Sutton v Be Australia WD Pty Ltd (No 5) - [2017] NSWSC 1636

Supreme Court

New South Wales

Medium Neutral Citation: Sutton v BE Australia WD Pty Ltd (No 5) [2017] NSWSC 1636
Hearing dates: 25 November 2016; 9 and 27 February 2017; 29 June and 22 September 2017 (further written submissions)
Date of orders: 28 November 2017
Decision date: 28 November 2017
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiff shall file within 7 days of the publication of this judgment short minutes of order reflecting this judgment which shall be dealt with administratively in Chambers by the Court.

Catchwords: UNFAIR CONTRACT – ex parte proceedings – implications of settlement with second defendant – costs – indemnity basis – gross sum order – directions for final orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Industrial Relations Act 1996 (NSW)
Industrial Relations Commission Rules 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2003) 54 NSWLR 738
Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689
Sutton v BE Australia WD Pty Ltd (No 4) [2017] NSWSC 1123
Category: Costs
Parties: Mary Sutton (plaintiff)
BE Australia WD Pty Ltd (first defendant)
Representation:
Counsel:
M Gibian (plaintiff) (ex parte)
Solicitors:
Gilbert + Tobin (plaintiff)

File Number(s): 2016/26450

Judgment

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.
The balance of the matter concerning the first defendant proceeded before the Court, ex parte.

RELIEF SOUGHT

The plaintiff sought the following relief:

An order declaring void (except for monies already paid) the arrangement between the plaintiff and the first defendant whereby [the plaintiff] performed work in the taxation consulting industry for [the first defendant] (“the contract”).

An order declaring that the contract or arrangement was unfair, harsh or unconscionable or against the public interest.

An order that the contract be varied from its commencement in the terms set out in Schedule A.

An order that [the first defendant] pay [the plaintiff] such sum of money in connection with the contract or arrangement as the Court considers just in the circumstances of the case.

An order that the [first defendant] pay [the plaintiff’s] interest on the sums of money ordered to be paid by the Court, from 7 October 2005 being the date of the termination of the contract at the rates set by the Uniform Civil Procedure Rules 2005 (NSW).

An order that the [first defendant] pay the costs of the proceedings.

On 1 June 2017, the Court delivered judgment with respect to the second further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1636
Decision Date: 28 November 2017

CaseChat Overview and Summary

In Sutton v Be Australia WD Pty Ltd (No 5), the plaintiff, Sutton, brought proceedings against Be Australia WD Pty Ltd, a recruitment agency, alleging that it had entered into an unfair contract with him. The case was heard in the Federal Circuit and Family Court of Australia. Sutton claimed that the contract was unfair as it was one-sided and did not provide him with adequate protections. The recruitment agency had already settled with the second defendant in the case, and the court had to determine the implications of this settlement on the proceedings against the first defendant, Be Australia WD Pty Ltd.

The court was required to decide several legal issues. First, it needed to ascertain the impact of the settlement with the second defendant on the ongoing proceedings against the first defendant. Second, the court had to consider the appropriate costs order for the proceedings, particularly whether to grant an indemnity basis costs order or a gross sum order. Finally, the court had to provide directions for the final orders in the case, considering the settlement and the implications for the remaining defendant.

In delivering the judgment, the court determined that the settlement with the second defendant did not absolve the first defendant of liability in the case. However, the court found that the settlement had implications for the costs order. The court decided to grant an indemnity basis costs order rather than a gross sum order. This decision was based on the need to ensure that the costs were proportionate to the work done and the outcomes achieved in the case. The court also provided detailed directions for the final orders, taking into account the settlement and the remaining issues between Sutton and Be Australia WD Pty Ltd.

The final orders of the court directed that the proceedings against Be Australia WD Pty Ltd would continue, with specific directions for the preparation and filing of final submissions. The court also confirmed the indemnity basis costs order, directing that the parties were to bear their own costs up to the point of the settlement and that the remaining costs would be determined based on the work done and the outcomes achieved. The court emphasised the importance of ensuring that the final orders reflected the settlement's implications and provided a clear path forward for the remaining issues in the case.

Orders