, he telephoned Mr. McDonald and then had a conversation with him in the following terms:

WELLER: "Have you read the amendments that I made to your draft letter?"
McDONALD: "Yes it reflects our discussion and I'm happy to proceed upon that basis."
WELLER: "Good, I will resign my present position today."
In that statement Mr. Weller asserts that, on the same day, he gave notice of his resignation to Turner Corporation and "It was agreed that (he) would finish up with Turner Corporation as at Christmas".

19    It was Mr. Weller's case at trial (RAB 31) that the agreement upon which he sued was based on the amended Memorandum, and was consummated in that telephone conversation on 23 October 1989.

20    Because of that fact, Murray AJ was at some pains to analyse the differences between the Memorandum in its original form and the Memorandum as Mr. Weller claimed to have altered it and, as well, was at some pains to determine whether Mr. Weller had delivered the amended Memorandum to Mr. McDonald on 17 October 1989.

21    Although, as the result of his analysis, Murray AJ concluded that although some of the amendments which Mr. Weller claimed to have made were purely typographical and grammatical, nonetheless others of the alterations which he claimed to have made led to the sense of the original document being substantially altered (RAB 29-30), a fact which led his Honour to observe (RAB 30):

"It can be seen from the above examples that there were many changes of substance proposed in the amended document. They would require discussion. To my mind it is inconceivable that the author of the amendments would simply make those amendments and then drop the document into the in tray of the recipients secretary. I do not believe that Mr. Weller conveyed the document to (Mr. McDonald) in the way in which he says, or in any way at all."
Having earlier (RAB 29) referred to Mr. McDonald's denial of ever having received the amended memorandum, Murray AJ wrote (RAB 29):

"The answers given by Mr. Weller on pages 48-52 and from 68.30 to 71.5, in the face of Mr. McDonald's denial of ever having received the document (para. 29 of Exhibit 6) leaves me unsatisfied that Mr. Weller ever did, in fact, deliver the amended document to Mr. McDonald.
This has the important consequence that if the amended document (Annexure C), was never delivered, the conversation of 23 October 1989, is unlikely to have occurred. I shall return to that topic later, but before doing so, it is necessary to consider the nature of the amendments made to the document."
Having analysed the differences between the two documents and having recorded what was said to have been the conversation of 23 October 1989, Murray AJ wrote (RAB 31):

"The above conversation was denied by Mr. McDonald. He says it just did not happen.
If it did occur (which I think it did not), it is surprising that the amendments alleged to have been made by Mr. Weller to the Memorandum were not discussed."
and later (RAB 33):

"Contrary to the plaintiff's submissions, I do not believe that the alleged conversation of 23 October 1989, occurred."

22    In his statement (Blue 323), Mr. McDonald said that, on 24 October 1989, he had a meeting with Mr. Weller in the course of which they had a conversation in or to the following effect:

WELLER: "Roy, I received your draft notes of our meeting on 14. They cover our intentions although there are a lot of details to work out in relation to the individual investment projects. I am happy to accept the position on the basis of $50,000 per annum with the $20,000 guaranteed bonus for the first year at this stage. I am really looking forward to making more money based upon any profit share deal that we can put together. I know we have to sit down and sort out the matters that are still vague in relation to the joint ventures."
McDONALD: "We can sort through those matters when we do the business plan and the strategic planning before Christmas. The most important thing is when can you start?"
WELLER: "I'll resign from Turners today and I'll be here in 1 month, maximum."
In his Judgment (RAB 56) Murray AJ indicated his acceptance of Mr. McDonald's evidence as to the conversation on 24 October 1989.

23    In recording his "Conclusion" and, in particular, in dealing with Mr. Weller's case that he had entered into an agreement with the Respondent companies on 23 October 1989, the terms of which agreement were those set out in the amended Memorandum, Murray AJ wrote (RAB 57-58):

"In my view, insofar as the conversation between Mr. McDonald of 24 October 1989, related back to the discussion of 16 October 1989 as recorded in the memorandum, Annexure B to Ex A, I conclude that the only matters that were certain were the provision of a $50,000 consultancy fee and a $20,000 guaranteed minimum bonus. The other details concerning the possibility of profit sharing and equity sharing, were left at that stage, to be negotiated. It follows that in my opinion, no agreement had been reached at that stage."

24    In his statement (Blue AB 323) Mr. McDonald said that between 24 October and the end of October 1989, he received a telephone call from Mr. Weller in the course of which a conversation in or to the following effect took place:

WELLER: "I have resigned from Turners, but they wanted three months' notice. I won't be able to start until the end of January at the earliest."
McDONALD: "That won't work out for me. It's too long. As you know, the difficulty we have is that we need to have everything in place including our business and strategic plans up and running before Christmas. I am very disappointed. My understanding was that you only had to give one month's notice to Turners and there was a fairly good possibility that you might be able to start with us earlier which would have brought us to mid-November, giving us more than a month before Christmas."
WELLER: "I'll see what I can do. I might be able to get out of it. I'll let you know as soon as I can."
McDONALD: "This is absolutely crucial Stephen. If you can't start within a month I will be unable to offer you the position. I will be forced to readvertise the position because I simply can't wait that long. Please get back to me as soon as possible."

25    In his statement (Blue AB 324-326), Mr. McDonald said that about the end of October he received a further telephone call from Mr. Weller in the course of which a conversation in or to the following effect took place:

WELLER: "Unfortunately, Roy, I can't get away from Turners before the end of January."
McDONALD: "Stephen, that's not going to work out for me if you are jammed up for such a long time because once we get to Christmas it's all over bar the shouting. I'm going on holidays and I won't get back until the New Year and I want to have all this in place before I leave."
WELLER: "There are a number of matters that I am dealing with at Turners that I have to have organised and there is something I didn't explain to you. I am actually going through a separating and divorce from my wife and there are things I just need to handle."
McDONALD: "I am disappointed you're telling me this at this stage. I think it would have been more appropriate that you told me this up front. You realise this job is a very senior role within our company and we need to have all the cards on the table."
WELLER: "I'm sorry about that. It's a private matter. I didn't really think it would affect things. I may be able to get Turners to agree to the one month's notice and I may be able to get these things sorted out with my wife. It depends how she co-operates."
McDONALD: "Let's be clear, Stephen I can only offer you this position if you can put all of your private matters behind you and get under way with us, let's say, no later than Monday 13 November, because I am going away the following Monday and I won't get back until the 1st December and you could be working through all of the matters with the accounts department while I'm away. That would give you the first week's briefing. Please get back to me as soon as possible as I want to know where you stand."
WELLER: "I think I can do that. I'll do the best I can. I need to come over and view your accounts, as you suggested. Can I come on Monday?"
McDONALD: "That will be fine. Just arrange it with Debbie to meet with Brian Keogh."

26    In his statement (Blue AB 325-326) Mr. McDonald said that, on 6 November 1989, following a meeting between Mr. Weller, Mr. Keogh, the company secretary of all the Respondent companies and Mr. Rasmussen, the chief accountant of the Group, to familiarise himself (Mr. Weller) with the Group's activities and accounts, he had a meeting with Mr. Weller in the course of which meeting there was a conversation in or to the following effect:

WELLER: "Roy, Turners won't let me go until after Christmas, they want three months' notice. I have tried to negotiate with them, but they are really pressing me to complete some of these matters."
McDONALD: "Well that is very disappointing, Stephen, and obviously this decision is in your hands and you have to make the decision that you think is appropriate. But from where our company stands, we can't wait that long. So what I have to say to you is that we do not have an agreement unless we can get you under way before I go on holidays."
WELLER: "Roy, I'll see what I can do. I understand how important this is for you but you must understand the pressure that I am under."
McDONALD: "I appreciate that Stephen but we have to get under way. I will instruct Tim to continue the advertising process as I can't afford to delay the filling of this position any more as the planning needs to be done prior to Christmas. We have been working on this matter since July and you answered the ad in early August. We have had a number of meetings and if you are serious about the role Stephen you will under way and get organised. The ball is in your court. Stephen, I've just had a thought. Is there a chance that you could do any of the work necessary on a consultancy basis prior to Christmas?"
WELLER: "That's a possibility. What do you propose?"
McDONALD: "That you help us with these business plans and other matters to be processed. We will pay you on a fee for service basis. There are a couple of things you could do. One is the Marischel joint venture matter, which is a proposal at this stage with the Investment Brokers. Secondly, there are probably some specific accounting projects that you could help the team on. It would help you get a better understanding of our companies' operations and procedures. Why don't you give Brian or David a call and set up a time that will work for you and them."
WELLER: "Alright, I'll give them a call."

