BRMD Pty Ltd v Piniross Pty Ltd t/a Bikes Only [2006] QIRC 40 (2006) 181 QGIG 395

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 276 - application to amend or void contract BRMD Pty Limited AND Piniross Pty Limited t/a Bikes Only (B/2005/1196) COMMISSIONER BLADES 3 March 2006 Unfair contract – S. 276 Industrial Relations Act 1999 - Cartage contract - Truck purchase - Contract for 5 years - No provision for termination - Terminated after 4 months without notice - No opportunity for applicant to find alternate work for truck - Contract found to be unfair - Contract amended to provide for reasonable notice fixed at 3 months - Payment of a sum for reasonable notice found appropriate - Calculation of that sum. DECISION This is an application under s. 276 of the Industrial Relations Act 1999 (the Act) brought by BRMD Pty Limited (the applicant) against Piniross Pty Limited trading as Bikes Only (the respondent) alleging that a certain contract entered into by the parties is an unfair contract and seeking certain orders of the Commission. Briefly, negotiations for a contractual relationship between Mr Russell Hayward and the respondent commenced in January 2005 for Mr Hayward to become an owner/driver for the respondent. Mr Hayward had been employed by the respondent as an employee since November 2004. It was in February 2005 that Mr Hayward formed the applicant company after advice from his Accountant and on 24 March 2005, the applicant entered into a hire purchase agreement for a Mack truck. The arrangement was for the carriage of motorbikes, either on the northern run (Brisbane to Cairns) or the southern run (Brisbane to Melbourne). On or about 21 July 2005, the applicant undertook a trip to Melbourne for the respondent. Mr Hayward had an altercation with an employee at the Depot where bikes were to be collected. Upon his return to Brisbane, the contract was terminated without notice by Mr Kurt Johnston on behalf of the respondent. The contract was for a 5 year period. The arrangement lasted 4 months. The respondent claimed that there had been problems with Mr Hayward's attitude, relationship with customers and damage caused to motorbikes and submitted that the contract came to an end either by mutual termination or by repudiatory conduct on the part of Mr Hayward. Generally there was not that much conflict in the evidence. In applications under s. 276 of the Act, there is a 3 stage process, i.e. whether the contract (being in this case a contract for services) is an unfair contract; whether the unfair contract should be amended or avoided; and whether any order should be made about payment of an amount for a contract so amended or avoided - Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch Union of Employees v Chubb Protective Services (No 2) (2002) 169 QGIG 258. The applicant sought the following decision: "1. That there was a contract between BRMD and Bikes Only whereby BRMD would provide transport services ('Services') for Bikes Only for a period of five (5) years if BRMD obtained a 4 x 2 prime mover truck ('Truck') to execute the services; 2. That the contract between BRMD and Bikes Only was unfair within the meaning of s. 276(7)(a) and/or s. 276(7)(b) and/or s. 276(7)(c) of the Act in that it was harsh, unconscionable or unfair and/or against the public interest; 3. That Bikes Only be ordered to pay BRMD reasonable notice, being four (4) months, equivalent earnings less consumables up to including 23 November 2005, or other date the Commission considers appropriate for Bikes Only unfairly summarily terminating the contract; and 4. That the contract be amended to include a term on consideration of fairness that for an appropriate period beyond the termination period, that Bikes Only be required to pay BRMD a reasonable sum for liabilities incurred by BRMD in the fulfilling of the contract, which include but do not limit appropriate insurances and chattel mortgage repayments 5. That Bikes Only be ordered to pay BRMD an amount the Commission considers appropriate as reimbursement for liabilities incurred by BRMD, including but not limiting appropriate insurances and chattel mortgage repayments that could not be mitigated beyond (during) the reasonable notice period determined by the Commission in (3) above; and 6. That Bikes Only be ordered to pay BRMD $2482.19 due to Bikes Only unconscionably or unfairly underpaying tax invoices duly owed to BRMD; and -- 1 of 7 -- 2 7. That the contract be amended to include a term on consideration of fairness that after 23 July 2005 BRMD would be engaged by Bikes Only to provide the Services to Bikes Only for: (a) a period up to and including until 23 November 2005; or (b) such other time as the Commission may order. 