Hansen Yuncken Pty Ltd v Andreas Costopoulos [2004] NSWIRComm 91

Hansen Yuncken Pty Ltd v Andreas Costopoulos [2004] NSWIRComm 91

The stay was granted because the appeal was arguable in light of the Full Bench decision in Burgess and the issues concerning inconsistency between s 106 orders and federal industrial instruments, and the balance of convenience favoured the appellant; however, the respondent was not shown to be impecunious, so the parties' interests were balanced by requiring immediate payment of 50% of the amount awarded and payment of the balance into an interest-bearing account.

Jurisdiction
Australia
Judgment Date
14 April 2004
Procedural Posture
Application for Leave to Appeal and Appeal Concerning S 106 Unfair Contract Orders / Application for Stay of Orders Pending Appeal
Outcome
Stay granted on terms.
Legal Topics
['stay of Proceedings' 's 106 Unfair Contract' 'payment in Lieu of Notice' 'federal Award and Certified Agreement Inconsistency' 'balance of Convenience']
['industrial Relations' 'employment Law' 'appellate Procedure'] ['stay of Proceedings' 's 106 Unfair Contract' 'payment in Lieu of Notice' 'federal Award and Certified Agreement Inconsistency' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning S 106 Unfair Contract Orders / Application for Stay of Orders Pending Appeal

Legal Issues

  1. 1 ["Whether a stay should be granted of orders varying the respondent's employment contract to require 12 months' payment as notice pending appeal." 'Whether the appeal was arguable, including whether the Commission had jurisdiction under s 106 of the Industrial Relations Act 1996 where a Federal Award and Certified Agreement provided for notice or payment in lieu of notice.' 'Whether the balance of convenience favoured granting a stay and on what terms.']

Ratio Decidendi

The stay was granted because the appeal was arguable in light of the Full Bench decision in Burgess and the issues concerning inconsistency between s 106 orders and federal industrial instruments, and the balance of convenience favoured the appellant; however, the respondent was not shown to be impecunious, so the parties' interests were balanced by requiring immediate payment of 50% of the amount awarded and payment of the balance into an interest-bearing account.

Court Disposition

Stay granted on terms.

Orders

  • ['The orders made by Justice Kavanagh in matter IRC 3868 of 2001 are stayed until further order of the Commission.' 'The appellant shall pay 50% of the amount awarded by Kavanagh J to the respondent by no later than 4.00 pm on 28 April 2004.' 'The balance of the amount awarded to the respondent is to be paid into an...