Cunningham & Others v Hart [2010] QIRC 69

CITATION: Robert James Cunningham, Michael John Douglas Meadows, David John Herbert Watt, Brian Walter Smith and Warren Grant Denny trading as, or who have traded as Flower and Hart AND William Hamilton Hart (B/2010/17) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 331 - decisions generally Robert James Cunningham, Michael John Douglas Meadows, David John Herbert Watt, Brian Walter Smith and Warren Grant Denny trading as, or who have traded as Flower and Hart AND William Hamilton Hart (B/2010/17) COMMISSIONER FISHER 26 October 2010 Application to dismiss - Application for declaration - Refrain from hearing - Proceedings not necessary or desirable in the public interest - Settlement reached - Draft deed - Terms of contract - Whether the contract was breached - Was the contract terminated - Determined contract terminated 2 November 2009 - Refuse to dismiss application. DECISION [1] This application, made under s. 331(b) of the Industrial Relations Act 1999 (the Act), seeks an order from the Commission dismissing the application for a declaration under s. 274A of the Act for an industrial matter made by William Hamilton Hart (Case No. B/2010/11). The following decisions are sought: (a) a decision to dismiss Mr Hart's application, or alternatively, refrain from hearing it, or alternatively not to decide it, because further proceedings are not necessary or desirable in the public interest; and (b) a decision that Mr Hart pays the costs of and incidental to the Applicants' application. Context of the Application [2] To understand why the present application was filed and the matters the Commission is required to determine, it is necessary to provide some background. The following history is not disputed and is largely taken from the unchallenged affidavit of Robert James Cunningham, the Managing Partner of Flower and Hart Lawyers (Flower and Hart) from 1997 to March 2003 and from March 2005 to the present. [3] Mr Hart was employed by Flower and Hart from about 1965. He was an equity partner of Flower and Hart with the Applicants and other persons who were partners of Flower and Hart and who are not party to these proceedings from about 1 January 1969 until he retired from the partnership on 31 December 2001. [4] In 2002 Mr Hart was employed by the Applicants and others as a consulting solicitor (the employment). Mr Hart's employment ceased on 30 June 2006. [5] After ceasing his employment Mr Hart commenced proceedings against the Applicants and others in both the Commission and the Industrial Magistrates Court. The claim in the Commission, made in December 2007, was for declaratory relief (the first application for declaratory relief) and in particular sought declarations under s. 274A of the Act that: (a) the remuneration paid to Mr Hart as an employee of the Applicants and others should have been paid without deduction of superannuation contributions; (b) remuneration should have been paid to Mr Hart for periods of annual leave taken during his employment at the rate specified in the Act; and (c) remuneration should have been paid to Mr Hart for periods of accrued but unused annual leave as at the termination of Mr Hart's employment at the rate specified in the Act. [6] In the Industrial Magistrates Court claim, made on 21 January 2008, Mr Hart: (a) claimed: (i) unpaid wages; (ii) unpaid, taken accrued annual leave; and (iii) unpaid, untaken, accrued annual leave (the unpaid wages); (b) calculated the quantum of the unpaid wages based on the remuneration paid by the Applicants and others to Mr Hart under the contract of employment between the Applicants and others and Mr Hart; and (c) claimed unpaid wages as gross amounts based on the remuneration paid by the Applicants and others to Mr Hart under the contract of employment between the Applicants and others and Mr Hart. -- 1 of 8 -- 2 [7] By decision dated 28 October 2008, the Commission (not as currently constituted) decided that Mr Hart had made out his case for the grant of each of the declarations sought in the first application for declaratory relief: Hart v Cunningham & Ors.1 [8] By letter dated 23 March 2009, Flower and Hart, on behalf of the Respondents to Mr Hart's application for declaratory relief, wrote to Milner Lawyers, the Solicitors for Mr Hart, offering on a "without prejudice save as to costs basis" to settle Mr Hart's claim in the Commission and his Industrial Magistrates Court claim. The letter contained calculations for superannuation, annual leave, interest on annual leave and return on superannuation and also set out the various terms to settle the matters. The offer was quantified in the sum of $80,839.66. The offer was said to remain open until 4.00 p.m. on 6 April 2009. [9] By letter dated 11 June 2009 Milner Lawyers wrote to Flower and Hart outlining the terms upon which Mr Hart would be prepared to settle "this" matter. (It is noted that the letter contains the reference: William Hamilton Hart - claim against Flower & Hart. It does not separately reference the claim made in the Commission and that made in the Industrial Magistrates Court). In the letter Milner Lawyers noted that they had advised Mr Hart that he is entitled to payment for accrued unused long service leave in