27    In his statement (Blue AB 94) Mr. Weller said that, on 13 November 1989, he attended a meeting with Mr. Keogh and Mr. Rasmussen, at which meeting there was a discussion concerning organisational and accounting problems. In the course of that meeting, so Mr. Weller said, he was told that the proposed arrangement with Mr. Marischel was not proceeding.

28    In his statement (Blue AB 326-327) Mr. McDonald said that, about a week after his meeting with Mr. Weller on 6 November 1989, he had a further conversation - probably in person - with Mr. Weller which conversation was in the following terms to the like effect:

McDONALD: "How are you going with your departure from Turners?"
WELLER: "Roy, I can't change those times. It can't be before the end of January. Have you had other applicants?"
McDONALD: "There have been some that Tim is looking at but I don't know the result of those at this point. Is there anything else you can do to get out of it?"
WELLER: "I'm doing the best I can."
McDONALD: "It's just not good enough, but keep in touch and we'll see how we go. If nothing else happens we can talk again in the new year depending on what happens. Given that the joint venture matter with Marischel is not continuing, there does not appear to be any point in continuing with you to do any specific projects with us. Stephen, let me make something absolutely clear. We'll have to agree that all our discussions up to date have to be put aside. We will continue to seek other applicants. We could resume the discussions next year if you haven't found another position and we haven't found a suitable applicant."
(The reference to "Tim" in the course of this conversation is a reference to Mr. Ryan from McCallum Consultants.)

29    In his statement (Blue AB 327) Mr. McDonald further said that, during the course of November and December 1989, he instructed McCallum Consultants to continue the search for an appropriate consultant for the position in light of Mr. Weller's reluctance, or inability, to commence with that position when he required and, further, that, at the same time he instructed McCallum Consultants, to keep in touch with Mr. Weller in the event that the Respondents were unable to fill the position prior to Christmas.

30    In the course of his Judgment (RAB 55), Murray AJ, having referred to those parts of Mr. McDonald's statement and, as well, to some of his oral evidence, said:

"He said that those instructions were given to Mr. Ryan on or about 6 November when Mr. Weller told him that he could not start within 1 month. He said that McCallum Consultants continued to advertise the position and that the advertising process never stopped. He said that he was given reports as to the progress of the recruitment during this period and that he had continuing discussions with Mr. Ryan in November and December 1989. It would appear that Mr. McDonald was mistaken in this, as it appears that Mr. Rees, not Mr. Ryan, was in charge of the recruitment process. Mr. Ryan gave evidence that he did not meet Mr. Weller until February or March 1990, i.e. after he had commenced employment. It appears that Mr. Ryan played no part in the preparation of the advertisement nor in the recruitment process. I do not think that Mr. McDonald was being deliberately untruthful, when stating that it was Mr. Ryan with whom he was dealing. It appears later, that Mr. Ryan at least, had a very close association with the Macroy Group. Evidence of this is the later memoranda sent by Mr. Ryan to Mr. Weller, advising him of his change of status. I believe Mr. McDonald simply was mistaken in saying that it was Mr. Ryan rather than Mr. Rees, with whom he was dealing in the recruitment process.
I think, as a result of the discussions Mr. McDonald and Mr. Weller had in October, Mr. McDonald was reasonably confident that Mr. Weller would 'fit the bill'. However, I do believe that he wanted him to start as soon as possible, and certainly earlier than the end of the year. I think that Mr. McDonald was probably led to believe that once Mr. Weller gave notice to Turner Corporation, he would be asked to finish up fairly quickly with them, notwithstanding the fact that his terms of employment required 3 months notice. It is not unusual in circumstances of a resignation for an employer to require the employee to finish up as quickly as possible rather than have someone simply 'working out' their period of notice. I think also Mr. McDonald went 'a bit cold' on Mr. Weller when Mr. Weller could not start sooner than Christmas. I believe that Mr. McDonald was told by McCallums that they had interviewed a number of prospective candidates and possibly they and Mr. McDonald were hoping that a more suitable candidate would come along. I do not believe that the failure of McCallums to vigorously look for a person to fill the position of Group Controller after October, supports (Mr. Weller's) contentions to the extent submitted."

31    In his statement (Blue AB 94) Mr. Weller said that on 27 November 1989 he telephoned Mr. McDonald and had a conversation which was to the following effect:

WELLER: "I can start as early as possible."
McDONALD: "I'm going to my farm and I won't be returning to the office until about 6 January. I suggest that you start on 15 January."
Mr. McDonald, in his statement (Blue AB 327) said that his last day at the office for 1989 was 22 December and that he then went to his farm - which is at Uralla, just South of Armidale (Blue AB 312) as was his custom and that he did not return to his office until 8 January 1990. At the same time Mr. McDonald said that he had no discussions with Mr. Weller from about mid-November 1989 to early January 1990 about the possibility of engaging him in the Macroy Group.

32    In his statement (Blue AB 328-329) Mr. McDonald said that having, after his return to the office, ascertained from McCallum Consultants that they had not found a suitable candidate for the position, between 9 and 12 January 1990 he had a telephone conversation with Mr. Weller which was to the following effect:

McDONALD: "Stephen, time has overtaken the circumstances. You know we were most anxious to have a financial controller in place well before Christmas. We have missed that date and the reality is that there are no other suitable candidates. I am calling you to see what is your current position?
WELLER: "Well, I'm now available."
McDONALD: "Well, the deal I put to you, namely $50,000 cash and $20,000 guaranteed bonus still stands and I'm still interesting in discussing with you the joint venture matters with the real estate and development companies. However, I don't want to get involved with the company shares and transfers as I think it's too complicated. What I would rather do is to have an agreement with you based on a percentage of profit, the profits generated by my property and development companies, an increase from 10% to 20% to off-set the non-shareholding aspect but this will require further and more detailed discussions. This position will remain for 12 months and then we will review. How does that sound to you?"
WELLER: "That's fine but does that mean you still want the accounting area dealt with?"
McDONALD: "Absolutely and we still want the business plans written. You would still be responsible for all the companies in the group in terms of the accounting with still the focus separately upon the development of the real estate and property developing businesses."

and a little later: -

McDONALD: "Stephen, I was very concerned that you weren't absolutely forthright with me in our initial discussion, and I would like to use the next twelve months as a way of getting to know each other and building trust so as to be absolutely sure that this relationship is going to work out. You will be guaranteed $70,000.00 for your role as a consultant for 12 months with us with the opportunity for specific joint ventures in our property and development companies and thereafter we will have a talk about a review."
WELLER: "Will you give me a letter to that effect?"
McDONALD: "Certainly. I'll give you a letter of appointment from Real Estate Works outlining the package including the $20,000 guaranteed bonus and I'll mention the discretionary bonus in respect of profit share. When can you start?"
WELLER: "Would Monday be okay?"
McDONALD: "That will be fine I'll see you on Monday."

