H & H Security Pty Ltd v Toliopoulos, James [1997] FCA 838

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - breach of contract of employment - implied term - principles to be applied

BP Refinery (Westernport) Pty Limited v Shire of Hastings 180 CLR 266

Finch v Sayers (1976) 2 NSWLR 540

Pavey and Matthews Pty Limited v Paul (1987) 162 CLR 221

Restitution Law in Australia, Mason and Carter, Butterworths, 1995 H & H SECURITY PTY LTD v JAMES TOLIOPOULOS NI 665 of 1994 Madgwick J Sydney 18 August 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 665 of 1994

BETWEEN: H & H Security Pty Ltd

Applicant

AND: James Toliopoulos

Respondent

JUDGE(S): MADGWICK J

DATE: 18 AUGUST 1997

PLACE: SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: There are some matters left outstanding and not dealt with in my reasons for judgment of 25 July last. The first of these concerns Mr Toliopoulos's claim that Mr Hornyak agreed that his starting salary would be $40,000 and that this would rise by not later than 20 March 1994, by two increments, each of $10,000 to $60,000 per annum. This agreement, says Mr Toliopoulos, was Mr Hornyak's response to his request for a commencing salary of $60,000 per annum.

Mr Hornyak agrees that Mr Toliopoulos did indeed ask for $60,000 per annum. However he says that he made it clear that $40,000 was all that the company would pay unless the business doubled, in which case the company would "look at it again".

I have considered this matter anxiously because I would not wish, as it were, unjustly to enrich the applicant company. However, the conclusion to which I have come is that Mr Toliopoulos must fail.

It is true, as Mr Toliopoulos argues, that it would be in keeping with Mr Hornyak's character for him to make an agreement as Mr Toliopoulos has alleged and then simply later deny it. However, the truth of the matter might be as neither Mr Toliopoulos nor Mr Hornyak assert. For example, Mr Hornyak may have encouraged Mr Toliopoulos to hope for increments while studiously stopping short of committing himself to agreement about them. This too would be well in character for Mr Hornyak. It is also true that Mr Hornyak's conduct in matters of dishonesty seems to have gone so far that it exceeded that of Mr Toliopoulos. However, Mr Toliopoulos was no more satisfactory a witness than as Mr Hornyak.