accordance with the Act. Together with interest, the value of long service leave said to be due and payable was $88,513.86. The quantum of the Industrial Magistrates Court claim, including interest, was $92,540. [10] Milner Lawyers pointed out that the claim was not for unpaid superannuation contributions but for unpaid wages on the basis that Flower and Hart did not have the right to make deductions from his wages for superannuation contributions. His claim for unpaid wages and annual leave entitlements was said to give rise to a liability to make superannuation contributions on those amounts. The amount of superannuation contributions was said to be $5,015.61. After noting the conservative approach to calculation of interest, the total sum said to be owing to Mr Hart was $186,069.47. [11] The next paragraph of the letter from Milner Lawyers has been central to the debate in the present application before the Commission. It is thus appropriate to set it out in full: "Mr Hart instructs us that he will accept $135,000* in full and final satisfaction of any claims against the firm or any members of the firm. The settlement sum would be payable within 14 days of execution of the deed by Mr Hart. On that basis each party would bear their own costs and Mr Hart will execute a deed, in terms acceptable to him, containing releases and bars relating to his claims.". *(From this point I shall refer to the amount of $135,000 as the settlement sum). [12] On 19 June 2009 a letter was sent to Milner Lawyers from Flower and Hart on behalf of the Respondents to Mr Hart's claims in the Commission and Industrial Magistrates Court, accepting Mr Hart's offer of settlement as contained in the letter of 11 June 2009. A draft Deed confirming the agreement was requested. [13] By letter dated 9 July 2009 Milner Lawyers wrote to Flower and Hart and provided a draft Deed of Settlement which was said to be in accordance with the offer and in terms acceptable to Mr Hart. Flower and Hart were asked to advise Milner Lawyers by close of business, Tuesday 14 July 2009, if there was any objection to the terms of settlement. [14] On 14 July 2009 Flower and Hart emailed Milner Lawyers advising that on a preliminary view of the draft Deed some amendments would be required and that the amendments would be provided within the next seven to 14 days. [15] By letter dated 17 July 2009 Milner Lawyers wrote to Flower and Hart advising that, amongst other things: (a) settlement had been reached; (b) the draft Deed reflected the terms of settlement; and (c) Flower and Hart were invited to submit their proposed amendments by close of business, 21 July 2009. [16] By letter dated 21 July 2009 Flower and Hart advised Milner Lawyers that amendments were required and they would be provided within 14 days. By letter dated 23 July 2009 Flower and Hart provided the required amendments. The main amendment sought was a provision to allow Flower and Hart to discharge its statutory and legal obligations in the payment of the settlement sum. The implication of this was that Flower and Hart intended to deduct income tax from the settlement sum of $135,000 and to make superannuation contributions. 1 Hart v Cunningham & Ors (2008) 189 QGIG 753. -- 2 of 8 -- 3 [17] Some months elapsed before Milner Lawyers responded to Flower and Hart. By letter dated 19 October 2009 Milner Lawyers advised that: (a) the draft Deed had not been amended to include the terms concerning statutory and legal obligations because "This is not consistent with the agreed terms of settlement and, in this matter, there is no such law or statutory requirement we are aware of."; (b) the terms of settlement are those set out in the letter from Milner Lawyers dated 23 June 2009; (c) the Deed, which was enclosed, had been executed by Mr Hart and was in terms acceptable to him; and (d) the payment of the settlement sum was to be made by cheque delivered to Milner Lawyers' office by Monday 2 November 2009. [18] By letter dated 21 October 2009 Flower and Hart wrote to Milner Lawyers, the relevant terms of which: (a) advised that the partners of Flower and Hart were considering the Deed as executed by Mr Hart; (b) detailed the Employment Termination Payment summary and the superannuation and PAYG taxation amounts that would be withheld from the Employment Termination Payment; (c) advised that the quantum of the superannuation contributions had been ascertained from Mr Hart's offer of settlement as contained in the letter from Milner Lawyers dated 11 June 2009; and (d) sought details of the superannuation fund into which to pay the superannuation contributions. [19] Milner Lawyers did not respond to this letter from Flower and Hart. [20] On 2 November 2009 a clerk from Flower and Hart, Ms Lancaster, attended the office of Milner Lawyers to deliver the cheque in the sum of $96,193.39 together with a covering letter from Flower and Hart dated 30 October 2009. Ms Milner, on reading the letter said at least the word "no" and handed the letter back to Ms Lancaster. (The actual words used by Ms Milner are disputed). Ms Milner then returned to her office. Ms Lancaster, after seeking advice from her office, left the envelope on the reception desk and left the office. [21] The cheque was not presented. [22] Nothing