33    Mr. Weller in fact commenced to work in the offices at Atchison Street, St. Leonards on 15 January 1990.

34    Although, in his Judgment, Murray AJ does not appear in terms to have resolved the conflict between Mr. Weller and Mr. McDonald as to the circumstances in which Mr. Weller did commence to work on 15 January, the fact that Mr. Weller did not claim that, in the conversation which he alleged took place on 27 October 1989, there was any discussion as to the terms upon which he was to do so, coupled with the events which occurred following 15 January 1990 make it, in my view, more probable than not that the correct version of what occurred was as alleged by Mr. McDonald.

35    At some time which is not clear, Mr. McDonald dictated and had engrossed on the letterhead of Real Estate Works, a letter dated 30 January 1990 (Blue AB 108, 358) addressed to Mr. Weller, which letter, omitting formal parts was as follows:

"This letter will serve to confirm my understanding of your company being retained for consultation services with respect to our company.
My understanding is that a fee of $50,000 is to be paid to your company over the course of a year on a monthly basis being $4,167 per month. A further $20,000 guaranteed bonus which is to be paid as well conditional to twelve month's consultancy with our company.
It is further agreed that consideration will be given to a bonus with regard to the operations of Real Estate Works, Macroy Holdings and Beaumont Group of Companies on the basis of them becoming profit centres.
This is a discretionary bonus and will need further discussion and it is to have a component of profit share in the order of 20%.
It is understood one months notice from either party will terminate this agreement."
which letter Mr. McDonald gave to Mr. Weller on about 30 January 1990.

36    Although he does not refer to it in his statement, Mr. Weller, utilising what appears to have been an internal memorandum pad, had submitted to Macroy Group an invoice dated 1 February 1990 (Blue AB 391) which invoice in the following terms:

"JANUARY 1990
Consulting work relative to funding negotiations with
bankers, cash flow, drafting systems $ 2,355.00"
Although the basis upon which the amount of $2,355.00 is calculated is in no way revealed by the materials which are before the Court, it appears to represent 17.5/31 x $4,167.00.

37    Mr. Weller says (Blue AB 95) that, having received the letter of 30 January 1990, he wrote on the foot of it the following:

"2/2/90
Roy this does not
reflect our discussions
last year. - eg,
(i) $20,000 was not conditional on 1 years service
(ii) Shareholdings not mentioned
(iii) Other bonus not discretionary - co's from which it emanates to be selected
(iv) Keyman insurance
(v) Profit share was 10% not 20%
+ others.
(Sgd) Stephen"
In his statement, Mr. Weller continued (Blue AB 95):

"As I had only been with the Macroy group for two weeks I did not wish to have a confrontation with Mr. McDonald. I decided that rather than confronting Mr. McDonald as to the inaccuracies in his letter, I would adopt a more moderate response by sending him a note setting out my understanding of our arrangements. Accordingly I made the handwritten notes appearing at the foot of the letter and a copy of the letter with my notes was left with Mr. McDonald's secretary."

Later in his statement (Blue AB 97), Mr. Weller said:

"By August 1990 no steps had been taken to implement the arrangements for profit sharing and equity participation. By this time I had a heavy workload and I was constantly working under considerable demands from Mr. McDonald. I was not however regularly meeting with Mr. McDonald and mostly we would communicate by written notes. To my then knowledge, the person working closely with Mr. McDonald was Tim Ryan of McCallum Consultants. Mr. Ryan was working with Mr. McDonald on matters relating to client relations and staffing issues.
………
From about August or September 1990 my relationship with Mr. McDonald deteriorated. I was unable to discuss my financial arrangements directly. My communications with Mr. McDonald were mostly limited to notes. In particular, around this time I recall leaving Mr. McDonald a number of notes seeking a meeting to discuss the implementation of my profit sharing and equity arrangements."

38    Mr. Weller's version of what occurred was at odds with Mr. McDonald's version. In his statement (Blue AB 330-332) Mr. McDonald said that having, on about 5 February 1990 received in his "In-tray" a copy of the letter to Mr. Weller together with Mr. Weller's notes on it, he had a meeting with Mr. Weller on 7 February 1990 during the course of which there was a conversation to the following effect:

McDONALD: "Stephen, I've read the notes that you made on my letter to you of 30 January. Do you need some clarification as to what was agreed as the basis for your consultancy?"
WELLER: "Yes. There are five points there and I would like to go through them with you."
McDONALD: "Fine. The first one, $20,000 was a bonus to make up the amount of money that you had earlier told me you required to survive and it is conditional upon 1 year's service and will be reviewed at the end of that year."
WELLER: "So you want to review it annually."
McDONALD: "Yes."
WELLER: "I understand."
McDONALD: "Secondly, there is no prospect of a shareholding. That position changed at the end of last year."
WELLER: "Why is that?"
McDONALD: "I believe it's too complicated. We've only just got together. After one year we can review the situation."
WELLER: "I understand."
McDONALD: "Thirdly, as you will recall, any bonus with regard to any joint venture undertaken by you with our real estate or our development company is discretionary and will have to be decided and agreed as and when each joint venture development is undertaken and that's why I've made it discretionary. If a joint venture occurs then the bonus will be discussed as will the amount of the bonus."
WELLER: "So which companies would this involve."
McDONALD: "It should be dealt with under the Beaumont Group, and we'll get a specific shelf company for that specific development."
WELLER: "That clears that up."
McDONALD: "The next matter is the key man insurance. It is not necessary as there is no shareholding being transferred. The only reason the key-man insurance was when we were earlier discussing the terms of your engagement upon the basis of your commencing back last October."
WELLER: "What did you mean by key-man insurance?"
McDONALD: "Key-man insurance is only to insure against your life in case of your death, with respect to the repurchase back of the shares. It does not protect you. It protect us."
WELLER: "I see what you mean."
McDONALD: "Finally, as you know, I increased the profit share from 10% to 20% to take into account the fact that we were not going to offer you any shareholding. Stephen, is it absolutely clear to you now that this letter and the terms in this letter are the conditions of your engagement?"
WELLER: "I was hoping that I would get more."
McDONALD: "Stephen, this is it. However, I am prepared, as I've said on numerous occasions, to review this whole thing in the light of the value added by you to this company over the next 12 months. My position is, that's what I was prepared to offer you and what I understood you were prepared to accept. If this is not acceptable now, please tell me immediately because we've got some real problems here."
WELLER: "No. I'm glad this is clarified. I was hoping to convince you to reconsider but I accept what you say. The only question I really need to clarify is in respect of the bonus. When is it payable?"
McDONALD: "It would be fair to pay that upon a 6 monthly basis, one-half in 6 months and the other half in 12 months.
WELLER: "That's fair."

39    In his statement (Blue AB 332) Mr. McDonald also said:

"I had no further negotiations with Stephen Weller about the terms of his engagement until 1991 when I was reviewing his performance position.
I did not receive any notes or letters from Stephen Weller concerning the terms of his engagement, apart from the notes that he placed at the foot of the letter of 30 January 1990, until July 1991 … Stephen Weller carried out consulting work with the group during 1990."

40    In his Judgment (RAB 35) when dealing with Mr. Weller's statement as to what followed his leaving the letter of 30 January 1990 in Mr. McDonald's in-tray, Murray AJ wrote:

"The plaintiff was cross-examined on the reaction to these notes. According to his evidence, he continued to work with the defendants until March 1991, without ever having a discussion with Mr. McDonald concerning the subject matter of the letter or notes.
Mr. McDonald gives contrary evidence.
I do not accept the plaintiff when he says that the subject matter of the letter and notes were simply 'left up in the air'.
It is inconceivable that the plaintiff and the First defendant should work side by side in a relatively small office complex without any discussion of the subject matter of this letter."

