Sandra Maccan v Cameron Byrnes [2021] NSWDC 525

District Court New South Wales

Medium Neutral Citation: Sandra Maccan v Cameron Byrnes [2021] NSWDC 525 Hearing dates: 1 December 2020, 2 December 2020, 3 December 2020, 19 February 2021, 17 May 2021 Date of orders: 5 October 2021 Decision date: 05 October 2021 Jurisdiction: Civil Before: Weinstein SC DCJ Decision: (1) Judgment for the defendant. (2) The plaintiff is to pay the defendant's costs on the ordinary basis. Catchwords: Contract – agreement to perform services – liquidated damages – requirement to prove case on the balance of probabilities Legislation Cited: Evidence Act 1995 Category: Principal judgment Parties: Sandra Maccan (Plaintiff) Cameron Byrnes (Defendant) Representation: Counsel: Mr M Easton (1-3 December 2021, 19 February 2021) Mr P Barry (17 May 2021) - plaintiff

Solicitors:

Nicole Dunn Lawyers – plaintiff Gupta & Co Pty Ltd - defendant File Number(s): 2019/00287072 Publication restriction: N/A

JUDGMENT 1. The plaintiff Sandra Maccan met the defendant Cameron Byrnes in about September 2014 when she contacted him and asked him to provide her with personal training services. They met at Rushcutters Bay Park one morning soon thereafter. Later that year, the plaintiff and the defendant had discussions about growing the defendant's personal training business. They had hopes that he would achieve success and earn a lot of money. In about mid 2015, the plaintiff and defendant agreed that she would perform administrative tasks for him in his business, for which she would invoice him. There was no agreement then about any rate of pay, other than it would be for the hours she worked for him. I accept the defendant's evidence that in this period the plaintiff 's invoices were usually between $200 to $400 per week. 2. The plaintiff alleges that by December 2015 Mr Byrnes had agreed to pay her $700 each week for the services she provided him. She alleges that he agreed to increase the amount she was to be paid on a weekly basis to $900 per week on 1 September 2016. She makes no complaint about payments allegedly made to her during 2016 and up to about mid 2017. She alleges that following the middle of 2017, the defendant underpaid her from time to time until they parted company on or about 24 August 2018. Her evidence was that on some weeks the defendant paid her what she was owed, but on other weeks he either underpaid her or did not pay her at all. For the most part, the plaintiff could not specify the weeks on which she had either been underpaid or not paid. 3. Extensive reference was made during submissions to a table at paragraph 10 of the Statement of Claim (and later paragraphs 10, 10A and 10B of the Amended Statement of Claim) as setting out the payments made and not made to the plaintiff by the defendant. When the matter was listed for submissions, after a grant of leave, the tables in those paragraphs (then in an Amended Statement of Claim) were significantly amended by hand. At no stage of the proceedings did the plaintiff adopt the table in paragraph 10. Neither was a copy of that table attached to the plaintiff's affidavit. The status of the table (as amended) is as part of the originating process and contained allegations that were challenged on the pleadings and during the hearing. It is not, and never became part of the evidence in the case. 4. The defendant denies that he ever agreed to pay the plaintiff a set amount on a weekly basis. His case is that there was a loose arrangement commencing in about April 2015 by which the plaintiff would invoice him on (usually) a weekly basis for the hours that she had spent working for him at a time when he had hopes that his business as a personal trainer would grow and thrive. He observed that during a period in late 2015 and 2016, the plaintiff also provided similar services to a company involved with a television production, INNW Pty Limited, and that she would invoice that company separately for her time. Mr Byrnes said that he and the plaintiff often worked separately at their respective residences. He said that he paid each and every invoice sent to him by the plaintiff, and that he continued to provide personal training services to her, at about an hour per week, which were offset by the plaintiff in her invoices to him. He denied that he ever agreed to pay her either $900 or $700 on a weekly basis. His evidence was that the agreement was that he would pay the plaintiff for her time as invoiced and as discussed between them on a regular basis, and that the invoiced amounts varied from week to week. As he was only hoping that his business would thrive, he said that he could not afford to have a regular subcontractor at a rate of pay which his business might not be in a position to sustain. He did not deny that the plaintiff provided him with services, or that she worked hard and long hours or that he had hoped that his business would have thrived so that he might one day share the spoils with the plaintiff. Mr Byrnes also denied that he asked Ms Maccan to incur any expenses on his behalf, and further said that she never asked him to pay all or part of any expenses she had allegedly incurred. 5. It is agreed between the parties that at all times the plaintiff was sub-contracting her services to the defendant and that there was never a relationship of employee/employer.