Vision X-Ray Group Pty Limited v Alexander Associates Pty Ltd

1. [1]

   HER HONOUR: This is an appeal from a decision of a Local Court Magistrate.

2. [2]

   By summons filed 20 May 2020, the plaintiff seeks firstly, an appeal from the whole of the decision of his Honour Barko LCM (“the Magistrate”) dated 30 April 2020; secondly, to the extent necessary for the purposes of s 40(1) of the Local Court Act 2007 (NSW), leave to appeal from the whole of the decision below; thirdly, an order that the appeal be allowed; fourthly, that the judgment and orders of the Magistrate be set aside; and finally, that the proceedings be remitted to the Local Court of NSW to be dealt with according to law by another Magistrate

3. [3]

   By notice of contention dated 9 June 2020, the defendant contends that the decision of the Magistrate should be affirmed on all grounds; or in the alternative, that it should be affirmed on grounds other than those relied on by the Magistrate, but that there be no discharge or variation of any part of the decision. The notice of contention only comes into play in the event that the plaintiff is successful on appeal. I shall refer to it later if necessary.

4. [4]

   The plaintiff in this Court, Vision X-Ray Group Pty Ltd (“Vision X-Ray”), was the defendant in the Local Court proceedings. The defendant in this Court, Alexander Associates Pty Ltd (“Alexander Associates”), was the plaintiff in the Local Court proceedings. For convenience, I shall refer to the parties by name. The parties relied upon their joint court book.

Background

1. [5]

   Alexander Associates is a company that provides recruitment services in the medical industry. Vision X-Ray operates a business providing medical imaging services.

2. [6]

   By amended statement of claim (“ASC”), Alexander Associates claimed for the amount owing under two invoices for candidates it placed with Vision X-Ray.

3. [7]

   The hearing took place on 17 February 2020 in the Downing Centre Local Court before the Magistrate.

4. [8]

   On 30 April 2020, the Magistrate entered judgment, and delivered his written reasons on 5 May 2020. The Magistrate ordered that Vision X-Ray pay Alexander Associates the sum of $37,077.29.

5. [9]

   On 20 May 2020, Vision X-Ray commenced this appeal.

Appeals generally

1. [10]

   Section 39 of the Local Court Act provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.

2. [11]

   Section 40(1) of the Local Court Act provides that a party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only with leave.

3. [12]

   Section 41 of the Local Court Act provides that this Court may determine an appeal either by (a) varying the terms of the judgment or order, (b) setting aside the judgment or order, (c) setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or (d) dismissing the appeal.

4. [13]

   The main issues can be summarised as:

Grounds of Appeal

1. [14]

   Vision X-Ray appeals the decision of the Magistrate on the following grounds:

   1. (1)

      that the Magistrate erred in finding that the 2015 Agreement was in force as at 2 June 2017, and that the agreement was varied;

   2. (2)

      that the Magistrate denied Vision X-Ray procedural fairness;

   3. (3)

      that the Magistrate erred in not finding that an agreement had been reached on 24 August 2018;

   4. (4)

      that in relation to his finding that an agreement had not been reached on that date, the Magistrate failed to give adequate reasons;

   5. (5)

      that the Magistrate erred in finding that Mr David Yang’s employment had concluded on 18 September 2018 rather than 31 August 2018;

   6. (6)

      that in relation to his finding that Mr Yang’s employment had concluded on that date, the Magistrate failed to give adequate reasons;

   7. (7)

      that the Magistrate erred in finding that Vision X-Ray was not entitled to a set-off of the fees of Ms Julie Mitchell; and

   8. (8)

      that in relation to his finding that Vision X-Ray was not entitled to a set-off, the Magistrate failed to give adequate reasons.

2. [15]

   At the hearing of the appeal, ground 9 was not pressed.

3. [16]

   Vision X-Ray submitted that appeal grounds 1, 2, 4, 6 and 8 raise questions of law only, and that grounds 3, 5 and 7 raise questions of mixed law and fact. Alexander Associates submitted that leave should not be granted in relation to grounds 3, 5 and 7.

4. [17]

   Appeal grounds 3, 4, 7 and 8 are related. Counsel for Vision X-Ray conceded that if grounds 3 and 4 fail, so do grounds 7 and 8.

The pleading framework

1. [18]

   At the hearing in the Local Court, Alexander Associates was granted leave to file an amended statement of claim (“ASC”).

