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Webb v Suntown Enterprises WA Pty Ltd (No.2) [2009] FMCA 12 (30 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEBB v SUNTOWN ENTERPRISES WA PTY LTD (No.2)

TRADE PRACTICES – Alleged misleading conduct in relation to future employment.

CONTRACT – Entitlement to benefit of employment contract – horse float – whether offer and acceptance – whether consideration.


Roscorla v Thomas (1842) 2QB 234
Walker v Salomon Smith Barney Securities Pty Limited & Anor (2003) 140 IR 433; [2003] FCA 1099
Webb v Suntown Enterprises WA Pty Ltd [2008] FMCA 1706
Wright v TNT Australia Pty Ltd (1988) 80 ALR 221; [1988] ATPR 40-864

J D Heydon Trade Practices Law (Thomson Lawbook Co, 1989)

Applicant:
CHRISTOPHER MARK WEBB

Respondent:
SUNTOWN ENTERPRISES WA PTY LTD

File Number:
PEG 186 of 2008

Judgment of:
Lucev FM

Hearing date:
8 January 2009

Date of Last Submission:
8 January 2009

Delivered at:
Perth

Delivered on:
30 January 2009

REPRESENTATION

Counsel for the Applicant:
Ms. L. Horwood

Solicitors for the Applicant:
L. Horwood

Counsel for the Respondent:
Mr D. Pratt

Solicitors for the Respondent:
Jackson McDonald

ORDERS

(1) The application be dismissed.
(2) Within 14 days, the applicant, at his cost, make application, and do all things necessary, to transfer to the respondent, the registration of the Guardor Triple Horse Float registration no. 1 TJF 489 Chassis VIN 6T9T27AB807FX017 manufactured 2008.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 186 of 2008

CHRISTOPHER MARK WEBB

Applicant


And


SUNTOWN ENTERPRISES WA PTY LTD

Respondent


REASONS FOR JUDGMENT

Introduction

  1. By application made on 1 December 2008 Christopher Mark Webb[1] sought orders against Suntown Enterprises WA Pty Ltd, which trades as Daphne Downs Pastoral Company[2] and which employed Mr Webb as a Farm Manager in 2007 and 2008, in the Court’s:
    1. industrial law jurisdiction in an action brought under the provisions of the Workplace Relations Act 1996 (Cth) for payment of outstanding wages, including payment in lieu of notice and outstanding holiday pay; and
    2. accrued jurisdiction for:
      1. a declaration that Mr Webb was entitled as a benefit of his contract of his employment to have returned to him a Guardor Triple Horse Float registration no. 1TJF 489 Chassis VIN 6T9T27ABA807FX017[3] to be returned to Mr Webb in good repair, alternatively damages to the value of a new float; and
      2. damages in respect of a licence agreement to occupy premises, which agreement was allegedly terminated without the required notice.
  2. When the matter came on for an interim hearing on 15 December 2008 in relation to possession of the Horse Float, the parties had resolved all of the issues save for the issue related to the alleged contractual entitlement to the Horse Float, which was then listed for hearing on 8 January 2009.[4]
  3. At the hearing on 8 January 2009 Mr Webb raised a further claim, namely, an alleged breach of s.53B of the Trade Practices Act 1974 (Cth),[5] which relates to the prohibition against misleading conduct by a corporation in relation to future employment. This claim was raised in final submissions without notice to Daphne Downs. Daphne Downs ultimately did not object, and dealt with the matter in final submissions in reply.
  4. Daphne Downs had anticipated a claim by Mr Webb that the Horse Float had been gifted by it to Mr Webb. However, in final submissions, Mr Webb expressly disavowed reliance on any claim that the Horse Float was a gift to him from Daphne Downs.[6]

Facts

Evidence

  1. The principal witnesses were:
    1. Mr Webb who gave evidence on his own behalf, both oral and on affidavit;[7] and
    2. Peter Richard Trevor Mewett, the sole director, shareholder and company secretary of Daphne Downs, who gave evidence both oral and on affidavit;[8]
  2. Evidence was also called by Mr Webb from the following people:
    1. Peter Ian Spry,[9] a waste water consultant, who has known Mr Webb for four years, primarily through the Brook Hunt Club, and who met Mr Mewett once when he went with Mr Webb to Mr Mewett’s house to pick up a car;[10]
    2. Amber Michelle Woodgate,[11] the manager of the Horseland Midland store, who has known Mr Webb “over the years” as a customer, and who met Mr Mewett in the course of the purchasing of the Horse Float;[12]
    1. Samantha Kaye McIntyre,[13] a licensed racehorse trainer, who has known Mr Webb through the Brook Hunt Club since the start of 2004, and who has met Mr Mewett on two occasions including at a cattle muster and barbecue at the Chittering property on the Australia Day long weekend in January 2008;[14] and
    1. Natalie Anne Bennet,[15] a veterinary nurse, who is Mr Webb’s partner and has known him for at least two years, and who consequently saw Mr Mewett often.[16]

Assessment of credibility

  1. Where there is a difference between the evidence of Mr Mewett and Mr Webb the Court generally considers the evidence of Mr Mewett to be more reliable to that of Mr Webb and to be preferred. Mr Webb’s evidence was often internally vague and confusing, and he was often unsure and ponderous in his response to questioning. He was not an impressive witness. Whilst he was not in the Court’s view untruthful he often overstated a position, seemingly in an effort to put the best possible position forward in support of his case, and then had to retract it when challenged. By contrast, Mr Mewett was both feisty and forthright. He was clear about the detail of critical matters, and his evidence was consistent. Moreover, on some issues his evidence was supported by that of Ms Bennet and, to a certain extent, Ms Woodgate, where it differed from that of Mr Webb. In the circumstances, the Court generally preferred the evidence of Mr Mewett to Mr Webb where there were differences between them.

