184 Mr Berg taking leave without pay at times when he had nothing to do, when he felt bored and offering to resign because he took the view that he had nothing to contribute to the business opportunities which Mr Bell was exploring, evidenced a similar recognition.
185 Seen in that context, Mr Downe's lack of familiarity in 1997 with, or interest in, the original plans developed in 1994 and 1995 seems entirely understandable, particularly given the context in which Mr Berg was raising those plans with him. That was at a time when both Mr Downe and Mr Hall had formed the view that Mr Berg had not made any contribution to Macquarie, as he plainly had not, on the evidence. He had produced nothing tangible, in reality had nothing to do, had taken leave without pay, and in Malaysia had been refused employment in the Malaysian joint venture by AMMB, who did not wish him to remain there. Mr Downe, about to replace Mr Hall as Head of the Treasury Division, had also lost confidence in Mr Berg and was seeking to manage the termination of his employment, while giving him an opportunity to work out his notice, so as to maximise the possibility that the Eurobond trade, which he had such high hopes of achieving in Malaysia, could materialise. Mr Hall agreed. The Eurobond trade never emerged, either before or after Mr Berg's termination from Macquarie's employ. The Malaysian Central Bank never approved the idea. By June 1997, not even Mr Bell could find a basis to support his continued employment.
186 These matters are all relevant to a consideration of the claims advanced in Mr Bell's summons, that the various contracts and arrangements between the parties were unfair, harsh and unconscionable and should be varied, in order to address the deficiencies identified. As I have noted, the first of the variations sought went to insert an express term that Mr Bell was to be employed to implement the proposal submitted to Macquarie in September 1994, 'as varied from time to time by agreement'.
187 The September plan was the one which Mr Bell had developed in his employment at Barclays and which he and Mr Berg were pursuing with a number of potential employers, apart from Macquarie. While it was the trigger for the discussions which ensued with Mr Moss and Mr Hall, the evidence does not permit the conclusion that the applicants were employed to implement that proposal. Mr Hall could not even recollect seeing it in December, although he saw it afterwards and accepted that it was likely that he saw it at the time. Nevertheless, that proposal was never considered by the Executive, which made the decision that the applicants be afforded employment. The evidence was that it was the specific plan which the applicants wrote for Macquarie in December which was put to the Executive committee as an illustration of the type of business proposals which Mr Bell and Mr Berg would pursue in Asia for Macquarie. That plan was by no means a 'variation' of the September proposal, which the parties had agreed.
188 The second plan written in January further refined what was proposed to be pursued and it was the pursuit of what was outlined in this document, which the Executive then approved, but subject to its approval of any specific business. On the evidence it cannot be doubted that this was the basis upon which the parties proceeded together in this employment. This plan contained details of the businesses proposed to be pursued and the income which they expected to generate, if established. That evidence does not lead to the conclusion that the implementation of these plans formed either a contractual basis for the employment of the applicants, or amounted to any precontract representations. Nor does the evidence permit the conclusion that it was unfair that the implementation of the plans did not form a part of the contracts here in question.
189 The evidence was that when the precise proposals contained in the business plan were not achieved by Mr Bell and Mr Berg, other opportunities were identified and pursued. Mr Bell and Mr Berg received considerable support from Macquarie in those endeavours. I can find nothing unfair in any of these matters, which would lead to the conclusion that the contracts here in question were relevantly unfair and would require any variation in order to address any such unfairness.
190 The first time difficulties seemed to develop in this relationship was in late 1996, when Mr Hall's impending retirement and his proposal in relation to his replacement, were raised with Mr Bell.
191 That there was, by then, a concern on the part of Macquarie that the success of the first joint venture in Malaysia was so important that it required attention either by Mr Bell, or another senior employee, hardly seems surprising. After all, the original plans had high expectations of the business and income which could quickly be achieved by Mr Bell and Mr Berg. They had come to nought.
