Griffin v Grigg[2013] QDC 261

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff is an experienced butcher. He operated his business in a shopping centre at Goodfellows Roadat Kallangur. His lease of the premises expired in 2003 and thereafter he remained on a month to month tenancy.

2. [2]
   The Goodfellows Roadshopping centre was advertised for sale in December 2003. The defendant was interested in acquiring the shopping centre. He met the plaintiff for the first time when he went to view the shopping centre. They engaged in conversation and the plaintiff told the defendant that he was interested in moving his shop to new premises which were being constructed at Kallangur.

3. [3]
   The defendant, who is a medical practitioner, had no experience in butchery. He became interested in opening a butcher shop in the new shopping centre which was called the Lillybrook Shopping Centre.

4. [4]
   The defendant was impressed by the plaintiff’s experience. He saw the establishment of a butcher shop in the new shopping centre as a possible outlet for selling meat from cattle properties that he owned.

5. [5]
   The plaintiff and the defendant engaged in discussions which led to the establishment of Lillybrook Meats in the new shopping centre. The defendant leased the premises and owned the business. The plaintiff was employed as the manager of Lillybrook Meats. The shop opened for business on Saturday 28 August 2004.^[1]

6. [6]
   The defendant agreed to pay the plaintiff at an hourly rate. The agreed hourly rate was $18.00 which was subsequently increased to $25.00. The plaintiff was paid weekly in cash. The plaintiff kept the wages records.^[2]The first entry in the plaintiff’s wages records is for the week ending 29 August 2004.^[3]The last entry is for the week ending 11 July 2010. There are periods in between those dates where no wages records are available.

7. [7]
   The plaintiff supplied items of equipment for use in the shop.

8. [8]
   The actual terms of the employment agreement and the agreement for the use of the equipment supplied by the plaintiff are in issue.

9. [9]
   When the plaintiff returned from an overseas holiday on about 9 September 2010, he discovered a letter from the defendant in his letterbox whereby his employment was terminated.^[4]

10. [10]
    By his Further Further Amended Statement of Claim, the plaintiff claimed $457,170.72 in unpaid wages and entitlements, $22,438 for plant and equipment provided by him for use in the business together with interest. However, the amount of the claim for unpaid wages and entitlements was substantially reduced by the end of the trial. The defendant denies the plaintiff’s claims and counter-claims for $35,000 for damages for breach of an agreement in relation to the costs of a vehicle supplied to the plaintiff.

The issues

11. [11]
    The main issues that arise for determination on the pleadings are:

1. The hours the plaintiff actually worked;

2. Whether the plaintiff was a full-time or casual employee;

3. If the plaintiff establishes that he was underpaid, whether he is precluded from recovery by the principles of estoppel and waiver, or the limitation period;

4. (a)  The terms of the agreement in respect of plant and equipment provided by the plaintiff;

1. (b)
   Whether the plaintiff’s claim in respect of plant and equipment is barred by s. 10 Limitation of Actions Act 1974.

1. (b)
   Whether the defendant acknowledged the plaintiffs claim in respect of the item described as a pre-pack thereby triggering a fresh accrual of the plaintiff’s right of action by reason of s. 35 Limitation of Actions Act 1974.

5. In respect of the defendant’s counterclaim, whether the plaintiff was in breach of the agreement in respect of the supply of a motor vehicle.

The evidence led in the plaintiff’s case

12. [12]
    The plaintiff said the defendant asked him to manage Lillybrook Meats as if it was his own shop. Initially he was paid $18.00 an hour, which increased to $25.00 an hour after two years. The wages records^[5]show that the plaintiff commenced receiving $25.00 per hour from the week ending 3 September 2006.

13. [13]
    The opening hours of the shop were 7.00 a.m. to 8.00 p.m. Monday to Friday, 7.00 a.m. to 5.00 p.m. on Saturday and 7.00 a.m. and 6.00 p.m. on Sunday. The plaintiff conceded in cross-examination that the opening hours on Sunday were 7.00 a.m. to 5.00 p.m..^[6]However after about three years the opening hours on Monday to Friday changed to 7.00 a.m. to 7.00 p.m.. The plaintiff said that as there were limited staff he worked the trading hours. As the number of staff increased the plaintiff said he was able to reduce his working hours. The plaintiff said that he regularly arrived at the shop at 6.00 a.m. to set up for the days trading.

14. [14]
    The plaintiff said that he completed the entries in the wages book at the end of each week.^[7]He believed that the wages records were 90% accurate. The plaintiff said that in the first year he was working 13 hours each day on Monday to Friday, 10 hours on Saturday and 11 hours on Sunday. He was therefore working approximately 86 hours per week in that period.^[8]The wages records^[9]indicate that the plaintiff worked 80 hours per week during most weeks up to the week ending 23 October 2005. The plaintiff explained that he recorded 80 hours per week in that period because he and the defendant were trying to keep overheads down, and although he worked additional hours he recorded only 80 hours each week.^[10]However in cross-examination he agreed that he did not ever work more hours than those recorded in the wages books.^[11]

15. [15]
    As to the basis of his employment, the plaintiff said that he believed he was a permanent casual employee.^[12]He said that before opening the shop he discussed the issue of wages with the defendant and it was agreed that staff were to be employed on a casual basis. That included himself.^[13]He therefore telephoned Wageline to ascertain the casual rate and was informed that it was $18.00 per hour.^[14]Furthermore the wages book itself indicates that the plaintiff was a casual employee.

16. [16]
    The plaintiff was paid in cash each week from the shop takings. From July 2006 the plaintiff commenced making a $500 salary sacrifice into superannuation. However he received those amounts of $500 as cash payments.^[15]

17. [17]
    The plaintiff and the defendant met regularly. They had dinner together at the plaintiff’s residence on Monday nights.^[16]In the first six months that the business was operating, the defendant would visit the shop each Tuesday morning.^[17]The plaintiff said that the defendant was interested in the takings of the business and the expenses.^[18]

18. [18]
    The plaintiff brought a number of items of equipment from the Goodfellows Roadshop for use at Lillybrook Meats. In addition he said that he paid for a meat display case described as a “pre-pack”. The plaintiff’s bank statement shows that he withdrew $7,273.20 on 13 October 2004.^[19]This amount was used to pay for the pre-pack. The plaintiff said that prior to opening the shop two pre-packs had been ordered. However when only one arrived he spoke to the defendant who said that he had only been able to afford the cost of one pre-pack. He said that the defendant asked him to finance the second pre-pack which he agreed to do. The plaintiff said that the plaintiff agreed to pay him $20,000 for all of the equipment that he supplied including the pre-pack.^[20]After the termination of his employment, he prepared a list of the equipment he had provided to Lillybrook Meats.^[21]

19. [19]
    In relation to the supply of a motor vehicle, the plaintiff said that the defendant agreed to lease a vehicle on his behalf. The vehicle was to be used by the plaintiff for the purpose of getting to and from work and for his duties in collecting supplies and making deliveries. The plaintiff said that the defendant paid the registration and insurance. The plaintiff paid for the general maintenance of the vehicle.^[22]