Employment – terms, responsibilities and performance

  1. When asked what the terms of his employment were Mr Webb was not able to articulate them, and instead described his duties.[17]
  2. Mr Webb was employed as a farm manager by the respondent in about July 2007 on a net salary of about $900 a week, plus superannuation.[18]
  3. Mr Webb ultimately managed three properties for Daphne Downs: one property being at Chittering[19] and two properties at Badgingarra.[20] Mr Webb was already managing all three properties at the time of the events related to the Horse Float. His management responsibilities included management of:
    1. a cattle herd numbering, eventually, at least 1250, and valued at that time at about $875,000;[21] and
    2. significant development works including the building of roads, a rewatering programme involving the laying of several kilometres of new piping and the installation of tanks, the building of sheds, which Mr Webb asserted was valued at as much $1,000,000,[22] but which Mr Mewett valued at a significantly lower sum.[23]
  4. Mr Webb said that he worked 12-13 hours a day, on average.[24]
  5. Mr Webb was given various other benefits including:
    1. free accommodation in a three bedroom dwelling on the Chittering Property, which, at some stage Ms Bennet and her young child came to live in with Mr Webb;
    2. supply of various household items in the free accommodation ;[25]
    1. the use of a work vehicle;[26]
    1. meals at local hotels and restaurants;[27] and
    2. tickets to sporting events, with overnight accommodation at a Perth hotel on at least one occasion.[28]
  6. Save for an incident toward the end of Mr Webb’s period of employment related to the alleged death of some cattle there appears to be no dispute that he generally performed well in his role as farm manager.

Horse Float – general conversations with Mr Webb prior to purchase

  1. Mr Webb asserts that in general conversations subsequent to commencing employment he would often refer to, in front of Mr Mewett, that:
    1. he was constantly borrowing a horse float on weekends;[29]
    2. he had approached a local bank about borrowing money to buy a horse float, an event that Mr Mewett says occurred in about January 2008;[30]
    1. had obtained and looked at brochures concerning horse floats, and that Mr Mewett had been involved in looking at these brochures on occasions;[31] and
    1. that he had sketched designs for a horse float of his own.[32]
  2. Mr Webb says that Mr Mewett told him not to buy a horse float, and that he would buy one for him, as a bonus.[33] Mr Webb says that this occurred when he was working on the Badgingarra property on one occasion when Mr Mewett approached him and said that he would like to send Mr Webb and Ms Bennet on a holiday. Mr Webb indicated that he thought was too busy with his farm management duties to take a holiday.[34] Mr Webb says that the following conversation then occurred:
  3. Mr Webb said that the Horse Float was a bonus.[36]
  4. In his evidence-in-chief Mr Webb said his understanding was that the Horse Float was to belong to him,[37] and that Mr Mewett “always said that I owned the float.”[38] Under cross-examination this changed to his being “ [a]lways ... under the impression I owned the float”[39] because the Horse Float was given to him as a bonus and he was told [i]t’s yours”.[40] Mr Webb conceded in cross-examination that Mr Mewett never told him that he “owned” the Horse Float and did not use the word “own” to describe Mr Webb’s relationship to the Horse Float.[41]
  5. Mr Webb denied that Mr Mewett had ever said to him that the Horse Float was his to use only during the period of his employment.[42]
  6. Ms Bennet gave evidence that just prior to Christmas 2007 Mr Webb and Mr Mewett began discussing the purchase of a horse float, and that she was a party to those discussions.[43] Ms Bennet says that Mr Mewett offered to purchase a horse float that Mr Webb had been looking at in brochures and said that “he would get that for him as his Christmas bonus.”[44] Ms Bennet went on to say that Mr Mewett often commented on his belief that he should look after his employees and that he “often boasted about bonuses.”[45] Ms Bennet also said that the use of the float by Mr Webb only during the time that he was employed by Daphne Downs was not discussed with Mr Mewett when she was present.[46]
  7. Mr Mewett says that when Mr Webb commenced employment he agreed to pay him weekly because of Mr Webb’s financial commitments, including commitments for a vehicle and a television.[47] Subsequently, Mr Mewett says he did have discussions with Mr Webb concerning Mr Webb wanting to purchase a horse float, and Mr Webb’s approach to a local bank for a loan.[48] Mr Mewett says he was concerned about the amount of debt Mr Webb was accumulating,[49] and as Mr Webb:
  8. In his evidence-in-chief Mr Mewett said that:

and that his intention in purchasing the Horse Float was:

I would buy a good quality heavy duty horse float that could carry three horses because I felt that one day in the future, if I had a couple of cows to move around from farm to farm, I could use it for that, or if I had an expensive 3 or 4 thousand dollar quality bull that I need to move, I could do that. I only ever liked to buy quality with resale value.[52]
  1. Mr Mewett said that it was never his intention that the Horse Float would be Mr Webb’s to keep.[53]
  2. In cross-examination Mr Mewett did not resile from his view that the Horse Float belonged to Daphne Downs, not Mr Webb, but said that it was for “Mr Webb to use as a bonus on the weekend.”[54] A little later Mr Mewett said:
  3. Despite several challenges during the course of cross-examination Mr Mewett did not sway from the view that the Horse Float was Daphne Downs property which Mr Webb was allowed to use as a bonus in his leisure time,[56] adding that it “would encourage him to work harder during the week.”[57]
  4. Challenged as to the potential use of the Horse Float as a cattle transporter, Mr Mewett said that he looked to purchase goods with multiple or dual purpose characteristics.[58]
  5. Mr Mewett also says that he would not have given an employee who had been employed for just seven months and who had earned approximately $28,000.00 in that time, a horse float valued at $21,000.00.[59]

Horse float – evidence of others

  1. Mr Webb had four witnesses give evidence about their conversations with Mr Mewett concerning the possible purchase of a horse float.

Mr Spry

  1. Mr Spry met Mr Mewett once, in July or August 2007.[60] Mr Spry told Mr Mewett that as Mr Webb now had a job he would be able to buy his (Mr Spry’s) horse float,[61] to which Mr Mewett responded “he doesn’t need to worry about that. We’ll get him a horse float”,[62] but that Mr Spry did not ask who “we” was.[63]

Ms Woodgate

  1. Ms Woodgate’s evidence is dealt with under the heading “Horse float – ordering, payment” below.

Ms McIntyre

  1. Ms McIntyre gave evidence that she met Mr Mewett for the second time on the Australia Day long weekend in January 2008.[64] After a cattle muster on the Saturday involving about 30 riders, with a lunch afterwards for about 50 people, followed by a band which played until about midnight she had a discussion with Mr Mewett concerning the Horse Float the following morning when she, amongst others, “were sitting around getting breakfast ready.”[65] Ms McIntyre says that Mr Mewett arrived on his motor bike and was showing brochures and pamphlets of the Horse Float “that we had bought Webby” and which was “his Christmas bonus.”[66] Ms McIntrye agreed that these statements were made in a context where Mr Mewett “was trying to impress everyone” and “was putting it on to everyone”.[67]
  2. Mr Mewett said that the topic of his getting a horse float may have come up, late in an evening on which “there was copious amounts of alcohol flowing around” and everyone was telling lots of stories, and that whatever he might have said about getting a horse float might have been misunderstood.[68]

Ms Bennet

  1. The evidence of Ms Bennet has been dealt with at relevant points above and below.

Generally

  1. The Court was not greatly assisted by the general nature off the evidence given by Mr Spry and Ms McIntrye, which, in context cannot be considered indicative of the Horse Float’s contractual status.

Horse float – ordering, payment and pick up

Ordering

  1. By way of background the Court notes that Daphne Downs has no horses,[69] whereas Mr Webb has two, and his partner Ms Bennet has three horses.[70]
  2. Mr Webb initially said that he first went to look at a horse float at Horseland in Midland together with Mr Mewett,[71] but conceded in cross-examination that it was in fact at Horseland in Perth.[72] Mr Mewett says that it was the Horseland Perth store that they attended.[73] From Ms Woodgate’s evidence it is clear that Mr Webb and Mr Mewett went to look at a horse float at the Horseland Perth store.[74]
  3. Mr Webb said that Mr Mewett asked about the axles on the horse float inspected,[75] and that Mr Mewett always wanted to buy good quality products.[76] Neither Mr Webb nor Ms Woodgate recalled Mr Mewett asking about the resale value of a horse float,[77] but Mr Mewett said that he did.[78]
  4. Ms Woodgate gave evidence about what was said when Mr Webb and Mr Mewett were in the Horseland Perth store. In examination-in-chief she said as follows:
  5. Under cross-examination Ms Woodgate gave the following evidence:
  6. Ms Woodgate also gave evidence that Mr Mewett asked about the weight of the float and the total weight that the float could carry, and that he was “more concerned with those types of things.”[81]
  7. Ms Woodgate also said that she told Mr Webb and Mr Mewett of the need for the customer to obtain registration for any horse float that was purchased.[82]
  8. Ms Bennet said that at about the time Mr Mewett paid the deposit on the Horse Float he complained to her that registration was not included.[83]
  9. Horseland were unable to provide prices for various specifications that Mr Webb wanted.[84] Mr Webb says that the deal and specifications were finalised by him, whereas Mr Mewett says that although he did not deal specifically with the specifications he told Mr Webb to choose the specifications because of his knowledge of horses.[85]
  10. Mr Mewett says that Mr Webb told him in March 2008 that Horseland had quoted $21,000.00, including freight, and that he told Mr Webb that that was “acceptable” and “instructed him” to order the Horse Float.[86]
  11. Mr Webb says that his name is on the order form.[87] The order form customer details section simply contains the name “Webby” and a mobile phone number.[88] The Order Form contains the following provisions concerning confirmation of the order:
  12. The Order Form was signed by Mr Mewett against this confirmation on 13 March 2008. It was also on this date that Mr Mewett paid a deposit of $2,100.00 to Horseland.[89]