192 At that point, it was known that Mr Downe was to become Mr Hall's successor, a matter about which Mr Bell was unhappy from the outset. He doubted Mr Downe's suitability for the position and had concerns about what this would mean for his own position, given that he was going to report to Mr Downe when he replaced Mr Hall. These concerns seem to have flowed from a view held by Mr Berg that Mr Downe lacked experience, given his age. Mr Bell later had similar reservations in relation to Mr Busch. The evidence suggested that he had particular views in relation to how experience, ability and age were related, flowing from his experiences in Asia. Dr Grub expressed similar views and they were views which Mr Bell later ascribed to PDFCI, even though apparently, their concerns on that front had, in fact, been addressed. This was revealed by the transcript of another conversation with Mr Downe which Mr Bell had taped, but not referred to in his affidavit.
193 Mr Hall had proposed to Mr Bell that Mr Downe should head the Malaysian joint venture for a time, if Mr Bell did not wish to spend the time needed for the establishment of the joint venture. Mr Downe had experience in establishing Macquarie's South African joint venture, but no Asian experience. AMMB was already interested in understanding Macquarie's South African experience. Mr Bell also disagreed with this proposal initially, but on his evidence, accepted what was proposed after consideration. Despite his reservations, Mr Bell was plainly convinced that establishing a working relationship with Mr Downe and having him develop an understanding of what he was working to achieve in Asia, as well as having him work to bed down the Malaysian joint venture, would be in his own interests in the long term.
194 As I have said, what cannot be ignored in an application such as this is the respective conduct of the parties in their relationship with each other. Mr Bell's own evidence was that he accepted Mr Hall's proposal about Mr Downe. It was argued for the applicants that this was when Macquarie began misleading them as to what it was about in altering the original arrangements. On the evidence, I cannot accept that this is what occurred.
195 One can well understand why Mr Bell might have accepted at the time that it was in his own interest that Mr Downe became involved. To that point, he simply had no 'runs on the board' and had generated none of the high profits which the plans envisaged would have been generated by that time. If truly the early plans had formed the basis of his employment in the manner here claimed, Mr Bell was then in breach of what he had promised to deliver. That was not how the parties conducted themselves. It follows that Mr Bell's acceptance of Mr Downe's involvement in the Malaysian joint venture and its consequences, cannot here be ignored. Nor can it be seen as an example of how Macquarie breached the understanding which had been reached at the outset of these relationships, as claimed. In any event, Mr Bell's own evidence was that he agreed to Mr Hall's proposal. The evidence demonstrated neither that he was misled, or that this involved Macquarie reneging on any deal.
196 It is also difficult to see how Mr Bell was disadvantaged by this development. To that point, it had been proposed by Mr Bell and Mr Berg that a number of joint ventures and other business would be operating, generating considerable returns. Despite their efforts, none were. Mr Downe's involvement in Malaysia neither precluded the successful establishment of the joint venture, nor the payment of a considerable bonus to Mr Bell as a result, even though he did not stay in Malaysia to work on its implementation, it also allowed Mr Bell to turn his attention to potential joint ventures in Korea and Indonesia.
197 Mr Bell was still involved in the negotiations with AMMB and obtaining the approval of the regulator, Bank Negara, for the venture with Mr Downe. Mr Downe was later accepted by AMMB to head up the joint venture. Mr Downe was successful in getting that joint venture up and running, before he left Malaysia in March 1997, to take up his promotion as Mr Hall's successor. That success involved considerable work and allowed Mr Bell to pursue other joint venture opportunities in Indonesia and Korea. It also undoubtedly helped in achieving the payment of a substantial bonus to Mr Bell in 1997.
198 It is difficult to characterise these developments as variations to the original business plans, which were agreed from time to time by the parties. The evidence did not show that either the applicants or Macquarie so regarded them. Indeed, as I have noted, the applicants' case here advanced, was that they were inconsistent with the plans. The evidence did not make this out. Rather, it can only lead to the conclusion that the developments were, in fact, consistent with the basis upon which the applicants were employed by Macquarie from the outset. That was, to develop and pursue opportunities in Asia, of which the proposals in the original plan were but examples or illustrations. In Malaysia, that was pursued with Mr Downe's involvement and Mr Bell's express agreement.
