Wirraway (NSW) Pty Ltd and anor v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300

Wirraway (NSW) Pty Ltd and anor v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300

Ultra Tune did not establish at this preliminary stage that the Court lacked jurisdiction. The Franchise Agreement contained provisions requiring the franchise business and service centre to be operated and conducted according to Ultra Tune standards and requiring management to be personally supervised and conducted by the Franchisee or, for a corporate Franchisee, its nominee. On the evidence then available, the agreement could not be characterised merely as a grant of intellectual property rights; it led directly to work being performed in an industry by the Franchisee through its nominee and had a recognisable and direct impact on the nominee's working remuneration. In any event, given...

Jurisdiction
Australia
Judgment Date
18 September 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Concerning an Alleged Unfair Franchise Contract / Full Bench Hearing of Ultra Tune's Notice of Motion Challenging Jurisdiction and Seeking to Strike Out the Claim
Outcome
Notice of Motion dismissed.
Legal Topics
['industrial Relations Act 1996 S 106' 'franchise Agreement' 'jurisdictional Challenge' 'contract Whereby Work Is Performed in an Industry' 'preliminary Strike Out Application']
['industrial Law' 'unfair Contracts' 'franchising'] ['industrial Relations Act 1996 S 106' 'franchise Agreement' 'jurisdictional Challenge' 'contract Whereby Work Is Performed in an Industry' 'preliminary Strike Out Application']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Concerning an Alleged Unfair Franchise Contract / Full Bench Hearing of Ultra Tune's Notice of Motion Challenging Jurisdiction and Seeking to Strike Out the Claim

Legal Issues

  1. 1 ['Whether the Franchise Agreement was a contract or arrangement whereby a person performs work in an industry for the purposes of s 106 of the Industrial Relations Act 1996.' "Whether Ultra Tune's jurisdictional challenge should be determined before substantive evidence had been filed." 'Whether the terms requiring the franchise business to be operated, managed, conducted and personally supervised by the Franchisee or nominee brought the agreement within s 106 jurisdiction.']

Ratio Decidendi

Ultra Tune did not establish at this preliminary stage that the Court lacked jurisdiction. The Franchise Agreement contained provisions requiring the franchise business and service centre to be operated and conducted according to Ultra Tune standards and requiring management to be personally supervised and conducted by the Franchisee or, for a corporate Franchisee, its nominee. On the evidence then available, the agreement could not be characterised merely as a grant of intellectual property rights; it led directly to work being performed in an industry by the Franchisee through its nominee and had a recognisable and direct impact on the nominee's working remuneration. In any event, given...

Court Disposition

Notice of Motion dismissed.

Orders

  • ['The Notice of Motion filed by Ultra Tune is dismissed.' 'Ultra Tune is to pay the costs of the applicants in the substantive proceedings in relation to the Motion.' 'The matter will be allocated for trial or, subject to any joint application by the parties, for further conciliation.']