2. [19]

   The relevant paragraphs of the ASC are [3] to [8] and [9] to [11]. They plead:

3. [20]

   Alexander Associates claims for non-payment of the outstanding invoices in the sum of $37,077.29.

4. [21]

   The substance of the defence can be summarised as follows:

5. [22]

   At the hearing before the Magistrate, Alexander Associates relied upon the affidavits of Tony Barono dated 19 December 2019, and of Peter Baker dated 20 December 2019 and 4 February 2020. Vision X-Ray relied upon the affidavits of Andrew Clarey Zadelis sworn 29 January 2020, and of Sarah Martin sworn 4 February 2020. None of the deponents were cross examined.

6. [23]

   After the hearing in the Local Court, with leave, Vision X-Ray served written submissions on 3 March 2020. On 16 March 2020, Alexander Associates served written submissions in reply.

7. [24]

   Clause 1 of the 16 March 2015 Agreement provides as follows:

8. [25]

   Anthony Barono, a director of Alexander Associates, swore an affidavit on 19 December 2019. It was admitted into evidence in the Local Court proceedings, without objection, together with its annexures and marked as Ex 1. The Magistrate summarised the substantive evidence as follows (J [7(f)-(h)] and J [8(j)-(m)].

9. [26]

   Between 2 and 7 June 2017, Mr Barono exchanged a number of emails with Sarah Martin, Alexander Associates’ Chief Executive Officer, about the terms and conditions of the business dealings between the parties.

10. [27]

    On about 8 June 2017, Mr Barono spoke with Mr Baker about the parties’ dealings and Alexander Associates’ proposed amendments to the working terms and conditions.

11. [28]

    On 9 June 2017 at 3:15 pm, a teleconference was conducted between Mr Barono, Mr Baker, Ms Martin and Andrew Zadelis. Mr Baker and Mr Zadelis did most of the talking in respect of the handwritten amendments made to the Consultancy Agreement document. Mr Barono specifically recalled Mr Baker agreeing to reduce ss 5.12-14 from 24 months to 12 months. Later that afternoon, he spoke with Mr Baker, who made reference to a number of amendments he had made to the Consultancy Agreement. However, he had refused to agree to some amendments sought, including the money back guarantee. The Magistrate preferred the evidence of Mr Barono to that of Mr Zadelis.

12. [29]

    Mr Baker swore two affidavits, which were marked as Exs 2 and 4. The Magistrate summarised his evidence as follows (J [8(j)-(m)]).

13. [30]

    On about 5 June 2017, Mr Baker spoke with Mr Barono, who told him that Mr Zadelis wished to negotiate new terms for future candidates. Mr Baker agreed to have a teleconference for that purpose. On about 7 June 2017, he received an email from Mr Zadelis attaching proposed amendments to Alexander Associates’ terms of business.

14. [31]

    On about 9 June 2017, Mr Baker spoke with Mr Barono and told him that he was prepared to provide Vision X-Ray services, on the basis of minimum fees for sonographers at 12.5% and radiographers at 10%, with a 3 month guarantee. On 9 June 2017, he took part in the teleconference with Mr Barono, Mr Zadelis, and Ms Martin, which was predominantly conducted between himself and Mr Zadelis. During the teleconference, he discussed with Mr Zadelis proposed amendments to the document that Mr Barono had forwarded to Vision X-Ray.

15. [32]

    In addition to setting out this evidence, the Magistrate also summarised documents and extracts at pp 16-18 of his written reasons.

The Magistrate’s reasons for decision dated 5 May 2020

1. [33]

   In his judgment, the Magistrate began by summarising the evidence of the four witnesses set out earlier. His Honour then reviewed and summarised the business and other records annexed to the witnesses’ statements, highlighting certain portions of those documents. It is a lengthy judgment of 50 pages.

2. [34]

   Under the heading “Findings of Fact and Application of the Law”, the Magistrate relevantly stated at [38(d)-(g), (o)-(u), (w), (y)]:

Leave to Appeal

1. [35]

   As stated previously, appeal grounds 3, 5 and 7 raise questions of mixed fact and law for which leave is required. Alexander Associates submitted that leave should not be granted.

2. [36]

   Vision X-Ray referred to a number of authorities, including Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394 (“Agfa”) and Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 (“Attorney General v X”).

