A ROYALE AND CO (AUST) PTY LIMITED v HAROLD SCRUBY CONSULTANCIES PTY LIMITED [1988] NSWCA 2

A ROYALE & CO (AUST) PTY LIMITED v HAROLD SCRUBY CONSULTANCIES PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and PRIESTLEY JJA 8 and 12 April 1988, 12 April 1988 [1988] NSWCA 2

CONTRACT — appeal from District Court — contract of indefinite duration by which respondent agreed to make the services of its director available as general manager of the appellant — held term as to reasonable notice might be implied applying Australian Blue Metal Ltd v Hughes [1963] AC 74 — appeal dismissed.

PRACTICE & PROCEDURE — duty of counsel to raise in cross-examination and give witness opportunity to answer any particular in which it is intended to contradict his evidence or impeach his credit — Browne v Dunn (1894) 6 R 67 discussed and explained (again!) — Cullen vy Ampol Petroleum Limited (Court of Appeal 20 October 1977 unreported); Seymour y Australian Broadcasting Commission) (Court of Appeal 3 June 1977 unreported) and Allied Pastoral Holdings Pty Limited vy Commissioner of Taxation [1983] 1 NSWLR 1 referred to.

ORDER Appeal dismissed with costs.

Samuels JA The respondent, Harold Scruby Consultancies Pty Limited, sued for damages before Badgery-Parker DCJ alleging breach of a contract by which it agreed to make available to the appellant, A Royale & Co (Aust) Pty Limited, the services as general manager of the appellant of its principal shareholder and director, Mr Harold Scruby.

The respondent asserts an oral contract made on or about 11 April 1983 by which the respondent agreed to provide Mr Scruby's services as general manager for four weeks, followed on or about 13 May 1983, by either an oral variation or a new oral contract by which, in either case, the respondent agreed to provide Mr Scruby's services indefinitely.

The respondent contended that, in breach of an implied term for termination only upon reasonable notice, the appellant brought the agreement to an end without notice on 25 July 1983. The conversations upon which the respondent relied took place between Mr Scruby and Mr Daryl Isles, the appellant's managing director, who gave an entirely different account of the transaction in question.