199 If it were otherwise, fairness could hardly now result in a variation to Mr Bell's contract of employment, which would require implementation of the 1994 and 1995 plans. In practical terms this would require the parties' adherence to plans which the applicants never achieved, including income of $3,500,000 in 1995 and $9,500,000 in 1996, as opposed to total costs of $2,585,250.
200 The evidence can only lead to the conclusion that the representations upon which the applicants relied, had not been made by Macquarie in the way asserted. Undoubtedly, the various topics dealt with in the summonses were the subject of discussion between Mr Bell, Mr Berg and Mr Hall from time to time. However, neither the plans, nor the precontractual discussions concerned a blueprint for the establishment of new businesses for Macquarie in Asia, which the applicants were employed to implement. What was proposed and accepted was that Mr Bell and Mr Berg would be employed to explore opportunities of the kind identified in the plan, with Macquarie's support.
201 In his resignation letter, Mr Bell complained that he did not have control over the ventures that were established. That complaint was also advanced in the summons, as another term, which should be inserted into the contract by variation, 'within the framework of the general practices and systems of the Bank'.
202 The evidence did not, however, establish that such control had been promised to Mr Bell, nor, in my view, would it do justice as between the parties to vary the contract to now give Mr Bell the control sought. The business plans themselves made no such provision. The December plan envisaged that the core of the management group responsible for building relationships were to be based in Hong Kong. The organisational structure gave Mr Bell no title and had him reporting to Mr Hall. The January plan made no alteration to this proposal. In any event, in June 1996 Mr Bell agreed to an arrangement in relation to the Malaysian joint venture quite inconsistent with he having such control. The discussions on which Mr Bell relied, even on his own version of what Mr Hall had said to he and Mr Berg at the outset, provided no proper foundation for the view that a representation that Mr Bell was to have the control he here sought, was made. Mr Hall's comments, which he denied in any event, that Mr Bell and Mr Berg would be taking the business risk in pursuing these joint ventures, cannot properly be elevated in the way in which the applicants here sought to do. The risks and rewards of what the applicants were employed to do were obvious. Continued employment and substantial rewards in salary, bonus and share options, if the applicants were successful in pursuing the business opportunities identified for Macquarie. If they were not, they would have no basis to expect continued employment.
203 The evidence as to the position in which Mr Bell was employed, as a divisional director of Macquarie, later as managing director of MCIML, and the way in which both he and Mr Hall represented him to those with whom he was dealing throughout Asia, confirmed that while he did not have the control which he sought, he held a very senior position at the bank, but one reporting to Mr Hall and later, Mr Downe. The complaints made that Mr Hall's conduct, for example in discussions with Dr Grub, evidenced some breach of any part of the arrangement between the parties, was not made out on the evidence. Mr Bell appears to have made no complaints at all about such concerns during his employment. In light of all of the evidence, they cannot be regarded as complaints which have any proper basis in either what was promised, or what, in fact, occurred.
204 When Mr Bell resigned there was but one joint venture established. It is also relevant to the claim about control, that the terms of the Malaysian joint venture agreement negotiated by Mr Bell, did not provide for either Macquarie, nor Mr Bell, to have control of the joint venture. In my view such a term would have been a necessary basis for the contractual provision here sought by Mr Bell. Mr Bell's complaint has no proper foundation in the events as they unfolded themselves. Mr Bell had not negotiated such control for Macquarie, nor did it wrongfully exclude him from such control. Mr Bell simply did not obtain terms which would have enabled Macquarie to give him the control of the joint venture, which he sought in his application.