20. [20]
    The plaintiff explained that any occasions when he was absent from the shop were because he was delivering price lists to potential customers, collecting supplies and occasionally doing the banking.^[23]He also said that he would on occasions consume alcohol during lunch breaks, but this did not affect his ability to carry out his duties.^[24]

21. [21]
    Trent Zelow was an apprentice employed at Lillybrook Meats. According to the wages book^[25]he appears to have commenced employment in the week ending 10 December 2006. Mr Zelow ceased working at the shop for three to four months but then returned as a labourer’s hand. He was still employed at Lillybrook Meats at the time of the plaintiff’s dismissal in September 2010. Just after Christmas 2010 he left Lillybrook Meats and commenced working for the plaintiff at Lloyd Griffin’s Quality Meats at Kallangur.^[26]

22. [22]
    Mr Zelow said that generally his working hours were 8.00 a.m. to 5.00 p.m.. He said that he plaintiff was in attendance at the shop for the majority of the time. He said that the plaintiff’s job entailed making deliveries and doing the banking.^[27]The plaintiff’s absences from the shop were for periods of between half an hour and one and a half hours.^[28]

23. [23]
    In cross-examination, Mr Zelow denied saying to Robert Blades (a butcher who worked at Lillybrook Meats and was called in the defendant’s case) that the plaintiff had offered him $10,000 to give evidence.

24. [24]
    Jane Kuykens worked at a bakery situated next door to Lillybrook Meats. She worked at the bakery four days a week. She usually worked on Monday, Tuesday and Wednesday, and one day on the weekend.^[29]Sometimes she worked on Thursday and Friday. Her hours of work were between 6.30 a.m. and 12.30 p.m., although she usually arrived at 6.00 a.m.. The bakery was located in shop 11 which was next door to Lillybrook Meats up until about 2009.^[30]In the period between 2005 and 2009, Ms Kuykens said that each morning that she was at work the plaintiff would enter the back door of the bakery and say good morning to everyone at some time between 6.00 a.m. and 6.30 a.m..^[31]She would see the plaintiff throughout the day such as when he visited the bakery to buy his lunch. After the bakery moved to shops 21 and 22 in about 2009 the plaintiff delivered meat to the bakery between 6.30 a.m. and 7.00 a.m. each morning.^[32]

25. [25]
    Russell Keast conducted a desk-top valuation of the plant and equipment provided by the plaintiff for use at Lillybrook Meats.^[33]The effective date of the valuation was. 31 August 2010. The report states that the valuation was conducted on a “sight unseen” basis and should be considered as indicative only.^[34]The valuation report which was prepared on 2 September 2012 states that as sales data for assets sold in 2010 was not readily available, the assets were valued compared to the value that would be ascribed to six year old machinery in the current market.^[35]The total value for all items of equipment including the pre-pack refrigeration cabinet was $7,275. The pre-pack refrigeration cabinet was valued at $3,000. The report states that the value of two custom built stainless steel meat benches manufact ured in 2004, was $1,800.^[36]However the stainless steel benches had an estimated value of $1,650 in 2004.^[37]Mr Keast accepted that his valuation of $1,800 for the stainless steel benches was wrong, and provided a revised estimate of $1,000.^[38]

The evidence led in the defendant’s case

26. [26]
    The defendant said that it was agreed that the plaintiff was to be employed as the manager of the shop on a causal basis.^[39]The plaintiff was to be paid $18.00 per hour, increasing to $25.00 per hour when the shop takings improved.^[40]

27. [27]
    Lillybrook Meats opened on 28 August 2004. The defendant said that he attended the shop each Tuesday morning for about 15 months. He also went to the plaintiff’s home on Monday nights for dinner where they would discuss the operations of the shop.^[41]At these meetings, the defendant sought financial information about the profit of the business based on wages, the cost of the meat and other fixed costs.^[42]

28. [28]
    At one stage the plaintiff advised the defendant that a second pre-pack refrigeration cabinet was required for the shop. The defendant told the plaintiff that he had already spent a lot of money setting up the shop and was not ready to acquire a second pre-pack.^[43]The plaintiff said that a second pre-pack was required and offered to purchase one and said that the defendant could pay him back later. The defendant agreed to that.^[44]The defendant said that he didn’t pay the plaintiff for the pre-pack because he became busy “in the mire of the business”.^[45]

29. [29]
    The defendant said that financial figures provided to him by the plaintiff had a bearing on decisions he made in relation to staff levels required at the shop.^[46]He said that if the plaintiff had told him that he was entitled to be paid for additional hours, he would have spoken to him about it perhaps varying the trading hours of the shop.^[47]

30. [30]
    The defendant said that the plaintiff offered to provide plant and equipment that he had from his Goodfellows Roadshop and other equipment that was at his home in order to get the shop “up and running”.^[48]He said that there was no discussion about paying for that plant and equipment.

31. [31]
    The defendant said that he agreed to provide the plaintiff with a motor vehicle on the basis that the defendant would pay the costs of running it in the first year and then he would ask the plaintiff to meet the costs after that.^[49]The defendant said that the plaintiff agreed to that proposal. However after the initial 12 month period had elapsed, he did not speak to the plaintiff about meeting the costs of the vehicle.^[50]The defendant’s total expenses in connection with the vehicle were between $39,260 and $41,760.^[51]

32. [32]
    Charles Miers was a butcher who commenced employment at Lillybrook Meats in 2004. He worked there for about two years. He said that on about four mornings during the week, he would open the shop.^[52]He remained at the shop all day. However he said that about three times a week the plaintiff would leave the shop for periods of up to four or five hours.^[53]On some occasions when the plaintiff left the shop, he would be carrying a meat tray for delivery to the bowls club. Mr Miers said that when he delivered meat trays to the bowls club it would take approximately 10 to 15 minutes.^[54]Mr Miers said that when the plaintiff returned to the shop after absences of four to five hours, he did not notice that he smelt any differently.^[55]

33. [33]
    Robert Blades was employed at Lillybrook Meats for about four months. The wages records are incomplete but there is a single entry for Mr Blades on 21 February 2010.^[56]Mr Blades said that he worked five to six days per week. Mr Blades said that the plaintiff left the shop on occasions to go to the bank and to go to the bowls club. He said that the plaintiff would be absent for periods of between half an hour and three and a half hours.^[57]Also, on occasions the plaintiff had Wednesday afternoons off. Mr Blades estimated that the trip from the butcher shop to the bowls club and back would take about 15 minutes.

