Boyd and Another v Maxx Implementation Pty Limited and Others (No 2) [2008] NSWIRComm 121

Boyd and Another v Maxx Implementation Pty Limited and Others (No 2) [2008] NSWIRComm 121

The contracts were relevantly unfair because the arrangements by which Mr Boyd worked and received a profit share permitted the business to be operated without transparency and to the benefit of Mr Ludwig and associated entities, failed to protect the applicants' interest in profit calculation and distribution, allowed the business to be transferred to Maxx without notice, consent or compensation for the profit-share interest, and resulted in non-payment of Mr Boyd's salary, expenses and statutory entitlements. Maxx acquired the business as a going concern, Mr Boyd became its employee, and Maxx, through Mr Ludwig, repudiated the employment contract by continuing to refuse payment, making...

Jurisdiction
Australia
Judgment Date
26 June 2008
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Contracts found relevantly unfair; contracts to be varied; money orders to be made against the second and third respondents; no money orders against the first respondent because the deed of company arrangement should be given effect; no orders against the fourth respondent.
Legal Topics
['unfair Contract' 'profit Share' 'transfer of Business' 'constructive Dismissal' 'deed of Company Arrangement' 'time Limits' 'money Orders']
['industrial Law' 'employment Law' 'corporations Law'] ['unfair Contract' 'profit Share' 'transfer of Business' 'constructive Dismissal' 'deed of Company Arrangement' 'time Limits' 'money Orders']

Case Brief

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Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether proceedings against the fourth respondent were commenced within time under s 108B of the Industrial Relations Act 1996.' "Whether claims relating to profit share were within the Court's jurisdiction under s 106 of the Industrial Relations Act 1996." 'Whether the business conducted by Maxx Implementation Pty Limited was transferred to Maxx Pty Limited in July 2003.' 'Whether Mr Boyd was employed by Maxx Pty Limited from July 2003.' 'Whether the contracts between the applicants and Maxx Implementation Pty Limited were unfair.' 'Whether the contract between Mr Boyd and Maxx Pty Limited was unfair.' 'Whether Mr Boyd was constructively dismissed in October 2003.' 'Whether consequential money orders should be made against the respondents.']

Ratio Decidendi

The contracts were relevantly unfair because the arrangements by which Mr Boyd worked and received a profit share permitted the business to be operated without transparency and to the benefit of Mr Ludwig and associated entities, failed to protect the applicants' interest in profit calculation and distribution, allowed the business to be transferred to Maxx without notice, consent or compensation for the profit-share interest, and resulted in non-payment of Mr Boyd's salary, expenses and statutory entitlements. Maxx acquired the business as a going concern, Mr Boyd became its employee, and Maxx, through Mr Ludwig, repudiated the employment contract by continuing to refuse payment, making...

Court Disposition

Contracts found relevantly unfair; contracts to be varied; money orders to be made against the second and third respondents; no money orders against the first respondent because the deed of company arrangement should be given effect; no orders against the fourth respondent.

Orders

  • ['The contracts are to be varied in accordance with the judgment.' 'The parties are directed to confer as to the terms of the orders to reflect the judgment.' 'If the parties cannot agree on the terms of orders, each is to file proposed orders within 21 days of the date of judgment.' 'Liberty to apply on costs...