8. In the alternative to the above, that Bikes Only pay to BRMD an amount that the Commission considers just in the circumstances of the case in consideration of the unfairness of the contract.". At the hearing, the application was amended as indicated and in relation to No 4 above, the period was restricted to 4 months. Particulars of the unfairness were: a. At all material times, Bikes Only was in a position of superior or unequal bargaining power and such a position was taken advantage of by Bikes Only when it induced BRMD to purchase the Truck on the basis of a promise of a 5 year engagement. b. Bikes Only further unfairly used its position of superiority when it terminated the contract without regard to BRMD’s reliance upon Bikes Only’s commitment to a 5 year engagement. c. That contract was further unfair in that it: (i) Failed to provide fair provisions for the termination of the contract; (ii) Permitted Bikes Only to deprive BRMD of the benefit of a long term secure engagement; (iii) Failed to provide for the giving of a fair and appropriate period of notice so as to enable BRMD to find alternative uses for the Truck; (iv) Failed to provide any reasonable, fair, adequate and just payment to BRMD by Bikes Only upon termination for any reason; (v) Operated unfairly in that it enabled Bikes Only to obtain the Services at a cost below that which Bikes Only would have incurred for the Services that I (sic) been engaged to perform the Services as an employee; (vi) Failed to include a term that the performance and BRMD would be fairly assessed; (vii) Was otherwise unfair, harsh or unconscionable and contrary to the public interest upon such other grounds and for such other reasons as the Commission may find. The evidence reveals that there was a Letter of Agreement which set out the basic contract details, signed by Mr Hayward and the respondent, prior to the formation of the applicant company. That letter was used primarily for the purposes of obtaining finance for the purchase of the truck and a more formal contract covering all issues was to be drawn up by Solicitors. That more formal contract was never settled. The Letter set out the basic details of the contract, including the term of 5 years and except for the rates it is not in dispute. The Letter set out various rates including a rate per kilometre of $1.05 and rate per pick up and delivery. There is a dispute as to whether those rates were GST inclusive or not. Discussions between the parties had not included any discussion about termination of that 5 year contract nor apparently about GST. It is clear that Mr Hayward believed the rate was excluding GST where Mr Johnston believed it included GST. The very first invoice provided by the applicant for payment was approved for payment, less an additional GST component which had been included in the invoice. The assessment of the credibility of witnesses often depends upon the subtle influence of demeanour which might be difficult to explain or categorise. I was impressed with Mr Johnston. I thought the concessions he made in cross- examination reflected honesty. In the original material filed with the Commission, there was an allegation supported by some evidence that it was Mr Hayward who brought the contract to an end. That evidence included Mr Hayward saying "Well, that’s it then, I’ll leave" and "Sack me" and bases the submission that the contract came to an end by mutual termination. While Mr Johnston did not resile from that evidence, he conceded that at no time did Mr Hayward seek to terminate the contract and I accept, on the balance of probabilities, that the contract was terminated by Mr Johnston. Mr Hayward had refused to apologise for the behaviour in Melbourne and Mr Johnston had made it perfectly clear that without the apology, Mr Hayward was not of much use if customers would not deal with him. Mr Johnston said he told Mr Hayward "I can’t work with a bullshit artist" and that effectively, he told him he was finished. On the other hand, I thought Mr Hayward was a little intransigent and there was enough acceptable evidence which indicated to me that he could, on occasions, be abrasive, disrespectful and impolite. I accept Mr Johnston's evidence that Mr Hayward had -- 2 of 7 -- 3 caused damage to motor bikes on a number of occasions over the whole tenure of his employment although it was not a dismissible offence. By the same token, I reject Mr Hayward's evidence that he was not responsible for any damage. Mr Johnston claimed that Mr Hayward insisted that he'd never done anything wrong, never damaged any bikes, never had a fight with anybody. I accept Mr Johnston's evidence in that regard and I consider it was an example of Mr Hayward's intransigence. I do not consider Mr Hayward's conduct sufficiently disregarded the fundamentals of the contract so as to amount to repudiatory conduct as submitted. The jurisdiction commences with a finding that a contract is an unfair contract and for present purposes, a contract is unfair if it is harsh, unconscionable or unfair or against the public interest - s. 276(7). The Commission may consider a contract to be unfair if it considers it was unfair when it was entered into or it became an unfair contract after it was entered into because of the conduct of the parties or for any sufficient reason - s. 276(4). Sydney Water Corporation Ltd & Anor v Industrial Relations Commission of NSW & Anor (2004) NSWCA 436 held that the equivalent s. 106 of the New South Wales Statute treats the finding that the contract is unfair as the necessary precondition to the remedial options and not just any unfair conduct which may or may not demonstrate the unfairness of the contract. A contract is not unfair because it leaves the employee to remedies under the general law. The contract itself must be found to have been