34. [34]
    Mr Blades said that when the plaintiff returned to the shop after being away for periods of two to three hours he would be red in the face and his speech was slurred.^[58]

35. [35]
    Mr Blades was presently working with Mr Zelow who gave evidence in the plaintiff’s case. He said that Mr Zelow told him that he had been asked to give evidence for the plaintiff who had offered him $10,000.^[59]

36. [36]
    Rhys Thomas is the son of the defendant’s wife. Over a six month period in 2007/2008 Mr Thomas worked for the plaintiff at Lillybrook Meats. He travelled from the defendant’s property at Kyogle, New South Wales, where he was living, and worked at the shop for two to three days each week. The main reason Mr Thomas worked at Lillybrook Meats was to enable him to assess the quality of the carcasses that had come from the Kyogle property.^[60]

37. [37]
    Mr Thomas said that the plaintiff would open the shop in the morning. He said that the plaintiff would leave the shop at about 10.00 a.m. or 11.00 a.m.. He would be absent for periods of between four hours and six hours.^[61]Sometimes he would return at 1.00 p.m. but on occasions he would not return until 4.00 p.m.. Sometimes the plaintiff had a meat tray with him when he left the shop.^[62]Mr Thomas said that when the plaintiff returned to the shop he could smell alcohol on his breath and behaved in a manner consistent with someone who had been drinking.^[63]

38. [38]
    Gregory Heenan commenced work at Lillybrook Meats in February 2010. At the time of the trial, he remained in employment at Lillybrook Meats as the manager. He said that initially the plaintiff opened the shop but after a couple of months he asked for a key so he could open it.^[64]After that he said that the plaintiff did continue to open the shop about half the time. Mr Heenan said that when he went home at 5.00 p.m. or 6.00 p.m. the tasks of washing down the shop and putting away the meat had been completed.^[65]

39. [39]
    Mr Heenan said that generally the plaintiff would leave the shop at between 9.30 a.m. and 10.00 a.m. and return at about 4.00 p.m. to 4.30 p.m..^[66]In general conversation the plaintiff would say that he had had a win on the horses or seen a particular person at the bowls club. Mr Heenan said that meat trays were to be delivered to the bowls club on Fridays, Saturdays and Sundays. On the occasions when Mr Heenan made the deliveries to the bowls club, it would take approximately 10 minutes.

40. [40]
    Mr Heenan said that when the plaintiff returned in the afternoon, he would smell of beer and his face would be red.^[67]

41. [41]
    Mr Heenan said that once a fortnight the plaintiff would travel to Morningside to purchase marinade for use at the butcher shop.^[68]He agreed that a trip to and from Morningside would take up to two hours.^[69]

42. [42]
    Betty Williams worked at Lillybrook Meats for a number of years. According to the wages records, she seems to have commenced in February 2007.^[70]Ms Williams died on 5 April 2012.^[71]A Statutory Declaration signed by Ms Williams on 28 January 2011 was admitted pursuant to s. 92 Evidence Act 1977.^[72]In her Statutory Declaration, Ms Williams said that for the first three years that she worked at Lillybrook Meats she worked every Friday, Saturday and Sunday and occasionally on Monday and Wednesday when needed. She said that while working on those days, the plaintiff was usually absent. She said that when he was there he would come into the shop at about 9.00 a.m. and leave between 9.30 a.m. and 10.00 a.m.. She said that the plaintiff would return at 5.00 p.m. when the staff were due to finish their shift. She said that the plaintiff was always working for the full day on Saturday and every second Sunday.

43. [43]
    John Preston is the defendant’s accountant. He prepared a statement setting out the actual wages and salary sacrifice superannuation paid to the plaintiff in the financial years 2005 to 2011, the amounts to which he would have been entitled pursuant to the Meat Industry (Other Than Export) Award – State 2010 and the Meat Industry Award 2010, and the difference between the two. Mr Preston made his analysis upon the assumption that the wages records were accurate. However, as he pointed out, the wages records for the periods 24 October 2005 to 20 November 2005, 29 June 2009 to 20 December 2009 and 12 July 2010 to 31 August 2010 were not available because they could not be located. These records could have been of assistance.

44. [44]
    Annexure “B” to Mr Preston’s statement sets out his calculations for two separate periods. The first period is from 28 August 2004 to 31 August 2010. This is the period from the date that Lillybrook Meats opened to the date of the letter by which the plaintiff was dismissed. The second period is from 17 December 2004 to 31 August 2010. The starting point for that second period is based upon the fact that the plaintiff commenced proceedings on 16 December 2010 and it is therefore asserted by the defendant that any claim in respect of the period before 17 December 2004 is barred by s. 10 Limitation of Actions Act 1974. As that point was conceded by Mr Watson for the plaintiff, the relevant period is. 17 December 2004 to 31 August 2010. Mr Preston’s calculations for that period are as follows:

45. [45]
    Mr Preston made the assumption that there was an amount of $25,500 in underpaid salary sacrifice superannuation by deducting the amount that he ascertained had actually been paid to Sunsuper from the total of salary sacrifice amounts stated in the wages records.^[73]However the plaintiff accepted that he received the salary sacrifice amounts shown in the wages records in cash. Therefore there is no underpaid salary sacrifice superannuation. Accordingly based on Mr Preston’s calculations, the plaintiff was underpaid $32,899.91.

The number of hours worked by the plaintiff

46. [46]
    The plaintiff claims that he worked the number of hours recorded in the wages books. The hours recorded in the wages records are substantially less than the hours pleaded by the plaintiff in the Further Further Amended Statement of Claim. For instance, Annexure B to the Further Further Amended Statement of Claim states that the plaintiff worked for 101 hours each week from 29 August 2004 to 26 June 2005. However the wages records for that period indicate that the plaintiff mostly worked for 80 hours each week, although in some weeks he worked for 60 or 70 hours. Mr Forde, who appeared for the defendant, submitted that the plaintiff’s credibility was tarnished by the variation between the plaintiff’s pleaded case and that which was ultimately advanced on his behalf.^[74]The fact s alleged in a pleading should not necessarily be regarded as being based upon the specific instructions of the party.^[75]In the circumstances I do not attach any significance to the variation between the plaintiff’s pleadings and the case advanced by him.

47. [47]
    Nevertheless the plaintiff’s claim based on the accuracy of the wages records does depend on his credibility and reliability. Not surprisingly the plaintiff has no independent recollection of how many hours he worked on any particular day.^[76]He relied on the wages records which he said were about 90 per cent accurate.^[77]The wages records were kept and maintained by the plaintiff. Upon completion of a wages book the plaintiff took it home.^[78]Although the defendant looked at the wages records from time to time, I accept his evidence that he did not do so regularly.^[79]Moreover he said that when he looked at the wages records he was mainly concerned with the new employees.^[80]

48. [48]
    There are a number of reasons why I have concluded that the plaintiff’s evidence in relation to the number of hours he worked is unsatisfact ory and unreliable and therefore should not be accepted.