Final payment and pick up

  1. Prior to final payment Mr Mewett rang Horseland asking why they were taking a long time to deliver the Horse Float.[90]
  2. Mr Webb says that he rang Mr Mewett and told him that the Horse Float was ready and payment of the outstanding balance was required. Mr Mewett asked Mr Webb what the final balance was before Mr Webb went to pick up the Horse Float, and Mr Webb “assume[s] he [Mr Mewett] paid that before I took delivery of it”.[91]
  3. Mr Mewett paid the final amount of $18,900.00 on 3 July 2008.[92]
  4. Exhibit A1 was a document on Horseland letterhead entitled “Proof of Purchase”. Ms Woodgate gave evidence that it was “what we have to legally give the customer so they can then take it to get the vehicle registered. It’s a proof of purchase to say that they have indeed purchased this particular vehicle.”[93] Exhibit A1 purports to certify the sale of the Horse Float on 3 July 2008 to Mr Webb as purchaser. The document is undated and unsigned although it carries the name of Cheryl Campbell who appears to be the owner of the Horseland Midland store.[94]
  5. Mr Mewett says that he “instructed” Mr Webb to collect the Horse Float once the final payment had been made, and to take it to the Chittering Property and keep it in a shed there.[95]
  6. Mr Webb says that pick up was in the first weekend of June 2008.[96] However, Mr Mewett’s evidence is that he paid for the Horse Float on 3 July 2008, and this is independently confirmed by Horseland.[97]
  7. Mr Webb had new electric brakes fitted to a Landcruiser owned by him at a cost of $550.00 before the Horse Float was registered.[98]
  8. Horseland arranged for the relevant registration documents to be sent to the Department of Planning and Infrastructure and Mr Webb took the Horse Float to be licensed and paid the $720.00 stamp duty and registration in July 2008.[99]

Horse float – registration

  1. There is no dispute that the Horse Float was registered in Mr Webb’s name.
  2. Mr Webb says that he told Mr Mewett, on the phone, that he was at Midland Gate (a shopping centre) and going in to pay for the float, by which he meant pay for the Horse Float’s registration.[100] Mr Webb’s evidence on what he told Mr Mewett is however somewhat ambiguous:
  3. Later when it was put to Mr Webb that Mr Mewett did not know that the Horse Float had been registered in Mr Webb’s name until Mr Mewett had discovered the registration papers after he had given Mr Webb notice of termination of his employment, Mr Webb asserted that Mr Mewett:
  4. Ms Bennet confirms that there was a conversation between Mr Webb and Mr Mewett, on a car phone over a loudspeaker, in which Mr Webb was told by Mr Mewett that the Horse Float had been paid for and could be collected, but that “it still needed to be registered”.[103]
  5. Mr Mewett says that following payment for the Horse Float he did not think about registration of the Horse Float as he was too busy to do so.[104] Mr Mewett does not deny that Mr Webb told him that he was having the Horse Float licensed or registered. Mr Mewett says however that he assumed that, as with all the other vehicles used on Daphne Downs’ properties, the Horse Float was to be registered in the trading name Daphne Downs Pastoral Company.[105]
  6. Following registration of the Horse Float it is not in dispute that there was no discussion about registration,[106] and the issue was not raised until Mr Mewett found the Horse Float’s registration papers after he advised Mr Webb that he was to be terminated.[107]
  7. In the Court’s view the evidence concerning registration is not particularly relevant or helpful. Mr Mewett assumed that the Horse Float was to be registered in Daphne Downs’ name, but Mr Webb did not do so. At best this evidence is equivocal in terms of the contractual status of the Horse Float under Mr Webb’s employment contract.

Horse float – stickers

  1. At some time after registration Mr Webb arranged to have stickers attached to the Horse Float. The stickers had the words “Daphne Downs Pastoral Co” above and below a pictorial representation of a horned bull’s head.[108]
  2. Mr Webb explained that stickers were affixed to Daphne Downs vehicles at his initiative, and that he had the stickers affixed to the Horse Float because he believed that it was the right thing to do given that he had been given the Horse Float by Daphne Downs, and that all other Daphne Downs work vehicles had the stickers affixed.[109]
  3. There is no dispute that Mr Webb paid for the stickers and their affixing to the Horse Float and other vehicles, that he did so on a tax invoice made out to Daphne Downs, and that he did not dispute the making out of the tax invoice to Daphne Downs.[110]
  4. Mr Mewett says that it was his idea for the stickers to be affixed, as they were affixed to all other Daphne Downs’ vehicles, [111] and that he offered to reimburse Mr Webb for the cost of the stickers affixed to the Horse Float, an offer confirmed by Mr Webb.[112]

Horse float – location and useage

  1. There appears to be no dispute that for most of the period between purchase of the Horse Float and its return to Daphne Downs following Mr Webb’s employment being terminated, that the Horse Float was kept at a property known as Anja’s Horse Retreat in Bullsbrook, at a property owned by a friend of Mr Webb and Ms Bennet.[113] However, both Mr Webb and Ms Bennet acknowledge that following delivery of the Horse Float Mr Mewett asked Mr Webb to put the Horse Float “in a shed” at the Chittering Property on a number of occasions, and that he did not dispute that request.[114]
  2. Mr Webb says Mr Mewett never used, or never asked to use, the Horse Float.

