Get Ahead Wealth Solutions Pty Ltd and anor v JLF Corporation Pty Ltd [2008] NSWIRComm 61

Get Ahead Wealth Solutions Pty Ltd and anor v JLF Corporation Pty Ltd [2008] NSWIRComm 61

The consultancy agreement was unfair for the purposes of s 106 because, except where a person is clearly carrying on activity on their own account, the risk of deriving earnings from personal exertion translated into sales should be borne by the ultimate entrepreneur and not by the person performing the work; JLF's construction and conduct would have required full-time work for a substantial period without effective remuneration, while JLF failed to adhere to contractual sales performance and termination provisions. The unfairness justified varying the contract from inception so that advances were treated as earnings not repayable, awarding limited post-termination commissions, one month...

Jurisdiction
Australia
Judgment Date
03 April 2008
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Application allowed in part; consultancy agreement found unfair and varied from inception; monetary relief ordered, with costs and interest reserved.
Legal Topics
['s 106 Unfair Contract Proceedings' 'consultancy Agreement' 'advance Commissions' 'constructive Dismissal' 'termination Without Notice' 'mitigation of Loss']
['industrial Relations' 'employment' 'contract Law'] ['s 106 Unfair Contract Proceedings' 'consultancy Agreement' 'advance Commissions' 'constructive Dismissal' 'termination Without Notice' 'mitigation of Loss']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ['Whether the consultancy agreement was an unfair contract for the purposes of s 106 of the Industrial Relations Act 1996.' 'Whether the use of a company structure between Ms Reid and JLF was unfair.' 'Whether JLF could require repayment of advances against commission after termination of the consultancy agreement.' 'Whether the applicants were entitled to commissions on sales completed before and after termination.' 'Whether the circumstances of termination required notice or payment in lieu, subject to mitigation.' 'Whether training fees deducted from advances should be repaid.']

Ratio Decidendi

The consultancy agreement was unfair for the purposes of s 106 because, except where a person is clearly carrying on activity on their own account, the risk of deriving earnings from personal exertion translated into sales should be borne by the ultimate entrepreneur and not by the person performing the work; JLF's construction and conduct would have required full-time work for a substantial period without effective remuneration, while JLF failed to adhere to contractual sales performance and termination provisions. The unfairness justified varying the contract from inception so that advances were treated as earnings not repayable, awarding limited post-termination commissions, one month...

Court Disposition

Application allowed in part; consultancy agreement found unfair and varied from inception; monetary relief ordered, with costs and interest reserved.

Orders

  • ['The consultancy agreement between the applicants and the respondent is varied from its inception to provide that, notwithstanding any other provision therein contained, upon termination of the agreement for any reason the applicants will not be required to repay any monies paid to them by way of an advance against...