Illawarra Breads Pty Limited and ors v Baker's Delight Holdings Limited [2007] NSWIRComm 223

Illawarra Breads Pty Limited and ors v Baker's Delight Holdings Limited [2007] NSWIRComm 223

The proposed further amended summons was not barred by s 108B because, although it significantly restructured and altered the amended summons, in substance it concerned the same franchise and licence agreements, Disclosure Document and related arrangements, and the relief remained directed to protecting the applicants' interests under or on termination of those arrangements. The Full Bench was not in a position to conclude that the amendments were futile, and the respondent had not demonstrated real prejudice sufficient to refuse leave. Leave to further amend was therefore granted.

Jurisdiction
Australia
Judgment Date
26 September 2007
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfair Contracts or Arrangements / Interlocutory Motion Before the Full Bench for Leave to Further Amend the Summons
Outcome
Application to further amend the summons granted; costs of the motion reserved for written submissions.
Legal Topics
['unfair Contracts' 'franchise Agreements' 'amendment of Summons' 'limitation Period Under S 108 B of the Industrial Relations Act 1996' 'jurisdiction']
['industrial Relations' 'contract Law' 'civil Procedure'] ['unfair Contracts' 'franchise Agreements' 'amendment of Summons' 'limitation Period Under S 108 B of the Industrial Relations Act 1996' 'jurisdiction']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfair Contracts or Arrangements / Interlocutory Motion Before the Full Bench for Leave to Further Amend the Summons

Legal Issues

  1. 1 ['Whether the proposed further amended summons constituted a new and separate application barred by s 108B of the Industrial Relations Act 1996' 'Whether the proposed amendments were futile because they did not cure alleged jurisdictional defects' 'Whether leave to amend should be refused because of delay, prior amendments, prejudice or costs thrown away']

Ratio Decidendi

The proposed further amended summons was not barred by s 108B because, although it significantly restructured and altered the amended summons, in substance it concerned the same franchise and licence agreements, Disclosure Document and related arrangements, and the relief remained directed to protecting the applicants' interests under or on termination of those arrangements. The Full Bench was not in a position to conclude that the amendments were futile, and the respondent had not demonstrated real prejudice sufficient to refuse leave. Leave to further amend was therefore granted.

Court Disposition

Application to further amend the summons granted; costs of the motion reserved for written submissions.

Orders

  • ["The applicants' application to further amend the summons in the terms set out in the further amended summons is granted." "Within seven days of the date of this judgment the respondent shall file and serve its submissions in relation to costs of the applicants' notice of motion to amend. The applicants have a...