Robilliard v MultiScreen Pty Ltd ACN 145360372

Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Cases Cited: Colyer Fehr Tallow Pty Ltd v KNZ Australia Pty Ltd [2011] NSWSC 457
Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438
Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2018] NSWSC 1273
IOOF Building Society Pty Ltd v Foxden Pty Ltd (2009) 23 VR 536
Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others [2022] HCA 39

Category: Principal judgment

Parties: Stuart Robilliard (First Plaintiff)
Katrina Anne Robilliard (Second Plaintiff)
MultiScreen Pty Ltd ACN 145360372 (First Defendant)
Christopher Leong (Second Defendant)

Representation: Counsel:
J Darvall (Plaintiffs)
P Bindon (Defendants)
Solicitors:
Finn Roache Lawyers (Plaintiffs)
Sparke Helmore Lawyers (Defendants)

File Number(s): 2024/99482

Publication restriction: Nil

JUDGMENT

1. The plaintiffs, Mr Stuart Robilliard (who is also known as “Will”) and Ms Katrina Robilliard, are husband and wife.

2. In their amended statement of claim, filed on 10 September 2024, the plaintiffs claim that they were parties to a contract with the first defendant, MultiScreen Pty Ltd, and that Mr Christopher Leong, the second defendant, was a director of MultiScreen Pty Ltd and “the controlling mind” of that company.

3. It was alleged that an oral contract was made in about December 1998 between MS Billboard Pty Ltd (‘MS Billboard’) and the plaintiffs. MS Billboard Pty Ltd then went through a number of name changes until, on 22 July 2010, the first defendant was incorporated, and, it is alleged:

…the Second Defendant notified the Plaintiffs that the Distributor Agreement had, subject to the Plaintiffs continuing to provide their services under the said Agreement, been novated to the First Defendant…

4. Under the oral contract, the plaintiffs undertook to be the selling Agent for the first defendant in New South Wales (apart from Broken Hill), and the Australian Capital Territory, in exchange for remuneration. The plaintiffs traded under the name “Willsport”. It is unclear on the evidence whether Willsport was, at all relevant times, a registered business name. It is not a party. On the evidence, it is clear that Mr Robilliard was the person who dealt with the defendants and acquitted the obligations under the oral contract.

5. It is alleged that the oral contract was varied in mid - 2012.

6. It is alleged that, by letter of 4 July 2023, the first defendant “purported to terminate” the agreement from 31 July 2023 and also “purported to terminate” the payment of all “ongoing and further Advantage Commission with immediate effect”.

7. The plaintiffs claim that the purported termination was a wrongful repudiation of the agreement, which “the Plaintiff” has accepted, so that the contract came to an end.

8. The plaintiffs claim loss and damages, being damages in lieu of notice and “Trailing Advantage Commissions accrued but unpaid”.

9. The plaintiffs further allege that, by the provision to the plaintiffs of the letter terminating the agreement, the first defendant engaged in misleading and deceptive conduct in contravention of s18 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (‘Australian Consumer Law’) and that the second defendant aided and abetted that conduct.

10. The plaintiffs plead that the conduct of the first defendant in purporting to terminate the agreement was unconscionable conduct contrary to s 20 of the Australian Consumer Law and that the second defendant was “knowingly concerned in that contravention”.

11. The plaintiffs claim damages under the Australian Consumer Law, together with interest and costs.

12. The defendant denies the plaintiffs’ claims.

13. The plaintiffs relied upon evidence from Mr Robilliard (affidavits of 10 October 2024 and 28 November 2024 and oral evidence) and Mr Jonathon Urquart (affidavit of 21 July 2025) and the defendant relied upon evidence from Mr Christopher Leong, the sole director and secretary of MultiScreen (affidavit of 8 November 2024 and oral evidence).

14. The plaintiffs bear the onus of proof in relation to the elements of their claim, and the standard of proof is proof on the balance of probabilities.

The agreement

The initial agreement

15. Mr Robilliard’s evidence was that, in 1997, he became a contractor to Mr John Urquhart, who was then a distributor for MS Billboard, which sold an in-house messaging and entertainment system for clubs, hotels and business premises.