41    Then, having recorded Mr. McDonald's version of what he said occurred on 7 February 1990, Murray AJ wrote (RAB 37-38):

"I have some reservations about this conversation, as it seems to me in its terms, a little too compliant on the part of Mr. Weller. However, I have no doubt that some such conversation occurred. As I have said earlier, it flies in the face of reason that no discussion emerged concerning the letter of 30 January 1990 and the notes made on it.
Mr. McDonald was cross-examined concerning this conversation.
………
He was then cross-examined on the terms of the conversation. In regard to the reference to the prospect of shareholding being 'too complicated', McDonald confessed that it was not that the prospect of shareholding was just too complicated but rather, because he had concerns about Weller himself. He admitted that we was not being entirely frank with Mr. Weller and he simply said that it was 'too complicated'. He said he wanted to see how Mr. Weller performed over the 12 month period so that he could make an assessment of him.
It has to be remembered that Mr. Weller had started only on 15 January, and therefore I do not find it unusual that they would be both 'feeling their way'.
Mr. McDonald was then cross-examined concerning the Keyman insurance issue, which in turn was related to the time of expected commencement of Mr. Weller when discussions were held in October of 89. Mr. McDonald's expectation was, at that time, that Mr. Weller would start within a month 'at the outside'. This was in turn based on his expectation that once he gave notice to his previous employer he would finish up fairly quickly.
Mr. McDonald was cross-examined concerning the change of the offer of a profit share of 10% to one of 20%. It was put to him and he agreed that that increase was due to the fact that Mr. Weller was not being offered any shareholding. He explained that this additional 20% figure bonus was completely discretionary and was dependent upon a business or strategic plan being prepared and implemented.
I have come to the conclusion that a conversation of the type referred to by Mr. McDonald in Exhibit 6 did in fact occur, and that it was along the lines generally of that verified in his statement and evidence."

42    When, in the course of his Judgment, he recorded his "Conclusion", Murray AJ wrote (Blue AB 58):

"In my view, the terms of the agreement concluded between the plaintiff and the defendants was that contained in the letter of 30/1/90 in its unamended form.
That agreement was for:
1. A consultancy fee of $50,000 over the course of a year on a monthly basis of $4,167.
2. A further $20,000 Guaranteed Bonus conditional upon 12 months consultancy.
3. A discretionary bonus with regard to the operations of Real Estate Works, Macroy Holdings and the Beaumont Group of companies. That discretionary bonus was to be at the rate of 20% of the profit share, but would relate to specific projects in which the plaintiff would be involved..
4. The agreement was determinable by either party on 1 month's notice.
The evidence does not go so far as to indicate that any such projects were instituted, although I am unaware of the full details of the Penrose Project.
Although the letter of 30 January 1990 was written on Real Estate Works letterhead, I find on the pleadings and the evidence, that the contract, such as it was, was between the plaintiff and all the defendants."

43    As I have earlier noted, later events provided corroboration for Mr. McDonald's version of the circumstances in which Mr. Weller came to work at the offices in Atchison Street, St. Leonards. First, there was the invoice, to which I have earlier referred, dated 1 February 1990. That invoice was followed by a series of invoices delivered by Mr. Weller utilising what I have earlier described as the internal memorandum pad up to and including May 1990, those invoices being addressed to Macroy Group or Real Estate Works. In June 1990 (Blue AB 395), the invoice had a typed heading "Rellew Management Resources" and was addressed to Financial Planning Works. In July 1990 there were two such invoices (Blue AB 396-397) one for $4,167.00 and the other for $10,000.00. For August to December 1990, the invoices had a type written heading "Karstep Management Resources" - which seems (see, for example, Blue AB 409) to have been a business name registered by Mr. Weller and his wife - those invoices being addressed to various of the companies in the Macroy Group, such as Real Estate Works, Hamden Developments Pty. Limited, The Investment Brokers Pty. Limited. In January 1991, there were two such invoices - each addressed to Hamden Developments Pty. Limited, one for $4,167.00 (Blue AB 404) and one for $10,000.00 (Blue AB 405). Similar invoices - similarly addressed but, as from April 1991, on printed letterhead of "Karstep Management Resources" - were provided up to and including July 1991.

44    In his statement (Blue AB 98) Mr. Weller said that in March 1991, at a meeting with Mr. McDonald and Mr. Ryan, he said to Mr. McDonald "Roy, what is happening about my profit sharing and company shares?" to which Mr. McDonald replied "Your salary is to be $100,000.00 per annum but we have to structure it. There is to be a performance measurement. I don't have time to discuss it now, I have a client waiting. You and Tim can discuss it after this meeting." For his part Mr. McDonald said (Blue AB 333) that at no time did Mr. Weller inquire of him about profit sharing or acquiring company shares and at no time did he tell Mr. Weller that his salary was to be $100,000.00 nor did he ask him to discuss that matter with Mr. Ryan. Mr. Ryan (Blue AB 421) said that he did not recall anything being said at any meeting which he had had with Mr. McDonald and Mr. Weller about any profit sharing arrangement or share acquisition arrangement for Mr. Weller nor did he discuss any such arrangement with Mr. Weller.

45    In his statement (Blue AB 333), Mr. McDonald said that, on 15 March 1991, he had a meeting with Mr. Weller and Mr. Ryan concerning the appointment of a person to a new position of General Manager - Operations. Mr. McDonald said that, at the same meeting, they discussed Mr. Weller's appointment to a new position of Group Finance Manager and the abolition of his then existing position of Group Financial Controller.

46    On 18 March 1991, Mr. Ryan forwarded to each of Mr. McDonald and Mr. Weller a memorandum in the following form (Blue AB 362-363):

"RE: POSITION TRANSFER
The following documents the new position which Steve's company assumes as of today.
1. POSITION TITLE: GROUP FINANCE MANAGER
2. REPORTING RELATIONS: Accountable to the Chief
Executive, MacRoy Holdings
Pty. Ltd
Accountable for the performance
of the Company Secretary,
Financial Accountant , and
Bookkeeper.
3. KEY EFFECTIVENESS
AREAS . Group Accounting & Reporting
. Group Financial Planning
. Statutory Requirements
. Insurances & Legals
. Personal Administration
4. OBJECTIVES &
ACTION PLANS
It is agreed that Steve's company will by 29 March prepare and present a series of projects in each of the effectiveness areas, specifying Project Objectives, Action Plans, Time Frame, & Performance Measures .
On approval Steve's company will be accountable for the successful completion of each Project.
5. CONSULTING FEES
The fees paid to Steve's company will be as follows:
. A monthly fee of $4,170.00
. A bonus fee to be paid on completion of each project, the total amount of which will equal a maximum of $30,000 annually. (The actual amount paid per project will be agreed following discussions on project specifications, 29 March 1991)
6. PERFORMANCE REVIEW
It is agreed that this position and the performance of Steve's company will be reviewed at end-July, 1991."