3. [37]

   In Agfa, the High Court stated at 394:

4. [38]

   In Attorney General v X, Spigelman CJ stated at [28]:

5. [39]

   Grounds of appeal on the basis that a finding was made without evidence raise a question of law: see Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; (2010) 270 ALR 228 at [90] per Hayne, Heydon, Crennan and Kiefel JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 326 per Mason J.

6. [40]

   Alexander Associates referred to Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd [2017] NSWSC 779 (“Café Du Liban”), where Beech-Jones J stated at [4]:

7. [41]

   Vision X Ray submitted that in relation to the appeal grounds that contain questions of mixed law and fact, the factual findings and the legal errors are linked, and as such, leave to appeal should be granted in relation to them.

8. [42]

   Alexander Associates submitted that leave to appeal should only be granted if there is an issue of principle or a question of general public importance, or if it is reasonably clear that there was an injustice in the sense of going beyond what is reasonably arguable (T 10.14-18).

9. [43]

   In Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”), Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows:

10. [44]

    Alexander Associates referred to Lee as authority in relation to the granting of leave. These principles ordinarily apply where a party seeks an extension of time to appeal, or where statute requires that leave be granted to appeal. Rather, the authority in relation to a question of mixed fact and law is set out in Café Du Liban.

11. [45]

    It is my view that there are inextricable links between the factual findings and the alleged legal errors. In these circumstances, I am satisfied that leave to appeal should be granted in relation to the mixed question of fact and law, and as such I grant leave to appeal in relation to appeal grounds 3, 5 and 7.

12. [46]

    Ground 1 of Vision X-Ray’s appeal is that the Magistrate erred in finding both that the 2015 Agreement was in force as at 2 June 2017, and that the agreement was varied.

13. [47]

    The primary case propounded by Alexander Associates on the pleadings was that on 9 June 2017, “[the plaintiff] entered into a Consultancy Agreement with [the defendant] for the recruitment of sonographers (‘the Agreement’)”. Alexander Associates particularised the basis for the pleading as follows (ASC [3]):

14. [48]

    Vision X-Ray submitted that the effect of [7] and [8] of the ASC is that it has no work to do, given the particulars for the Agreement pleaded at [3]; and that there was no pleading to the effect that the conversation amounted to a variation of the 2015 Agreement, nor did those particulars form part of the pleaded 2015 Agreement.

15. [49]

    In oral submissions, counsel for Vision X-Ray submitted that Alexander Associates’ case against it was binary. The ASC at [8] pleads an alternate claim to the effect that the terms and the written terms of the 2015 Agreement represented the true agreement. The position taken by Alexander Associates in the Local Court was that Vision X-Ray was either bound by the 2015 Agreement or the Agreement (as pleaded at [3] of the ASC). Put another way, if Alexander Associates failed in relation to the Agreement, then it relied upon the written terms of the 2015 Agreement to make out its case. There was no middle ground.

16. [50]

    Vision X-Ray submitted that the Magistrate decided a question of fact based on an absence of evidence. It is its case that there was no evidence before the Magistrate that would tend to establish that the conversation amounted to a variation of the 2015 Agreement. There was no evidence led by Alexander Associates that there was an intention that those matters varied the 2015 Agreement—it if had, then presumably it would have formed part of its case (T 2.44-48).

17. [51]

    Finally, Vision X-Ray submitted that if the Magistrate was correct in his finding, that finding is inconsistent with Alexander Associates’ case. As such, it was not open to the Magistrate to make those findings as to the existence of the 2015 Agreement, having regard to the findings at [38(o)] to [38(y)] of his Honour’s reasons.

18. [52]

    Alexander Associates agree that this ground of appeal raises a question of law only.

19. [53]

    Appeal ground 1(a) fails as there was evidence of the fact that the 2015 Agreement was varied by the terms contained in the consultancy document, which terms were expressly written or confirmed orally, which evidence is was as follows:

20. [54]

    Further, Vision X-Ray has misconstrued particular (ii) to [3] of the ASC. Vision X-Ray misstates that the written part of the Agreement there alleged consisted of the terms of the 2015 Agreement. What is in fact pleaded is that to the extent that the agreement’s terms were in writing it consists of the Consultancy Agreement dated 9 March 2015.