16. In 1998, Mr Leong was a director of MS Billboard. Mr Robilliard and Mr Leong had a meeting in December 1998 at a casino in Sydney. It was Mr Robilliard’s understanding of the outcome of their negotiations that he agreed to pay $59,000 to MS Billboard for “the sole right to distribute MS Billboard products in the ACT and NSW but excluding Broken Hill”. The $59,000 was taken out of Mr Robilliard’s commission by instalments for approximately twenty-eight months. Mr Robilliard says that it was his understanding that “there was no time limit on the right to distribute. I understood that it would continue until I decided otherwise” (October 2024 affidavit). Mr Robilliard says that his commission was usually 30% to 40% of the sale price of the product, depending upon what was sold.

17. On 30 May 2002, MS Billboard changed its name to Multiscreen Communicator Pty Ltd. On 6 August 2003, the name was further changed to Multiscreen Channel Pty Ltd (‘Multiscreen Channel’).

18. Multiscreen Channel was placed into voluntary administration on 2 July 2010. It was deregistered on 18 February 2013.

19. In July 2010, Multiscreen Channel’s assets were publicly advertised by the Administrator for sale by tender. Mr Leong submitted an expression of interest in purchasing the assets, and was successful.

20. Mr Robilliard ceased working for Multiscreen Channel when it was placed into administration on 2 July 2010. He began working for MultiScreen, a new company registered on 22 July 2010, in about September 2010. Mr Leong was a director and the secretary of MultiScreen from its inception. Mr Leong became the sole director of MultiScreen on 29 September 2022.

21. Mr Robilliard did the same work for MultiScreen as he had done for Multiscreen Channel. Mr Robilliard’s evidence was that there were no changes to the products being sold, but that his commission was now 33% to 40% of the sale price, depending upon what was sold. He said that he invoiced MultiScreen for his commissions and was paid.

22. Mr Robilliard says, in his affidavit of 10 October 2024, that he attended a meeting in Adelaide “shortly after the new company MultiScreen commenced trading”. He says that Mr Leong was present, with sales agents from Adelaide, Brisbane and Melbourne. He says that Mr Leong said, at the meeting:

Paul Ellery has left. I am the sole director of MultiScreen. I want you all to continue on in your previous roles as though nothing has changed. The terms of your agencies are the same, but you report to me.

23. Mr Leong says, in his affidavit, that the distributor agreements, “including that with Willsport” were “oral agreements in which the distributors would be given a price list of products with suggested prices to sell within their territory. Once sold, MultiScreen would invoice the end-user, deduct the price of the products supplied from the monies received, and remit the difference as commission to the distributors”.

24. Two letters from Willsport formed part of CL1. The first was dated 28 July 2010 and was to the administrator of Multiscreen Channel. It said:

Dear Anthony

I am writing to confirm that any and all distribution arrangements that existed between Willsport and Multiscreen Channel Pty Ltd (in Administration) ceased at the time of your appointment as Administrator and did not form part of the sales process recently undertaken by you.

I would appreciate your written confirmation of this position.

Yours faithfully

Stuart (Will) Robilliard

The second letter was dated 29 July 2010 and was to Mr Leong. It said:

Dear Chris

You have advised that you have recently purchased certain assets from the Administrator of Multiscreen Channel Pty Ltd.

I am writing to confirm that your recent purchase did not involve the transfer of distribution arrangements between Willsport and Multiscreen Channel Pty Ltd, which ceased on the appointment of the Administrator.

In the event you wish to discuss this issue I am contactable on [phone number].

Yours faithfully

Stuart (Will) Robilliard

25. In cross-examination, Mr Robilliard acknowledged that he had sent the letters.

26. The meeting with Mr Leong occurred after the letter set out in [24] above was sent.

27. Mr Robilliard agreed, in cross-examination, that it was up to the distributor to strike a price with the purchaser. MultiScreen provided a recommended selling price, but the distributor was free to depart from it. When a customer paid for what they had bought, MultiScreen deducted the recommended selling price from the price paid, and the balance was paid to the distributor as commission.

