HARRIS/D-E PTY. LIMITED V. McCLELLANDS COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 128

New South Wales Supreme Court CITATION : HARRIS/D-E PTY. LIMITED V. McCLELLANDS COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 128 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No.2289 of 1994 HEARING DATE(S) : 1; 2; 3; 4; 5; 8; 9; 10; 11; 12 February 1999 JUDGMENT DATE : 2 March 1999

Harris/D-E Pty. Limited P McClellands Coffee & Tea Pty. Ltd. 1D Ambassador Foods Pty. Ltd. 2D PARTIES : Phillip McClelland 3D Jim Banks 4D Eric Bellchambers 5D Steven Holder 6D JUDGMENT OF : Hodgson CJinEq

COUNSEL : Mr. A. Sullivan QC with Mr. A. Spencer P Mr. R. Conti QC with Mr. T. Hancock D SOLICITORS : Holding Redlich P Deacon Graham & James 1-6D CATCHWORDS : CONTRACTS - Repudiation - Affirmation -RESTRAINT OF TRADE. Employee, bound by three-year contract and one-year restraint against completion after termination, writes letter to employer which asks for termination of his contract, but also suggests the terminations is a fait accompli. Employer and employee arrange a day two weeks later as employee's last day at work, on which day employee is paid ordinary pay, holiday pay, and long service leave calculated to that day, plus three months' 'termination pay'. HELD that letter was not a repudiation; that in any event employer had manifested an intention that the agreement end consensually and not by termination for breach; and that the employment terminated on the employee's last day at work, not three months later.; Western Excavating (ECC) v. Sharp (1978) 1 CR 222; Mason Gray Strange NSW V. Eisdell, Powell, J. SCNSW, 22/2/89; Siagian v. Sanel (1994) 122 ALR 333 DECISION : See par.118 of judgment