Della Marta v Rockcliff; Bailey v Rockcliff [2000] NSWIRComm 10

Della Marta v Rockcliff; Bailey v Rockcliff [2000] NSWIRComm 10

The summonses are not so untenable as to warrant summary dismissal. It is premature to determine whether, on the evidence at trial, the terms of the contract are unfair or within jurisdiction for variation. The claims go beyond mere breach of contract, and at this stage, there is no demonstrated abuse of process, so the cases should be heard.

Jurisdiction
Australia
Judgment Date
08 February 2000
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 (nsw) / Interlocutory Judgment on Notice of Motion to Set Aside Summonses
Outcome
Notice of motion to set aside summonses dismissed
Legal Topics
['unfair Contract' 'jurisdiction' 'abuse of Process' 'variation of Partnership Agreement' 'winding Up of Partnership']
['industrial Law' 'contract Law' 'partnership Law'] ['unfair Contract' 'jurisdiction' 'abuse of Process' 'variation of Partnership Agreement' 'winding Up of Partnership']

Case Brief

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Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 (nsw) / Interlocutory Judgment on Notice of Motion to Set Aside Summonses

Legal Issues

  1. 1 ['Whether the summonses disclose any unfairness justifying relief under s.106 of the Industrial Relations Act 1996' 'Whether the claim is merely for breach of contract or goes beyond and seeks variation of contract terms' 'Whether there is abuse of process in bring these proceedings after discontinuance of Supreme Court proceedings' 'Whether the Industrial Relations Commission has jurisdiction to grant the orders sought']

Ratio Decidendi

The summonses are not so untenable as to warrant summary dismissal. It is premature to determine whether, on the evidence at trial, the terms of the contract are unfair or within jurisdiction for variation. The claims go beyond mere breach of contract, and at this stage, there is no demonstrated abuse of process, so the cases should be heard.

Court Disposition

Notice of motion to set aside summonses dismissed

Orders

  • ['The notices of motion to set aside the summonses are dismissed']