205 Even if the claim was regarded as relating to the position of head of the Malaysian joint venture, it ignored entirely Mr Bell's acceptance in 1996, that Mr Downe should head the joint venture, while he pursued the opportunities he had identified in Indonesia and Korea. That he would have been capable of doing both was not made out on the evidence and entirely ignored his discussions with Mr Hall and what he in fact agreed with him.
206 Mr Bell's acceptance of Mr Downe's role in Malaysia itself has to be considered in the context of the terms of the Malaysian joint venture, the terms of which Mr Bell had himself negotiated. The memorandum of understanding provided that Macquarie was to appoint the business head of the joint venture for the first two years and AMMB, for the second two, with Macquarie then having the right of veto of any particular person nominated. No provision was made for the business head to report to any Macquarie employee. Rather, the structure provided for a joint committee of Macquarie and AMMB representatives to manage the joint venture, as if it were the board of the joint venture.
207 Mr Bell's evidence was that the original business plans did not go into details of how joint ventures themselves were to be structured. That was plainly a correct reflection of those proposals. Obviously both the applicants and Macquarie had to accommodate the practicality of the business environment with which they were faced in Asia, including the terms of the joint ventures which they were able to negotiate. In terms of the business head of the Malaysian joint venture, there was no evidence that in any of the discussions between Mr Bell, Mr Berg and Mr Hall, that an arrangement of the type actually agreed in Malaysia had earlier been contemplated. Nor, however, was there any evidence that Mr Bell objected to that structure as being inconsistent with his agreement with Macquarie, which required that the business head report to him or that he control the joint venture. It would have been curious had there been such a complaint. After all, on the evidence it was Mr Bell who negotiated the terms of the joint venture for Macquarie.
208 Likewise in relation to the Indonesian joint venture, which Mr Bell was engaged in negotiating, when he resigned his employment. The agreement which he there negotiated, did not provide Macquarie with control of the joint venture in such a way that it could have had any basis for giving Mr Bell the control which he here sought.
209 In the memorandum of understanding for the Indonesian joint venture, it was agreed that there would be a committee of management of four, with equal representation by the joint venture partners, but with one of the PDFCI nominees being designated chairman. There was also to be a business manager appointed by the committee, being a Macquarie nominee for the first two years and thereafter the committee being free to appoint anyone it selected as manager. Again, there was no provision made for the business manager or chairman to report to any Macquarie employee and no evidence that Mr Bell had any view that this structure, which he had also negotiated, was inconsistent with his agreement with Macquarie.
210 If, at the time, Mr Bell had truly understood his agreement with Macquarie in the terms which were pressed at the hearing, that he was to have control of the joint ventures, one would have expected to have seen this view being reflected in the memoranda of understanding, which he negotiated for Macquarie with the joint venture partners. It was not.
211 To the contrary, in June 1997, when Mr Bell was pressing Mr Downe for written confirmation of his proposed role in Indonesia, he explained that 'as part of our original business strategy Ray and I had decided that each country JV business required a business head' and related the difficulties which had arisen with Mr Busch becoming the business head of Indonesia, as having arisen because PDFCI had objected to him, upon learning that Mr Busch had had only three years' experience. As a result of discussions over this difficulty, it had been agreed that Mr Bell would himself work as business head in Indonesia for six months. This became a feature of the ongoing negotiations with PDFCI, about the memorandum of understanding from there on. Mr Bell also informed Mr Downe that PDFCI required written confirmation of this from Macquarie. This was apparently untrue. That confirmation was later provided by Mr Downe, but in terms which apparently led Mr Bell to the view that his contract had been repudiated, because of the flat management structure being proposed, despite he being nominated as business head.
