Industrial Relations Commission of New South Wales in Court Session CITATION : Montresor v Astra Prestige Vehicle Service and Detailing Pty Ltd and Anor [2004] NSWIRComm 312 APPLICANT / APPLICANT ON NOTICE OF MOTION Lorenzo Montresor PARTIES : FIRST RESPONDENT/ FIRST RESPONDENT ON NOTICE OF MOTION Astra Prestige Vehicle Service and Detailing Pty Limited SECOND RESPONDENT / SECOND RESPONDENT ON NOTICE OF MOTION Alfio Merlino FILE NUMBER: IRC 5995 of 2004 CORAM: Boland J CATCHWORDS : Unfair Contract - Application under s 106 of Industrial Relations - Notice of Motion - Applicant seeking Orders restraining the first and second respondent from disposing of certain goods - No appearance by Respondents - Interim Orders granted against first respondent - Matter adjourned for hearing inter partes LEGISLATION CITED : Industry Relations Act 1996 CASES CITED : Darvall v NZI Securities Australia Ltd (1990) 39 IR 215 Grahame Cooper v Sithe Energies [2000] NSWIRComm 132 HEARING DATES: 10/12/2004 DATE OF JUDGMENT: 10/20/2004 APPLICANT ON MOTION Mr M Walsh of counsel Solicitor: Mr D Carbone Carbone Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT No Appearance SECOND RESPONDENT No Appearance JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Wednesday 20 October 2004 Matter No IRC 5995 of 2004 LORENZO MONTRESOR v ASTRA PRESTIGE VEHICLE SERVICE AND DETAILING PTY LIMITED & ANOR Application under section 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT [2004] NSWIRComm 312 1 On 8 October 2004 Lorenzo Montresor, a 66 year old Motor Mechanic, filed a summons for relief pursuant to s 106 of the Industrial Relations Act 1996. The respondents were named as Astra Prestige Vehicle Service and Detailing Pty Ltd ("first respondent") and Alfio Merlino ("second respondent"). 2 The summons alleged an unfair contract between the applicant and the respondents arising out of a relationship whereby the applicant performed mechanical repair and servicing work for the respondents at a workshop in O'Riordan Street, Mascot. The summons alleged, amongst other things, that the applicant was underpaid wages over a two-year period. It appears from the summons that the applicant was a director of the first respondent. The second respondent, it seems, was also a director and secretary of the first respondent and held the main interest in that business. 3 The summons further alleged that the second respondent had asserted the applicant had failed to lodge BAS statements and failed to pay certain taxes and insurance costs over a two-year period. The applicant alleged in his summons he was excluded from the workshop in Mascot and told "Leave and do not come back. Leave your tools here." Part of the reason, it would appear, that the applicant was told to leave his tools was that the second respondent claimed a debt, in the form of rent, was owed by the applicant to the value of $26,400. 4 In a notice of motion filed on 8 October 2004 the applicant sought orders restraining the first and second respondents from disposing of or removing tools allegedly owned by the applicant from the workshop in Mascot along with certain personal effects. In an affidavit of urgency in support of the motion the applicant expressed concern that the tools and personal belongings, some of which were of great sentimental value, would be "dissipated". The tools were said to be worth $67,616 and the personal belongings $8,150. However, there were other items also being held by the respondents, including a rare photo of a 1956 Lancia-Ferrari that was of great sentimental value, the worth of which was inestimable. 5 The Court heard the application for the asset preservation order at 4.00 pm on 12 October. The situation at that time was that the first respondent had been served with the summons for relief under s 106 and the notice of motion filed on 8 October but no appearance was entered by the first respondent. The applicant had been unable to effect personal service on the second respondent of either the summons or notice of motion. At about 3.50 pm on 12 October my associate was advised by the second respondent in a telephone conversation that he was in Queensland and had not been served with any documents, although he was obviously aware of the steps being taken by the applicant. The second respondent sought an adjournment of the proceedings for seven days. During this period, the second respondent said he would be prepared to give an undertaking that the "goods would not be sold". The applicant was advised of this communication. 6 The applicant indicated that he wished to proceed with the application for an order against the first respondent and that steps would be taken to serve the second respondent with the necessary documents. 7 After hearing the submissions of Mr M Walsh of counsel for the applicant I decided to make exparte the order sought against the first respondent. I am satisfied I have the necessary jurisdiction to make the order: see, for instance, Grahame Cooper v Sithe Energies [2000] NSWIRComm 132. The Court may make "interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at naught": Darvall v NZI Securities Australia Ltd (1990) 39 IR 215 at 221. 8 Having heard counsel's submissions and read the summons for relief and the applicant's affidavit, and without in any way commenting on the final outcome, I consider the applicant has a good arguable case for relief. In relation to whether damages would provide an adequate remedy, counsel for the applicant conceded that in respect of the tools he was not able to put that if they were disposed of by the respondents the tools were irreplaceable, however the tools were accumulated over a very long period by the applicant, many were special purpose, some were gifts from close family members and many would be very difficult to replace. As to the personal belongings, establishing their value would be complex and difficult and if they were disposed of it would cause substantial distress to the applicant. 9 I am satisfied that in the absence of any order restraining the first respondent there is a danger that the applicant's tools and personal belongings described in the applicant's affidavit may be disposed of by the first respondent. There is a real danger in those circumstances that the applicant, if he were successful in his claim against the respondent, would not have his judgment satisfied. I am satisfied that the applicant has made out a sufficiently strong case to justify the grant of the interlocutory remedy against the first respondent. I have had regard to the balance of convenience which, in my opinion, lies with the applicant who depends for his livelihood on his tools and in circumstances where the alleged debt owed by the applicant is only about one third of the asserted value of the applicant's tools and personal belongings. 10 The Court notes the preparedness of the first respondent to give an undertaking for seven days not to dispose of the goods referred to by the applicant. The Court would take a dim view of the second respondent taking any action inconsistent with this attitude prior to the motion being heard inter partes on 11 November 2004. Of course, the responsibility for serving beforehand the necessary documentation on the second respondent falls on the applicant and if the applicant has any concern that the second respondent might act prior to 11 November 2004 otherwise than in accordance with the indication given by the second respondent it is a matter for the applicant to pursue the necessary asset preservation orders against the second respondent. 11 I note that the applicant has given the usual undertaking as to damages. 12 I make the following orders: 1 That the first respondent by its employees, agents, attorneys or otherwise are restrained from disposing of, or removing from Unit 5, 221 O'Riordan Street, Mascot NSW 2020 the items identified in Annexure "C" to the applicant's affidavit marked Exhibit "A" in the proceedings. 2 Order 1 shall apply until 4.00 pm on 12 November 2004 or until further order. 3 The applicant's notice of motion is relisted for hearing inter partes at 10.00 am on 11 November 2004. At that time the Court will hear any application for the order to continue to apply against the first respondent and whether it should be extended to the second respondent, provided the necessary service has been effected. 4 The applicant is to serve the respondents with copies of these orders by 4.00 pm Friday 15 October 2004. 5 Costs are reserved. ________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.