Kennedy v Martinez [2010] NSWIRComm 134

Kennedy v Martinez [2010] NSWIRComm 134

The applicant, an experienced solicitor, voluntarily entered a contract for a fixed draw partnership with clear provisions allowing termination on one month's notice; there was no evidence of oppression or power imbalance, and no contractual or reasonable expectation that tenure was guaranteed until 30 June 2009. The offer of a post-termination consultancy was reasonable. The contract was not unfair within the meaning of s 106, and the lack of mandatory procedural fairness in a partnership context did not render the contract unfair on the facts.

Jurisdiction
Australia
Judgment Date
01 October 2010
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Judgment and Final Orders
Outcome
Application dismissed
Legal Topics
['unfair Contract' 'partnership Law' 'termination of Partnership' 'procedural Fairness' 'notice Period on Termination']
['employment Law' 'industrial Law'] ['unfair Contract' 'partnership Law' 'termination of Partnership' 'procedural Fairness' 'notice Period on Termination']

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the applicant's contract was unfair due to the duration of the notice period for termination" "Whether the contract was unfair due to applicant's expectation of continued tenure until 30 June 2009" 'Whether the contract was unfair for failing to provide the applicant a chance to respond to complaints before termination (procedural fairness)']

Ratio Decidendi

The applicant, an experienced solicitor, voluntarily entered a contract for a fixed draw partnership with clear provisions allowing termination on one month's notice; there was no evidence of oppression or power imbalance, and no contractual or reasonable expectation that tenure was guaranteed until 30 June 2009. The offer of a post-termination consultancy was reasonable. The contract was not unfair within the meaning of s 106, and the lack of mandatory procedural fairness in a partnership context did not render the contract unfair on the facts.

Court Disposition

Application dismissed

Orders

  • ['The summons for relief in this matter is dismissed.' 'Respondents to file costs submissions within seven days; applicant to reply within a further seven days; unless a party requests an oral hearing, costs to be determined on the papers.']