SAAD v TWT LTD [1998] NSWCA 199

SAAD v TWT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and POWELL JJA 2 October 1997, 29 May 1998

[1998] NSWCA 199

TRADE PRACTICES — consumer protection — employer and employee — misleading or deceptive conduct — whether representations require qualification when made — Trade Practices Act 1974 (Cth) s52

CONTRACTS — construction and interpretation — parol evidence — contract partly oral and partly written

CONTRACTS — breach — repudiation — repudiation — of contract by employer — mitigation of damage by employee — damages — reasonable notice

EVIDENCE — admissions — whether answer to interrogatories formal or informal admissions

The appellant was skilled at selling advertising time for television networks and had held a number of positions at various networks. In May 1990, the appellant was approached by the respondent to sell advertising time for WIN (the respondent's trading name) in the Wollongong area. The respondent's sales manager informed the appellant by telephone that she would be given a client list from which her predecessor had earned $68,000 (base salary plus commission) in the previous year. The respondent also offered a company car. The appellant accepted the offer (thereby foregoing a new job in Melbourne paying $60,000 per year) and asked for written confirmation. This was supplied in the form of a letter which detailed the proposed salary but omitted any details about the client list to be operated by the appellant. The appellant signed and returned a copy of the letter.

When the appellant reported for work on the agreed date (having moved from Melbourne to Wollongong) she was informed her predecessor had decided not to leave after all and that consequently the appellant would not be given the promised list of clients. Instead she was given a much less profitable list with accordingly lower commissions. The appellant protested but accepted the new position. She was dismissed almost a year later and successfully sued the respondent for wrongful dismissal. She also sued the respondent for breach of s52 of the Trade Practices Act 1974 (Cth); breach of express contractual terms; and breach of implied contractual terms. The appellant failed on these causes of action and appealed all three.