The variation to the agreement in mid 2012

28. In 2012, MultiScreen introduced the Advantage Program (‘AP’) as a product to be sold by its distributors.

29. Mr James Atkins, the National Sales Manager of MultiScreen, sent an email on behalf of Multiscreen to some of the distributors, including Mr Robilliard, on 25 July 2012, enclosing a three page document, signed by him, explaining the AP and “how the trailing commission is going to work” (‘the AP document’).

30. The AP document sets out three objectives for the introduction of the AP:

1. To help better service the individual industries that MultiScreen supply to and improve the display content of our clients, with high quality graphics which helps clients gain the most out of the investment they have made. The AP has also seen MultiScreen take much more of a proactive approach to client needs and allow for real time servicing and troubleshooting.

2. To allow MultiScreen to have continual monthly income whilst not having to rely solely on new sales as was the case under the old company.

3. To reward distributors with an on-going monthly income which is expected to rise each year, and also allow distributors the time to call in on clients and or service them more frequently without the attitude of “there is nothing in that for me”.

31. The AP document says, among other things:

Distributors Role

To sell the features and benefits of the AP at the point of sale.

It is compulsory unless otherwise agreed by James Atkins or Chris Leong to include a minimum of 6 months on the AP at the point of sale at a cost of $120 ex GST per month. As a result of the distributor selling the initial minimum 6 months up front they will be paid a commission of 30% to be included in there [sic] invoice for the sale. Because this client was signed up to the AP by the distributor they will then be entitled to receive trailing commission for this client if all other criteria has been achieved.

Trailing AP payments to distributors and eligibility

A distributor will be paid trailing commissions on monthly AP members once they start to be a paying client and have meet the MultiScreen criteria. Obviously the first 6 months after sign up you have already been paid for up front. To be eligible to receive trailing commissions on the AP a distributor must first meet the MultiScreen Standard.

MultiScreen Standard

- Complete an initial 12 month period

- Show a reasonable level of sales

- Demonstrate a high level of work ethic

- Clearly show a high level of sales activity in your designated territory

- Show that you are prepared to service existing clients

- Achieve a minimum level of reporting to head office (at least once per month)

After meeting the above standard you will then be eligible to receive AP trailing commission. In line with what is stated above you will be paid commissions 12 months in arrears on clients that you have sold or serviced in your time with MultiScreen.

…

Payment of AP trailing commissions

Once all of the above criteria has been meet [sic] you will receive an email at the end of each month from Diane Pemberton as to the Monthly 12 months in arrear AP commission you are to invoice for. This amount will change from month to month depending on weather [sic] clients paid on time and wether [sic] more clients started paying or some dropped off.

…

The Premier system

32. It was the evidence of Mr Leong that, since 2018, MultiScreen has prioritised the selling of a new product called the Premier System.

33. The Premier system is much smaller than the PRO system that was sold by the distributors. It works on a weekly subscription model of $60 per week.

34. The Premier system is sold on-line and there is no need for distributors to sell the product. Its popularity increased during the pandemic.

35. MultiScreen progressively terminated its distribution agreements with all of its distributors from September 2018. From August 2020, Mr Robilliard was the sole remaining distributor of the PRO system.

Mr Robilliard’s health

36. Mr Robilliard was diagnosed with a serious illness in January 2023. In June 2023 he was hospitalised and underwent a course of several gruelling treatments. He was unable to work for three weeks in June 2023, but has since largely recovered.

37. MultiScreen was informed of Mr Robilliard’s diagnosis and treatment.

The letter of 4 July 2023

38. Mr Leong and Mr Robilliard had a telephone conversation on 3 July 2023.

39. On 4 July 2023, Mr Robilliard received a letter from MultiScreen, signed by Mr Leong, which referred to the telephone conversation and said, in part:

As I advised to you and all staff in my email a few weeks ago, I have to drastically cut expenditures because of the drop in income. In addition, the level of PRO sales has now reduced to such a low level that the PRO as a product has reached a point whereby it is not economical to produce, stock, carry, market, promote and support. Looking at the results of PRO sales in recent months and the future projection it is not looking good.