212 At that time, Mr Downe was of the view that a joint management structure was desirable. Mr Bell was putting that difficulties with Mr Busch being the business head had emerged, consistently with his view from the outset that he was too young and inexperienced. He sought to conceal that he and Mr Busch had settled their differences about this and that PDFCI's concerns had also been allayed. PDFCI, however, also had concerns about Mr Bell's commitment to the joint venture, given his approach in seeking direct employment with it. Despite what Mr Bell had agreed with Mr Hall in June 1996, that he would stay in either Indonesia or Korea for 12 months to manage a joint venture, he was still not certain whether his financial interests would best be served by he remaining in Indonesia to manage the joint venture initially, or having someone else perform this work while he pursued further joint ventures. All of these matters put Mr Downe's views and Mr Bell's complaints about a joint management structure in Indonesia into context. I can find nothing in these matters to form a conclusion that Macquarie had breached any agreement reached with Mr Bell about his control of joint ventures when established.
213 Even if this claim was viewed as being more confined than the summons suggested on its face, namely to Mr Bell having control of the joint ventures in relation to Macquarie's participation in them, subject to the terms of the joint venture agreements, no different conclusion can result. Such control was not dealt with in the original plans. It was certainly envisaged that in the long term, a position would be created at Macquarie, responsible for all of the joint ventures which it was hoped would be established. Both Mr Hall and Mr Downe envisaged such a new position would eventually be required and had discussed their views with Mr Bell. Mr Bell certainly wanted that position. Mr Downe and Mr Hall also both envisaged that when sufficient joint ventures were established, in the order of three, this role would likely belong to Mr Bell. They had also both encouraged him to get management 'runs' on the board in working to establish at least one of the joint ventures, as Mr Downe had done in Malaysia, to cement his claim to this position, when created. That this became more necessary, given the approach made by PDFCI to Mr Moss, after Mr Bell had approached it direct for employment, seems entirely understandable. That PDFCI had a basis for concern as to Mr Bell's commitment to the joint venture, was, after all, later confirmed when Mr Bell resigned before the joint venture was even in place. It, in fact, then never eventuated.
214 Upon Mr Bell's resignation, the position was that there was only one joint venture which had been achieved and no need for the position which he coveted. It was premature. I can find no relevant unfairness in these matters.
215 There was also a complaint made about the selection and experience of staff engaged in the Malaysian and Indonesian joint ventures. I have already referred to Mr Bell's views about Mr Downe and Mr Busch. He had other concerns with other employees and their positions, some of which I've touched on. The evidence showed that those concerns were not pursued while Mr Bell was in employment, in the way in which he later sought to portray them in these proceedings, as involving a breach of the original arrangement between the parties. Mr Bell sought a variation of his contract, to enable him to select the senior staff who were to work in the joint ventures; the power to hire staff from outside the bank and the power to determine the role which such staff were to play in the joint venture. This claim also needs to be seen in the context of what Mr Bell negotiated in the joint ventures.
216 Both the Malaysian and Indonesian joint ventures did not give Macquarie the rights which Mr Bell was here seeking for himself. Mr Bell's own evidence was that Mr Ho, the AMMB representative on the Malaysian joint venture, for example, refused to agree to the employment of even Mr Berg in the joint venture, despite Mr Bell's personal approach to him. Mr Downe's approach on more than one occasion was similarly rejected. Having that evidence in mind, it is difficult to see how it could be concluded that Macquarie had the practical right to select and appoint employees to the joint venture, in the manner here claimed by Mr Bell for himself. I do not accept that Mr Berg would have been employed by AMMB had Macquarie forced the issue. The terms of the memorandum of understanding and the joint venture agreement itself confirmed that Macquarie did not have such rights. Likewise, the concerns apparently expressed by the Indonesian joint venture partner, PDFCI, both about Mr Busch's appointment as head of the Indonesian joint venture and later Mr Bell's own involvement in the joint venture, confirmed that the terms of the joint venture which Mr Bell was there negotiating did not grant Macquarie the rights which Mr Bell here asserted he should have had. The memorandum of understanding confirmed this.
217 Macquarie could not deliver the control of staff employed in the joint ventures sought by Mr Bell. On his own case Mr Bell was himself instrumental in negotiating the relevant joint venture documents. Given the terms of what he negotiated, the claim advanced in relation to appointment of staff is also one which neither fairness, nor common sense, could warrant being granted.
