Gregory John King v Cake It Away Pty Ltd and ors [2003] NSWIRComm 242

Industrial Relations Commission of New South Wales in Court Session

CITATION : Gregory John King v Cake It Away Pty Ltd and ors [2003] NSWIRComm 242 APPELLANT: Gregory John King

FIRST RESPONDENT: Cake It Away Pty Ltd (ACN 056 725 243)

SECOND RESPONDENT: Cake It Away Franchising Pty Ltd (ACN 069 752 316)

THIRD RESPONDENT: Paul Tartak

FOURTH RESPONDENT: Michael Tartak

PARTIES : FIFTH RESPONDENT: Tony Tartak

SIXTH RESPONDENT: Mary Tartak

SEVENTH RESPONDENT: Pauline Tartak

EIGHTH RESPONDENT: St George Bank Ltd (ACN 055 513 070)

NINTH RESPONDENT: Advance Leasing Limited (ACN 063 369 488)

FILE NUMBER: IRC 4374 of 2002 CORAM: Walton J Vice-President; Boland J; Staunton J CATCHWORDS : Leave to appeal and appeal - franchise agreement - unfairness that arose as a result of misrepresentation relied upon - approach to be taken to appeals under s191 of the Act - findings of fact made by trial judge properly open on the evidence - finding of prima facie misrepresentation more properly to be expressed as a finding of relevant misrepresentation leading to a finding of unfairness under s106 of the Act - the exercise of a discretion following a finding of unfairness properly exercised against the applicant at first instance for reasons given - leave to appeal granted against first to seventh respondents - leave to appeal against eighth and ninth respondents refused - appeal against first to seventh respondents dismissed - costs to be determined LEGISLATION CITED : Industrial Relations Act 1996 s106 and s191 King v Cake It Away Pty Ltd & Ors [2002] NSWIRComm 140 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) NSWIRComm 163 King v State Bank (No 2) [2002] NSWIRComm 353 CASES CITED : Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Warren v Coombes (1978) 142 CLR 531 Swan v Ultratune Australia Pty Ltd (1983) 5 IR 284 Port Macquarie Golf Club v Stead (1996) 64 IR 53