more was said or done in relation to the matter until 4 January 2010 when Milner Lawyers wrote to Flower and Hart in the following terms: "I am returning the cheque dated 2 November 2009 in the sum of $96,193.39 which you forwarded to me in purported compliance with the agreement reached between the parties. The settlement figure agreed to by you was $135,000. There was no agreement for superannuation contributions to be made and there was no basis for you to pay the amount after deduction of tax. I am confident that you are aware of this. I hold instructions to recommence industrial magistrates court proceedings and to commence recovery action in respect of unpaid long service leave. Please let me know if your firm has instructions to accept service on behalf of the (relevant) current and former partners in respect of the long service leave claim. If you deliver a cheque for the full amount of the settlement ie $135,000 by (sic) to this office by close of business on 11 January 2010 then I may receive instructions to accept that amount and to otherwise regard the deed executed by Mr William Hart as on foot from that time.". [23] On 18 January 2010 Flower and Hart responded to the letter from Milner Lawyers advising, amongst other things, that the PAYG amount had been paid to the Australian Taxation Office and the amount of $5,015.61 was still being held and would be paid into a superannuation fund as soon as details of the fund were provided. The letter concluded as follows: "We don't know any basis on which we should pay money to Mr Hart for wages and superannuation without complying with taxation obligations. Please confirm that you would like us to return to you the cheque for $96,193.39.". [24] On 15 April 2010 Mr Hart filed an application in the Commission seeking: (a) a declaration under s. 274A of the Act, that as of 30 June 2006 he was employed by the Applicants trading as, or who have traded as, Flower and Hart; and (b) a declaration under s. 274A of the Act, that he should have been paid an amount for long service leave on 30 June 2006 at the rate specified by the Act on the basis that as at that date, he had been in continuous service as that term is used and defined in Part 3 of the Act since 11 January 1965 (the second application for declaratory relief). -- 3 of 8 -- 4 [25] That application was given the case file number of B/2010/11. [26] On 27 May 2010 the Applicants filed an application in the Commission seeking that the Commission dismiss Mr Hart's application B/2010/11 pursuant to s. 331(b) of the Act and seeking the decisions set out at the start of this decision. [27] Mr Hart is yet to seek a hearing of his claim filed in the Industrial Magistrates Court. Issues for Determination [28] There is no dispute between the parties that s. 331 of the Act gives power to the Commission to make the order and decisions sought by the Applicants in their application. In addition the parties agree that a binding contract was formed between them on 19 June 2009. Beyond that the parties are not in agreement over the issues to be determined by the Commission. [29] In their submissions in reply the Applicants contend only one decisive issue is to be determined by the Commission, viz., whether the contract between the Applicants and the Respondent was lawfully terminated by Mr Hart on 2 November 2009 or whether it remains on foot. The Applicants submit that the contract was not lawfully terminated on 2 November 2009 and it remains on foot. [30] In contrast, Mr Hart asks the Commission to consider the terms of the contract formed on 19 June 2009 and submits that Flower and Hart repudiated the contract by not paying $135,000 but paying a lesser sum and Milner Lawyers, acting on behalf of Mr Hart, by the words and actions of Ms Milner on 2 November 2009 terminated the contract on that day. [31] In my view the relevant issues for determination are: • what were the terms of the contract; • whether any of the terms were breached; • the effect of any such breach; and • whether the contract was terminated. The terms of the contract [32] The Applicants, in the response submissions filed on their behalf, submit that in determining whether the Commission should exercise its discretion pursuant to s. 331(b) of the Act it is unnecessary for the Commission to determine whether the sum of $135,000 was to be paid as a gross or net amount. However, the Applicants go on to refute the submission made on behalf of Mr Hart that the payment was an amount of compensation in exchange for the settlement of his claims against the Applicants. Instead, they contend that the proper character of the sum of $135,000 was that it was payment for long service leave, annual leave, wages and superannuation. Although it is accepted that the payment was made in settlement of Mr Hart's claims this cannot alter the true character of the payment as a payment for long service leave, annual leave, wages and superannuation. Reference was made to the letter from Milner Lawyers of 11 June 2009 where various amounts for these conditions were set out in gross terms. The Applicants submitted that "the only practical, sensible and realistic construction is that the settlement sum was $135,000 net of PAYG tax and the Applicants' superannuation