218 Nor can I conclude that Mr Bell was promised the rights he here asserted at the outset. Even if he was, this claim too ignores the developments with which the parties were confronted, as they had to deal with the failure of Mr Bell and Mr Berg to deliver the businesses envisaged in the early plans and to come to grips with the opportunities which they were able to exploit.
219 These conclusions also impact upon the claim made in the summons in relation to 'constructive dismissal', which turned upon Mr Bell's management participation being reduced substantially below the levels claimed in relation to the control and management of the joint ventures and the appointment of staff. It was argued that Macquarie's conduct in respect of such matters amounted to Mr Bell's constructive dismissal. Such a dismissal was the basis upon which the claims for payment on termination of 2 years remuneration, plus certain bonus payments and share options, depended.
220 The difficulty with the claim so advanced is obvious. Mr Bell, having resigned from his employment, complaining that the bank had breached existing terms of his contract in relation to these matters, then pursued a claim that the contract contained no such terms, but fairness required that the contract be varied to have them inserted. That claim was advanced after Mr Bell had negotiated terms of two joint ventures inconsistent with the claims advanced, immediately placing Macquarie, if the claims were granted, in a position where it would have constructively dismissed him.
221 So understood, the claim is unusual, to say the least and one which I would not be minded to grant, as a matter of justice between the parties. In any event, I am satisfied that on the evidence it is not open to conclude that Macquarie constructively dismissed Mr Bell.
222 There were also complaints made in relation to the technology and systems provided by Macquarie to the joint venture in Malaysia and a claim that the contract should be varied to require Macquarie to provide 'suitable risk management systems, computer systems and support'. Again these claims and complaints were problematic, having in mind the evidence.
223 There was no evidence that Macquarie failed to provide adequate resources of this kind. To the contrary, prior to the termination of Mr Bell's employment, there appears to have been no complaint that the resources provided either to Mr Bell, Mr Berg, or to the Malaysian joint venture was inadequate.
224 Indeed, one of the conversations which Mr Bell had recorded, but which was not referred to in his affidavit evidence, was held with Mr Ho. In that conversation Mr Bell informed Mr Ho that he was going to be speaking to Mr Moss and pressed him repeatedly to raise any difficulties which he wanted Mr Bell to take up with Mr Moss. Mr Ho had no complaints to make. This evidence hardly supported Mr Bell's complaints about the inadequacy of Macquarie's support of the Malaysian joint venture.
225 Mr Downe's evidence in relation to the technology provided to the Malaysian joint venture, was that Macquarie provided its Half Object Oriented Programming System ('HOOPS') and that considerable work was undertaken while the practical operation of the joint venture was set up, in order to integrate that system with AMMB's computer system.
226 The evidence was that one of the attractions of the joint venture to AMMB was the access which the joint venture gave it to Macquarie's system. There was a deal of evidence that in 1998, some months after Mr Bell's resignation, problems occurred with two transactions undertaken by the Malaysian joint venture, and that Mr Ho and Mr Jorgenson were the subject of criticism in relation to these transactions, which were "off the book" transactions.
227 There are obvious difficulties with banks conducting such transactions. There was, however, no evidence from which it could be concluded that these transactions had not been identified or addressed by the joint venture, or that it had placed in jeopardy either the Malaysian or Indonesian joint ventures. To the contrary, the audit systems in place appear to have drawn these transactions to the attention of the joint venture partners in Malaysia, who then addressed what had taken place.
228 The evidence suggested that transactions pursued outside any operating system, even a computerised one, in the first instance requires the involvement of people, who either inadvertently or deliberately do not comply with the system laid down. The evidence was not such as to permit any firm conclusions to be reached about who was responsible for any off the book transaction; whether it was a problem with the system, or resulted from people's failure to adhere to or use the system, either inadvertently or deliberately. Nor could it be concluded that any losses flowed to the joint venture as a result.