Horse Float – GST and depreciation claims

  1. Mr Mewett gave evidence that he claimed GST and depreciation on the Horse Float as Daphne Downs expenses, declaring Mr Webb’s leisure use of the Horse Float.[115]

Employment - termination

  1. Mr Webb was given notice of termination on 7 September 2008.[116] Mr Webb was given three weeks to vacate the house on the Chittering Property, that is until 28 September 2008,[117] but on 14 September 2008 Mr Mewitt wrote to him and advised that he should vacate the house on the Chittering Property by 5:00pm on 19 September 2008.[118]

Horse Float – registration and transfer papers after termination

  1. Mr Mewett says that he was at the Chittering Property on 13 September 2008 when he found registration papers and a receipt for the purchase of the Horse Float in a Daphne Downs motor vehicle that Mr Webb had been using. Mr Mewett observed that on the receipt from Horseland Mr Webb was listed as the purchaser and the registration papers were also issued to Mr Webb.[119] Mr Mewett says that this was the first time that he realised that Mr Webb had arranged for the Horse Float to be registered in Mr Webb’s name.[120]
  2. Mr Webb initially said that he left transfer papers, unsigned, under some jackets on the verandah of the Chittering Property when he vacated that property. His evidence was that he also left registration papers, proof of purchase and other papers related to the Horse Float in the same place. [121] Under cross-examination and re-examination he said that there were registration papers only, and no transfer papers.[122]
  3. When asked by the Court why he would leave registration papers for the Horse Float he thought he owned on the verandah of a property he was vacating, Mr Webb’s response was “Mr Mewett wanted them back.”[123] Mr Webb then said that he did so because he did not want to “kicked out of home” and that he left the papers on the verandah “under duress”.[124]
  4. The Court observes that again Mr Webb’s evidence was inconsistent, and his retraction of the leaving of transfer papers peculiar, particularly as he first said that they were unsigned. The Court finds that the undisputed leaving behind of registration papers is inconsistent with his claim to ownership of the Horse Float. His claim that leaving the registration papers was done under duress to prevent his being forced to leave the Chittering Property early does not stand scrutiny: first, he left the Chittering Property earlier than the 14 September 2008 letter required; and, second, the papers were left behind, not delivered up early in an attempt to forestall having to leave the Chittering Property.

Horse Float – return to Chittering Property after termination

  1. On 14 September 2008 Mr Webb was told that he was required to vacate the Chittering Property on 19 September 2008 (rather than 28 September 2008 as previously requested).[125] Mr Webb was also “required at this time that all company property...be returned”, and included in the list of “items expected to be returned” was:
  2. A “Termination Payout Workings” sheet attached to the 14 September 2008 Letter indicated Daphne Downs intended to pay Mr Webb sums of approximately $700.00 and $400.00 as reimbursement for registration of the Horse Float and for the attachment of the stickers respectively.
  3. In examination-in-chief Mr Webb was asked whether the Horse Float had been returned between his dismissal on 7 September 2008 and receipt of his 14 September 2008 Letter. After a significant pause he responded that he did not remember. He was then asked if the 14 September Letter came after the return of the Horse Float, and again responded that he could not remember. Finally, he said that “It [the receipt of the 14 September 2008 Letter] would have been before [the return of the Horse Float]”.[127] Later, in cross-examination, he claimed that he was “[p]retty sure” he had brought the Horse Float back before receiving the 14 September 2008 Letter,[128] but was when challenged on this prepared to accept that it may have been returned after receipt of the 14 September 2008 Letter.[129]
  4. The Court finds that Mr Webb’s evidence on the question of when the Horse Float was returned to the Chittering Property was confused and unsatisfactory.
  5. Ms Bennet, under cross-examination, agreed that the Horse Float was returned after Mr Webb received the 14 September 2008 Letter.[130]
  6. Mr Mewett says that the Horse Float was returned after Mr Webb received the 14 September 2008 Letter,[131] and specifically on or around 16 September 2008.[132] Mr Mewett’s evidence was not seriously challenged on this point.
  7. Finally, the Court notes that in a letter written to Daphne Downs by Mr Webb’s solicitor on 18 September 2008,[133] and which Mr Webb attests to being true to the best of his knowledge,[134] it is said that Mr Webb had already vacated the Chittering Property.
  8. The Court accepts Mr Mewett’s and Ms Bennet’s evidence on this issue and finds that the Horse Float was returned to the Chittering Property after Mr Webb received the 14 September 2008 Letter, and most probably on or around 16 September 2008 as asserted by Mr Mewett.
  9. The Court’s finding that the Horse Float was returned to the Chittering Property after Mr Webb received the 14 September 2008 Letter, and most probably on or around 16 September 2008 as asserted by Mr Mewett, means that it cannot accept Mr Webb’s assertion that he only returned the Horse Float because he was concerned that he, but particularly Ms Bennet and her young child, would be summarily “put ... out in the street”,[135] that is, under some form of duress. Rather, the Court finds that he returned the Horse Float as requested in the 14 September 2008 Letter, and did so without, at the time of returning it, making any claim to be its owner.