guarantee obligation". [33] For Mr Hart it is argued that the amount of $186,000 contained in the letter of 11 June 2009 was a minimum amount only because a conservative approach to the calculation of interest was taken. Given this, the question was posed as to why Mr Hart would settle for a sum of $135,000 less tax and superannuation contributions when his claim for unpaid wages and annual leave, including interest, was $92,540, his claim for accrued long service leave was a minimum of $88,513.86 and a further $5,015.61 in unpaid superannuation contributions was also sought. [34] Further, it was said to be clear that the offer that was being made was for a capital sum to be paid in settlement not only of the Industrial Magistrates Court claim but any other claim that Mr Hart might wish to bring against Flower and Hart or members of the firm. In this regard reference was made to the letter where the words used were "full and final satisfaction of any claims against the firm or members of the firm" (emphasis added). These words, it was said, should have put Flower and Hart on notice as to the nature of the offer being made, i.e., that it was a capital sum in settlement of claims Mr Hart had or may have against the Applicants. -- 4 of 8 -- 5 [35] In my view the terms of the contract entered into between the parties on 19 June 2009 are clear and are: • the payment by the Applicants of the sum of $135,000 to Mr Hart; • the payment of the settlement sum was in full and final satisfaction of any claims against the firm or members of the firm; • payment of the settlement sum to be made within 14 days of the execution of the Deed by Mr Hart; • the execution of a Deed in terms acceptable to Mr Hart, with such Deed including releases and bars relating to his claims; and • each party to bear their own costs. [36] The argument that the sum of $135,000 represented the payment of unpaid wages, accrued but untaken annual leave, long service leave and superannuation contributions and thus was subject to PAYG tax and the superannuation contributions paid into a fund (or the ATO as a default) had early attraction. These were the conditions of employment which had been discussed and payments quantified in the correspondence between Flower and Hart and Milner Lawyers on 23 March and 11 June 2009. However, resort to the prior negotiations is unhelpful in construing the terms of the contract. In my view the evidence about the negotiations, here, represented by the exchange of correspondence, was for the purpose of establishing objective background facts. It was admissible for this purpose but was not admissible for the purpose of establishing the parties' intentions or expectations or for contradicting the language of the contract when it has a plain meaning: Codelfa Constructions v State Rail Authority of NSW 2 at p. 352 per Mason J. [37] The first term of the contract was the payment of $135,000 by the Applicants to Mr Hart. No mention is made of the deduction of tax or payment of superannuation contributions. When this is considered together with the second term, the payment of such sum in full and final satisfaction of any claims against the firm or members of the firm, it is clear that the contract requires the payment of the settlement sum as a whole amount or an undissected sum in the nature of a capital sum. Whether and how that sum should be taxed is not a matter for determination by this Commission. My task is to construe the terms of the contract using established legal principles. In this case the terms of the contract were plain and in such circumstances the Commission has not required recourse to the surrounding factual matrix to assist in the interpretation of the contract: Codelfa Constructions v State Rail Authority of NSW, ibid. Whether the contract was breached [38] The submissions on behalf of Mr Hart characterise the payment of the settlement sum and the payment of that sum by 2 November 2009 as essential terms of the contract. It is submitted that a failure to comply with those two essential terms repudiated the contract. [39] The Applicants do not accept these contentions and submit that the contract includes: (a) an obligation for the Applicants' to pay the settlement money subject to statutory obligations (which is a condition) and; (b) an obligation for the Applicants' to pay the settlement money by a certain date, which is a warranty or an intermediate term. [40] Putting aside for one moment the issue of whether there was an obligation to pay the sum net of taxation and superannuation, the parties are in agreement that a condition, or an essential term of the contract, was the payment by the Applicants of the settlement sum to Mr Hart. Given that the Commission has previously rejected the argument of the Applicants that the payment of the settlement sum was subject to statutory obligations it follows then that the Applicants breached an essential term by not paying the sum of $135,000 in full and without deduction. [41] A second issue arises as to whether the Applicants also breached the contract by not paying the settlement sum by 2 November 2009. The relevant term of the contract is that payment of the settlement sum was to be made within 14 days of the execution of the Deed by Mr Hart. The parties agree that the last date on which payment could be made to satisfy this term of the contract was 2 November 2009. [42] In the submissions made on behalf of Mr Hart it is said that this term was an essential term. The Applicants dispute this proposition arguing that the payment by a certain date was either a warranty or intermediate term and was not a condition of the contract. Accordingly, it is necessary to classify that term of the contract. 