or have become an unfair contract. This position is a departure from what was said in Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551. The Commission may examine the manner in which a contract has ultimately worked out and operates as between the parties to it - Sydney Water at para 26. There was nothing unfair about any of the terms of the contract as expressed in the Letter of Agreement. The rate of remuneration provided was above what Mr Hayward would have received as an employee and although there was a complaint about the rate of remuneration in the pleadings, that complaint was not supported by his evidence in cross- examination. The parties had not fully concluded their bargain and had not thought about termination prior to the 5 year end date. I am satisfied that the failure to provide for a reasonable period of notice renders the contract unfair when it was entered into, even though the common law may very well imply some period of reasonable notice. I am also satisfied that because the contract was terminated without reasonable notice in circumstances where the applicant had no opportunity to find alternative work for the truck, where he had no time to find an alternative use for the truck and where there was no payment instead of notice, the contract became an unfair contract because of the way it worked out. I am satisfied on the balance of probabilities that the contract was unfair. The second step in the process is whether the Commission should amend or avoid the contract. What is sought is an amendment to provide for reasonable notice, in this case 4 months. In considering that issue, the Commission is to take into account those matters set out in s. 276(2) which include the relative bargaining power of the parties, whether any undue influence or pressure or unfair tactics were exerted on or used against a party or anything else the Commission considers relevant. In this respect, the applicant submitted that there was inequality of bargaining power because at the relevant time Mr Hayward was an employee of Mr Johnston. In my view, more needs to be shown than such a relationship. Dowsett J in Buchmueller v Allied Express Transport (1999) 88 IR 465 at 473 (para 32) doubted that principle. I am not satisfied that the respondent was in a position of superior or unequal bargaining power when the contract was formed. I am satisfied both parties, including in that term Mr Hayward and Mr Johnston, were in an equal bargaining position. Furthermore, the applicant relied upon undue influence and unfair tactics by the respondent. Both corporate parties to this application are family companies. Mr Hayward had prior experience in the trucking industry as an owner/operator and was aware of the pitfalls. He had advice from his Accountant and I accept the evidence of Mr Johnston that Mr Hayward was overzealous in his endeavour to get the arrangement up and going. Both parties were keen. There was no undue influence. It was the incident on or about 21 July 2005 in Melbourne which resulted in the termination of the contract and it is that incident and the result which cause me to decide, under s. 276(2)(b) and (e) to amend this unfair contract by providing for reasonable notice of termination. Mr Hayward had a heated argument with an employee of Norm Fraser Imports (NFI) who is a large customer of the respondent. That employee named Daniel had been employed by NFI for 13 years. Mr Hayward admitted that it was a "right old ding dong". While he denied threatening the employee, he agreed that he had said that he would have thumped him if they had not been in the workplace. I am satisfied there was a threat. When Mr Johnston heard about the incident, he requested Mr Hayward to apologise to the employee but Mr Hayward refused. He thought the employee owed him an apology. Mr Johnston said the apology became a major issue. NFI was a good customer and what Mr Hayward had done reflected badly upon his business and on him. During the discussion about this event, Mr Johnston brought up alleged rude and abusive behaviour to the Account Manager in the office, Ms Passamani, Mr Johnston’s niece. Mr Hayward denied the conduct alleged. However, I accept on balance that Mr Hayward became upset and irritated about the non-payment of an invoice. The invoice was delivered on Friday 24 June but because Mr Johnston was not available to authorise its payment, Mr Hayward went into the office on Monday 27 June when he spoke in the manner alleged by Ms Passamani. I accept her evidence that she felt pretty uncomfortable because of his shouting at her. (The Letter of Agreement recorded that invoices were to be paid "upon presentation" but I am also satisfied on the probabilities that the payment had first to be authorised by Mr -- 3 of 7 -- 4 Johnston and he happened to be away at the time. I considered there was sufficient corroboration for Mr Johnston's claim that they had to be authorised by the number of changes that were made to the invoices presented.) Mr Johnston also brought up an incident involving Mr Johnston's mother who worked part-time for the respondent. This incident was about leave which Mr Hayward wanted but which Mrs Johnston said could not be given because they had no one available for the run. Mrs Johnston said