It is with great sadness that I informed you during the conversation that I have decided to stop PRO production, which leads to the logical need to terminate your distributorship.

The finalisation process:

- The termination is to take effect by the end of this month, 31 July 2023.

- In regard to the clients that you are currently working on, please within 7 days of termination , provide a list of those clients and forward your latest correspondence with them to me.

- MultiScreen will accept any orders from your list if the sales are finalized within 30 days of the termination, by 31 August 2023.

- Please do not contact or communicate with any of these clients without my prior permission following termination.

- As per the email to you dated 25 July 2012, the monthly Advantage Program commission will be terminated as of 31 August 2023.

- Please inform us when all MultiScreen’s equipment, materials and property is boxed up so that we can arrange for collection and return to MultiScreen by 31 August 2023.

I am sorry that our years of relationship didn’t end on a high note. However, the journey has a lot of highs that are very memorable and very much appreciated.

…

Consideration

Was the letter of 4 July 2023 an effective termination of the agreement, as varied.

40. The parties agreed that it was an implied term of the oral contract entered into in 2010 between MultiScreen and Mr Robilliard that the agreement could be terminated on reasonable notice by either party.

41. The plaintiff argued that the notice period given in the letter of 4 July 2023 was not reasonable notice. The plaintiff said that the notice given was the period from 4 July 2023 until 31 July 2023, being 27 days. The defendants submitted that the notice period was, in fact, 57 days on account of the indication that orders from Mr Robilliard’s list finalised by 31 August 2023 would be accepted by MultiScreen and the monthly AP commission would be paid up to 31 August 2023, so that the termination date, in reality, was 31 August 2023.

42. In Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 (‘Crawford’) McHugh JA, with whom Priestly J agreed, said, in relation to deciding what constitutes reasonable notice of the termination of a contract by way of an implied term at p 445 - 446:

In Australian Blue Metal Ltd v Hughes, the parties entered into a written agreement which gave the right to mine for magnesite in return for a royalty. The Judicial Committee held that the agreement was terminable at will with a period of grace to remove any mineral already mined. However, Lord Devlin, in tendering the advice of the Judicial Committee, said that it would not have made any difference to the result of the appeal if the agreement was terminable only on reasonable notice. He said (at 99):

… The implication of reasonable notice is intended to serve only the common purpose of the parties. Whether there need be any notice at all, and, if so, the common purpose for which it is required, are matters to be determined as at the date of the contract; the reasonable time for the fulfilment of the purpose is a matter to be determined as at the date of the notice. The common purpose is frequently derived from the desire that both parties may be expected to have to cushion themselves against sudden change, giving themselves time to make alternative arrangements of a sort similar to those which are being terminated.

Lord Devlin said that there was no evidence from which it could be inferred that a factor operating in the minds of the parties at the time when the contract was made was that it should not be terminated abruptly just when their operations were “moving out of an unprofitable phase into a profitable one”. He also said that there was insufficient evidence of any heavy initial expenditure which could only be recouped in time. Accordingly, Lord Devlin said (at 99) that the Judicial Committee could not “infer as the common purpose of any requirement of reasonable notice anything more than the ordinary purpose — time on the one hand for the appellants to deploy their labour and equipment profitably elsewhere and, on the other hand, for the respondents to find another licensee”.

…

Although the Judicial Committee's references to the common purpose being in existence at the time of the contract and to the lack of evidence of any heavy initial expenditure are consistent with the appellant's contentions in this case, they do not really assist it. The notice in Australian Blue Metal Ltd v Hughes was given within ten weeks of entering into the agreement. The reference to initial heavy expenditure, therefore, does not have the significance which in another context it might have had. Moreover, the common purposes, which give rise to a requirement of reasonable notice, are not necessarily the same for a distributorship agreement, for example, as they are for the type of agreement considered in Australian Blue Metal Ltd v Hughes.