2 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. -- 5 of 8 -- 6 [43] The Commission accepts the submissions of the Applicants that payment of the settlement sum by 2 November 2009 was not an essential term of the contract. In my view it is more likely to be an intermediate term: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd 3 at p. 562. [44] A breach of an inessential term does not give rise to a right to terminate. If the breach was of an inessential time provision only then Mr Hart would have been required to serve a notice to Flower and Hart requiring performance of the contract within a reasonable time frame. It is clear that no such notice was issued. However, the Commission has found that the Applicants breached an essential term of the contract. A breach of an essential term will not automatically lead to the termination of the contract; the injured party may elect to affirm the contract or to terminate it. The issue is whether Mr Hart, through the actions of his solicitor, made an election to terminate the contract. Whether the contract was terminated on 2 November 2009 [45] The doctrine of election requires a party to elect between two inconsistent legal rights. Mason J in Sargent v ASL Developments Ltd 4 explained the doctrine in this way: "A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach - in each instance the alternative right to insist on performance creates a right to election." (at p. 655). [46] In this case Mr Hart could have elected to insist on performance of the contract, i.e., payment of the settlement sum without deduction or to terminate the contract for breach of an essential term. [47] In determining whether an election has occurred the Commission must be satisfied that the party elected by unequivocal words or conduct and the party had knowledge of the necessary facts that give rise to the right to terminate: Sargent v ASL Developments Ltd, ibid, pp. 656-658. It is acknowledged that the election was made by a solicitor acting on behalf of Mr Hart, however, the Commission is prepared to attribute the knowledge of the solicitor to Mr Hart. In any event no issue is taken by the Applicants that the words and conduct of Ms Milner were not those of her client. The Commission therefore accepts that the solicitor knew the Applicants had breached the contract and further, had knowledge of the right of election between two inconsistent rights such that the requisite knowledge limb of determining whether an election could be implied is satisfied. [48] The other relevant issue to the determination is whether the election was made by unequivocal words or conduct. [49] It is argued for Mr Hart that the conduct of his solicitor on 2 November 2009 constituted an election to terminate the contract. That conduct consisted of an unequivocal refusal to accept a cheque from the Applicants in an amount less than the settlement sum of $135,000. [50] The Applicants do not accept that there was anything in the conduct which establishes an election was made to terminate the contract. It is submitted that the words used by and the actions of Ms Milner in returning the cheque to Ms Lancaster might indicate a clear intention to not accept the cheque but do not go so far as to amount to a clear and unequivocal termination of the contract. [51] Further, Milner Lawyers retained the Applicants' cheque for more than two months before it was retuned to the Applicants. This retention of the cheque was said to indicate that the contract had not been terminated. In addition reference was made to the covering letter returning the cheque dated 4 January 2010 which averted to the possibility of the contract being renewed if the payment of the settlement sum was made. The Applicants contend that if the contract was terminated on 2 November 2009 then there was no right to unilaterally reinstate the contract. Because such a right is asserted it followed that Mr Hart did not consider the contract to have been terminated on 2 November 2009 or at all. [52] The Applicants and Ms Milner are slightly, but critically, at odds over the events which occurred in the office of Milner Lawyers on 2 November 2009. 3 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549. 