Pilgrim and anor v Wendy's Supa Sundaes and ors [2002] NSWIRComm 308

Pilgrim and anor v Wendy's Supa Sundaes and ors [2002] NSWIRComm 308

The applicants were overall successful on the dominant issues and should receive their general party-party costs, subject to special costs orders. Contribution between Wendy's and Oraka/Mr Johnson for the $185,000 could not be allocated because the case was not conducted on that basis and no evidence was called on contribution. Interest on the $185,000 should run from 31 December 2000, when the franchise business was handed back, and interest on the $70,000 should run from commencement of proceedings on 8 March 1999. The primary judgment had disposed of the claims concerning the cost of the business and refurbishment, so the applicants could not reopen those conclusions to obtain...

Jurisdiction
Australia
Judgment Date
22 November 2002
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 / Supplementary Judgment (no. 2) Determining Contribution, Costs and Interest After Primary and Supplementary Judgments
Outcome
Declarations and orders made; proceedings against the fourth respondent dismissed with no order as to costs.
Legal Topics
['s106 Unfair Contract Proceedings' 'franchise Business' 'joint and Several Liability' 'contribution Between Respondents' 'party Party Costs' 'indemnity Costs' 'supreme Court Rates of Interest']
['industrial Relations' 'unfair Contracts' 'costs' 'interest'] ['s106 Unfair Contract Proceedings' 'franchise Business' 'joint and Several Liability' 'contribution Between Respondents' 'party Party Costs' 'indemnity Costs' 'supreme Court Rates of Interest']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 / Supplementary Judgment (no. 2) Determining Contribution, Costs and Interest After Primary and Supplementary Judgments

Legal Issues

  1. 1 ["Whether the Court should allocate contribution between Wendy's and Oraka/Mr Johnson for the $185,000 joint and several liability." 'From what date interest should run on the $185,000 business value order and the $70,000 refurbishment cost order.' 'Whether the applicants should receive the general costs of the proceedings despite failing on some issues.' "Whether special costs orders should be made for ASIC costs, expert evidence, extra hearing days caused by Mr Pilgrim's late revelation of his reading disability, and the 2000 motion." 'Whether the applicants could obtain further amounts for bank borrowing interest and franchise fees.']

Ratio Decidendi

The applicants were overall successful on the dominant issues and should receive their general party-party costs, subject to special costs orders. Contribution between Wendy's and Oraka/Mr Johnson for the $185,000 could not be allocated because the case was not conducted on that basis and no evidence was called on contribution. Interest on the $185,000 should run from 31 December 2000, when the franchise business was handed back, and interest on the $70,000 should run from commencement of proceedings on 8 March 1999. The primary judgment had disposed of the claims concerning the cost of the business and refurbishment, so the applicants could not reopen those conclusions to obtain...

Court Disposition

Declarations and orders made; proceedings against the fourth respondent dismissed with no order as to costs.

Orders

  • ['The contract or arrangement whereby the applicants performed work in the retail industry in New South Wales was unfair pursuant to s106 of the Industrial Relations Act.' "The contract or arrangement be avoided ab initio except insofar as it conferred upon the applicants' rights to remuneration and profit." 'The...