that Mr Hayward used some swear words to her when he challenged her as to why she had refused his leave application. She said it was the way Mr Hayward had challenged her when he used words "Who the hell are you to refuse my leave application" (omitting fairly innocuous swear words found by Mrs Johnston to be offensive). Again Mr Hayward denies the allegation but I accept Mrs Johnston's evidence on the probabilities. I accept her evidence that she was offended. When Mr Johnston raised these matters with Mr Hayward on 22 July, Mr Hayward mostly remained silent. I am satisfied on balance that Mr Johnston made it plain that the contract was terminated effective immediately. I am satisfied on the whole of the evidence that it was unfair in these circumstances to terminate the contract without notice and that the contract should be amended to provide for reasonable notice. The third matter is then to determine whether any order should be made about payment of an amount for the contract as amended. That involves an assessment of a period of reasonable notice and the amount which should be paid by the respondent in discharge of that reasonable notice. What the applicant seeks pursuant to the amended application, is the payment of reasonable notice being 4 month's equivalent earnings less consumables. It also seeks the payment of a reasonable sum for liabilities incurred which includes but is not limited to insurances and chattel mortgage repayments during that period. After the incident in Melbourne, Mr Johnson was placed in a position where, because of Mr Hayward's refusal to apologise to the employee, Mr Johnston could no longer employ the applicant on the southern run. But it is not an answer for Mr Hayward to say that Mr Johnston could have employed him only on the northern run. Mr Hayward's usefulness to the respondent was limited and the employment relationship was severely affected. But to employ the applicant to do the northern run for a period of time in order to provide a reasonable period of notice to terminate the contract was possible. The period of notice must also take into account the conduct of Mr Hayward who did nothing to help himself or his company - see e.g. Bradrib Pty Ltd v Jilly Bean Pty Ltd & Anor (No 1) (1987) 21 IR 90 at 96 and the case cited by Mr Watson of Artfleet Pty Ltd & Ors v B G & B C Spackman Pty Ltd & Anor (1998) WASC 78 where Murray J in discussing a period of reasonable notice said: "…but I should not overlook the defendant’s position. So far as it was concerned, rightly or wrongly, its perception was that it was not receiving the transport service for which it had hoped and an amicable business relationship involving trust and goodwill on both sides had irretrievably broken down.". That the relationship between the applicant and respondent here had irretrievably broken down was obvious. While Artfleet was a contract case, there were many similarities. While the plaintiff in Artfleet wanted 12 or 24 months notice, the defendant argued for 2 weeks. Murray J fixed 2 months. But in fixing the period of reasonable notice, Artfleet is not that helpful. Importantly, Mr Hayward gave uncontradicted evidence that he was initially told, because of settlement negotiations, not to do anything with the truck but to keep it ready to go back to work for the respondent which had offered a new contract. There is also in evidence a letter from Bain Gasteen, respondent's Solicitors, dated 12 December 2005 which offered assignment of the lease of the prime mover effective from 21 October 2005. Those settlement negotiations did not proceed to fruition. Mr Hayward gave further evidence that the first opportunity he had to use the truck was when he commenced some work for Tornado Tilt and Crane. The first work for Tornado Tilt and Crane occurred on 4 October 2005. He did not commence to earn regular income until about 23 November. In all of the circumstances, I consider that a period of 3 months notice to be appropriate. Much of the hearing was devoted to an examination of the accounts. It was apparent that Mr Hayward was reluctant about identifying from his documents what various transactions represented. Mrs Hayward, who did the books, appeared to be in no better position. These documents were highly relevant to the claim. An onus of proof rested upon the applicant to provide some basis for an order in its favour. I thought that Mr and Mrs Hayward could have been a little more forthright in providing details of the income and expenditure. The application alleged a discrepancy in payments of invoices over the period of the contract. The first invoice dated 1 April 2005 was allegedly $1,660.68 short paid. Part of the shortfall was because of $1,000 loaned to the applicant and which had to be repaid. An invoice dated 22 April was alleged to have been $240.78 short paid but the applicant did not recognise that the money had been paid a couple of days later. An acknowledgement of these erroneous claims did not occur until during the cross-examination. Mr Johnston had mentioned in his affidavit about the loan. In Mr Hayward's affidavit in reply, he ignored the issue. In a third affidavit, no mention was made of it. It reflects adversely on credit. The applicant sought payment of the discrepancies in these