47    On the same day Mr. Ryan prepared, and had Mr. McDonald sign on Macroy Holdings Group letterhead, a letter which was in the following form (Blue AB 365-366):

"Re. Our meeting on 16 March and previous meetings we have had in regard to your performance over the last year the following outlines what I see as our key management needs are for 1991 and 1992 and in what ways I want to deploy your company's services.
1. As you are aware I am very concerned with the high level of inefficiency in the day to day activities of the companies within the Group. Whilst there appears to be a generally 'busy' atmosphere in the office the level of positive results which I can rely upon to do my job is low.
The activities in each of our operations will increase over the next few years. We need 'hands on' and strong operations management skills to plan and co-ordinate this increase.
As you know I've therefore created a new senior management position, that of General Manager, Operations, and have appointed John Garner to it. John will report to me and be accountable for the effectiveness and major efficiency improvements of:
- REW
- FSC
- the systems and procedures within the Planning and PAS groups of FPW
- Group Personnel Planning and Utilization
Also he will be responsible for completing a strategic review of the Group.
2. In addition to my concerns re operational inefficiencies you are also aware of my continuing frustrations with the Group financial and accounting area. In particular: our reporting systems are still not of the standard required: the cost of the area relative to the benefits it provides is exorbitant: and, overall, the general lack of quick and accurate follow-up on tasks is (to put it mildly) annoying.
I appreciate that this needs to be balanced against the 'mess' you inherited in the software and data entry systems and the time required for you to rectify this mess.
That said, considerable management effort has got to be focussed on the finances/accounting area and I want you to do this.
Specifically, the present role of Corporate Controller which you fill is redundant and I want you to assume the new position of Group Finance Manager and provide services that will make significant efficiency improvements in the following effectiveness areas (EAS):
- Group Accounting & Financial systems and reporting
- Group Financial Planning
- Statutory reporting
- Insurances and legals
- Personnel Administration
- Staff Management
You will have the following staff to manage: Coy. Secretary, Financial Accountant, and Bookkeeper.
What I expect is that you will document specific projects in each of the EAS aimed at efficiency improvements and, after approval from me, proceed to complete each project. I want to review the proposed projects by end-April.
3. For supplying these services, The Group will pay your company a monthly fee of $4,170.00. In addition the Group shall consider paying a bonus in addition to this monthly fee on completion of each project.
4. We will review these new arrangements and your performance at end-July, 1991.
I have made the above decisions to ensure that the Group is effectively managed at a senior level and that the resources of the Group are properly focussed.
Would you sign below to indicate your acceptance of changed arrangements."

48    In his statement (Blue AB 421) Mr. Ryan said that, on 18 March 1991 he delivered one copy of his memorandum, and the original of the letter, to Mr. Weller either by delivering them to him personally, or if he were not then present, by leaving them in his in-tray.

49    In his statement (Blue AB 99), Mr. Weller denied that he had seen the letter prior to 17 July 1991 when it was handed to him by Mr. McDonald, at which time he wrote on the first page of it by hand the words and symbols "Received by hand from R McD 17/7/91" and when he made some handwritten notes in the margin of the first page and at the foot of the second page of it. This is, to say the least, curious as Mr. Weller in his statement did not - although in the course of cross-examination (see para. 52 (infra)) he did - deny being present at the meeting of 15 March 1991, did not deny receiving Mr. Ryan's memorandum of 18 March 1991 and admitted (Blue AB 98) that, on 28 March 1991, he received from Mr. McDonald a memorandum in the following form (Blue AB 368-369):

" RE: STAFF CHANGES
The following documents the significant management and staff changes that were announced last night.
1. The development of the Group over the last year has been considerable and I have been concerned for some time that we are appropriately structured and staffed to handle this development. Our growth will not stop (if it does we are in trouble).
2. In turn, over the last few weeks we have appointed the following people to the various operations, each of whom I warmly welcome.
- Sue May
- Sky McDonald
- Jenny Wicht
- Lone Rebsdorf
- Chris Dougherty
- Larissa Beaven
- Marilou Drilon
- Sam Johnson
- Brenton Burchmore
3. The successful growth in FPW has also highlighted the pressing need for control and coordination skills for the planning group. To meet this need we have appointed Debbie Forde who assumes the role of Traffic Manager . Also, Helen Hoffman has been transferred to FPW to take up the demanding role of Client Care Supervisor .
4. In addition to the above changes it is my decision to strengthen the level of senior management skills in the group. I have been particularly concerned with the pressure that we have placed on Steve Weller in his dual role of financial management and management of the infrastructure of the Group. The challenges in each of these areas will continue and will expand. We have got to be equipped to meet them.
Therefore, as of Monday 18 March, Steve will assume the role of Group Finance Manager, reporting to myself and accountable for the performance of:
- Group Accounting & Reporting
- Group Financial Planning
- Statutory Requirements
- Insurances and Legals
- Personnel Administration
Complementing Steve's new position I have created a position, General Manager - Operations , which will also report to me and be accountable for increasing the efficiency and commercial effectiveness of the Group at a corporate level as well as at each of the operating Units.
John Garner has been appointed to this position. John comes to the Group with a very appropriate background. He is a Commerce and MBA graduate and his career has covered banking, finance, corporate services and consulting. He was formally (sic) Manager of the Corporate Services Division of Bill Acceptance Corporation and more recently managed the Corporate Advisory Services Division of ANZ - McCaughan (Sydney).
John has commenced with us on Monday, 18 March. After a two week induction he will assume, under my delegation, operational management of all the companies in the Group.
I am confident that John will quickly make a major positive contribution to the development and continuing success of our Group and, in turn, each member of the team.
5. Finally, as I said Wednesday night 2 weeks ago, I am committed to the successful future of the Group. I will readily give every encouragement to each of you to see your personal success as a part of this Group"

50    Be all that as it may, in his statement (Blue AB 333) Mr. McDonald said that "in about July 1991" at a meeting with Mr. Weller and Mr. Ryan when Mr. Weller's performance and responsibilities were being reviewed, Mr. Ryan referred to the letter of 18 March 1991 which Mr. Weller then said he had never received and, accordingly, that he (Mr. McDonald) arranged for a copy of the letter to be made and then gave it to Mr. Weller.

51    On 22 July 1991 Mr. Weller wrote and delivered or had delivered, to Mr. McDonald a letter (Blue AB 127-133, 379-385) in the course of which he wrote (Blue AB 129-130):

"The discussion held in March that covered salary issues among others was held without any knowledge on my part of John's appointment.
Your letter of 18 March 1991, I received from you on 17 July 1991.
That letter discusses new arrangements which have been changed yet again since that time. These changes also change the structure that was outlined in your memo of 28 March 1991.
The discussion in March on salary was not conclusive as far as I was concerned and I thought as far as you were concerned.
I stated to Tim afterwards that $50,000 with some vague notion of performance issues was unsatisfactory and that it virtually compared me to: -
John Tower - $75,000 ($85,000 at the time)
Brian Keogh - $48,000
David - $42,00
Vicki Wright - $40,000 + bonuses
I cannot be measured on performance when the performance measurements are changed. Additionally I have firmly stated I expected the staff to be reviewed prior to me."
and later (Blue AB 131-132):

"I responded to an advertisement quoting a package of $85,000.
In 1990 I received $70,000.
In 1991 you offer $50,000.
My work to date and in a properly structured future environment would support a salary of $72,000 plus car parking.
If performance is to be measured and rewarded then this should be outlined and bonus arrangements concluded."

