Choi v Yim & Anor [2003] NSWIRComm 425

Choi v Yim & Anor [2003] NSWIRComm 425

The respondents did not discharge the burden of showing that this was the appropriate stage to characterise the alleged oral agreement so as to strike out the proceedings. The summons alleged an agreement by which the applicant would perform work and alleged unfairness that, if sustained, could arguably support relief under s 106. Because the necessary factual material had not yet been adduced, the strike out application failed.

Jurisdiction
Australia
Judgment Date
11 December 2003
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Strike Out Application
Outcome
Notice of motion dismissed with costs.
Legal Topics
['strike Out Application' 'unfair Contract Proceedings' 'application Under S 106 of the Industrial Relations Act 1996' 'oral Business Agreement' 'jurisdictional Challenge']
['industrial Relations' 'unfair Contracts' 'civil Procedure'] ['strike Out Application' 'unfair Contract Proceedings' 'application Under S 106 of the Industrial Relations Act 1996' 'oral Business Agreement' 'jurisdictional Challenge']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Strike Out Application

Legal Issues

  1. 1 ["Whether the respondents' strike out application should be determined before the substantive hearing." 'Whether the alleged business agreement was a contract or arrangement whereby a person performs work in an industry within s 106 of the Industrial Relations Act 1996.' "Whether the respondents demonstrated that the applicant's claim lacked an arguable legal foundation at the interlocutory stage."]

Ratio Decidendi

The respondents did not discharge the burden of showing that this was the appropriate stage to characterise the alleged oral agreement so as to strike out the proceedings. The summons alleged an agreement by which the applicant would perform work and alleged unfairness that, if sustained, could arguably support relief under s 106. Because the necessary factual material had not yet been adduced, the strike out application failed.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion is dismissed.' "The respondents' are to pay the applicant's costs in an amount as assessed in default of agreement."]