invoices. The respondent submitted that the payment of the invoices was really a claim for a debt and that a claim of a like nature was rejected by the Commission in George v Allied Express Transport Pty Limited (2002) 171 QGIG 781. Reliance was also placed on Sydney Water Corporation -- 4 of 7 -- 5 (supra). But with respect, the decision in George was based upon the fact that it was never alleged that the contract in that case was an unfair contract and the very basis of the jurisdiction is that a contract is unfair. Nothing I can find in Sydney Water Corporation supports the submission where it was said that the unfairness must come from the contract not from the breach. Every breach is unfair but a breach does not render a contract unfair. In Palmer v TNT Australia Pty Ltd (1995) NSWIRC 24, Hungerford J, in applying Brown v Rezitis (1970) 127 CLR 157, said: "Section 275(3) of the Act enables the Court to 'make such order as to the payment of money in connection with any contract ... declared wholly or partly void ... as the Industrial Court considers just in the circumstances of the case'. The nature of the orders which may be so made cover a wide field, being limited only to a 'connection with' the avoided contract, and include a broad concept of restitution as well as remedial provision in respect of monies which have been paid or which were payable under the contract itself.". In Sydney Water at para 28, Mason P said: "It is equally clear that, when the Commission takes the remedial knife to a contract found to be unfair, the Commission may craft remedies that include orders for the payment of money due under the contract originally formulated by the parties as well as under the contract as reformulated by the Commission.". So if orders can be made for monies which were payable under the contract itself as originally formulated, it includes debts arising under that contract. Westfield Holdings v Adams (2001) NSWIRComm 293 at para 130 placed emphasis on the terms of the section (to order the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case). Section 276(5) of the Act provides that the Commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void. But the argument ultimately has only academic relevance. It is the extent of any order that provides difficulty. Mr Johnston made adjustments to 8 invoices over the period of engagement, resulting in a claimed underpayment of $2,482.19. Those adjustments generally related to a GST component he maintained should not have been included. But after a while he said he gave up because it was wasting too much of his time over small adjustments. There was a dispute over the payment of GST from the beginning. Mr Hayward said the agreement was for the payment of the agreed rates plus GST but the Letter of Agreement did not reflect that position. After the first invoice was adjusted, Mr Hayward said he had to accept the reduced payment due to the financial obligations associated with the truck purchase. On the balance of probabilities, it seems to me that the agreement, viewed in the light of the actions of the parties in carrying out the contract, was for the payment of a rate which included GST. The absence of the addition of GST in the Letter of Agreement, Mr Johnston's actions in adjusting the first invoice and Mr Johnston's evidence persuade me to make this finding. The first deductions included the $1,000 loan. There was another deduction of $240.78 which was paid but a few days later. The final deduction of $197.40 was for a tyre which was damaged while in the possession of Mr Hayward. While Mr Hayward does not accept responsibility, I am satisfied that he is liable to make good that damage. I find that the other amounts, apparently all being associated with GST adjustments are not payable by the respondent and were properly deducted. I am unable to make a finding that any amount in the list of shortfalls is due and payable. The final matter to determine then is the amount that should be paid for the notice period of 3 months as I consider it appropriate that a payment should be made. The ultimate guiding principle is what is just in the circumstances of the case - Westfield Holdings at para 130. The applicant seeks $47,671 representing 4 months. Discounted to 3 months, that figure is reduced to $35,753.25. It is calculated by taking the equivalent earnings over the period and deducting consumables such as fuel and oil and electrical repairs. Expenditure on items such as a log book, truck service, dinners, meals, living-away-from-home allowance while on a trip, insurance premiums and finance repayments have not been taken into account and in my view, the final figure reflected in the claim is not accurate. The respondent calculates the loss over a 3 month period at $10,652.33. The respondent has taken an average excess of income over expenditure to be $4,854.86 and added to that figure part of the chattel mortgage payments and part of the insurance premium payments. From those amounts, monies actually earned by the applicant as well as earnings of Mr Hayward personally, have been deducted. In assessing the figure to be paid for the 3 months notice, I am not bound by either method of calculation adopted by the parties. What would have been earned by the applicant