49. [49]
    The plaintiff was apprehended for a drink driving offence on 2 September 2008. He made application to the Magistrates Courtat Pine Rivers for a restricted driver licence enabling him to drive for purposes directly connected with his employment. The plaintiff’s affidavit in connection with that application which was sworn on 15 October 2008 stated that three days before the offence he received confirmation from his doctor that he had been diagnosed with stomach cancer. He said that he needed someone to talk to and arranged to meet a friend at the Kallangur Bowls Club where he consumed a number of beers during the course of the afternoon. The plaintiff stated that, “I left the Kallangur Bowles (sic) Club at approximately 2.30 p.m. and drove back to work. I then left work at around 5.30 p.m. and was intercepted by Police on Anzac Avenueat 5.37 p.m. I was duly charged.”^[81]The plaintiff’s account of the drink driving offence before this court was after consuming beer at the bowls club he drove his friend home. He then returned to the butcher shop where he continued working. He was then required to deliver raffle trays to the Kallangur Tavern and left the shop to do so at about 5.30 p.m. After delivering the raffle trays he was driving back to the butcher shop and was stopped at a roadside breathalyser. He agreed that he was driving for work purposes at the time of the offence.^[82]The plaintiff would not have been eligible for a restricted licence if the drink driving offence was committed while he was engaged in an activity directly connected with his means of earning his livelihood.^[83]The plaintiff’s affidavit states that he was intercepted after leaving work at about 5.30 p.m. The affidavit does not disclose that having left work he travelled to the Kallangur Tavern for the purpose of delivering the raffle trays and was intercepted on his way back to the butcher shop. At the very least the plaintiff used selective language in his affidavit. His failure to disclose that he was engaged in a work-related activity when he was intercepted for the drink driving offence adversely reflects on his credit.

50. [50]
    A further issue which at the very least is indicative of the plaintiff’s poor memory concerns the whereabouts of the wage books. After the plaintiff’s dismissal, his solicitors sent letters to the defendant’s solicitors, demanding production of the wage books. In a letter dated 15 November 2010 the plaintiff’s solicitors requested production of the wage books within seven days, stating that the defendant was obliged to do so by clause 11.2 of the Award.^[84]The defendant’s solicitors maintained that the plaintiff was not entitled to access the wage records.^[85]By letter dated 19 November 2010 the plaintiff’s solicitors demanded production of the wage records by close of business on 23 November 2010.^[86]The plaintiff’s solicitors reserved the right to apply to the Federal Magistrates Court for delivery up of the documents, a civil penalty pursuant to Part 4-1 Fair Work Act 2009 (Cth) and indemnity costs. By letter dated 7 December 2010 the defendant’s solicitors stated that a wage book for the period December 2009 to the date of the plaintiff’s termination had been located and that the relevant extract s would be provided. The letter stated that the defendant had not been able to locate wage records prior to December 2009. Furthermore it was asserted that the wage records were always maintained at the business premises and that the defendant believed that the plaintiff had removed them.^[87]As it transpired the wage records were in fact at the plaintiff’s home. The records were not handed over to the defendant’s solicitors until January 2012.^[88]The whereabouts of the wage records had become a significant issue and it is therefore surprising that the plaintiff could not remember that they were at his home. The plaintiff said that his house had been broken into and he believed that the wage records may have been stolen at that time.^[89]If the plaintiff did believe that, then it is perhaps surprising that he continued to demand that the defendant produce the wage records. The plaintiff seemed to think that the person who broke into his home may have given the stolen wage records to the defendant.^[90]As it turned out the wage books were located exact ly where the plaintiff had put them, although he said they were “buried under a lot of junk”.^[91]As I have said, this evidence indicates that the plaintiff has a poor memory on an important matter.

51. [51]
    Furthermore the plaintiff initially maintained that he and the defendant were partners in Lillybrook Meats. In a letter dated 28 September 2010 he insisted that it had been agreed that he would be paid the major share of any profits.^[92]In a further letter dated 12 October 2010 the plaintiff’s solicitors maintained that the plaintiff and the defendant had been in partnership.^[93]That claim was maintained in a letter dated 15 November 2010.^[94]A further letter from the plaintiff’s solicitors dated 19 November 2010 continued to maintain that the plaintiff was a partner in the business.^[95]This correspondence illustrates that the plaintiff made, and maintained for some time, a baseless claim that he was a partner in the business of Lillybrook Meats.

52. [52]
    The plaintiff’s consumption of alcohol during the day is likely to have impact ed upon his memory and his ability to accurately recall the hours that he worked. A number of witnesses gave evidence, which I accept, that when the plaintiff returned to the shop after being away for a number of hours he displayed signs that he had been drinking. Mr Blades said that after absences of two to three hours the plaintiff would be red in the face and his speech was slurred.^[96]Mr Thomas said that he could smell alcohol on the plaintiff’s breath and that he behaved in a way that was consistent with someone who had been drinking.^[97]Mr Heenan said that when the plaintiff returned to the shop in the afternoon he would smell of beer and his face was red.^[98]The plaintiff agreed that he would drink several beers at the Kallangur Bowls Club.^[99]He also agreed that quite often he would return to the shop with alcohol on his breath.^[100]In cross-examination it was suggested by Mr Forde to the plaintiff that he would spend three to four hours at the bowls club, but the plaintiff could not remember.^[101]When asked whether the reason he could not remember the length of his absences from the shop was because of the amount of alcohol he consumed, the plaintiff said that he was “unqualified to clarify that”.^[102]

53. [53]
    Despite saying in his evidence-in-chief that he opened and closed the shop every day,^[103]the plaintiff conceded in cross-examination that he did not do so every day.^[104]

54. [54]
    There is a significant body of evidence, which I accept, that the plaintiff left the shop for long periods during the course of the day. Mr Miers said that about three times a week the plaintiff left the shop for periods of up to four or five hours.^[105]Mr Blades said that the plaintiff would be absent for periods of between half an hour and three and a half hours.^[106]Mr Thomas said that the plaintiff would be absent for periods of between four hours and six hours.^[107]Mr Heenan said that the plaintiff would leave the shop between 9.30 a.m. and 10 a.m. and return at about 4 p.m. to 4.30 p.m..^[108]There is also the evidence contained in the statutory declaration of Ms Williams.^[109]Mr Watson pointed out that Ms Williams said in the statutory declaration which is dated 28 January 2011 that she worked for Lillybrook Meats for the last five years, whereas the wages book shows that her first pay period is for the week ending 11 February 2007.^[110]In deciding what weight should be given to the evidence contained in Ms Williams’ statutory declaration it is necessary to have regard to the matters set out in s. 102 Evidence Act 1977. Ms Williams may well be mistaken about the period she worked at Lillybrook Meats. However that does not necessarily affect her evidence that on certain days the plaintiff would arrive at the shop at about 9 a.m. and leave between 9.30 a.m. to 10 a.m.. She said that he would then return at about 5 p.m. when staff would be due to finish their shift. It was not suggested that Ms Williams had any incentive to conceal or misrepresent the fact s.^[111]In any event Ms Williams’ evidence on this aspect is consistent with the evidence of the other witnesses I have mentioned. Moreover the plaintiff agreed in cross-examination that he would be absent from the shop between 9.30 a.m. or 10 a.m. and 4 p.m.. The plaintiff agreed that, after Mr Heenan commenced work at the shop, on most days he would not come in until 7.30 a.m. or 8 a.m. and he would then leave at around 9.30 a.m. or 10 a.m. and not return until approximately 4 p.m.. However the plaintiff said that during these absences of about six hours he was engaged in work on behalf of the shop.^[112]While the plaintiff said that during these long absences he “would have been working on behalf of the shop … in every facet that (he) could”, he provided no details of the nature of that work-related activity. I am not convinced that the plaintiff was engaged in work duties during these long absences. I conclude that the plaintiff was either drinking at the bowls club or elsewhere or engaged in non-work-related act ivities during his long absences. In respect of the period after Mr Heenan commenced at Lillybrook Meats in February 2010 the plaintiff recorded his own hours of work as varying between 64 and 75 hours per week. On the view I have formed, this is a substantial overstatement of the work actually performed by the plaintiff, which leads me to conclude that the records cannot be relied upon as accurately reflecting the work hours undertaken by the plaintiff.