52    The following extract from Mr. Weller's cross-examination (Black AB 102-104) is illuminating:

"Q. Mr. Weller, each month you submitted an invoice for your fees, can you tell me whether you submitted in the middle of the month or end of the month or start of the month? A. Oh, I think it was that it was probably in the latter half of the month.
Q. Sorry? A. The latter half of the month, I think.
Q. And did you receive payment at the end of that month or … ? A. … Thereabouts, thereabouts.
Q. The reason you did not submit an invoice for the bonus for July 91 is that you had received the memo of Tim Ryan dated 18 March which told you that any bonus was to be discretionary? A. No. I'm sorry is this this memo here? I didn't receive this memo and I don't think he mentions in here the words 'discretionary'.
Q. When the time came in July 91 for you to claim your six monthly $10,000.00 bonus what is the reason you did not claim it? A. Because I was on my knees trying to protect my job.
Q. You were willing then, were you, to go along with the fact that you were not getting a bonus in July 91? A. I was not willing to go along and I had certainly not agreed to that position.
Q. On 22 July 91 you wrote a handwritten letter to Mr. McDonald which appears in your statement? A. May I refer to that letter.
………
Q. You wrote you this letter because you were unhappy with the outcome of discussions that had taken place earlier concerning your position and remuneration with the group, didn't you? A. No. It was because I received that letter dated 18 March a few days before in July and I can tell you that I was incensed to a certain extent.
………
Q. Why didn't you complain in this letter that you hadn't received your percentage share of the profits or your shares in the group? A. Well, I think, and the answer is fairly evident but I will tell it anyway, I didn't see the point at that time. At that time I think it became crystal clear what was going to happen.
Q. You thought at that time, did you, that your position might be terminated? A. I was fearful of my position, yes.
Q. Wasn't that a perfect opportunity for you to claim your entitlements? A. I didn't see the point.
Q. Well, why is it that you saw the point of starting the proceedings later then? A. That was the appropriate time, I thought, and the appropriate arena. You recall that I wrote a letter in November 1991 through my solicitor shortly thereafter.
……..
Q. You were well aware that there were no arrangements that had been concluded with regard to your package after the first twelve months had expired? A. I was aware that there were some suggestions of other arrangements.
Q. But what is it that had to be concluded, Mr. Weller, if you say you already had an agreement? A. I was asking Mr. McDonald the same question.
Q. Why didn't you tell him you already had an agreement and nothing had to be concluded A. I was - thats - that's what I was asking him, he was the one who was talking about other arrangements.
Q. Why didn't you complain to him there should be no other arrangements because you had a certain arrangement with him? A. I referred him to the agreement, I had referred him to the agreement previously. That did not negate the fact that you could have had some discussions if he wanted to put some proposals. He was the one putting them forward, not me.
Q. Well, in this letter you were asking him, weren't you, to come to some fixed and clear arrangements with you about your package if you were to remain with the company? A. The only clear point that I made there, I suppose, is that I regarded the salary part, 72,000, could be supported because of the nature of the work and the extent of the work. That's the salary portion I'm referring to. I had no reason to change the other arrangements."

53    It his statement (Blue AB 333-334) Mr. McDonald said that he did not recall discussing the contents of Mr. Weller's letter of 22 July 1991 with Mr. Weller (semble because) by that time he had decided that he would probably terminate Mr. Weller's services.

54    According to Mr. Weller (Blue AB 99-100) on 31 July 1991, in the course of a conversation with Mr. Ryan, Mr. Ryan said to him "Roy is reviewing your position. He may terminate your services. I suggest that you prepare a list of the projects that you are working on, the resources that you require to complete those projects and the anticipated completion dates." Later that day, so Mr. Weller said, he received from Mr. Ryan a note in the following form (Blue AB 136, 429):

"Have just discussed with Roy the outcome of our meeting, namely that you produce a list of projects to be completed, by when, what resources are needed, & remuneration required.
Roy agrees with this but must have the document by 1pm, tomorrow . He then wants to meet with you & me at 2.45 tomorrow ."

55    On the following day Mr. Weller handed to Mr. Ryan a note of the projects which he was then working on (Blue AB 137-139).

56    In the evening of 1 August 1991, Mr. Weller attended a meeting with Mr. McDonald and Mr. Ryan, in the course of which meeting Mr. McDonald said to Mr. Weller (Blue AB 100) "Your services will be terminated. I would be prepared to consider any other course of action you may wish to propose. However, any proposal must be supported with a detailed list of work together with a timetable and a costing for the resources you would require. Unless you can put a proposal that is acceptable to me, your position will be terminated as at Friday 30 August 1991".

57    On 2 August 1991, Mr. Ryan forwarded to each of Mr. McDonald and Mr. Weller a memorandum (Blue AB 140, 430) in the following terms:

"RE: DISCUSSION, 1 AUGUST, 1991 - OUTCOMES
The following documents the actions as put forward at your discussions last night.
1. We will meet at 9 am, Monday, 4 July (sic), to finalise a decision on the future use of SW's consulting services re. Financial and Accounting Management, by the MACROY HOLDINGS GROUP.
2. The proposed course of action is:

· that the existing relationship be terminated as at Fri., 30 August, 1991.
· that during August SW work closely with JG to ensure all outstanding matters re. Finance & Accounting, are handed over effectively.
· that during August the Group would welcome proposals from SW re. project-related consulting assignments for the Group, post August.

3. SW is invited to propose for discussion any alternate course of action at the 4 August meeting. Such courses of action will be presented in the following format:
- Proposed assignments to be completed and time schedule for completion of each assignment.
- Detailed breakdown of resources required to complete total assignment plan.
- Breakdown of resource cost estimates for completion.
4. If SW's proposals are not accepted, RMCD's proposed course of action (2 above) will be implemented at the end of that meeting".

58    Mr. Weller says (Blue AB 100) that, shortly after 2 August 1991, he prepared and delivered to Mr. Ryan a schedule of the work that he proposed that he should carry out. Mr. Weller also says that on 5 August 1991 he attended a further meeting with Mr. McDonald and Mr. Ryan following which, on 7 August 1991, he received from Mr. McDonald a letter (Blue AB 143, 389) which was in the following terms:

"Thank you for preparing and presenting your proposal yesterday.
I have reviewed its content with John Garner and have carefully considered it in relation to the present and future needs of our Group. Regrettably, I have to advise that it is not an appropriate course of action for the Group to undertake.
Therefore, as per our discussion last Thursday, I confirm that the Group's existing use of your consulting services will be terminated on 30 August, 1991.
In the interim, I want you to devote yourself totally to completing, to draft stage, the Consolidated Statutory Accounts. I want you to complete and have these ready for my review on 26 August . With the exception of David R., you are free to use whatever resources you require to achieve this target date. Please liaise closely with John Garner in this regard.
As to The Group's use of your consulting services after 30 August, as previously indicated I would be happy to consider project-related proposals that you might present following completion of the above. As I will be overseas during September I suggest that these be submitted to John Garner in my absence, ready for consideration on my return."

59    In his statement (Blue AB 100-101) Mr. Weller said that, shortly after he received that letter, he had a discussion with Mr. McDonald in the following (inter alia) terms:

WELLER: "I expect you to honour our agreement and to pay me the money that you owe me."
McDONALD: "You will be paid your salary and your accrued holidays and nothing more."
WELLER: "That is not acceptable. I will taking this matter further."

60    For his part, Mr. McDonald said (Blue AB 334):

"I had conversations with Stephen Weller between 6 August and when he left the Group, namely 30 August 1991, but I did not have any conversation with him concerning the subject of his remuneration. He never referred to any 'agreement' and he never demanded money from me. … Stephen Weller continued working at the Group at its then offices in Willoughby Road, Crows Nest until he left on 30 August 1991. If Stephen Weller had made any threat of any kind in relation to any claim for remuneration, I would not have been able to continue working with him, and I would have arranged for him to leave the Group immediately."

61    In his statement (Blue AB 101-102) Mr. Weller said:

"As at Friday 30 August 1991 I ceased working with the Macroy group. Upon termination I received payment of my base salary calculated to 30 August. I did not receive any payment in respect of the guaranteed bonus, profit share or equity participation. I also received a payment in respect of accrued holidays but the amount paid was short by $961.63. Also I did not receive payment in lieu of notice for the balance of the 1 month notice period."
(Mr. Weller's assertion as to the amount paid to him is difficult to reconcile with the record of payments (Blue AB 414) made to him on 30 August 1991.)

