Mitchforce v Starkey and Anor [2002] NSWIRComm 85

Mitchforce v Starkey and Anor [2002] NSWIRComm 85

Leave to appeal was refused because neither the non-jurisdictional challenges nor the jurisdictional challenges raised matters of such importance that, in the public interest, leave should be granted. The trial judge's findings of unfairness were reasonably open. On the facts, the deed of consent to assignment incorporated the lease and created an ongoing relationship with the clear purpose that the respondents would conduct a hotel business from the Tavern, necessarily involving performance of work including maintenance of the premises. That performance of work was a direct result of obligations imposed by the deed and lease, not an accidental, indirect, remote or merely consequential...

Jurisdiction
Australia
Judgment Date
30 April 2002
Procedural Posture
Application for Leave to Appeal and Appeal Concerning an Unfair Contract Claim Under S 106 of the Industrial Relations Act 1996 / Full Bench Application for Leave to Appeal and Appeal From a Decision of Hungerford J
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['section 106 Industrial Relations Act 1996' 'contract Whereby Work Is Performed in an Industry' 'assignment of Hotel Lease' 'leave to Appeal' 'jurisdiction' 'unfair, Harsh and Unconscionable Contract']
['industrial Relations' 'unfair Contracts' 'appeals' 'commercial Leasing'] ['section 106 Industrial Relations Act 1996' 'contract Whereby Work Is Performed in an Industry' 'assignment of Hotel Lease' 'leave to Appeal' 'jurisdiction' 'unfair, Harsh and Unconscionable Contract']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning an Unfair Contract Claim Under S 106 of the Industrial Relations Act 1996 / Full Bench Application for Leave to Appeal and Appeal From a Decision of Hungerford J

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s188 of the Industrial Relations Act 1996.' 'Whether the deed of consent to assignment of lease, incorporating the original lease, was a contract whereby work was performed in the hotel industry for the purposes of s106 of the Industrial Relations Act 1996.' "Whether the trial judge's finding that the deed and lease were unfair, harsh and unconscionable should be disturbed." 'Whether the orders varying the lease and requiring payment of money should stand.']

Ratio Decidendi

Leave to appeal was refused because neither the non-jurisdictional challenges nor the jurisdictional challenges raised matters of such importance that, in the public interest, leave should be granted. The trial judge's findings of unfairness were reasonably open. On the facts, the deed of consent to assignment incorporated the lease and created an ongoing relationship with the clear purpose that the respondents would conduct a hotel business from the Tavern, necessarily involving performance of work including maintenance of the premises. That performance of work was a direct result of obligations imposed by the deed and lease, not an accidental, indirect, remote or merely consequential...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "The appellant shall pay the respondents' costs of the appeal as agreed or, failing agreement, as assessed." 'The stay granted on 4 December 2000 of the orders made by the trial judge will be lifted at 4.00 pm on 10 May 2002 unless before that time, a party...