It will often be a common purpose of a distributorship agreement that the relationship of the parties will continue for long enough after the giving of a notice of termination to enable the distributor to recoup any extraordinary expenditure or effort. Otherwise a distributor would have no incentive to make or outlay additional effort or expenditure for the mutual benefit of the parties. Inability to reap the benefits of ordinary expenditure or effort incurred during the course of the agreement may be regarded as a business risk which a distributor takes when he enters into an agreement terminable at any time. If the nature of the business produces a lapse of time between effort or expenditure and earning, a certain amount of such effort or expenditure will go unrewarded whatever period of notice is given. But extraordinary effort or expenditure by the distributor incurred with the actual or tacit authority of his principal is in a different category. An appropriate period of notice can give the distributor the opportunity to exploit any extraordinary effort or expenditure. In principle, therefore, it is difficult to see why extraordinary effort and expenditure is not relevant to the reasonableness of the notice period even though the agreement has been in existence for more than a reasonable period.

43. McHugh JA said, at 448:

If, during the contract, a party, acting within the scope of the agreement, engages in extraordinary expenditure or effort, that factor must be taken into account in determining the reasonableness of any notice given. The weight to be given to the factor will vary from case to case and the particular circumstances. In so far as W K Witt (WA) Pty Ltd v Metters Ltd suggests the contrary, in my opinion it is erroneous. On the other hand, recurrent expenditure or effort not being of an extraordinary nature would not seem relevant to the reasonableness of the notice period. The expenditure of money or effort is simply part of the ordinary cost of doing business. Once the business has existed for a reasonable period, the inability to profit from such work or expenditure is part of the business risk the agent or distributor takes in entering into an agreement which is terminable at any time. Further, the prospect of obtaining profits in the future is not a relevant factor to be taken into account except so far as it is consequential upon the incurring of extraordinary expenditure or effort within the scope of the agreement.

The chief purpose of a notice for a reasonable period, therefore, is to enable the parties to bring to an end in an orderly way a relationship which, ex hypothesi, has existed for a reasonable period so that they will have a reasonable opportunity to enter into alternative arrangements and to wind up matters which arise out of their relationship. Matters to be wound up will include carrying out existing commitments, bringing current negotiations to fruition, and, where appropriate, obtaining the fruits of any extraordinary expenditure or effort carried out within the scope of the agreement.

Further, at 450 - 451:

Whenever a notice was given, the giving of the notice would prevent the distributors from obtaining consequential income from their efforts.

…

First, the common purpose which the period of notice serves is that of both parties. It was not a common purpose of the parties that the distributors should conduct the business for their own immediate interest over a period of (say) two years to the long term detriment of Crawford. Secondly, the distributors had an implied obligation to use their best endeavours to give Crawford and its associated companies the benefit of their agreement*: Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd* (1979) 144 CLR 596 at 607. It was common ground that the overall interests of the distributors and Crawford were best served by getting Crawford products into specifications for new construction and other long term projects where the customers would become locked in and be a ready source of repeat business.

…

It would have been a breach of the best endeavours obligation for the distributors to deal only in maintenance or one-off business while neglecting future business opportunities for the distributorship. Thirdly, as I have already said, the purpose of a period of reasonable notice is not to enable the recipient to earn further income except in so far as it is necessary to enable him to recoup any extraordinary effort and expenditure incurred in operating the business.

44. In C**olyer Fehr Tallow Pty Ltd v KNZ Australia Pty Ltd [2011] NSWSC 457, Ball J said, at [66]:

… the task is to determine whether, having regard to the purpose of a notice provision, it is necessary to imply an obligation to give reasonable notice of termination in this case and, if so, to determine the length of that notice. The issue of whether a term should be implied is normally said to be determined by the circumstances existing at the date of the contract: Crawford (1988) 14 NSWLR 438 at 444. That is unquestionably correct where the contract is in writing, as in Crawford . In other cases, it is perhaps more accurate to say that the issue is to be determined in accordance with the principles generally applicable to the implication of terms based on the implied or presumed intention of the parties: see above para [51]. The latter issue (the length of time that is reasonable) depends upon the circumstances existing when the notice is given: Crawford at 444.

45. The question of what constitutes reasonable notice at the time that the notice is given is a question of fact which is highly dependent upon the circumstances of the case (Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2018] NSWSC 1273 per Bell J at [116], IOOF Building Society Pty Ltd v Foxden Pty Ltd (2009) 23 VR 536 at [75]).