21. [55]

    The effect of [7] and [8] of the ASC is clearly that Alexander Associates was relying, further and in the alternative, on the terms of the 2015 Agreement. As such, it is expressly pleaded, or can at the very least be inferred, that Alexander Associates was relying on the terms of the Agreement reached on 9 June 2017, including those terms contained in the Consultancy Agreement dated 9 March 2015, and further or in the alternative, the terms of the 2015 Agreement.

22. [56]

    In any event, a party need only plead a summary of the material facts, from which inferences of law may be drawn, not law.

23. [57]

    Even if the legal result is pleaded for convenience, the party is not bound by, or limited to, the legal result he or she has alleged but may rely on any legal consequences of the pleaded facts which may properly flow from them.

24. [58]

    The ASC made plain Alexander Associates’ case and the material facts on which it relied, so that Vision X-Ray knew the issues of fact to be investigated at hearing.

25. [59]

    Vision X-Ray has cited no law in support of the proposition that a Magistrate is bound to determine a matter in accordance with the submissions of a party.

26. [60]

    As has been said in Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547, quoting with approval Saif Ali v Sydney Mitchell and Co (A firm) [1980] AC 198 at 212.

27. [61]

    The ASC [3(i)-(ii)] pleads that on 9 June 2017, Vision X-Ray entered into an agreement with Alexander Associates that was partly express and partly oral. The written terms of the Agreement consist of the Consultancy Agreement dated 9 March 2015, and the oral terms of 9 June 2017 are set out in [3(iii)] of the ASC, which pleads that it was implied by Vision X-Ray’s conduct that it accepted the Agreement. It is also pleaded that Alexander Associates relied upon the terms of the 2015 Agreement, set out at [8] of the ASC.

28. [62]

    At [38(o)] of his reasons, the Magistrate stated that the 2015 Agreement remained in force as at 2 June 2017. At [38(o)] to [38(y)] (excluding [38(r)]), the Magistrate set out the conversation that varied some of the terms of the earlier 2015 Agreement.

29. [63]

    In the Local Court submissions in reply, Alexander Associates submitted that the 2015 Agreement was terminated by reason of the events of 9 June 2017, but that that outcome was only possible if it was found that the parties entered into the 2017 Agreement. If it were to be found that the parties did not enter into the 2017 Agreement, the conduct of the parties on 9 July 2017 could not amount to the termination of the 2015 Agreement.

30. [64]

    In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71, the High Court (in the joint judgment of Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) stated:

31. [65]

    The High Court cited this principle with approval in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 and Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447.

32. [66]

    It is my view that from the pleadings, the factual evidence given by the parties and the way in which the case was argued, the Magistrate was entitled to make findings that the 2015 Agreement remained in force and was varied by the 2017 oral agreement. The 2017 oral agreement added extra terms concerning matters not previously dealt with in the 2015 Agreement. The evidence of the oral variations was given by Messrs Barono and Baker on behalf of Alexander Associates and Ms Martin and Mr Zadelis of Vision X-Ray in relation to the oral variation in 2017. This ground of appeal fails.

33. [67]

    Appeal ground 2 is that the Magistrate, in making the findings he did in appeal ground 1, denied Vision X-Ray procedural fairness.

34. [68]

    Vision X-Ray referred to Allesch v Maunz (2000) 203 CLR 172, where Kirby J stated at [34]:

35. [69]

    In Kioa v West (1985) 159 CLR 550, Mason J stated at 582:

36. [70]

    Vision X-Ray submitted that given the findings at [38(o)]-[38(y)] of the Magistrate’s reasons concerning the 2015 Agreement, the Magistrate proceeded on the basis that it had been varied by the conversation particularised at [3] of the ASC. Vision X-Ray submitted that nothing in Alexander Associates’ pleadings or written submissions placed Vision X-Ray on notice that it was conducting the alternate case reflected in the Magistrate’s findings concerning the 2015 Agreement. The Magistrate also gave no indication that he was so inclined to make those findings, and failed to invite the parties to make submissions in respect of them. As such, Vision X-Ray submitted that it was denied the opportunity to be heard.

37. [71]

    Alexander Associates submitted that this ground of appeal fails for the same reasons submitted in respect of ground 1. In any event, the conclusion would have been the same whether 2015 Agreement was varied or replaced by the 2017 Agreement, as the end result is that the 2017 Agreement contains all relevant terms to which the parties were subject.