over the 3 month period can only be calculated by averaging what it earned while it was in business. Included in the respondent's calculations were two items of expenditure identified as $1,095 on 25 May and $800 on 11 July. Neither Mr Hayward nor Mrs Hayward "had a clue" as to what those payments represented. The applicant cannot therefore complain if they are recorded as expenses to reduce the income over the period. Accordingly, I accept as that average the sum of $4,854.66 per month, being the average of the difference between the total income and expenditure over the 4 months of the contract. The expenditure included disbursements for insurance premiums and monthly finance charges. Part of the finance payments were of a capital nature and it is only the interest portion of those payments that should be considered an expense. The capital component of those payments should therefore be added to the average income. The insurance premiums actually paid have also to be adjusted because the annual premium was paid over 10 months of the year. -- 5 of 7 -- 6 For each monthly repayment of finance, the capital component was $2,287.92 (being $137,275 ÷ 60 payments). Insurance payments of $1,547.70 were made per month over 10 months and the $1547.70 was included in applicant's expenses. The annual account for insurance was $14,007 (and of course, the figures do not balance). Based on 12 monthly payments totalling $14,007, the monthly payment should have been $1,167.25 and it is that amount which should be brought to account as an expense. The difference, being $380.45, should either be deducted from the expenses or added to the income. The respondent claimed that the insurance payments should be calculated over 8 months because the applicant received a credit of insurance payments, in effect paying nothing for the last 4 months of the year. However, that credit came about because of the termination of the contract and the adjustment to the policy to reflect the lesser distances the applicant's vehicle then travelled. During the notice period as mentioned previously, the applicant had to keep the vehicle in readiness to resume work with the respondent and these higher premiums remained payable. No adjustment as suggested should be made. The applicant submitted that no account should be taken of ATO credits for diesel rebate which were included as income in the averaging process referred to. There seems to be a dearth of evidence but it is inferred that the ATO credits were returns because of the expenditure on diesel and that expenditure was taken into account. The rebate should therefore also be brought into account. The applicant objects, as irrelevant, to the taking into account of earnings of Mr Hayward personally after the termination on the basis that it is not Mr Hayward's litigation. There is no doubt that Mr Hayward and the applicant are almost one and the same but they are not. Earnings from Noyes Motorcycles and Royal Wolf were through the personal exertions of Mr Hayward. (No amount was apparently conceded for tools of $800 required to work at Noyes). Mr Hayward did not use his truck and BRMD was not involved. Had BRMD operated 5 days a week and Mr Hayward had earned monies on the "pick and shovel" on weekends, what relevance would that have to the earnings of BRMD? I have already estimated the earnings of BRMD. Accordingly, I will not discount the personal earnings of Mr Hayward during the notice period. However, there is another ATO diesel rebate received on 15 August of $815 which must be accounted for. The diesel rebates received on 7 November and 10 November are outside the relevant period and as truck expenses beyond the relevant period have not been considered, neither should they. There is a sum of $3,334.76 paid on 13 October for work performed on 4 October for Tornado Tilt and Crane which must be accounted for. The $2,766.81 paid to BRMD on 21 October as an advance against work to be performed on 7 November and 10 November will not be considered as it is outside the relevant period. In summary: Item $ Average income per month over the term of the contract 4,854.66 Add insurance adjustment per month 380.45 Add capital component of finance repayment per month 2,287.92 Sub-total 7,523.03 The total profit taken over a 3 month period is therefore: 22,569.09 Less: 15.08.05 ATO diesel rebate 815.00 13.10.05 Tornado Tilt and Crane 3,334.76 4,149.76 Total 18,419.33 The personal earnings of Mr Hayward which are sought to be deducted from the income of BRMD and which have been disallowed are: 23.08.05 Banneride Pty Ltd $361.92 06.09.05 Banneride Pty Ltd $1,078.98 16.09.05 Royal Wolf $3,905.00 20.09.05 Banneride Pty Ltd $1,212.66 28.09.05 Banneride Pty Ltd $316.36. I find that the sum of $18,420 is an appropriate payment for the contract as varied. I order that sum be paid by the respondent to the applicant. -- 6 of 7 -- 7 B.J. BLADES, Commissioner. Hearing Details: 2006 23 and 24 February Written Submissions 2006 27 and 28 February 1 March Released: 3 March 2006 Appearances: Ms K. Garner, Counsel, instructed by Ms V. Vanderlaak of The Employment Advisor, for BRMD Pty Limited. Mr K. Watson, Counsel, instructed by Mr P. Coves, Bain Gasteen Solicitors, for Piniross Pty Limited t/a Bikes Only. -- 7 of 7 --