55. [55]
    The plaintiff was unable to explain an anomaly in the wages records for the pay period ending 19 February 2006. In one wages book^[113]the plaintiff recorded a specific number of hours for each day in the week ending 19 February 2006. The total number of hours recorded is 90.5. In another book^[114]the plaintiff recorded 79 hours as the total number of hours worked for the same period. The plaintiff had no satisfact ory explanation for the discrepancy.^[115]

56. [56]
    A further indication that the plaintiff overstated the hours he actually worked in the wages book relates to the period August to September 2008. As I have mentioned the plaintiff was apprehended for the drink driving offence on 2 September 2008. He said in his affidavit for the restricted licence that three days prior to that he had received confirmation from his doctor that he had been diagnosed with stomach cancer.^[116]He agreed that the day he had the colonoscopy performed he had most of the day off work.^[117]He also had appointments with his solicitor including an attendance on 15 October 2008 for the purposes of signing his affidavit.^[118]Despite having those appointments, the plaintiff recorded in the wages book that he work for 86 hours in each week from the period ending 31 August 2008 to 2 November 2008.^[119]

57. [57]
    The evidence led in the plaintiff’s case does not affect the conclusion I have reached that the wages books do not accurately reflect his hours of work. In my view he worked substantially less than the recorded hours. Trent Zelow said that the plaintiff’s absences from the shop were for periods of between half an hour and one and a half hours.^[120]That is inconsistent with the evidence of Mr Heenan, which I accept. Moreover Mr Zelow’s evidence in this respect is inconsistent with the plaintiff’s own evidence that he was absent for periods of approximately six hours after Mr Heenan started.^[121]Ms Kuykens said that she saw the defendant each morning and throughout the day.^[122]She said that after the bakery moved to shops 21 and 22 in about 2009 the plaintiff delivered meat between 6.30 a.m. and 7.00 a.m. each morning. However, the plaintiff conceded that after Mr Heenan started, he did not come into the shop until 7.30 a.m. or 8.00 a.m. on most days.^[123]

58. [58]
    Mr Watson, for the plaintiff, submitted that the obligation to pay wages arose from the contract of service and not necessarily from the performance of duties.^[124]Undoubtedly an employer may excuse an employee from performing the conditions of service.^[125]In Csomore v Public Service Board of New South Wales^[126]Rogers J said:

“Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.”^[127]

59. [59]
    Nevertheless an employer is not obliged to pay wages to an employee who is refusing to perform the work required.^[128]

60. [60]
    I have concluded that the plaintiff was not engaged in work related act ivities during his long absences from the shop, so he would not be entitled to be paid for those periods unless the defendant waived that requirement. Mr Watson submitted that the defendant was indifferent as to whether or not the plaintiff actually worked the hours claimed by him as long as the shop was profitable.

61. [61]
    The issue of waiver was not specifically pleaded as required by r 150(1)(s) Uniform Civil Procedure Rules 1999. Furthermore it is clear from the defendant’s evidence that he did not waive the requirement that the plaintiff perform work related act ivities for the hours claimed. In cross-examination the defendant was asked whether he was prepared to pay the plaintiff simply on the basis of the hours claimed by him and he replied “provided that the hours he worked were genuine”.^[129]

62. [62]
    The plaintiff’s claim for unpaid wages based on the records must be dismissed.

Was the plaintiff employed as a casual or full-time employee?

63. [63]
    The plaintiff contends that notwithstanding that he agreed to work as a casual employee^[130]this did not correctly categorise the employment relationship. It is common ground that the applicable award was the Meat Industry (Other Than Export) Award – State 2002 (“Award”). The significance of the correct charact erisation of the nature of the plaintiff’s employment is that it affects the plaintiff’s entitlements. Clause 7.1.1 of the Award^[131]provides that every employee other than a casual employee is entitled to annual leave on full pay for four weeks. Unless an industrial instrument provides otherwise, an employee’s annual leave entitlements accumulate.^[132]Upon termination of an employee’s employment the employer is required to pay the employee for annual leave not taken.^[133]Mr Watson submitted that the plaintiff was entitled to 24 weeks annual leave at $686.60 per week plus. 17.5% loading, which amounted to $19,362.12. Mr Watson also submitted that if the plaintiff was found to be a full-time employee he was entitled to five weeks termination pay amounting to $3,310.50 calculated in accordance with clause 4.7.2 of the Award.

64. [64]
    Mr Watson submitted, and I accept, that the way in which the parties describe their employment relationship is not determinative.^[134]It has been recognised that the expression “casual worker” is not capable of precise definition.^[135]In Reed v Blue Line Cruises Ltd^[136]Moore J said:

“What then, is likely to have been the feature of the employment at the time of the engagement that would charact erise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement.

A charact eristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another charact eristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the charact eristic of being casual.”^[137]

65. [65]
    Mr Watson submitted that, having regard to the evidence that apart from the occasional day off the plaintiff worked regularly and there was an expectation that he would do so on an ongoing basis until his contract of employment came to an end, he should not be considered a casual employee. It was submitted that the expectation of the defendant was that the plaintiff would make himself available to carry out the duties of a general manager in charge of the butcher shop on a daily basis. Mr Watson also submitted that, “it is obvious that neither party appreciated the requirements for casual employment as opposed to full-time employment, in terms of a relationship.”^[138]

66. [66]
    I do not accept that the plaintiff failed to appreciate the requirements of casual employment. He commenced work as a butcher in 1956.^[139]He told the defendant that he had approximately 50 years experience in the butchery industry.^[140]The plaintiff had operated his own butcher shop and was very familiar with the Award.^[141]Clause 4.3 of the Award provides that the hourly rate paid to a casual employee includes a loading of 23% which is in lieu of payment for annual leave, sick leave, public holidays and bereavement leave (subject to clause 7.4).^[142]The plaintiff nominated the hourly rate of $18.00 having contact ed Wageline.^[143]Mr Watson submitted that at the commencement of the plaintiff’s employment the applicable casual hourly rate including loading of 23% was $18.97.^[144]On 1 September 2005 the causal rate increased to $19.51.^[145]Mr Forde did not challenge those hourly rates. The Award provides overtime rates for hours worked exceeding ordinary working hours. The plaintiff commenced receiving a higher hourly rate of $25.00 from the week ending 3 September 2006.

67. [67]
    The plaintiff’s hours of work were not regular. He determined when he would start each day. The plaintiff said that when the staff base increased he reduced his working hours.^[146]

68. [68]
    Although the way in which the parties describe their employment relationship is not determinative, it is nevertheless a relevant consideration. As I have said the plaintiff, who was a very experienced butcher expressly agreed to be employed on a casual basis. He was paid at a higher hourly rate then that applicable to full-time employees. Furthermore I have reached the view that the wages records substantially overstate the number of hours worked by the plaintiff.

