Michael Etherden and Anor v Morgo Street Reserve Trust [2005] NSWIRComm 269

Michael Etherden and Anor v Morgo Street Reserve Trust [2005] NSWIRComm 269

The 1999 agreement, by its entire agreement clause and the surrounding evidence, superseded and rescinded the 1996 deed, so the deed dated 15 March 1996 was a separate contract and claims relating to work under it were barred by s 108B. The February 2002 agreement and the undated May 2002 agreement were intended to extend the 1999 agreement, subject to limited variations, so the 1999 agreement remained on foot until 30 June 2002; alternatively, the parties had an arrangement within s 105 for the 1999 terms, as varied, to continue until 30 June 2002. Accordingly, s 108B did not preclude the Court from dealing with the 1999, February 2002 and May 2002 agreements.

Jurisdiction
Australia
Judgment Date
29 July 2005
Procedural Posture
Application Under Section 106 of Industrial Relations Act 1996 Alleging Unfair Contracts / Interlocutory Judgment on Respondent's Notice of Motion Seeking Dismissal Under S 108 B
Outcome
Proceedings dismissed in part; costs reserved.
Legal Topics
['section 106 Industrial Relations Act 1996' 'section 108 B Time Limit' 'whether Successive Agreements Formed a Single Contract or Arrangement' 'interlocutory Motion to Dismiss' 'costs Reserved']
['industrial Relations' 'unfair Contracts' 'civil Procedure'] ['section 106 Industrial Relations Act 1996' 'section 108 B Time Limit' 'whether Successive Agreements Formed a Single Contract or Arrangement' 'interlocutory Motion to Dismiss' 'costs Reserved']

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Procedural Posture

Application Under Section 106 of Industrial Relations Act 1996 Alleging Unfair Contracts / Interlocutory Judgment on Respondent's Notice of Motion Seeking Dismissal Under S 108 B

Legal Issues

  1. 1 ['Whether the deed dated 15 March 1996, the agreement dated 22 April 1999, the agreement dated 25 February 2002 and the undated agreement for 1 May 2002 to 30 June 2002 comprised a single contract enforceable at common law.' 'Whether, alternatively, the successive documents and dealings comprised a single arrangement within the meaning of s 105 of the Industrial Relations Act 1996.' 'Whether s 108B of the Industrial Relations Act 1996 precluded the Commission from dealing with claims relating to earlier agreements.' 'Whether the amended summons filed on 14 September 2004 was a fresh application outside the s 108B time limit.']

Ratio Decidendi

The 1999 agreement, by its entire agreement clause and the surrounding evidence, superseded and rescinded the 1996 deed, so the deed dated 15 March 1996 was a separate contract and claims relating to work under it were barred by s 108B. The February 2002 agreement and the undated May 2002 agreement were intended to extend the 1999 agreement, subject to limited variations, so the 1999 agreement remained on foot until 30 June 2002; alternatively, the parties had an arrangement within s 105 for the 1999 terms, as varied, to continue until 30 June 2002. Accordingly, s 108B did not preclude the Court from dealing with the 1999, February 2002 and May 2002 agreements.

Court Disposition

Proceedings dismissed in part; costs reserved.

Orders

  • ['The proceedings, only so far as they relate to work performed pursuant to the deed dated 15 March 1996, are dismissed.' 'The question of costs are reserved.']