38. [72]

    I have already found in relation to ground 1 that it was open to the Magistrate to find as he did. Vision X-Ray had the reasonable opportunity to be heard and make submissions. It is not a denial of procedural fairness or natural justice for the Magistrate to have decided the case, not in accordance with Vision X-Ray’s submissions, but in accordance with the pleadings, evidence and submissions before him. This ground of appeal fails.

The law – adequate reasons

1. [73]

   Recently in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 (“Alexandria Landfill”), Basten JA (with Macfarlane and Leeming JJA agreeing) restated what will constitute adequate reasons, and in particular, at what level of detail the Court requires the process of reasoning to be recorded. In Alexandria Landfill, the Court of Appeal referred to Pettitt v Dunkley [1971] 1 NSWLR 376 at [19] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [21].

2. [74]

   In Alexandria Landfill, Basten JA stated at [29] to [32] and [50]:

3. [75]

   Grounds 3, 4, 7 and 8, which I will consider together, are that the Magistrate erred in not finding that an agreement was reached on 24 August 2018, and in finding that Vision X-Ray was not entitled to a set-off of the Ms Mitchell’s fees. These grounds also allege that the Magistrate failed to give adequate reasons in respect of those two findings.

4. [76]

   The findings relevant to grounds 3 and 4 are set out earlier in this judgment.

5. [77]

   On 1 August 2018, Mr Baker made an offer, by email, to reinstate the guarantee contingent on Mr Zadelis agreeing to the outstanding liability in respect of four employees. Critically, Mr Baker wrote:

6. [78]

   On 2 August 2018, Mr Baker responded to the above email in the following terms:

7. [79]

   In considering this issue, the Magistrate stated a [39]:

8. [80]

   Vision X-Ray submitted that the invoices referred to are those contained in the email sent by Mr Baker on 1 August 2018, noting that the Agreement propounded by Vision X-Ray was that the Agreement required nothing more than the invoices to be raised.

9. [81]

   On 6 August 2018, Mr Baker sent an email to Mr Zadelis enquiring about payment of the invoices, presumably referable to those in his email dated 1 August 2018.

10. [82]

    Between 7 August 2018 and 9 August 2018, Mr Zadelis and Mr Baker exchanged various emails regarding payment.

11. [83]

    On 24 August 2018, Mr Zadelis sent an email to Mr Baker. The effect of the email was that Vision X-Ray accepted the offer made by Alexander Associates on 1 August 2018, and as such, there was a concluded agreement. Vision X-Ray submitted that the email dated 28 August 2018 does not affect the legal intent of the Agreement struck on 24 August 2018.

12. [84]

    Vision X-Ray submitted that the Magistrate erred by ignoring evidence, namely the email of 24 August 2018. This evidence was critical to an issue in the case. Vision X-Ray submitted that the Magistrate erred in making the finding he did at [38(dd), and that had the Magistrate not ignored the evidence, it was open for him to make the following findings:

13. [85]

    Vision X-Ray submitted that in respect of this issue, the Magistrate failed to give adequate reasons, or any reasons, as to why no agreement was struck on 24 August 2018.

14. [86]

    The Agreement reached on 24 August 2018 was a critical part of Vision X-Ray’s resistance to Alexander Associates’ claim and the Magistrate was aware of that issue. Having regard to the reasons, it is apparent that the Magistrate clearly considered the emails dated 1, 2 and 7 August 2018. However, while the Magistrate mentioned the balance of the emails in his reasons, Vision X-Ray submitted that his Honour did not have regard to them—or, at leave, it is not apparent from his relevant findings at [38(dd)].

15. [87]

    The effect of the error made by the Magistrate in ignoring the email dated 24 August 2020 was that the fees paid in respect of Ms Mitchell ought to have been offset in accordance with s 20 of the Civil Procedure Act 2005 (NSW) against any liability the Magistrate found as against Vision X-Ray. Further, the case propounded by Vision X-Ray was that Alexander Associates’ breach of the Agreement reached on 24 August 2018 resulted in Alexander Associates being unjustly enriched by the sum paid by Vision X-Ray. It was never contended by Vision X-Ray that the there was an agreement that Alexander Associates would offset those fees in the terms described by the Magistrate at [38(dd)]. The Magistrate at [39] found that:

16. [88]

    Vision X-Ray submitted that this constitutes a failure to give adequate reasons as to why Vision X-Ray was not entitled to the set-off.

