WELLER v. McDONALD & ORS. [2000] NSWCA 243

New South Wales Court of Appeal

CITATION : WELLER v. McDONALD & ORS. [2000] NSWCA 243 FILE NUMBER(S) : CA 40590/98 HEARING DATE(S) : 14 March 2000 JUDGMENT DATE : 14 September 2000

Stephen Weller (Appellant) PARTIES : Roy McDonald (First Respondent) Macroy Holdings Pty. Limited (Second Respondent) Macroy Group of Companies (Third to Twentieth Respondents) JUDGMENT OF : Powell JA at 1; Stein JA at 84; Giles JA at 85

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 11774/92 FILE NUMBER(S) : LOWER COURT Murray AJ JUDICIAL OFFICER :

COUNSEL : R.J. Colquhoun and T. G. Howard (Appellant) F.P. Carnovale (Respondents) SOLICITORS : Colquhoun & Colquhoun (Rozelle) (Appellant) Gillis Delaney Brown (Respondents) CATCHWORDS : CONTRACT - Parties - Offer and Acceptance - Terms of contract - Whether contract of employment or retainer of independent contractor. ND DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40590/98 CLD 11774/92

POWELL JA STEIN JA GILES JA

14 September 2000

WELLER v. McDONALD & ORS.

JUDGMENT 1 POWELL JA: This is an appeal by an unsuccessful Plaintiff against a judgment for the Defendants entered by Murray AJ sitting in the Common Law Division of the Court. 2 In the proceedings the Appellant ("Mr. Weller") - adopting what appears to be becoming a commonplace practice these days - relying upon a multiplicity of cumulative and alternative "causes of action" sought to recover from the First Respondent ("Mr. McDonald"), the Second Respondent, Macroy Holdings Pty. Limited, ("Holdings") and the Third to Twentieth Respondents, a group of companies of which Holdings appears to have been the holding company (the "Macroy Group") damages for what was alleged to have been the breach by Holdings and the Macroy Group of an agreement alleged to have been made in October 1989 between Mr. Weller and Mr. McDonald acting on behalf of Holdings and the Macroy Group. 3 Paragraphs 5-10 of the Third Further Amended Statement of Claim which was filed on behalf of Mr. Weller on the commencement of the hearing before Murray AJ sufficiently indicates the general nature of the primary case which Mr. Weller sought to establish. Those paragraphs (RAB 2-4) were as follows: "5. On or about 14 or alternatively 16 or alternatively 23 October 1989 (Mr. McDonald), for and on behalf of and as agent for (Holdings and the Macroy Group) and each of them or alternatively one or more of them entered into an agreement with (Mr. Weller) whereby (Mr. Weller) was employed and/or his services were retained as the 'Macroy Group Controller' for (Holdings and the Macroy Group) (the 'Agreement'). 6. The Agreement contained the following expressed terms: (i) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum salary or fee of $50,000.00 per annum; (ii) that (Holdings and the Macroy Group) pay to (Mr. Weller) a minimum bonus of $20,000.00 per annum; (iii) that (Holdings and the Macroy Group) give to (Mr. Weller) and allow him to acquire shares in (Holdings and the Macroy Group) at the rate of two per cent (2%) per annum over a period of five (5) years from the date of commencement; (iv) that (Holdings and the Macroy Group) pay to (Mr. Weller) a share of the increased pre-tax profits earned by (Holdings and the Macroy Group) from year to year at the rate of ten per cent (10%) per annum from the time of commencement; (v) that (Mr. Weller) receive from (Holdings and the Macroy Group) a minimum income to be derived from (i) to (iv), of $100,000.00 per annum; and (vi) that (Mr. Weller) or (Mr. McDonald) may terminate the Agreement upon one (1) month's notice to the other. 7. On or about 15 January 1990 (Mr. Weller) commenced employment and/or provided services to (Holdings and the Macroy Group) as the 'Macroy Group Controller', pursuant to the Agreement. 8. On and from 15 January 1990 (Holdings and the Macroy Group), pursuant to the Agreement: (a) paid to (Mr. Weller) a minimum salary or fee of $50,000.00 per annum; (b) paid to (Mr. Weller) a bonus in the sum of $10,000.00 in or about July 1990; (c) paid to (Mr. Weller) a bonus in the sum of $10,000.00 in or about January 1991. 9. On or about 30 August 1991 and in breach of the Agreement, (Mr. McDonald) for and on behalf of and as agent for (Holdings and the Macroy Group), terminated (Mr. Weller's) employment and/or services (the 'date of termination'). PARTICULARS OF BREACH OF AGREEMENT (a) Failing to give (Mr. Weller) one (1) month's notice of termination and paying to (Mr. Weller) monies in lieu of notice; (b) Failing to pay to (Mr. Weller) annual leave entitlements pursuant to the Annual Holidays Act 1944 (NSW); (c) Failing to pay to (Mr. Weller) a minimum bonus at the rate of $20,000.00 per annum from 15 January 1991 to the date of termination; (d) Failing to give to (Mr. Weller) and allow him to acquire shares in (Holdings and the Macroy Group) from 15 January 1990 to the date of termination. (e) Failing to pay to (Mr. Weller) a share of the increased pre-tax profits earned by (Holdings and the Macroy Group) at the rate of ten per cent (10%) per annum from 15 January 1990 to 30 August 1991. 10. Further and in the alternative and on or about 30 August 1991 (Mr. McDonald) for and on behalf of and as agent for (Holdings and the Macroy Group), repudiated the Agreement and/or wrongfully dismissed (Mr. Weller) from his employment and/or services as the 'Macroy Group Controller'."