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. The Claim 1. The case occupied several days of hearing. However, the late amendments made to the plaintiff's claim narrowed the issues considerably. 2. In light of those amendments made to the Statement of Claim at the close of the defendant's case, much of the evidence heard over several days is irrelevant to the issues I must decide. 3. By way of amendments made in court to the Amended Statement of Claim on 17 May 2021, the plaintiff's claim is now limited to the following:- 1. That between 7 April 2017 and 24 August 2018, Mr Byrnes ought to have paid the plaintiff the sum of $40,340, being unpaid remuneration of $900 per week over some of that period (the $900 per week claim). It is the plaintiff's primary case that during this period, Mr Byrnes agreed to pay her $900 per week for the services she provided him; 2. In the alternative to (a), that between 30 June 2017 and 24 August 2018, Mr Byrnes ought to have paid the plaintiff the sum of $19,320, being unpaid remuneration of $700 per week over some of that period (the $700 per week claim). It is the plaintiff's alternative case that during this period Mr Byrnes agreed to pay her $700 per week for services she provided him; and 3. In addition to either (a) or (b), the sum of $9042 in internet and computer expenses for which the defendant was allegedly required to reimburse the plaintiff (the expenses claim). 1. The plaintiff seeks liquidated damages in the amount of $49,382 (being (a) and (c)) or in the alternative liquidated damages in the amount of $28,262 (being (b) and (c)). She also claims interest and costs. On several occasions during the course of the hearing, the plaintiff's counsel specifically disavowed an alternative case for an unliquidated sum, or that the plaintiff was entitled to damages at large for breach of contract. 2. The defendant does not deny that the plaintiff did work for him during the specified periods in paragraph 8(a) and 8(b) above for which she was entitled to be remunerated. Rather, his case is that he paid the plaintiff for all the work she performed as reported and invoiced by her to him, and that there were no invoices rendered that have been left unpaid. Standard of Proof 1. Section 140 of the Evidence Act 1995 provides:- 1. In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. 2. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: 1. the nature of the cause of action or defence; and 2. the nature of the proceeding; and 3. the gravity of the matters alleged. 1. This is the standard to which Ms Maccan must prove her case in order to successfully discharge her legal burden in these proceedings. There must be a sufficiency of evidence of adequate weight in order for her case to be proved on the balance of probabilities. In my opinion, she has failed to do so, for the reasons which follow. No Documentary Evidence 1. A striking feature of this case is that the plaintiff produced virtually no documentary evidence in support of her claim. She relied on alleged conversations, reconstructed text messages and several emails. 2. The plaintiff agreed that as a sub-contractor she was responsible for reporting to Mr Byrnes the work that she had done, and for which she was entitled to be paid. It was accepted by the plaintiff that she kept no records with respect to the services she provided to the defendant. The plaintiff did not refer to or tender any accounting and/or bookkeeping records, bank statements, BAS statements, diaries, journals, logs, receipts, tabulations, tax documents, tax invoices (other than eight which were annexed to her affidavit and which she said were paid in full), tax preparation materials, timesheets, worksheets, or any correspondence or notations setting out a running total of the amounts allegedly owed to her over the period claimed. Indeed, the distinct impression I had from the plaintiff's evidence was that she had reconstructed the amounts allegedly owed from her memory of events that had occurred long in the past and were an approximation of amounts she merely believed were owed to her by the defendant. 3. I do not accept that there are no financial documents available to support the plaintiff's claim. She had an Australian Business Number and would have been required to disclose her income to the Australian Tax Office and retain her tax records for five years. As the claim is for amounts allegedly owed less than five years ago, those documents are likely to have been retained by the plaintiff. 4. Furthermore, no explanation was given by the plaintiff for the absence of these types of documents. Of the seven invoices issued to the defendant annexed to the plaintiff's affidavit (an eighth being an invoice to INNW Pty Limited) and all of which were paid, they cover a date range from 19 April 2015 to 5 May 2017. They are numbered 1, 36, 29, 30, 31, 32, and 33. The amounts invoiced were for $415, $700, $700, $500, $500, $350 and $700 respectively. No explanation was given in evidence as to why the invoices covered that date range only, and why they were numbered in the way that they were. These explanations were known only to the plaintiff. The suggestion by the plaintiff that the defendant ought to have adduced evidence of the invoices he paid the plaintiff misconceives the onus and standard of proof which falls squarely on the plaintiff. 