46. Although the letter of 4 July 2023 said that the termination of the distributorship was to take effect “by the end of this month, 31 July 2023”, orders were to be accepted until 31 August 2023 and “the monthly AP commission” was to be paid until 31 August 2023. Mr Robilliard was asked, in the letter, to stop interacting with clients after 31 July 2023, but it was contemplated that he would continue to process orders from prior negotiations and provide them to MultiScreen until 31 August 2023. In these circumstances, having regard to the nature of the contract, I find that the true termination date was 31 August 2023. The notice period was therefore eight weeks and one day.

47. It is clear from the decision in Crawford that a notice period should be long enough to enable the distributor to recoup any extraordinary expenditure or effort. I bear in mind that the contract between MultiScreen and Mr Robilliard came into existence in September 2010, so Mr Robilliard was a distributor for MultiScreen for nearly 13 years. I acknowledge that Mr Robilliard was a distributor for the companies which preceded MultiScreen in the sale of the in-house messaging and entertainment systems sold by MultiScreen from 1998. Although Mr Robilliard paid $59,000 to MS Billboard at the beginning of his contract with MS Billboard, this has no impact on his commercial relationship with MultiScreen, which began twelve years later. There is no evidence that Mr Robilliard expended any extraordinary expenditure, in the sense in which that term is used in Crawford, in pursuance of his obligations under the contract with MultiScreen. Doubtless Mr Robilliard paid the expenses necessary to meet his obligations as a distributor, but that is a normal part of a contract of this kind. It is common ground that Mr Robilliard was a valued, capable and successful distributor throughout the term of the contract. He worked at trade fairs and arranged for training to be given to his clients from time to time. His sales figures were consistently good. He was not, however, on the evidence before me, required to exercise extraordinary effort, in the sense in which that term is used in Crawford.

48. The context in which the contract was terminated was the decision by MultiScreen to stop selling the PRO system. This decision was taken because the PRO system was being superseded by the Premier system, which is sold on-line and does not require the involvement of distributors.

49. In Crawford, McHugh JA says that the chief purpose of a reasonable notice period is to enable the parties to bring to an end, in an orderly way, their relationship so that they have a reasonable opportunity to enter into alternative arrangements and wind up matters which arise out of their relationship. This includes carrying out existing commitments.

50. The only unresolved issue with respect to the winding up of matters arising from the parties’ relationship is the issue of the AP commission. The question is whether the period of notice allowed the carrying out of existing commitments. Mr Robilliard argued that he was entitled to more, by way of AP commission, than the termination letter provided to be paid out to him by 31 August 2023. Mr Robilliard claims that when the contract ended, he had an entitlement to $53,189.00 in AP commission, with the first payment due on 31 July 2023, calculated at the rate of $4,432.00 (ex GST) per month for one year.

51. The plaintiffs argued that the contract provided for six months’ notice of termination. It was asserted that this was an implied term, there being no evidence of an express term to that effect. The argument was put on the basis that it was Mr Robilliard’s impression that Multiscreen stocked six months supply of componentry to satisfy orders. The nexus between the stocking levels of MultiScreen and the notice of termination of the distributors was not established. I reject the argument that the contract included an implied term providing for six months’ notice of termination.

Are the plaintiffs entitled to AP commission after 31 August 2023

52. The question of whether Mr Robilliard is entitled to AP commission after 31 August 2023 depends upon the interpretation of the email of 25 July 2012, set out, in part, at [30] – [31], above.

53. Customers who had purchased a PRO system were given six months membership to the AP as part of the initial purchase price of the system. The distributor received 30% of the price of that AP membership as a component of the commission for the sale of the PRO system. If the customer elected to continue as an AP member after the first six months, they were charged, on a monthly basis, for the AP membership for so long as they chose to maintain it. Multiscreen received those monthly payments. MultiScreen paid the distributor the AP Commission, which was 30% of the monthly fee, twelve months in arrears. At the end of each financial year, MultiScreen would aggregate the monthly fees paid to it by each distributor’s clients for membership of the AP during the previous financial year, calculate 30% of that aggregate figure and divide the figure arrived at by twelve. MultiScreen would then inform the distributor of what monthly figure they could expect to be paid in the new financial year by way of AP commission earned in the financial year just passed (T 5 August 2025 p 67-71).