62    On 11 November 1991, Mr. Weller's then solicitors wrote to Mr. McDonald a letter (Blue AB 163-164) which was in the following terms:

"RE: STEPHEN WELLER
We act on behalf of Mr. Weller whom we are instructed was engaged by your company from 15 January 1990 to 30 August 1991.
We are further instructed that his employment was terminated by you on 30 August 1991, by way of written letter dated 6 August 1991, and received 7 August 1991. We note that it was a term of our client's arrangement with you that one month's notice be given, and he is therefore entitled to one week's salary in lieu of notice.
Our client also instructs us that there were protracted negotiations relating to his terms and conditions of employment and our client relies on the agreement between the parties as to his terms and conditions of employment and in the circumstances demands the payment of the sum of $476,439.17, which is calculated as set out below:
Salary 30/8/91 to 6/9/91 $961.54
Guaranteed Bonus $20,000.00
Accrued Annual Leave for 1991
at rate of $70,000 per annum -
12.5 days $3,365.38
Less Amount paid $2,403.75 --------------
Balance $961.63
Share Holdings As Per Enclosed
Schedule A 1990 calendar year
(As prepared by our client) $164 994.00
1991 (subject to share valuations)
approx $164 994.00
Share profit As Per Enclosed
Schedule B (as prepared by our client)
June 1990 $72 264.00
Amount Paid $20 000.00
Balance Due and Payable $ 52,264.00
June 1991 - Estimate $ 72,264.00
TOTAL DUE AND PAYABLE $476,439.17
We note that the 1991 figures are estimates only and with a view to an early resolution of the matter our client is prepared to accept the 1990 figures for the 1991 financial year. However, should you prefer to provide our client with updated figures, subject to verification, these figures would be accepted.
Our client reserves his rights and remedies in relation to a claim for damages arising out of your breaches under the terms and conditions of his engagement by your company.
In the circumstances, unless the sum of $476,439.17 is received within 21 days from the hereof, we are instructed to institute proceedings against you without further (sic)."

63    Save that it must have been at some time during 1992, the materials which are before the Court do not indicate when it was that the proceedings were commenced.

64    An order having been made pursuant to the provisions of SCR Pt 31 r 2 for the determination of the question of liability separately from the question of damages, the matter came on for hearing before Murray AJ in August 1997, the hearing proceeding over five days, following which his Honour reserved his judgment, which he later delivered on 9 April 1998, his Honour's Conclusions being sufficiently revealed by the passages from his Judgment which I have earlier set out. His Honour having recorded that Conclusion, he then proceeded (RAB 58):

"Pursuant to an order, I was asked to decide the question of liability. The damages were to be assessed depending upon my findings. I propose to publish these Reasons and allow the parties to consider the effect of them and, if thought appropriate, bring in Short Minutes of Final Orders."

65    As Murray AJ recorded in the first of two Judgments which he delivered on 13 July 1998, the matter had been listed before him for that day with a view to ascertaining whether the parties had been able to reach some agreement as to the monetary effect, if any, of the reasons which he had delivered in his principal Judgment. As his Honour was also to record in that first Judgment of 13 July 1998, he was informed that no such agreement had been reached but that the Appellant sought to have his Honour make orders in terms of those which had been sought in a letter dated 7 July 1998 which had been addressed to him in his chambers.

66    Those Orders (RAB 24) were as follows:

"1. Amend the Statement of Claim by adding:
12E In the alternative, the Plaintiff says that, for and at the request of the Defendants contained in and to be inferred from the agreement of the Defendants to engage the Plaintiff and the Plaintiff's agreement to be engaged by the Defendants made in or about late 1989 and/or January 1990 the Plaintiff did much work for the Defendants between 15 January 1990 and 30 August 1991 and claims $411,339.51 in addition to what he has already been paid as a reasonable remuneration for such work.
Particulars
Particulars of loss or damage see paragraph 11 above.
12F A declaration that on its proper construction the letter of 30 January 1990 signed by Roy McDonald on a Real Estate Works letterhead and addressed to Stephen Weller provided for payment to the Plaintiff by the Second to Twentieth Defendants of 20% of the gross profit of the Second to Twentieth Defendants whilst the Plaintiff or his company was retained for consultation services with the Defendants.
2. That His Honour withdraw his reasons for judgment.
3. That His Honour vary his judgment and find or declare that at the time the Plaintiff commenced work with the Defendants there was no contract or agreement as to remuneration.
4. Order that the Defendants are liable to pay the Plaintiff on a quantum meruit basis.
5. A declaration or finding in accordance with clause 12F of the Amended Statement of Claim."

67    Murray AJ dealt with that application shortly in his Judgment saying:

"I decline the application to amend the Statement of Claim at this stage after reasons for Judgment on liability have been given. I am not prepared to withdraw my reasons for judgment. The avenue for testing those reasons lies elsewhere. I am not prepared to order that the defendant be liable to pay the plaintiff on a quantum meruit basis."

68    As Murray AJ was to record in the second of the Judgments delivered by him on 13 July 1998, the parties then agreed that, in order that there be formulated some Short Minutes of Orders to give effect to his Judgment on liability, it was necessary to decide fresh questions they being:

1. was the Plaintiff an independent contractor or an employee;

2. was the Plaintiff given notice on 1 August 1991 or 6 August 1991;

3. was the guaranteed bonus guaranteed for only the first year or did in run into the second year in which event the plaintiff would be entitled to bonuses up until the time of the expiry of his notice of termination.

69    His Honour dealt with those questions in the following way:

"The first two questions are reasonably easy to resolve. In my view Mr. Weller was an independent contractor during the course of his service with the defendant and I shall publish separate reasons for that. The second question, was Mr. Weller give notice on 1 August or 6 August 1991, I find that he was given notice on 1 August 1991 and I shall give separate reasons for that.
In respect of the guaranteed bonuses, I have decided that he was guaranteed only for the first year, and I shall give separate reasons for that.
I was asked to give a finding as to whether the conversation that occurred sometime between 9 and 12 January in fact occurred. I find that some such conversation did in fact occur in terms set out in my reasons for judgment on (RAB 23).
By consent:
(1) I enter Judgment for the Defendants.
(2) The Plaintiff is ordered to pay the Defendants' costs.
I make no further order."

70    In the Supplementary Reasons for Judgment (RAB 60-64) which he delivered on 19 July 1998, his Honour as follows:

" 1. Independent contractor or employee
I have already found that the plaintiff commenced service with the defendant on 15 January 1990, pursuant to a conversation which occurred between 9 & 12 January 1990. I wish to make it clear that I find that a conversation in the terms set out in my Reasons for Judgement on pages 23 & 24 in fact occurred. The basis of the plaintiff's remuneration was as set out in the letter of 30 January 1990, which was for a 'consultancy fee' of $50,000 and a further $20,000 guaranteed bonus conditional upon 12 months consultancy.
The original Memorandum of Mr. MacDonald concerning the meeting of 14 October, contained references to the 'contract' and the bonus of $20,000 'guaranteed for the first year.'
The conversation of 7 February, referred to in my earlier Reasons for Judgement on pp. 12-13 referred to the fact that the arrangement was one of 'consultancy'.
The original discussions concerning the plaintiff envisaged a contract being entered into with 'his company'.
The plaintiff, after commencing employment rendered to the defendant in one or other of its capacities, invoices for his 'services' being 'consultancy work'. These were rendered on the basis of a regular monthly invoice of $4,167. A summary of these invoices appears as Annexure S to the Statement of Mr. MacDonald (Ex. 6). Annexure S shows the invoices as being for each calendar month commencing on 19 February 1990 and concluding on 30 August 1991. The invoices are made out to various payers within the defendant group of companies with the payee being shown originally as S.F. Weller, for the first five entries and then followed by Rellew Management Resources, and then Karstep Management Resources.
The payments were for the agreed monthly amount without deduction for taxation or superannuation. The evidence does not allow me to conclude what the structure was, as far as control is concerned, but such evidence as is available, indicates to me that the contract was one for services, rather than a contract of employment. I so find.
2. Notice - 1 August or 6 August
According to Mr. MacDonald's statement, on 1 August 1991, he had a meeting with Mr. Weller and Mr. Tim Ryan, during the course of which he told the plaintiff that his services would be terminated, but that he would be prepared to consider any proposal he might want to put forward for continuing with his work. He told the plaintiff that unless he was satisfied with any such proposal, his services would be terminated as of 30 August 1991.
On 6 August, Mr. MacDonald sent a letter to the plaintiff which stated in part:-
'Therefore, as per our discussion last Thursday, I confirm that the Group's existing use of your consulting services will be terminated on 30 August 1991.'
I find that that letter simply confirmed the earlier discussion of 1 August, and accordingly I find that notice was given on 1 August 1991, in accordance with the contract requiring 1 month's notice of termination.
3. Guaranteed bonus - for 1 year or more
I have already found that the contract was as set out in the letter of 30 January 1990. That contract called for '$20,000 guaranteed bonus conditional upon 12 months consultancy'. I find that Mr. McDonald's evidence has been consistent throughout as to the $20,000 guaranteed bonus being 'guaranteed for the first year'. This is contained in the original memorandum and is contained in the letter of 30 January 1990, and is again referred to in the conversation of 7 February 1994, which I accept.
To the extent to which one can look at subsequent conduct, although it is not determinative of the issue, I note that the plaintiff did not invoice the defendant for any bonus payment on 17 July 1991, when it would have become due, if the plaintiff's version were to be accepted.
I find that the terms of the agreement were, as stated earlier, namely that the guaranteed bonus was conditional upon 1 year's consultancy only."