69. [69]
    The nature of the plaintiff’s employment does not require that contrary to the express agreement between the parties, the plaintiff should be regarded as a full-time employee. In the circumstances the plaintiff’s claim for annual leave and termination entitlements appropriate for a full-time employee must be dismissed.

Estoppel and waiver

70. [70]
    In his written outline, Mr Forde submitted that if it was found that the plaintiff was employed as a full-time employee and/or that he performed the hours recorded in the wages records, then he had either waived his entitlement to be paid accordingly or was estopped from claiming such entitlements.^[147]Mr Watson submitted that concepts of waiver and estoppel do not apply to wages claims.^[148]Mr Watson submitted that the issue was comprehensively dealt with by French J (as his Honour then was) in Metropolitan Health Service Board v Australian Nursing Federation.^[149]His Honour said:

“The inability to contract out of an award by virtue of its statutory operation militates against the proposition that parties may be estopped from enforcing its provisions or may waive its benefits in a way that is legally enforceable. The effect of the statutory provisions which give awards their binding force are at least as powerful against the common law and equitable principles of estoppel and waiver as they are against the common law of contract . There is nothing novel in the general proposition that statutes which preclude contract ing out of the rights and obligations they confer will defeat the application of estoppel and waiver to like effect: Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 at 378 (Pincus J).”^[150]

71. [71]
    The conclusions I have reached that the plaintiff was a casual employee and that he has not established that he performed the number of hours recorded in the wages records mean that issues of estoppel and waiver do not arise.

72. [72]
    If the plaintiff had established that he was a full-time employee and/or that he performed the hours recorded in the wages records I would have concluded that his claim was not defeated by the principles of waiver or estoppel. In this regard I note that Mr Forde accepted that Mr Watson’s argument was very persuasive and he did not press the issue.^[151]

The plaintiff’s claim in respect of the pre-pack meat display case

73. [73]
    The plaintiff said that he discussed with the defendant that he would be reimbursed the sum of $20,000 for the equipment he supplied, including the pre-pack meat display case. He believed this conversation occurred on Sunday 29 August 2004, which was the day after the shop opened.^[152]The defendant said that in about late September 2004 there was a discussion about acquiring a second pre-pack in which the plaintiff agreed to purchase the item and the defendant would pay him back later.^[153]The defendant said that there was never any discussion about him paying for the other plant and equipment that the plaintiff brought to the shop.^[154]

74. [74]
    The plaintiff paid the supplier of the pre-pack by bank cheque.^[155]The amount of $7,273.20 was withdrawn from the plaintiff’s bank account to pay for the pre-pack on 13 October 2004.^[156]The plaintiff’s evidence was that the conversation about the pre-pack, payment for it and then delivery all occurred within two days.^[157]He agreed in cross-examination that the discussion concerning the payment of $20,000 could not have occurred the day after the shop opened.^[158]

75. [75]
    I do not accept the plaintiff’s evidence that there was an agreement for the payment of $20,000. I accept that on or about 13 October 2004 the defendant agreed to pay the plaintiff $7,273.20 for the pre-pack meat display case.

76. [76]
    The defendant accepts that he agreed to repay the plaintiff for the cost of the pre-pack, but argues that the obligation to repay the money arose on the date of payment on 13 October 2004, and as the proceeding was commenced on 16 December 2010, the claim is brought outside the six year limitation period provided by s. 10(1)(a) Limitation of Actions Act 1974 (the Act ).

77. [77]
    The plaintiff submits that as there was no express time for repayment, the law implies a reasonable time. It is submitted that in the circumstances a reasonable time for payment would be no earlier than 12 months from the date of acquisition of the pre-pack. The plaintiff contends that the limitation period did not commence until there was a breach of contract , which would have been a considerable time after the pre-pack was purchased. Alternatively, it is submitted that by reason of two documents signed by the defendant acknowledging the existence of the debt, there has been a fresh accrual of the right of action by virtue of s. 35(3) of the Act .

78. [78]
    When a contract does not specify a time for doing something required by the contract , the law will imply a term that it must be done within a reasonable time.^[159]However in Young v Queensland Trustees Ltd^[160]Dixon CJ, McTiernan and Taylor JJ said:

“A loan of money payable on request creates an immediate debt.”^[161]

79. [79]
    It is settled principle that the limitation period relating to a loan repayable on demand commences on the date of the loan: Ogilvie v Adams;^[162]Haller v Ayre.^[163]

80. [80]
    The plaintiff and the defendant agreed that the loan was to be repaid later. However there was no discussion about when it would be repaid. The issue arises as to whether, in the circumstances, an immediate obligation to repay the loan was created. The authorities discussed by Keane JA (as His Honour then was) in Haller v Ayre^[164]illustrate that generally when a contract does not specify a time for repayment, the loan is repayable immediately.

81. [81]
    Chitty on Contracts (31stedition, 2012, vol 1) states:

“At common law, where no time for repayment was specified in a contract of loan, or where the loan was expressed simply to be repayable “on demand”, the lender’s cause of action in general accrued when the loan was made and time began to run from that moment. As a result, once the loan was outstanding for more than six years (which not infrequently happens in the case of loans between friends or members of a family) the lender’s right to recover the money lent became barred notwithstanding that no demand for repayment had been made.”^[165] (footnote references omitted)

82. [82]
    Therefore, unless a term can be implied into the contract that the loan was repayable after a reasonable time, the defendant had an immediate obligation to repay it.

83. [83]
    A term may be implied into a contract in order to give it business efficacy: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales;^[166]Breen v Williams.^[167]

84. [84]
    In the present circumstances there is no justification for implying a term into the agreement that the loan was repayable after a reasonable time. It is not necessary to imply such a term in order to give business efficacy to the agreement.^[168]In my view the loan was repayable immediately. The limitation period commenced on 13 October 2004 and the plaintiff’s claim is therefore statute barred unless there was a fresh accrual of the action by virtue of s. 35(3).

85. [85]
    Section 35(3) of the Act provides:

“Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to the personal estate of a deceased person or to a share or interest therein and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.”

86. [86]
    The acknowledgment must be in writing and signed by the person making it or by the person’s agent.^[169]

87. [87]
    The plaintiff relies on the defendant’s letter to him dated 31 August 2010 whereby his employment was terminated^[170]and the defendant’s affidavit sworn 10 February 2011 as constituting the written acknowledgment. The defendant’s letter dated 31 August 2010 consists of four handwritten pages. The letter outlines the defendant’s reasons for terminating the plaintiff’s employment. The letter continues:

“Thus I would suggest the following – in the shop you have a pre-pac which cost $7200 – 2 benches which were cut to size for which I paid $700 & various other small items such as trays & bins & a couple of shelves – which I would collectively value at $1,500 for a total of 7200 + 1000 + 1500 = $9,700.

On my side we have the car which you were to take over responsibility for on the first day of the second year – thus 60 months of repayments 60 x 450 = 27000.

Insurance 450 x 5 years 2250.

Maintenance $4,500.00 – 5 years

Rego 3200

for a total cost of $36,950.”

