Montresor v Astra Prestige Vehicle Service & Detailing Pty Ltd & anor [2008] NSWIRComm 109

Industrial Court of New South Wales

CITATION: Montresor v Astra Prestige Vehicle Service & Detailing Pty Ltd & anor [2008] NSWIRComm 109

APPLICANT Lorenzo Montresor PARTIES: FIRST RESPONDENT Astra Prestige Vehicle Service & Detailing Pty Ltd SECOND RESPONDENT Alfio Merlino

FILE NUMBER(S): IRC 5995 of 2004

CORAM: Marks J

CATCHWORDS: S106 unfair contract proceedings - applicant relocated business to respondent's premises - agreed that applicant would service vehicles of respondent's two businesses as well as private clients - parties aware that Council consent was required - parties agreed to half ownership of a company to conduct the business - applicant contributed tools and respondent contributed 12 months rent - applicant to be paid "wages" - inability to secure Council approval - company failed to pay a number of invoices - company had not made sufficient income to enable applicant to be paid full wages - respondent caused company to cease trading – held arrangement between applicant and 2nd respondent - no relationship between applicant and corporate respondent – 2nd respondent aware that Council approval was unlikely - inability to quantify financial loss flowing from lack of Council consent - payment of "wages" only if there is a profit is not unfair - no relevant unfairness in charge out rate - respondent's companies' failure to pay invoices created relevant unfairness - no evidence of ownership or value of tools - if arrangement avoided, ownership arguably reverts to applicant - arrangement avoided from inception - at some stage the applicant should have been aware of the lack of Council approval - applicant experienced shortfall of anticipated wages - applicant should have reconsidered position due to lack of profitability - monetary compensation ordered to applicant together with interest