71    As appears to have been the case with many aspects of these proceedings, the Notice of Appeal (RAB 65-70) is a singularly unsatisfactory one. In that Notice of Appeal there were raised some twenty-seven grounds of appeal. Of those twenty-seven grounds of appeal, four were directed towards Murray AJ's refusal to permit the Third Further Amended Statement of Claim to be amended yet again in terms of Order 1 set out in the letter of 7 July 1998 and his Honour's failure to make the Declarations or Orders which, so it was suggested, would have flowed if those amendments had been allowed. With the exception of the last ground of appeal which was to the effect that Murray AJ erred in not awarding damages to the Plaintiff - a ground of appeal which, one would have thought, required a finding of breach of contract, and which was inconsistent with the Appellant's claim to receive payment on a quantum meruit basis - the remainder of the grounds of appeal were directed toward what were alleged to be errors in his Honour's fact finding including what were alleged to be errors where, in fact, there were none, and what were alleged to be errors in relation to facts which one would have thought were of no significance whatsoever - and what were alleged to have been errors in his Honour's construction of various documents.

72    The unsatisfactory nature of the proceedings continued even after the filing of the Notice of Appeal for, in the Written Submissions which were filed on behalf of Mr. Weller prior to the appeal being called on for hearing, it was noted that Ground 3 in the Notice of Appeal - that is the ground asserting that Murray AJ had erred in refusing to allow the Third Further Amended Statement of Claim to be amended yet again by the addition of the proposed paragraph 12F - was no longer pressed, despite which fact Ground 4 in the Notice of Appeal - that is the ground which alleged that his Honour had erred in not making the declaration sought in paragraph 12F - was pressed notwithstanding the fact that, in the Third Further Amended Statement of Claim no declaration - let alone that sought in the proposed paragraph 12F had been sought.

73    When the appeal was called on for hearing, Mr. R.J. Colquhoun and Mr. T. G. Howard (neither of whom had appeared on the hearing before Murray AJ) appeared for Mr. Weller, while Mr. F.P. Carnovale appeared, as before, for Mr. McDonald, Holdings and the Macroyd Group.

74    I turn, first, to Grounds 1 to 4 in the Notice of Appeal, that is, those grounds based upon Murray AJ's refusal to permit the Third Further Amended Statement of Claim to be further amended.

75    Although SCR Pt 20 r 1(1) provides that the Court may, at any stage of any proceedings, order that a party have leave to amend any document in the proceedings in such manner as the Court thinks fit, a party may not amend after the trial or, on appeal, to set up a case that was not put at trial, if, either, the raising of the ground at the trial may have affected the evidence led (see, for example, Waterboard v. Moustakas (1988) 62 ALJR 209; 77 ALR 193) or if it is unlikely that the result would have been different (see, for example, Federal Commissioner of Taxation v. Suttons Motors (Chullora) Wholesale Pty. Limited (1985) 157 CLR 277, 284).

76    Even if Ground 3 had, in addition to Ground 1, been pressed each, in my view, is without substance, for allowing the amendments would, in the circumstances, have been purposeless.

77    The basis upon which it was sought to demonstrate that his Honour erred in refusing to permit the addition of clause 12E was the assertion that "his Honour found, at the time Stephen Weller commenced work with the MacRoy group of companies there was no contract as to the terms of remuneration". This assertion is based entirely upon the following passage in Murray AJ's Judgment, which passage (RAB 58-59) follows after that passage which I have set out in which his Honour formally recorded his Conclusion:

"I have considerable sympathy for Mr. Weller, in that he did not take the precaution of crystallising the discussions he had with Mr. McDonald into the form of a precise offer at that time." (that is, in October 1989) "Thereafter, he was in the vulnerable position of having resigned his employment with Turner Corporation, without, on my findings, a concrete proposal from Mr. McDonald. He was thus placed in an extremely vulnerable position at the time of his commencement with the Macroyd Group. This vulnerability would not have escaped Mr. McDonald being the astute businessman that he is.

That passage cannot possibly bear the interpretation which is sought to be placed upon it, particularly so when, as I have earlier recorded, both in his principal Judgment and in the second of the Judgments which he delivered on 13 July 1998, his Honour held that there had been a conversation between Mr. Weller and Mr. McDonald between 9 and 12 January 1990 in which the terms of Mr. Weller's engagement had been agreed upon, those terms being later incorporated in the letter of 30 January 1990.

78    So far as the Declaration sought by the proposed paragraph 12F is concerned, it is, in my view, sufficient to say that the letter of 30 January 1990 does not bear the construction sought to be placed upon it.

79    So far as the alleged errors made by his Honour in fact finding are concerned, it is clear - as Ground 10 in the Notice of Appeal, which was in the following terms:

"10. His Honour erred in not rejecting the evidence of Roy McDonald and accepting him as a creditable witness when it was not reasonably open to his Honour to accept Mr. McDonald as a creditable witness."

makes clear, that his Honour's finding of fact - particularly in those cases where the oral evidence of Mr. Weller and Mr. McDonald could not be reconciled - were affected, at least in part, by his assessment of Mr. McDonald's credibility as a witness. That being so, these attacks must fail unless it is demonstrated that Murray AJ was guilty of errors of the type described in the well known passage in the joint Judgment of Brennan, Gaudron and McHugh JJ in Devries v. Australian National Railways Commission ((1992-1993) 177 CLR 472, 479). Far from any such error having been demonstrated, it is, in my view, clear that there was abundant evidence available to his Honour - as, for example, the evidence of Mr. Weller's having submitted invoices on a regular basis and having claimed a pro rata amount of the bonus at the times orally agreed upon in January - upon which he could make findings which provided support for his findings as to the time at which their agreement was made and as to the terms then agreed upon.

80    I have earlier referred to the fact that, in the Notice of Appeal, it was asserted that his Honour had made certain findings of fact when, in fact, his Honour had made no such findings as asserted. Examples of those grounds of appeal are as follows:

"14. His Honour erred in finding that the agreement under which the plaintiff was retained by the defendants was in fact made after the plaintiff commenced employment with the defendants.
………
17. His Honour erred in finding that a contract of employment or for services came into existence between the plaintiff and the defendants after the plaintiff had commenced working for the defendants in January 1990."

81    Just how, in the light of his Honour's finding that the terms of Mr. Weller's engagement were agreed upon in the conversation between Mr. Weller and Mr. McDonald between 9 and 12 January 1990, those terms later being formally recorded in the letter of 30 January 1990, such grounds of appeal could responsibly be advanced totally escapes me.

82    The other grounds of appeal and, in particular, those alleging errors on the part of Murray AJ as to the construction of documents, are equally lacking in substance.

83    For these reasons, I propose that the Appeal be dismissed with costs.

84    STEIN JA: I agree with Powell JA.

85    GILES JA: I agree with Powell JA.

**********