Horse Float – claims

  1. In the 18 September 2008 Letter Mr Webb claims that:

and that:

...title to the float has passed to him [Mr Webb], whether as a gift or a bonus, it is irrevocable by you.[137]
  1. Mr Webb attests to the claims in the 18 September 2008 Letter being true to the best of his knowledge.[138]
  2. In a letter written to Daphne Downs’ solicitors by Mr Webb’s solicitors on 24 September 2008,[139] which Mr Webb attests to being true to the best of his knowledge,[140]it was asserted that Daphne Downs had agreed to:
    1. provide Mr Webb with a bank cheque for $5100 at a meeting on 19 September 2008 (which meeting did not take place); and
    2. forego any claim for cleaning and damage,

if Mr Webb returned all Daphne Downs’ property, “and provide...duly executed transfer papers in respect of the horse float.”[141]

  1. Mr Webb was cross-examined on these claims, and in particular his preparedness to accept the sum of $5100, and thereby forego his claim to ownership and to sign the transfer papers for the Horse Float. He indicated that he had been prepared to accept that arrangement, because he “[d]idn’t want the hassle.”[142] Later, he said that that preparedness was only in the “[v]ery early stages” and “[u]ntil he got further opinion.”[143] Mr Webb rejected the suggestion that he was prepared to sign the transfer papers because he did not believe the Horse Float was his to keep.[144]
  2. The vagaries of settlement negotiations are such that the Court is reluctant to draw any conclusions as to Mr Webb’s contractual entitlements from offers made in the negotiation process.
  3. The Court can however, and does find, on the basis of the 18 September 2008 Letter, that the claim in contract now made is for a bonus for services which, at the time the alleged bonus was “paid”, was for services already rendered.

Conclusions re Horse Float purchase and ownership

  1. The Court accepts that Mr Mewett said he would buy a horse float and that Mr Webb could use it, and that Mr Webb, not unnaturally, did not disagree with this suggestion.
  2. The Court accepts Mr Mewett’s evidence that it was never his intention that the Horse Float be owned by Mr Webb. Rather, it was Mr Mewett’s intention that the Horse Float be owned by Daphne Downs and used by Mr Webb for private purposes whilst he was employed by Daphne Downs, but be available for use by Daphne Downs if required. The fact that Mr Mewett took the trouble to check the details of the Horse Float’s axles and the weight that the Horse Float could carry indicates that Mr Mewett’s claim that the Horse Float might be put to an alternate use in occasionally carrying cattle is true, and that he therefore considered the Horse Float was being purchased by and for the use of Daphne Downs. Mr Mewett’s intention is also confirmed by Daphne Downs paying for the Horse Float, and by the claiming of depreciation and GST by Daphne Downs and his occasional requests for the Horse Float to be returned to the Chittering Property.
  3. Mr Webb’s actions whilst his employment was still on foot also indicate that it was his view that the Horse Float belonged to Daphne Downs. Those actions include:
    1. his failure to be aware of the final payment arrangements for the Horse Float;
    2. his affixing of Daphne Downs’ stickers to the Horse Float, consistent with the practice with respect to other work vehicles owned by Daphne Downs;
    1. his failure to challenge the fact that the tax invoice for payment of the stickers was made out to Daphne Downs;
    1. the failure to dispute the request to put the Horse Float in a shed at, or on, the Chittering Property on a number of occasions;
    2. leaving registration papers for the Horse Float at the Chittering Property when it was vacated; and
    3. returning the Horse Float to the Chittering Property after he had been given notice of termination.
  4. Further, the Court finds that Mr Mewett did tell Mr Webb that the Horse Float was for him to “use” during his employment, and not for him to have or to own. In this regard, the Court specifically prefers the evidence of Mr Mewett to that of Mr Webb. To some extent, the evidence of Mr Mewett is independently reinforced by the evidence of Ms Woodgate who said that Mr Mewett said that any horse float would be for Mr Webb to “use”, or that he would have the use of it. Further, Mr Mewett’s version of events is supported, at least inferentially, by the fact that Mr Webb made no claim to ownership of the Horse Float at any stage prior to vacating the Chittering Property, and particularly not at any stage following his being given notice of termination on 7 September 2008 and his vacating the property at some time prior to the writing of the 18 September 2008 Letter.

Contract

  1. There are a number of reasons why Mr Webb’s claim in contract is not made out.
  2. Firstly, it does not appear to the Court that there was an offer and acceptance in terms. At best, there was a suggestion, or perhaps a gratuitous promise, by Mr Mewett that he would provide a horse float. It was, on the facts found by the Court, to be a bonus or gratuity. The bonus was thus not contractual in its effect.
  3. Secondly, there was in addition to there being no identifiable offer and acceptance in contractual terms, no consideration in any event. This is made clear by the 18 September 2008 Letter which speaks of the provision of the Horse Float to Mr Webb as being for past services rendered. Not only was this a case of past consideration, which is no consideration,[145] but in the Court’s view there is no other consideration even if there were otherwise an offer and acceptance.
  4. Finally, even if there was offer and acceptance and consideration, the Court’s findings are that Mr Webb was only entitled to use of the Horse Float during the period of employment. He did not own the Horse Float, and there is no entitlement to use of the Horse Float after his employment terminated.
  5. In all the circumstances, Mr Webb has failed to make out an entitlement in contract in relation to the Horse Float.