88. [88]
    In his affidavit sworn 10 February 2011 the defendant said at paragraph 7:^[171]

“In regard to the ‘prepac’ (paragraph 17 of the Applicant’s affidavit) the Applicant insisted that this equipment be purchased. As I had just committed a large amount of money to the shop fitout I told the Applicant that I was reluctant to spend the further amount required for this unit. The Applicant insisted that it was needed and he proposed that he buy it from his own resources and I repay him later. I agreed to this. The Applicant then went ahead and purchased the unit. In the circumstances I say that prepac belongs to me and I have not ‘converted’ it.”

89. [89]
    In Stage Club Ltd v Millers Hotels Pty Ltd^[172]Gibbs CJ said:

“What is necessary is an acknowledgment of the existence of the debt – and according to the submission for the appellant it must be an acknowledgement that the debt is existing at the time when the document containing the acknowledgment is signed. It is clear enough that, under the former law, it was necessary that there should be an admission that the liability still existed at the date of the acknowledgment, for one could not ordinarily imply a promise to pay from a statement that a liability had existed in the past. There had to be the admission of a present obligation to pay: see, for example Spencer v Hemmerde (citation omitted). Although under the Limitation Act 1969, it is no longer necessary that there should be a promise to pay, it is still necessary, in my opinion that an acknowledgment should admit or recognize the present existence of a cause of action; in other words, where the claim is for payment of a debt, an acknowledgment, to be sufficient, must recognize the present existence of the debt.”^[173]

90. [90]
    The statements relied upon by the plaintiff as constituting an acknowledgment of the claim must be read as a whole.^[174]

91. [91]
    In Haller v Ayre^[175]Keane JA (as His Honour then was) said:

“It is apparent that the law does not readily conclude that a party is to be taken to have bargained away a good defence under the statute.”^[176]

92. [92]
    The question is whether the defendant’s words in the documents amount to an acknowledgment that the debt is owed.^[177]

93. [93]
    In my view the defendant’s letter and affidavit do not constitute an acknowledgment of the debt. The letter simply set out issues for discussion. Towards the end of the letter the defendant asked the plaintiff to stay away from the shop until such time as they could settle each others claims. The letter did not in any way constitute an acknowledgment of the debt.

94. [94]
    The defendant’s affidavit dealt with a number of aspects of the plaintiff’s claim including unpaid wages and entitlements, and plant and equipment. While the defendant said at paragraph 7 that he agreed to repay the plaintiff for the cost of the pre-pack, when the affidavit is viewed as a whole, it does not constitute an acknowledgment of the debt. The defendant said at paragraph 24:

“I say that if there is any money owing to the Applicant at all (which I do not accept), it is more than offset by the money the Applicant owes me in regard to his motor vehicle (which expenses I am continuing to meet).”

95. [95]
    The defendant’s letter dated 31 August 2010 and paragraph 7 of his affidavit sworn 10 February 2011 do not constitute an acknowledgement of the debt. Accordingly the plaintiff’s claim for repayment of the loan of $7,273.20 is statute barred by s. 10(1)(a) of the Act .

The plaintiff’s alternative claim for conversion of the pre-pack

96. [96]
    Mr Watson submitted that the plaintiff’s primary case was that the defendant owed $7,273.20 being the cost of the pre-pack. He did not really press the alternative claim in conversion.^[178]

97. [97]
    In order to succeed in an alternative claim for conversion it would have been necessary that the plaintiff acquire or retain title in the pre-pack. Apart from the plaintiff’s bank statement^[179]which showed the withdrawal from the plaintiff’s bank account on 13 October 2004 there was no documentary evidence relating to the acquisition of the pre-pack. There was no discussion between the plaintiff and the defendant in relation to ownership. Having regard to the nature and purpose of the transaction it is my view that title in the pre-pack passed to the defendant when it was acquired.^[180]

98. [98]
    In the circumstances the plaintiff’s alternative claim for conversion of the pre-pack must be dismissed.

The plaintiff’s claim for conversion of plant and equipment

99. [99]
    After the close of the evidence the plaintiff applied to further amend his Statement of Claim by adding an alternative claim that the defendant agreed to purchase plant and equipment supplied by the plaintiff for $12,726.80. The proposed amendment alleged an oral agreement between the plaintiff and the defendant in or about August 2004 containing an implied term that payment would be made within a reasonable time, which in the circumstances was not less than 12 months. The application was refused.^[181]I have already said that I do not accept the plaintiff’s evidence that there was an agreement that the defendant would pay him $20,000 for all of the equipment including the pre-pack.^[182]I prefer the defendant’s evidence that there was no discussion about payment for the second hand plant and equipment.^[183]The defendant’s evidence, which I accept, was that there was no discussion about the basis upon which the plaintiff supplied the plant and equipment and there was no discussion about the plaintiff being paid for it. The plaintiff simply said “we’ll get this shop up and running”.^[184]

100. [100]
     Notwithstanding the defendant’s evidence that there was no discussion about the basis upon which the equipment was supplied, Mr Forde submitted that the conduct of the parties was such that the plaintiff delivered the items for the defendant’s use, which was indicative of title having passed upon delivery.

101. [101]
     If there had been an agreement for the sale of the plant and equipment without a price being specified, the defendant would have been obliged to pay a reasonable price.^[185]As there was no agreement for the sale of the second hand plant and equipment, title remained with the plaintiff.

102. [102]
     By letter dated 16 November 2010 the plaintiff’s solicitors demanded that the defendant deliver the items of plant and equipment within seven days.^[186]In a further letter dated 24 November 2010^[187]the plaintiff’s solicitors said:

“Your client has had a reasonable time to deliver up the said items, and we are instructed to put you on notice that in the event the entire said items are not delivered up at your clients cost by Friday 26 November 2010 at 12pm, then our client will treat your client’s actions as constituting a wrongful conversion and will seek damages for the full replacement cost and interest.”

103. [103]
     The defendant’s solicitors replied to the letter dated 16 November 2010 stating that instructions were being sought in relation to the issue of plant and equipment.^[188]A subsequent letter from the defendant’s solicitors to the plaintiff’s solicitors dated 7 December 2010 did not address the issue of plant and equipment.^[189]

104. [104]
     In Penfolds Wines Pty Ltd v Elliott^[190]Dixon J said that:

“The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.”^[191]

105. [105]
     In Westpac Banking Corporation v Hughes & Anor^[192]Chesterman JA said:

“According to the authors of Atkins Court Forms 2nd Ed (2010 issue) Vol 39 p 301:

There is no precise definition of conversion, but it is a tort of strict liability involving three features:

1. The defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession);

2. The conduct was deliberate, not accidental; and

3. The conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods.”^[193]

106. [106]
     I accept that the defendant wrongly retained possession of the plaintiff’s plant and equipment, and in doing so dealt with the items in a manner inconsistent with the plaintiff’s right to possession.

107. [107]
     Mr Watson submitted that notwithstanding the limitations in Mr Keast’s valuation of the plant and equipment,^[194]the items should be valued at between $2,500 and $3,275. Mr Watson referred to the defendant’s letter terminating the plaintiff’s employment dated 31 August 2010^[195]in which he valued small items such as trays, bins and shelves at $1,500.