54. MultiScreen argued, in effect, that a distributor whose contract had ended would be unable to meet the “MultiScreen Standard” set out in the email of 25 July 2012 and that meeting the “MultiScreen Standard” each month was a pre-requisite to the distributor being paid the monthly instalment of the AP commission even though the AP membership fees upon which the AP commission was based had already been paid to MultiScreen at least one year earlier.

55. The plaintiffs argued, in effect, that the contract, as amended by the email of 25 July 2012, required the distributor to meet the MultiScreen Standard at the beginning of the distributor’s participation in the AP commission scheme. Once the distributor had met the MultiScreen Standard, they were entitled to be paid AP commissions in relation to PRO systems they had sold with AP membership where the client had elected to continue the AP membership and was paying monthly membership fees.

56. The email of 25 July 2012 states the three objectives of the AP (see [30], above). Objective one included the better ongoing servicing of the clients by distributors. Objective three included rewarding distributors with a monthly income and, in effect, giving distributors a financial incentive to “call in on clients” and to “service them more frequently” without resentment.

57. The rights and liabilities of parties to a contract, whether oral or written, are determined objectively. The meaning of a commercial contract is to be ascertained by reference to what reasonable persons engaged in the respective businesses of the parties would have understood the words and conduct of the parties to mean (see Realestate.com.au Pty Ltd v Hardingham and Others*; RP Data Pty Ltd v Hardingham and Others* [2022] HCA 39 per Gordon J at [43] - [44]).

58. At the end of each financial year, MultiScreen knows what it has received by way of monthly AP membership payments for the previous financial year. MultiScreen notionally attributes the commission on those payments to the distributor who sold the client the PRO system with the six month AP membership which has yielded, six months post-purchase, the monthly AP membership fees which have been received. By the end of the financial year, MultiScreen knows that the distributor has serviced the client well enough to induce the client to start paying a monthly fee six months after that client purchased the PRO system with the AP membership for the first six months included in the price.

59. At the end of the 2022-2023 financial year, Mr Robilliard had accrued an entitlement to be paid, over the next twelve months, the AP commission he had earned in the 2022-2023 financial year. The commissions forming the basis for that entitlement were the AP membership fees from Mr Robilliard’s clients which had already been received by MultiScreen during the 2022-2023 financial year. The clear understanding between the parties, established by long practice, was that the AP commission, being 30% of the AP membership fees paid by Mr Robilliard’s clients during the previous financial year, would be paid to Mr Robilliard over the twelve months following the payment of the AP membership fees by his clients, in twelve equal tranches. MultiScreen could ensure that the “MultiScreen Standard” had been met by Mr Robilliard in relation to the earning of that AP commission, because the clients had stayed with the AP program and paid fees during the 2022 – 2023 financial year. I note that there is no evidence suggesting that Mr Robilliard fell short of the “MultiScreen Standard” during the 2022 – 2023 financial year or at any other time.

60. A reasonable person, engaged in the vending or distributing of equipment subject to the contractual terms in the email of 25 July 2012, and with knowledge of the accounting system MultiScreen had adopted to implement it over a ten year period, would understand those terms to vest an entitlement to an AP commission, based on AP membership fees paid by the relevant clients during the financial year, in the distributor at the end of that financial year to be paid monthly in equal instalments over the next financial year. The contract is to be interpreted accordingly.

61. The termination letter of 4 July 2023 provided for the payment to Mr Robilliard of two months AP commission in 2023, on 31 July 2023 and 31 August 2023. Mr Robilliard was entitled, under his contract with MultiScreen, to the two months’ worth of AP commissions provided for and to ten further instalments of commission. The monthly instalments of AP commission for the 2023 – 2024 financial year for Mr Robilliard were $4,432.00.

