MCGAVIN V. OLDHAM

©1978/85,

W. M. Houston, Govt. Print., Melb,

IN THE HIGH COURT OF AUSTRALIA

McGAVIN

Judgment delivered at... MELBOURNE on MONDAY 17th OCTOBER, 1955...

McGAVIN v. OLDHAM

ORDER

Appeal dismissed with costs.

#

McGAVIN ve OLDHAM

JUDGMENT FULLAGAR_ J. KigTTO J. TAYLOR J.

JUDGMENT.

McGAVIN Ve OLDHAM

FULLAGAR J, KITTO J,

TAYLOR J.

This is an appeal from the Supreme Court of Western Australia (Wolff J.). The plaintiff's case as set forth in his statement of claim was that by a verbal agreement made by telephone between the defendant in Perth and the plaintift in Melbourne on 16th November 1953 it was agreed that the defendant would employ the plaintiff and the plaintiff would work for the defendant to assist in the management of the defendant's business in Perth. It was said to be a term of the agreement that the defendant would pay to the plaintiff a salary equivalent to half of the net profits of the business and that the plaintiff's salary would not be less than £50 per week. It was said to be an implied term of the agreement that the engagement should be determinable on reasonable notice, and that three months' notice was reasonable notice. The plaintiff alleged that he commenced working for the defendant as from 14th January 1954 and continued working for him until 12th May 1954, when the defendant wrongfully terminated the employment without due notice. The plaintiff claimed an account of profits, or alternatively salary at £50 per week, in respect of the period from 14th January to 42th May, and also claimed salary at the same rate for a further thirteen weeks in lieu of notice. By his statement of claim he gave credit for £100 paid to him by the defendant. Wolff J. gave judgment for the plaintiff for the sum of £1400. From this judgment the defendant appeals.

The plaintiff and the defendant head met and become friendly in the army during the recent war, and had maintained an irreguler correspondence after its termination. In November 1953 the plaintiff was employed in the office of an estate agent