Trade Practices

  1. Section 53B of the Trade Practices Act provides as follows:
  2. Section 53B of the Trade Practices Act does not apply to the circumstances of this case. That is because all of the relevant representations concerning the Horse Float were made after the employment of Mr Webb commenced. Section 53B is directed to circumstances where the relevant representations are made in relation to employment that is to be, or may be, offered, that is, it “operates only on the conduct of a corporation before a person became an employee”.[146]

Response

  1. The Response seeks orders for delivery up of the Horse Float, transfer of registration into the name of Daphne Downs at Mr Webb’s expense, and an injunction permanently restraining Mr Webb from interfering with Daphne Downs possession of the Horse Float.
  2. Delivery up has already occurred in accordance with the Court’s orders of 15 December 2008. Given the Court’s findings it is appropriate to order that registration of the Horse Float be transferred into the name of Daphne Downs, and that that be at Mr Webb’s expense. In all the circumstances, it is unnecessary to order injunctive relief.

Conclusion and order

  1. Mr Webb’s application must be dismissed as he has failed to establish that he has any entitlement to a benefit in contract in relation to the Horse Float, and there has been no breach of s.53B of the Trade Practices Act. There will be an order accordingly. There will also be an order for transfer of the Horse Float registration into Daphne Downs’ name, at Mr Webb’s expense.
  2. The Court will hear the parties as to costs.