229 The evidence as to these events, such as it was, after Mr Bell had left his employment, cannot provide a sound basis for the relief here claimed.
230 Complaint and claims were made by Mr Bell about his bonus payments. They have to be understood in a context where Mr Bell was being paid AUD$300,000 per year. He had been paid a bonus of $138,000 in 1996, a year when no income had been generated by Macquarie as the result of his activities, despite significant expenditure, and at a time when no joint venture or other business had been established as a result of Mr Bell's efforts. He was paid a bonus of $257,000 in 1997, in respect of the Malaysian joint venture, then in operation, even though little profits were then being generated.
231 One of Mr Bell's complaints about the 1996 bonus was that it took no account of future profits, which would be generated by the Malaysian joint venture. At the time this bonus was paid, the Malaysian joint venture had not been entered and had yet to pay Macquarie any profits. On the evidence, Mr Bell, after establishing the joint venture, spent only 13 days in Malaysia thereafter, with Mr Downe living and working in Malaysia to do the work necessary to establish the practical operation of the venture. While Mr Bell was much involved in discussions with Mr Downe and others involved in the joint venture when Mr Downe first commenced that work, his involvement diminished over time, while he concentrated on pursuing other opportunities, especially in Indonesia. Mr Downe eventually was replaced by Mr Jorgenson.
232 In 1997, Mr Bell nevertheless received the biggest bonus of any employee involved in the Malaysian joint venture, including Mr Downe and the highest cross divisional bonus awarded by the Bank. There was no basis in this evidence upon which it could be concluded that these payments were unfair. Nor did the evidence establish that they were inconsistent with any promises made to Mr Bell by Mr Hall in relation to the way in which Macquarie operated its discretionary bonus scheme, or would do so in his case.
233 The claim as to bonus would also have the effect of altering, in part, the discretionary aspects of the scheme. The claim would require that Mr Bell be paid a bonus each year, once particular profits and returns to shareholders were achieved. It would, however, retain certain of the discretionary aspects, particularly as to the amount of the bonus to be paid to Mr Bell, both in relation to the performance of the Treasury and Commodities division of Macquarie as a whole and the Asian operation in particular.
234 The proposed variation to Mr Bell's contract would have the effect of requiring that a 'substantially higher bonus' be paid to Mr Bell from the Asian bonus pool, once returns on shareholders funds reached 'the Target Earnings Rate' for a particular year. One of the difficulties with this claim was that its meaning was unclear. Given the evidence as to other operations conducted by the Treasury and Commodities division in Asia, apart from those in which Mr Bell and Mr Berg were involved, it is difficult to understand why fairness would require that his bonus payments would be 'substantially higher', in the manner claimed.
235 The claim also sought a variation requiring Mr Bell to be appointed an executive director of the bank if certain profit levels were achieved. It is unnecessary to consider these claims. The earnings were never generated before he resigned.
236 I have reached the conclusion on the evidence that Mr Bell's employment came to an end, not because Macquarie had either repudiated his employment or constructively dismissed him, but because he was dissatisfied with his employment. He was at that point dissatisfied with both his level of control of his activities at Macquarie, the position to which he had been appointed and his level of remuneration. He had decided to explore his opportunities elsewhere. That was why he approached PDFCI, an approach which was unsuccessful and indeed backfired, given the approach which it then made to Mr Moss. This confirmed Mr Downe in his view that it was premature to consider creating a position responsible for managing all of the joint ventures which might be established and appointing Mr Bell to it.
