60 In those circumstances, I cannot find that a decision to terminate the agency was made during 1993. Probably it does not matter precisely when it was made in 1994, but the evidence strongly suggests that it was made very shortly before it was implemented.
61 Secondly, Mr Reches appeared to accept plainly, in cross-examination, that once the initial term of the agency agreement expired it might, in the absence of a written extension, be terminated by either party, so that he regarded it as important to obtain a formal extension. That evidence, however, was qualified to the extent that Mr Reches said also that he was not concerned about the situation, being "sure and happy with the relationship". He then, however, gave the following evidence in relation to the position after the end of 1993:
"You had [no] reason to understand that your agency agreement had been extended beyond the end of 1993? - I believed it has been extended.
You had no reason to believe that, did you? - I had all the reasons to believe it because things were going regularly, nothing changed.
Nobody ever told you that the agreement had been extended beyond the end of 1993? - That's true.
The only thing that had happened was that nobody had actually communicated that the agreement was going to come to an end? - That's true.
It just carried on as before, that's right, isn't it? - Yes.
And that meant that once it got [past] the end of December 1993 you understood that either of the parties to it could bring it to an end? - Yes."
62 That contrasts with Mr Reches' affidavit evidence, which was to the effect that he believed that the agreement had been extended for each of the years 1993 and 1994 and also that, because of the representations which he alleged had been made by Mr Shulman, he believed that the agreement would continue for a substantial period into the future. It was submitted on behalf of Reches that the cross-examination stopped short of the essential question and dealt in subjunctives rather than indicatives. I am not sure that I understand that, unless the suggestion was that the real issue was not whether Tadiran could terminate the agreement but whether it would do so (or had indicated that, though it could, it would not). There is, nevertheless, an obvious inconsistency between evidence of a belief that the agreement had been extended to the end of 1994 and the exchange which I have quoted.
63 Thirdly, however, and most importantly, once the alleged representations of August 1992 are removed from the picture, and it is accepted also that there is no basis for a finding that Tadiran had already decided, during 1993, that the agency should come to an end, it is not easy to see what it is in the conduct of Tadiran that amounts to misleading or deceptive conduct or gives rise to a Waltons v Maher estoppel. The starting point is, I think, necessarily the contract. Both parties accept that throughout 1993 and until at least 7 April 1994 there was a contract between them the terms of which were the same as those of the agency agreement as it had been in force up to 31 December 1992, with the exceptions I have mentioned. Tadiran submits that the contract was terminable on reasonable notice. Reches submits that there should be inferred from the actions of the parties an agreement that the contract was to continue from year to year: that is, presumably, it could be terminated (otherwise than for cause) only by notice of some duration, taking effect at the end of a calendar year.
64 Reches relied on "custom". But the initial term (August 1990 to 31 December 1991) had been extended once only, for one year. The agreement did not specify any particular period for which it might be extended, but left the matter open. And the evidence was that Tadiran's practice was to grant agencies for short periods only: one year or, at the most, two years. I do not think that there is evidence of a custom or practice between the parties which supports an inference that it was agreed between them that the agreement would, in the absence of notice to the contrary, be "rolled over" from year to year. The more natural inference is, it seems to me, that from 31 December 1992 the agreement was one of indefinite duration, terminable on reasonable notice: the contract is, I think, analogous to the continuing agency contracts of indefinite duration referred to in Chitty on Contracts, 25th ed 1983, par 2316.
65 The question then becomes, in my view, whether any conduct of Tadiran during the relevant period was misleading or deceptive, in the sense that it conveyed a representation or suggestion that Tadiran would refrain, for any particular period, from exercising its contractual right to terminate the agency. Certainly, the concluding paragraph of Mr Fleishman's letter of 29 November 1993 might be taken as a clear suggestion that Tadiran would take no action before the end of January 1994. But in my view it goes no further than that. Apart from matters on which I have already made findings, the evidence discloses no other conduct which is appropriately characterised in that way.
66 There are two final matters. One relates to the question whether Reches should be taken to have accepted the scale of commissions proposed in Mr Fleishman's letter of 29 November 1993. The other relates to the question of reasonable notice. As to the former, I have mentioned Mr Reches' evidence on the subject. I think the proper conclusion on the evidence, particularly having regard to Mr Reches' letter of 8 March 1994 to Admiral Rafael, is that Reches did accept the proposed scale, albeit reluctantly. Additionally, Reches' contention that the agreement was amended on 29 November 1993, so that monthly advances were not to be deducted from future commissions, is hardly consistent with a proposition that the scale of commissions was not accepted: plainly Mr Fleishman was not making two separate offers to Reches, either of which might be accepted independently of the other. There was one offer: either it was accepted, or it was not. What was put on behalf of Reches is consistent only with the proposition that it was indeed accepted. In any event, the statement of claim asserts that Reches did indeed accept the scale of commissions but would not have done so but for the conduct of Tadiran of which it complains, including (but not exclusively) what Mr Shulman was alleged to have said in August 1992. But, given my finding that it has not been established that Tadiran has infringed s 52 of the Trade Practices Act or by its conduct given rise to an estoppel against it, the position that remains is simply that from 29 November 1993, or shortly thereafter, the contract between the parties incorporated the terms set out in Mr Fleishman's letter.
67 Tadiran by its defence alleged, correctly as I have found, that after 31 December 1992 the agency agreement was terminable by either party upon the giving of reasonable notice to the other. Tadiran also claims that by oral notice given to Mr Reches on 7 April 1994, Tadiran gave notice of termination of the agency agreement, taking effect on 12 June 1994; and Tadiran denies the allegation that it repudiated the agreement. Reches submitted that, if the agreement were terminable on reasonable notice, reasonable notice had not been given. In the absence of a reply to Tadiran's defence, Tadiran submitted that it was not open to Reches to contest the reasonableness of the notice given. Reches submitted that, once the defence had been filed, the parties were at issue, including on the question of reasonable notice, and no reply was necessary. The argument on this matter did not go beyond those competing assertions: particularly, there was no argument about what, in the circumstances, reasonable notice would have been. For reasons which are already apparent, the evidence does not establish that what was said on 7 April amounted to the giving of notice of termination, effective on 12 June. That proposition appeared for the first time in the somewhat delayed, and allegedly confirmatory, letter from Admiral Rafael. Because of the very limited attention given in argument to this aspect of the matter, I should perhaps say no more than this: it may be that what was said by Admiral Rafael on 7 April 1994 amounted to a repudiation of the agreement; if the later letter were to be treated as notice, notice of slightly more than three weeks is hardly likely to be thought reasonable; but whatever might be the boundaries of reasonable notice in the circumstances, it is hardly likely that a notice expiring on 31 December 1994 would not be reasonable (and Reches accepted in argument that such a notice would be reasonable). If notice had been given expiring on 31 December 1994, then commission would have been payable, at the rates set out in Mr Fleishman's letter of 29 November 1993, on deliveries made on or before 31 December 1995 in respect of sales made no later than ninety days after 31 December 1994. Unless I misunderstand the pleadings and the evidence about the commissions which have been paid to Reches, Tadiran has paid to Reches at least the amount of commissions which it would have been obliged to pay had the agreement been terminated with effect from 31 December 1994. If that is right, it may well be that any damages recoverable, if Tadiran repudiated the contract, are nominal only.