4 Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634. -- 6 of 8 -- 7 [53] Mr Cunningham said in his affidavit that he was informed by Michael Howard, the General Manager of Flower and Hart, that on returning to the office of Flower and Hart, Ms Lancaster prepared a file note setting out the events that occurred when she attended the office of Milner Lawyers. That file note was attached to Mr Cunningham's affidavit. In her file note Ms Lancaster said that Ms Milner came to reception then: "… I introduced myself as from Flower and Hart and explained I had a delivery for her and I also needed her to sign the acknowledgement, she read the acknowledgement and handed the documents back to me and said 'no' (she gave no explanation as to why), I was a bit confused and said something along the lines of 'um ok' and she said she could sign to say she wouldn't accept it, and I said I would call the office to find out what they wanted to do. She then went back into her offices I left the building and called Michael Howard.". [54] In her affidavit Ms Milner described her response after having received and read the letter dated 30 October 2009 and the cheque for $96,193.39 as follows: "2. … j. Once I read the letter and understood what it contained I said to the person from Flower and Hart the following word or words to the following effect 'no I am not accepting this' and I handed all of the documents that she had handed to me back to her, including the cheque and the acknowledgment; k. The representative from Flower and Hart did not immediately turn and walk away and I could see from the expression on her face a look of concern; l. So I said to her words to the effect of 'if you want me to sign something to record you presented the letter to me and I refused to accept it I will do so'. I then said words to the effect of 'perhaps you should check with someone in your office'. I then turned away walked through the door into office area and closed the door behind me. m. I was not contacted by anyone from Flower and Hart again that day and I have not been asked to sign the acknowledgment I offered.". [55] It is contended on behalf of Mr Hart that the version of events as deposed to by Ms Milner should be accepted because it is direct evidence. Further, by both her words, "no I am not accepting this", and her conduct in returning the documents and walking back into the office area that Ms Milner was making an unequivocal election to terminate the contract. [56] It is not accepted by Mr Hart that the letter of 4 January 2010 disclosed an understanding by him that the contract was still on foot. The fact that the cheque had not been presented lends weight to the view that Mr Hart understood the contract had been terminated. Rather, it is said that the letter was a "last ditch" attempt to resolve matters and the letter was a new offer. Further, the last sentence of the letter reinforces that view. The sentence reads: "If you deliver the cheque for the full amount of the settlement ie $135,000 by (sic) to this office by close of business on 11 January 2010 then I may receive instructions to accept that amount and to otherwise regard the deed executed by Mr William Hart as on foot from that time.". [57] The words "on foot from that time" relate to 11 January 2010 and not to the previous contract and show that a new offer was being made, albeit not an offer capable of acceptance because it remained a matter for Mr Hart to decide whether he wanted to enter into a new agreement. [58] The evidence of Ms Milner as to the events on 2 November 2009 is to be preferred because it is direct evidence. That evidence is that Ms Milner not only said she was not accepting the cheque but that she was returning it. Ms Milner was prepared to sign an acknowledgment that she was handed the cheque and refused to accept it. In my view the words of Ms Milner and her conduct were unequivocal. They were consistent with the exercise of a right to terminate the contract. [59] The fact that the cheque was subsequently left in the office of Milner Lawyers and not physically returned to the Applicants does not lead me to conclude that an election was not made on 2 November 2009. It is not determinative of anything except perhaps tardiness in returning the cheque to the drawer. However, return of the cheque is conduct which, in my view, confirms the election made on 2 November 2009 to terminate the contract. Nothing was said or done by or on behalf of Mr Hart between 2 November 2009 and 4 January 2010 which could imply that the contract was still on foot. [60] The letter from Milner Lawyers on 4 January 2010 also indicates that the contract was regarded by Mr Hart as being at an end. The last sentence is, as Ms Milner submitted, an attempt to see whether the matter could be resolved and the words "the deed executed by Mr William Hart as on foot from that time" can only be taken to mean that the possibility of a new contract being proposed was being foreshadowed. -- 7 of 8 -- 8 [61] The fact that Milner Lawyers did not provide details of Mr Hart's superannuation fund in response to a request by Flower and Hart contained in their letter of 18 January 2010 provides further confirmation that Mr Hart regarded the contract as terminated. [62] For the above reasons I find that the contract entered into between the parties on 19 June 2009 was terminated on 2 November 2009. It follows then that I refuse to exercise my discretion under s. 331(b) of the Act to make an order dismissing the application B/2010/11. [63] The Commission will relist Case No. B/2010/11 upon the request of Mr Hart. [64] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2010 16 June 27 September Released: 26 October 2010 Appearances: Mr J.W. Merrell, Counsel instructed by Flower and Hart, Lawyers for the Applicant. Ms A. Milner, Milner Lawyers for the Respondent. -- 8 of 8 --