17. [89]

    Alexander Associates submitted that the Magistrate’s finding that no agreement had been reached was available to him, and was not made because he ignored the evidence. On the contrary, the Magistrate set out, in great detail, the relevant correspondence between the parties and ultimately found the following at [38(dd)]:

18. [90]

    The Magistrate found that the relevant agreement “was conditional on the outstanding fees being paid”, and that Vision X-Ray never paid the outstanding fees. As the condition was never fulfilled, any such agreement did not come into being, and is not enforceable.

19. [91]

    Moreover, Alexander Associates submitted that whether a contract has been formed is a question of fact: see Sand Ground Engineering Pty Ltd v Super Render Pty Ltd [2020] NSWSC 458 at [56]. Findings of fact are not to be disturbed on appeal.

20. [92]

    The Magistrate set out the documentary evidence from 6 August 2018 to 24 August 2018. It is as follows:

21. [93]

    At [38(dd)], the Magistrate made the following findings:

22. [94]

    It is clear from the evidence that Mr Baker’s offer for a free replacement for Ms Mitchell was conditional on the invoices being paid. These invoices were never paid.

23. [95]

    From the evidence given on this topic, it was open to the Magistrate to make a finding that there was never an agreement by Alexander Associates to set-off the fees of Ms Mitchell from the fees owing in respect of Mr Prentice. The offer of a free replacement was always premised on the basis that all outstanding invoices would be paid beforehand. There was no agreement in August 2018 for a free replacement, so therefore there is no set off.

24. [96]

    Appeal grounds 3 and 4 fail. It follows that appeal grounds 7 and 8 also fail.

25. [97]

    There is no controversy that Mr Yang tendered his resignation to Vision X-Ray on 31 August 2018 and ceased working for Vision X-Ray on 18 September 2018.

26. [98]

    At [38](g)-(h)], the Magistrate found:

27. [99]

    At [38](z)], the Magistrate found:

28. [100]

    Vision X-Ray submitted that the Magistrate fell into error in finding that Mr Yang’s employment ceased on 18 September 2018. This is because the Magistrate erred in making the findings in regard to the 2015 Agreement, which were not open to him, especially given that there was a lack of evidence to do so.

29. [101]

    Ultimately, there was no dispute as to Mr Yang’s notice period, which was ultimately accepted.

30. [102]

    Vision X-Ray submitted that Mr Yang’s employment ended on 31 August 2018 upon tendering his resignation to Vision X-Ray.

31. [103]

    The Magistrate failed to give any reasons as to why Mr Yang’s employment did not come to an end upon the tendering of his resignation. If he did so, it is not apparent from the reasons.

32. [104]

    Alexander Associates submitted that the Magistrate did not err, as his reasons at [38(g)-(h)] were cogent and the finding made was available to him, for the reasons submitted by Alexander Associates at [40] of its written submissions in chief in the Local Court dated 17 February 2020, and at [17] of its written submissions in reply dated 16 March 2020.

33. [105]

    The Magistrate’s reasons is that the 2015 Agreement provided for payment of fees (other than contractor fees) to be paid within 30 days of the invoice date.

34. [106]

    The 2015 Agreement provided a replacement guarantee if a candidate “leaves...within three months of commencing”. However, the guarantee did not apply if Vision X-Ray had not paid the specified fee (12.5% of total annual remuneration package) within 30 days of the date of invoice for the fees.

35. [107]

    A reasonable business person would understand the word “leaves” to mean that a candidate is no longer physically present to perform his/her employment duties.

36. [108]

    Mr Yang was introduced to Vision X-Ray on 21 December 2017, and commenced employment with Vision X-Ray on about 9 March 2018. Mr Yang ceased employment with Vision X-Ray on 18 September 2019, after more than 6 months employment. The invoice for Mr Yang dated 13 March 2018 is in the amount of $17,993.49. The invoice remained unpaid for more than 30 days. The invoice for Mr Yang remains unpaid to date.

37. [109]

    In summary, the Magistrate made finds that Mr Yang remained employed for more than 6 months and the invoice remained unpaid. The finding is in accordance with the contractual relationship between the parties and Vision X-Ray was obliged to pay Alexander Associates for the services of Mr Yang.

38. [110]

    There is no legal or factual error in the Magistrate’s reasons. These grounds of appeal fail.

The result

1. [111]

   The result is that the appeal fails. Hence, it is not necessary to consider Alexander Associates’ notice of contention.

Costs

1. [112]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.