Industrial Relations Commission of New South Wales CITATION: Robert Ferfolia and anor v Master Education Services Pty Ltd. Application under s 106 of the Industrial Relations Act 1996 [2009] NSWIRComm 25 FIRST APPLICANT: Robert Mario Ferfolia SECOND APPLICANT: Vicki Anne Ferfolia FIRST RESPONDENT: Master Education Services PARTIES: Pty Ltd SECOND RESPONDENT: Robert Athol Ollis THIRD RESPONDENT: Suzanne Gai Ollis FILE NUMBER(S): IRC 4847 of of 2004 CORAM: Haylen J CATCHWORDS: Orders DATE OF JUDGMENT: 4 March 2009 APPLICANT: (Mrs V A Ferfolia) Mr S J Burchett of counsel SOLICITORS: Mr G Gilmour Mason Lawyers (No appearance for Estate of Mr R M Ferfolia) LEGAL REPRESENTATIVES: RESPONDENTS: Mr V Bedrossian of counsel SOLICITORS: Mr P Meehan Meehans Solicitor Corporation JUDGMENT: - 3 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 4 March 2009 MATTER NO IRC 4847 of 2004 ROBERT FERFOLIA AND ANOR v MASTER EDUCATION SERVICES PTY LTD AND ORS Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2009] NSWIRComm 25 Following discussions between the parties, it is agreed that the following orders reflect the judgment of the Court in Robert Ferfolia and anor v Master Education Services Pty Ltd and ors [2009] NSWIRComm 17 delivered on 24 February 2009. The Court has therefore made the following orders in Chambers: ORDERS The Court 1 Declares pursuant to s 106(1) of the Industrial Relations Act 1996: (a) the franchise agreement between the applicants and the first respondent dated 15 June 1999 to be void ab initio , except to the extent that returns were made by the applicants in the operation of their franchised business; (b) (if ever agreed, as asserted by the respondents) no interest is payable on the loans made by the first and second respondent to the applicants of $15,000 (partly repaid) and $45,000 (wholly repaid) related or collateral to the franchise agreement. 2 Orders pursuant to s 106(5) Industrial Relations Act 1996 that the respondents pay to the second applicant the sum of $74,299 calculated as follows: (a) repayment or compensation for payment of the sum of $57,500 paid by the applicants to the first respondent as an initial franchise fee on 15 June 1999; (b) repayment or compensation for payment of the total of $21,600 paid by the applicants to the first respondent as monthly franchise fees from 15 September 1999 to 19 September 2002; (c) compensation for payment of the amount of $1,999 paid by the applicants to the first respondent for English notes; (d) less the sum of $6,800 discharging the unpaid balance of the loan made by the first respondent to the applicants. 3 Orders pursuant to s 372 Industrial Relations Act 1996 that the respondents pay the second applicant interest (at the rates prescribed for interest on judgments under s 101 Uniform Civil Procedure Act 2005) on the amount payable pursuant to Order 2 hereof as follows: (a) on the sum of $57,500,00, less the loan balance of $6,800 being $50,700, from 15 June 1999, such interest being calculated at $47,183.01 as at 3 march 2009; (b) on the sum of $21,600.00 from 15 March 2001, being a mid point between the start and end of monthly franchise fee payments, such interest being calculated at $16,281.61 as at 3 march 2009; and (c) on the sum of $1,999 from 20 April 2000, such interest being calculated at $1,697.68 as at 3 March 2009. 4 Orders that the first applicant's name be removed as a party to the proceedings. 5 Orders that the respondents pay the second applicant the amount of her own costs incurred and the amount of her costs incurred jointly with the first applicant of and incidental to the proceedings of the party/party basis to 26 August 2005 and on the indemnity basis from 26 August 2005 (or such other date as the Court deems fit. 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.