108. [108]
     Mr Forde submitted that the plaintiff had failed to prove the value of the plant and equipment at the time of the conversion.^[196]In particular, Mr Forde submitted that Mr Keast had relied upon information about the purchase price of the items which had not been established, and accordingly the valuation carried no weight.

109. [109]
     The plaintiff’s damages should be calculated by reference to the market value of the plant and equipment at the date of conversion.^[197]The effective date of Mr Keast’s valuation is. 31 August 2010, which was the date of the defendant’s letter terminating the plaintiff’s employment. However, the defendant did not commence to deal with the plant and equipment in a manner inconsistent with the plaintiff’s rights until after there was a demand for the return of the items. The plaintiff’s solicitor’s first letter dated 16 November 2010 demanded that the items be delivered within seven days.^[198]The plaintiff’s solicitor’s letter dated 24 November 2010 demanded delivery of the items by Friday 26 November 2010.^[199]In the circumstances I conclude that the defendant converted the plaintiff’s plant and equipment to his own use from 23 November 2010.

110. [110]
     Mr Keast said that there would be negligible difference between the value of the items at the date he utilised on 31 August 2010 and 16 November 2010.^[200]In the circumstances I am of the view that there is no significant difference between the value of the items as at 31 August 2010 and the date on which the defendant converted the plant and equipment to his own use on 23 November 2010.

111. [111]
     Mr Keast valued 41 items including the pre-pack refrigeration cabinet. The items ranged from a deep freeze to a pair of gumboots. The total value of all items including the pre-pack was $7,275. He valued the pre-pack at $3,000, so the remaining items were valued at a total of $4,275.^[201]However, as I have already mentioned Mr Keast revised his estimate for two stainless steel benches from $1,800 to $1,000.^[202]Therefore the total value of the items was $3,475.

112. [112]
     The valuation states that the assets were valued sight unseen and that Mr Keast utilised “very limited information” provided by the plaintiff’s solicitor.^[203]Mr Keast said that a schedule containing the prices of the various items of plant and equipment with which he had been provided helped his assessment.^[204]The schedule^[205]sets out what are said to be the retail prices of the items of plant and equipment at the time of purchase as estimated by the plaintiff. The authorities cited by McMurdo P in Hesketh v Joltham Pty Ltd^[206]establish that the purchase price of an item is admissible evidence, although not necessarily conclusive evidence of value at the date of conversion.

113. [113]
     Mr Forde submitted that the valuation has no weight because there is no evidence as to the accuracy of the assumed purchase price of the items.

114. [114]
     During the plaintiff’s examination-in-chief Mr Watson tendered a type written inventory of equipment.^[207]That document contains hand written values of each of the items listed. The values listed in Exhibit 10 correspond with those in the schedule provided to Mr Keast.^[208]However, the schedule provided to Mr Keast added GST. In any event when Mr Watson tendered the inventory of equipment he specifically stated that he was not relying on the values that were hand written on that list.^[209]Therefore Mr Forde is correct that the plaintiff did not establish the purchase price of the items of plant and equipment. Mr Keast indicated that the prices listed in the schedule had “formed the backbone” of his valuation.^[210]

115. [115]
     It is fundamental that the fact s upon which the opinion of an expert witness is based must be established: Makita (Australia) Pty Ltd v Sprowles;^[211]R v Ping.^[212]

116. [116]
     Mr Keast assumed that all items were purchased “in or around 2004”,^[213]but that was not necessarily the case.

117. [117]
     There is also the difficulty that I have previously mentioned that whilst Mr Keast purported to rely on the purchase prices of the items in 2004, he valued the stainless steel benches at $1,800, overlooking the fact that the purchase price in 2004 according to the schedule^[214]was $1,650. When the anomaly was pointed out to him he revised his estimate of the value of the benches to $1,000.

118. [118]
     Although Mr Keast’s approach has limitations, it is nevertheless possible to rely on aspects of his evidence. Mr Keast is an experienced auctioneer. He has a Diploma in Auctioneering and has completed a TAFE Course in Auction and Valuation Pract ice (goods, plant and equipment). He has worked as an auctioneer since 2003.^[215]Furthermore when he revised his estimate of the stainless steel benches to $1,000 he indicated that he was relying on his experience as an auctioneer and valuer in valuing similar equipment.^[216]

119. [119]
     In The Commonwealth v Amann Aviation Pty Ltd^[217]Toohey J cited the following passage from the judgment of Bowen LJ in Ratcliffe v Evans:^[218]

“As much certainty and particularity must be insisted on … in … proof of damage, as is reasonable, having regard to the circumstances and to the nature of the act s themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”^[219]

120. [120]
     Where the state of the evidence is unsatisfact ory, it may still be possible to make an assessment of damage.^[220]

121. [121]
     The defendant’s letter to the plaintiff dated 31 August 2010^[221]recognised that the plant and equipment had some value. The items of greatest value were the stainless steel benches which Mr Keast valued at $1,000. The other items included extension cords, tubs, hooks, meat trays, racks and cutting boards. Those other items do not seem to be of much value. I consider that a reasonable assessment of the market value of the items as at the date of conversion is $2,500.

The defendant’s counterclaim for motor vehicle costs

122. [122]
     The defendant’s counterclaim is for $35,000 for motor vehicle expenses which it is alleged the plaintiff agreed to meet. The actual costs of the vehicle are between $39,260 and $41,760.^[222]However the defendant restricted the amount to $35,000 which is the amount in the counterclaim.^[223]

123. [123]
     The defendant’s evidence is that approximately four to eight weeks after the shop opened there was a single discussion concerning a motor vehicle.^[224]The plaintiff stated that he required a more reliable vehicle and asked the defendant to provide one. The defendant said that, “I told (the plaintiff) I would take over the total running of the car in the first year and I’d ask him to take over thereafter on the first day of the second year.”^[225]The defendant said that the plaintiff agreed to that proposal. The defendant said that after the twelve months had elapsed he did not ask the plaintiff to take over the costs of running the motor vehicle.

124. [124]
     The plaintiff said that the defendant leased a vehicle on his behalf.^[226]He denied that he agreed to pay the costs associated with the vehicle after twelve months.^[227]

125. [125]
     I accept that there was a discussion concerning the plaintiff meeting the costs of the motor vehicle after the first year. However I do not accept that there was a concluded agreement reached that the plaintiff would do so. The defendant simply indicated that he would pay the costs in the first year and then ask the plaintiff to meet the costs thereafter. In the circumstances I conclude that the subject of the costs of the vehicle was to be further discussed. Those discussions did not take place.

126. [126]
     In the circumstances the defendant’s counterclaim should be dismissed.

Interest

127. [127]
     The plaintiff is entitled to interest on $2,500 being damages for conversion of his plant and equipment from 23 November 2010 to the date of judgment.^[228]Interest calculated in accordance with Pract ice Direction no. 6 of 2013 amounts to $688.39.

Costs

128. [128]
     I will hear submissions with respect to costs.