237 The evidence demonstrated however that rather than seeking to bring about the termination of his employment, Mr Downe, then the head of the Treasury and Commodities division, remained an active supporter, seeking ways to help Mr Bell overcome this difficulty so that the Indonesian joint venture could proceed, other opportunities in Korea and elsewhere could be explored, and Mr Bell could later be appointed to the position he desired, once three joint ventures were established. Mr Downe was also frank with Mr Bell, as to the improvements he proposed to press for in the bank's bonus scheme, being conscious of Mr Bell's ongoing concern about his remuneration level. Mr Bell deliberately misled Mr Downe in these discussions, as to his own position. He also understood Mr Downe was supportive of his concerns about bonus payments, but he could not be satisfied. The evidence of Mr Bell's conduct up to the time of his resignation letter, including the taping of his conversations with Mr Downe, made entirely understandable Mr Downe's surprise when it was received, confirming that Mr Bell's resignation was not an outcome Macquarie ever sought. On the evidence Macquarie might well have taken a different view, had it been aware of Mr Bell's conduct in taping conversations with bank and AMMB staff. That conduct was plainly inappropriate in the circumstances. None of this evidence assisted Mr Bell's case.
238 Mr Bell had plainly not achieved the successes he envisaged in the business plans he and Mr Berg proposed in 1994 and 1995. He, nevertheless, retained Mr Downe and Macquarie's support, albeit with a view being taken that he had to demonstrate further success in establishing joint ventures, before the position he sought would eventuate. Given the circumstances at the time, this approach hardly appears to have been an unfair one. There was only one joint venture and Mr Bell was receiving high financial rewards, with the potential for further ongoing rewards. He left Macquarie alleging repudiation. The summons advanced in these proceedings confirmed that there had been none and the evidence established that there had been no constructive dismissal.
239 Nor did the evidence otherwise permit the conclusion that this contract was relevantly unfair, so as to warrant the relief claimed. Even if I were to come to a contrary view, the relief here claimed could not have been granted. Mr Bell claimed payment of notice of 2 years' salary, plus bonus, entirely ignoring an express agreement which he had reached with Mr Hall, that in the event that Macquarie wished to terminate his employment, if it no longer wished to pursue opportunities in Asia, through no fault of Mr Bell's, 12 months' salary would be paid to him. Given the circumstances in which this agreement was made, Mr Bell's position, the time during which the employment persisted and the circumstances in which it came to an end, I am unable to conclude that this aspect of the parties' arrangement was unfair, or that Mr Bell should be relieved from it, so as to be granted more generous terms as the result of the Court's order. In any event, Mr Bell resigned and was plainly not dismissed and thus no entitlement to any notice arose.
240 I deal finally with the claims made in relation to the retained bonus and the vesting of share options. These claims must be considered in light of the conclusions which I have reached, that it was Mr Bell who resigned from his employment, without giving Macquarie any notice. It was not Macquarie which brought this employment to an end.
241 I am not satisfied, on the evidence, that any relevant unfairness was demonstrated in either the bonus or share options scheme in circumstances of resignation. Mr Bell certainly did not address his claims as to the operation of these schemes, in circumstances of resignation. Macquarie opposed the claim being entertained on such a basis, given what was advanced in the summons and the basis upon which it was pursued, namely that there had been either a repudiation or a constructive dismissal.
242 Having in mind the grounds upon which the claims were advanced, I am satisfied that this is an objection which must be upheld. See the discussion in Burgess & Ors v Mt Thorley Operations Limited [2002] NSWIRComm 106 at [113] to [119], following the Full Court decisions in Bourke Air Charter v Easton (2001) 109 IR 443 and Vision Publishing Pty Ltd v PK Lane Holdings Pty Limited & Ors (1998) 84 IR 277.
243 As to the option claim, it was argued that Mr Hall had promoted it on this basis:
'One of the big benefits at Macquarie is the opportunity you'll have to participate in the options program we have for our executives. Mike, you'll get options on 50,000 shares coming in at a Division Director level, while Charles will be granted 20,000. And there are bigger benefits if you get promoted. (looking at Mike) When you reach the Executive level, you'll be granted at least another 100,000 options. (looking at me) You'll get another 50,000 (looking at me) if Mike gets you promoted to Divisional Director. We like to think of our employees' option program as one of the bigger incentives for someone like yourselves to joint the bank. It's as good as anything you'll find among the Australian banks.'