5. In the absence of any financial documents corroborating any of the amounts allegedly owed, I am not prepared to accept that the defendant owed the plaintiff the sums said to total the amounts set out at paragraphs 8(a), or 8(b) above, and I would dismiss that part of the claim on that basis alone. Credibility of the Plaintiff 1. The plaintiff gave evidence over several days. I had the opportunity to observe her give evidence. I reject her evidence on three bases. 2. First, in my opinion the plaintiff appeared to exaggerate her evidence in chief and was evasive in cross-examination. She appeared to reconstruct events and conversations which occurred long in the past in a manner which she perceived to be to her advantage. The distinct impression I had was that the plaintiff was angry at the defendant (which she denied). On the other hand, in my opinion the defendant gave evidence in a candid manner. He made appropriate concessions in cross-examination, and freely conceded that he probably owed the plaintiff some money for work she did during the week ending 24 August 2018. His evidence, which I accept, was that he did not pay any money for this week because the plaintiff never invoiced him, and he did not know how much the invoice might amount to. 3. Second, in circumstances when I would have expected the plaintiff to be able to corroborate her claim by some type of documentary evidence, she was unable to do so. The few invoices that were annexed to her affidavit were agreed by the parties to have been paid in full. I observe that even they do not disclose an agreement that the plaintiff had been engaged on an agreed sum weekly basis. When asked about invoices that were not in evidence, Ms Maccan said in cross-examination that the defendant told her to "hold off" from sending invoices. In cross-examination, Mr Byrnes strenuously denied that this was the case. His evidence was that he was entirely reliant on the plaintiff sending invoices so that he could know how much to pay her. I accept his evidence on this point, as the plaintiff and the defendant were usually working in different locations and he could not possibly know how much time she had worked, and therefore how much he needed to pay her. I accept his evidence that amounts paid varied from week to week, depending on the amount of time the plaintiff worked (she being also employed during the relevant period at Woolworths) and his business's ability to pay. 4. Third, much of the plaintiff's affidavit was comprised of what were alleged to be copies of text messages between her and the defendant. They were in a format that was unfamiliar to the court. Rather than being photographs or screenshots of the actual conversations, they were allegedly copies of the messages sent and received typed up by the plaintiff herself at an undisclosed date. No explanation was given in evidence as to the reason that screenshots of the actual messages were not annexed to the plaintiff's affidavit. I have no confidence in the accuracy of these alleged text messages, and neither am I confident that they contained the entirety of the conversations between the parties. I note that Mr Byrnes observed that in at least one of the text messages annexed to the plaintiff's affidavit, it appeared that he had allegedly misspelled his name, which he said was extremely unlikely. Although the great bulk of the messages were admitted into evidence without objection, the weight I accord them is significantly diminished for these reasons. 5. In my opinion, the plaintiff was an unreliable witness and I approach all of her evidence with caution. The claim for expenses 1. It is convenient to first deal with the $9042 expenses claim, which was particularised in paragraph 13 of the Amended Statement of Claim as follows:- 1. Phone and internet services: $3386 2. Facebook ads: $3978 3. Fiverr: $104 4. Adobe: $786 5. Office for windows: $129 6. Dropbox: $64 7. Instapages: $595 1. The evidence with respect to these expenses allegedly incurred is remarkably thin. There was very brief evidence from the plaintiff that she had set up accounts for Facebooks ads, Fiverr, Adobe, Microsoft Office and Dropbox, which she alleged that the defendant was bound to repay. However, there is no evidence whatsoever that the plaintiff at any time ever asked the defendant to reimburse her for these expenses or that he agreed to repay her for them. Further, the plaintiff's claim is unsupported by any documentary evidence whatsoever with respect to the cost to her of these expenses, or how those expenses might even in part be attributable to the defendant's business. Finally, the defendant was cross-examined about these expenses by Mr Easton, who appeared on behalf of the plaintiff at the hearing of the matter. The defendant gave evidence that he had his own Facebook ad account linked to his credit card, that he had his own business account with Fiverr, that he had no idea what Adobe was, that he did not use Microsoft Office and that he had his own Dropbox and Instapages accounts. He categorically denied that the plaintiff incurred expenses with those entities at his request and said that he had never received any invoices from the plaintiff particularising the cost of those services, which he said he would have paid had he been invoiced. I accept the defendant's evidence. 