Kennett and Anor v Mayrana Pty Ltd and Ors (No 13) [2010] NSWIRComm 29

Kennett and Anor v Mayrana Pty Ltd and Ors (No 13) [2010] NSWIRComm 29

Leave to appeal was refused in Professor Kennett's appeals because his case below relied on the totality of the sale and consultancy arrangements, making it open to Schmidt J to take into account the $38,000 when considering what was just under s 106(5), and because no error of law, principle, or public-interest basis for leave was shown in relation to the indemnity costs and related costs orders. Leave was granted to Dr Berwick because the proper construction of r 209 and the arguable error in applying it to costs arising from illness were sufficiently significant. Leave was granted to Ms Muc and Mr Healey because making costs orders without fully hearing the affected legal...

Jurisdiction
Australia
Judgment Date
09 March 2010
Procedural Posture
Appeal Unfair Contract; Applications for Leave to Appeal and Appeal Arising From Proceedings Under S 106 of the Industrial Relations Act 1996 / Full Bench Determination of Four Applications for Leave to Appeal
Outcome
Leave to appeal refused and appeals dismissed in Matter No IRC 2189 of 2008 and Matter No IRC 1050 of 2009; leave to appeal granted in Matter No IRC 1200 of 2009 and Matter No IRC 1286 of 2009.
Legal Topics
['applications for Leave to Appeal' 'industrial Relations Act 1996 S 106' 'money Orders Under S 106(5)' 'indemnity Costs' 'calderbank Offer' 'wasted Costs' 'industrial Relations Commission Rules 1996 R 209' 'procedural Fairness' 'separate Representation of Respondents']
['industrial Relations' 'unfair Contracts' 'appeals' 'costs' 'civil Procedure'] ['applications for Leave to Appeal' 'industrial Relations Act 1996 S 106' 'money Orders Under S 106(5)' 'indemnity Costs' 'calderbank Offer' 'wasted Costs' 'industrial Relations Commission Rules 1996 R 209' 'procedural Fairness' 'separate Representation of Respondents']

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Procedural Posture

Appeal Unfair Contract; Applications for Leave to Appeal and Appeal Arising From Proceedings Under S 106 of the Industrial Relations Act 1996 / Full Bench Determination of Four Applications for Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted in respect of the first instance decision refusing to make a money order in favour of Professor Kennett notwithstanding a finding of unfairness' 'Whether Schmidt J had jurisdiction to take into account the $38,000 banked in the Excelsior College account when considering any money order under s 106(5) of the Industrial Relations Act 1996' 'Whether leave should be granted in respect of indemnity costs orders made in favour of the respondents after rejection of a Calderbank offer' 'Whether costs should have been awarded to respondents who were separately represented' 'Whether leave should be granted in respect of orders requiring Dr Berwick to repay costs associated with three hearing days lost due to illness under r 209 of the Industrial Relations Commission Rules 1996' 'Whether legal representatives were denied procedural fairness when costs orders were made against them on 24 July 2009 without fully hearing them']

Ratio Decidendi

Leave to appeal was refused in Professor Kennett's appeals because his case below relied on the totality of the sale and consultancy arrangements, making it open to Schmidt J to take into account the $38,000 when considering what was just under s 106(5), and because no error of law, principle, or public-interest basis for leave was shown in relation to the indemnity costs and related costs orders. Leave was granted to Dr Berwick because the proper construction of r 209 and the arguable error in applying it to costs arising from illness were sufficiently significant. Leave was granted to Ms Muc and Mr Healey because making costs orders without fully hearing the affected legal...

Court Disposition

Leave to appeal refused and appeals dismissed in Matter No IRC 2189 of 2008 and Matter No IRC 1050 of 2009; leave to appeal granted in Matter No IRC 1200 of 2009 and Matter No IRC 1286 of 2009.

Orders

  • ['In relation to the appeals Matter No IRC 2189 of 2008 and Matter No IRC 1050 of 2009: leave to appeal is refused.' 'In relation to the appeals Matter No IRC 2189 of 2008 and Matter No IRC 1050 of 2009: the appeals are dismissed.' 'In relation to Matter No IRC 1200 of 2009, leave to appeal is granted.' 'In relation...