62. The fifty-seven days’ notice of termination that Mr Robilliard was given was not adequate to enable the winding up of the commercial relationship between the parties, in that it did not provide for arrangements to be made for the payment of the AP commissions to which Mr Robilliard was entitled. Mr Robilliard was entitled to be paid a further $44,320.00 by way of AP commission in addition to the two months of AP commission instalments contemplated by the termination letter. The failure to pay the AP commission to Mr Robilliard was, itself, a breach of contract.

Conclusion concerning the allegation of breach of contract

63. The notice period was not adequate and did not take account of the total entitlement to AP commission. Mr Robilliard should have been given an opportunity to discuss the terms of the termination with MultiScreen and was not given that opportunity. This could possibly have been achieved within as few as two additional weeks’ notice. Assessed at the time of the giving of the notice of termination, a reasonable notice period would have been in the order of ten weeks. The notice period given was not reasonable, and was a breach of contract amounting to a repudiation. The contract between the parties was terminated by Mr Robilliard’s acceptance of the breach.

64. Mr Robilliard is entitled to damages in the sum of $44,320.00 by way of unpaid AP commission.

65. MultiScreen sought to terminate its contract with Mr Robilliard, its last remaining distributor, because it no longer wished to sell the PRO system, and the Premier system, which was replacing the PRO system, was being sold online without the assistance of distributors.

66. Mr Robilliard claims damages in the sum of $120,000 (ex GST) for lost sales commissions. This represents the sales commissions he expected to earn on sales he expected, prior to receipt of the termination letter, to achieve for the 2023 – 2024 financial year, based upon the sales commissions he earned in the 2022 – 2023 financial year.

67. I am unable to find that MultiScreen is liable to Mr Robilliard for sales commissions for future sales. The product Mr Robilliard was distributing was no longer to be sold by the vendor, MultiScreen. On the evidence before me, no commissions could be earned in the future on the distribution of that product for MultiScreen. I reject the plaintiffs’ argument that the period of the notice of termination should have been twelve months. There is simply no basis for it.

Australian Consumer Law

Misleading or deceptive conduct?

68. The first element of the plaintiffs’ claim for misleading or deceptive conduct is based upon the idea that it was a term of the contract that the distributor was to be given six months’ notice of termination. As there was no such term of the contract, express or implied, I need deal no further with this part of the claim.

69. The second element of the plaintiffs’ claim for misleading or deceptive conduct is based upon the argument that, under the email of 25 July 2012, it was a term of the contract that the distributor had only to meet the “MultiScreen Standard” at the beginning of the distributor’s participation in the AP commission scheme to be eligible for AP commission thereafter. I have rejected this argument.

70. The evidence does not establish that MultiScreen engaged in any misleading or deceptive conduct contrary to the Australian Consumer Law in relation to its contract with Mr Robilliard.

Unconscionable conduct?

71. The evidence does not support the pleading of unconscionable conduct.

72. There is cogent evidence that MultiScreen needed to terminate its contracts with all of its distributors because it was no longer going to sell the PRO system and the Premier system, which it was going to sell instead, was sold online and no distributors were therefore required.

73. No other explanation for the decision by MultiScreen to terminate its contract with Mr Robilliard is supported by the evidence.

Alleged accessorial liability of the second defendant

74. As I have rejected the argument that MultiScreen is liable under the Australian Consumer Law for either misleading or deceptive conduct or unconscionable conduct, it follows that Mr Leong is not liable as an accessory.

Conclusion and orders

75. It has been established that Mr Robilliard is entitled to damages from MultiScreen in the sum of $44,320.00 on account of AP commissions to which his entitlement had crystallised when the contract came to an end. This is the total amount of his loss.

76. The plaintiffs have not succeeded in the claims under the Australian Consumer Law, including any claim against the second defendant.

77. The second plaintiff has not established any claim against either defendant.

78. The following order will issue:

79. Judgment for the first plaintiff against the first defendant in the sum of $44,320.00 plus interest at the rates prescribed under s 100 of the Civil Procedure Act 2005 (NSW) from 31 August 2023 to the date of this order.

80. I will hear the parties on costs.

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