2. In my opinion, there is no evidence – cogent or otherwise – to found this part of the claim as particularised by the plaintiff, and I reject it. The weekly rate of $900 1. Both the plaintiff and the defendant agreed during their evidence that the plaintiff's remuneration was to be determined by the days (or part of days) that she worked, rather than by the hour. I accept the defendant's evidence that the arrangement was not "Monday to Friday", and that the plaintiff's work hours were flexible to meet her personal needs and the work that was to be done. 2. The plaintiff's evidence was to the effect that she worked at least five days per week and that in February 2017 she working 50 or 60 hours per week. She did not suggest that she was entitled to an hourly rate of pay. Her case is that there was an express agreement that she was to be paid $900 per week. 3. Mr Barry, who appeared for the plaintiff at short notice when the matter was listed for oral submissions, and who was of considerable assistance to the court, submitted that in September 2016 the plaintiff's weekly rate of pay was increased from $700 to $900. He relies primarily on a text message from Mr Byrnes to Ms Maccan on that date where he allegedly said "just transferred 900. First week of pay rise". I observe that the next written communication relied upon by the plaintiff is an email exchange on 8 November 2016. In her affidavit, Ms Maccan says that in October 2016 she had a discussion with Mr Byrnes when he told her that because of a downturn in work her pay would decrease to $700 per week and that he would pay her a lump sum once his business picked up again, and that she agreed to this proposal. 4. I repeat that I have little confidence in the accuracy of the text messages because of the manner in which they have been reproduced. However, even if this particular text message is accurate it does not, in my opinion, represent an agreement to increase the plaintiff's established weekly rate of remuneration. Rather, I accept Mr Bynes's evidence that at this particular time he was in a position to pay the plaintiff $900 (rather than $900 per week) for the work that she had done, and that he hoped that his business would be able to sustain increased payments to the plaintiff over time (which it could not). 5. I also reject the plaintiff's evidence that in October 2016 her weekly remuneration was reduced to $700 on the basis that Mr Byrnes would pay her a lump sum (presumably of the accumulating shortfall) when his business "picked up again". I accept Mr Byrnes's evidence that he could not know if or when his start-up business might ever pick up again. If Ms Maccan accepted such a proposal as she claims, it beggars belief that she did not keep any document demonstrating a running tabulation of the amounts that she claims were owed to her. Further, there is no mention in the evidence of Ms Maccan ever reminding Mr Byrnes of the amounts said to be owed to her. Finally, if there was in fact such an agreement, the plaintiff would have to prove that Mr Byrnes's business "picked up again". There is no such evidence. On the contrary, the evidence is that Mr Byrnes's business declined over time. 6. Even if I had found that there was an agreement that the plaintiff was to be paid $900 per week, there was insufficient evidence (and in some instances no evidence or inconsistent evidence) to account for the individual shortfalls said to amount to the liquidated sum of $40,340. Had I found that there was an agreement that the plaintiff was to be paid $700 per week, it would have been incumbent on the plaintiff to lead evidence with respect to each and every shortfall, which she did not. The weekly rate of $700 1. The plaintiff alleges, in the alternative, that the defendant agreed to pay her weekly remuneration of $700 during this period. 2. The defendant denied that he ever agreed to pay the plaintiff $700 per week on any basis. His evidence, which I accept, was that his business was never in a position to pay the plaintiff a weekly rate, and to the extent that any rate was ever agreed, it was on that the plaintiff do only as much work as the defendant could afford to pay her, and then only on a week by week basis and as discussed between them and invoiced by the plaintiff for their respective tax purposes. 3. Even if I had found that there was an agreement that the plaintiff was to be paid $700 per week, there was insufficient evidence (and in some cases no evidence or inconsistent evidence) to account for the individual shortfalls said to amount to the liquidated sum of $19,320. Had I found that there was an agreement that the plaintiff was to be paid $700 per week, it would have been incumbent on the plaintiff to lead evidence with respect to each and every shortfall, which she did not. Conclusion 1. For these reasons, in my opinion the plaintiff's claim fails. Orders 1. I make the following orders:- 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs on the ordinary basis. 3. If any other costs order is cavilled for, the parties are to contact my Associate within 7 days so that the matter can be relisted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2021