I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of Lucev FM


Deputy Associate: Michele Lord


Date: 30 January 2009

[1] “Mr Webb”.
[2] “Daphne Downs”.
[3] “Horse Float”.
[4] See Webb v Suntown Enterprises WA Pty Ltd [2008] FMCA 1706.
[5] “Trade Practices Act”.
[6] Transcript at 99.
[7] Exhibit A3 - Mr Webb’s affidavit, sworn 28 November 2008 (“Mr Webb’s Affidavit”).
[8] Exhibit R2 - Mr Mewett’s affidavit, affirmed 12 December 2008 (“Mr Mewett’s Affidavit”). The evidence as to Mr Mewett’s role with Daphne Downs is in Annexure CMW5 to Mr Webb’s Affidavit and Mr Mewett’s Affidavit, para.1.
[9] “Mr Spry”.
[10] Transcript at 3-4.
[11] “Ms Woodgate”.
[12] Transcript at 5-6.
[13] “Ms McIntyre”.
[14] Transcript at 11-12.
[15] “Ms Bennet”.
[16] Transcript at 16-25.
[17] Transcript at 31.
[18] Mr Webb’s Affidavit, paras.1 and 5; Transcript at 36; Mr Mewett’s Affidavit, paras.3 and 4.
[19] “the Chittering Property”.
[20] Mr Mewett’s Affidavit, paras.2 and 3; Transcript at 31 (Mr Webb).
[21] Transcript at 78 (Mr Mewett -1250 cattle) and 32 (Mr Webb -1400 cattle), with a value of at least $700 a head: Transcript at 78 (Mr Mewett - $700 a head) and 32 (Mr Webb -$700-900 a head).
[22] Transcript at 29-30.
[23] Transcript at 77-78.
[24] Transcript at 31.
[25] Mr Webb’s Affidavit, paras.7-12; Mr Mewett’s Affidavit, para.5; Transcript at 44.
[26] Transcript at 30.
[27] Transcript at 32 and 44-46.
[28] Transcript at 32 and 46-47.
[29] Transcript at 32 (Mr Webb); Mr Mewett’s Affidavit, para.6.
[30] Mr Webb’s Affidavit, para.12; Transcript at 32 (Mr Webb); Mr Mewett’s Affidavit, para.6.
[31] Transcript at 33.
[32] Mr Webb’s Affidavit, para.12; Transcript at 32.
[33] Mr Webb’s Affidavit, para.12.
[34] Transcript at 33.
[35] Transcript at 33.
[36] Transcript at 65.
[37] Transcript at 33.
[38] Transcript at 42 (emphasis added).
[39] Transcript at 66.
[40] Transcript at 66.
[41] Transcript at 66.
[42] Transcript at 34, 41 and 65.
[43] Transcript at 16.
[44] Transcript at 16-17.
[45] Transcript at 17 (emphasis added).
[46] Transcript at 17.
[47] Mr Mewett’s Affidavit, para.7.
[48] Mr Mewett’s Affidavit, para.6.
[49] Mr Mewett’s Affidavit, para.7.
[50] Mr Mewett’s Affidavit, para.8.
[51] Transcript at 72.
[52] Transcript at 72.
[53] Transcript at 72.
[54] Transcript at 77.
[55] Transcript at 77.
[56] Transcript at 82.
[57] Transcript at 82.
[58] Transcript at 74.
[59] Mr Mewett’s Affidavit, para.8.
[60] Transcript at 3-4.
[61] Transcript at 3-4.
[62] Transcript at 4.
[63] Transcript at 4.
[64] Transcript at 12.
[65] Transcript at 12-15, the quote is from Transcript at 14.
[66] Transcript at 13; see also Transcript at 15.
[67] Transcript at 15.
[68] Transcript at 78.
[69] Transcript at 74.
[70] Mr Webb’s Affidavit, para.17.
[71] Mr Webb’s Affidavit, para.13.
[72] Transcript at 48.
[73] Mr Webb’s Affidavit, paras.13 and 14; Mr Mewett’s Affidavit, para.9.
[74] Transcript at 6 and 8.
[75] Transcript at 48.
[76] Transcript at 48-49.
[77] Transcript at 49.
[78] Transcript at 72.
[79] Transcript at 6. (emphasis added).
[80] Transcript at 10 (emphasis added).
[81] Transcript at 10.
[82] Transcript at 6.
[83] Transcript at 19.
[84] Mr Webb’s Affidavit, para.14.
[85] Mr Webb’s Affidavit, paras.15 and 17; Mr Mewett’s affidavit, para.10; transcript at 74 (Mr Mewett).
[86] Mr Mewett’s Affidavit, para.10.
[87] Mr Webb’s Affidavit, para.31.
[88] Mr Mewett’s Affidavit, para.12, Annexure PRTM1 (“Order Form”).
[89] Mr Mewett’s Affidavit, para.11; Transcript at 10 (Ms Woodgate).
[90] Mr Webb’s Affidavit, para.19.
[91] Mr Webb’s Affidavit, para.18.
[92] Mr Mewett’s Affidavit, para.14 and Annexure PRTM2; Transcript at 7 (Ms Woodgate).
[93] Transcript at 8.
[94] Transcript at 11.
[95] Mr Mewett’s Affidavit, para.13.
[96] Mr Webb’s Affidavit, para.20.
[97] Mr Mewett’s Affidavit, para.14 and Annexure PRTM2, being a letter from Horseland indicating that the balance of $18,900.00 was paid on 3 July 2008. There is a sales docket for the total amount dated 22 July 2008 (at Annexure PRTM4) but that does not appear to reflect the actual date of the pick up of the Horse Float.
[98] Mr Webb’s Affidavit, para.20.
[99] Mr Webb’s Affidavit, para.21.
[100] Transcript at 34.
[101] Transcript at 34 (emphasis added).
[102] Transcript at 37.
[103] Transcript at 20.
[104] Mr Mewett’s Affidavit, para.13.
[105] Transcript at 73 and 87.
[106] Transcript at 35.
[107] See paras.69-72 below.
[108] Exhibit R1.
[109] Transcript at 35.
[110] Transcript at 52; Mr Mewett’s Affidavit Annexure PRTM 3.
[111] Mr Mewett’s Affidavit, para.16.
[112] Mr Mewett’s Affidavit, para.16 and Annexure PRTM3; Transcript at 52.
[113] Transcript at 18 (Ms Bennet), 33 (Mr Webb).
[114] Mr Webb’s Affidavit, para.22; Transcript at 18 and 24-25 (Ms Bennet), 33 and 53(Mr Webb). See also Transcript at 89 (Mr Mewett).
[115] Transcript at 82 and 91.
[116] Mr Mewett’s Affidavit, para.18; Mr Webb’s Affidavit Annexure CMW1. It was common ground at hearing that notice of termination of employment was given on 7 September 2008 and not 8 September 2008.
[117] Transcript at 37.
[118] Mr Webb’s Affidavit, Annexure CMW1 (“14 September 2008 Letters”); Mr Mewett’s Affidavit, para.24.
[119] Mr Mewett’s Affidavit, para.19 and Annexures PRTM4 and PRTM 5.
[120] Mr Mewett’s Affidavit, para.21.
[121] Transcript at 39.
[122] Transcript at 58-59 and 70.
[123] Transcript at 70.
[124] Transcript at 70, see also 71.
[125] 14 September 2008 Letter.
[126] 14 September 2008 Letter.
[127] Transcript at 38.
[128] Transcript at 54-55.
[129] Transcript at 56-57.
[130] Transcript at 23.
[131] Transcript at 85.
[132] Mr Mewett’s Affidavit, para.25.
[133] Mr Webb’s Affidavit, Annexure CMW2 (“18 September 2008 Letter”).
[134] Mr Webb’s Affidavit, para.29.
[135] Mr Webb’s Affidavit, para.23. See also Transcript at 58: “The only reason ... was because I did not want to be chucked out in the street.”
[136] 18 September 2008 Letter – emphasis added.
[137] 18 September 2008 Letter.
[138] Mr Webb’s Affidavit, para.29.
[139] “24 September 2008 Letter”.
[140] Mr Webb’s Affidavit, para.29.
[141] 24 September Letter.
[142] Transcript at 61.
[143] Transcript at 63.
[144] Transcript at 61.
[145] Roscorla v Thomas (1842) 2QB 234.
[146] Wright v TNT Australia Pty Ltd (1988) 80 ALR 221 at 234 per Lee J; [1988] ATPR 40-864 at 49,362 per Lee J. See also Walker v Salomon Smith Barney Securities Pty Limited & Anor [2003] FCA 1099; (2003) 140 IR 433 at 474 per Kenny J; [2003] FCA 1099 at para.187 per Kenny J; J D Heydon Trade Practices Law (Thomson Lawbook Co, 1989) at 12.910.

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