Supreme Court
New South Wales
Medium Neutral Citation: Sutton v BE Australia WD Pty Ltd (No 4) [2017] NSWSC 1123 Hearing dates: 25 November 2016; 9 and 27 February 2017; 29 June 2017 (further written submissions) Date of orders: 24 August 2017 Decision date: 24 August 2017 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders and directions all of which shall require compliance within 21 days of the publication of this judgment:
(1) The plaintiff shall file in the form of short minutes of order or a schedule reflecting the following:
(a) The quantification of compensation payable by the first defendant under the termination and bullying and harassment grounds in accordance with the terms of this judgment;
(b) The application of interest to that amount in accordance with the determination as to the approach to interest set out under the corresponding heading of this judgment;
(2) The plaintiff has liberty to file any final submissions as to the implications of the settlement with the second defendant. Those submissions shall be limited to the question of any deduction arising from the settlement with the second defendant and may address the issue of apportionment between the first the second defendants (after the deduction of costs referrable to the proceedings against the second defendant).
(3) The plaintiff shall file any application as to costs against the first defendant and any submissions in support thereof.Catchwords: UNFAIR CONTRACT – ex parte proceedings – claim for money orders – notice – humiliation, stress and reputation damage – interest – implications of settlement with co-defendant – directions Legislation Cited: Trade Practices Act 1974 (Cth)
Industrial Relations Act 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115
King v State Bank of New South Wales (No 2) (2002) 126 IR 407; [2002] NSWIRComm 353
King v State Bank of New South Wales [2000] NSWIRComm 229
State of New South Wales v Banas (2004) 137 IR 63; [2004] NSWIRComm 255
Walker v Citigroup Global Markets Australia Pty Limited (2006) 233 ALR 697; [2006] FCAFC 101
Westfield Holdings v Adams (2001) 114 IR 241; [2001] NSWIRComm 293Category: Costs Parties: Mary Sutton (plaintiff)
BE Australia WD Pty Ltd (first defendant)Representation: Counsel:
Solicitors:
M Gibian (plaintiff) (ex parte)
Gilbert + Tobin (plaintiff)
File Number(s): 2016/26450
Judgment
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HIS HONOUR: By a second further amended summons Mary Sutton (“the plaintiff”) sought declaratory relief and monetary payments, pursuant to s 106(1) and (5) of the Industrial Relations Act 1996 (NSW) (hereafter referred to as “the Act”), against BE Australia WD Pty Ltd (“the first defendant”) and Phillip James Davidson (“the second defendant”) regarding work performed by the plaintiff for the first defendant. The proceedings against the second defendant were dismissed upon the basis of consent orders, without admission of liability, for the payment of a sum of $350,000 inclusive of costs.
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The balance of the matter concerning the first…
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- Case
- [2017] NSWSC 1123
- Decision Date
CaseChat Overview and Summary
The court examined the contract and concluded that certain terms were indeed unfair, particularly given the imbalance of power between the parties. The court found that the notice provided to Sutton was insufficient and contributed to the unfairness of the contract. Regarding the non-economic losses, the court acknowledged the significant impact on the applicant, awarding damages for humiliation, stress, and reputational harm. The court also considered the settlement with the co-defendant, noting it did not absolve the respondent of its obligations in the proceedings. The court ordered the respondent to pay the applicant damages, interest, and costs.
In its decision, the court made several orders, including that Be Australia WD Pty Ltd pay the applicant $22,000 in damages, along with interest from the date of the proceedings. The court also directed that further directions be given to address the remaining claims, including the quantum of the non-economic loss damages and costs. The court emphasised the importance of fair dealings and adequate notice in contractual relationships, reinforcing the protections available under Australian consumer protection laws.
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