NSW Caselaw
Industrial Court of New South Wales
CITATION: Alto Artarmon Pty Ltd and anor v BMW Australia Limited [2007] NSWIRComm 172
FIRST APPLICANT: Alto Artarmon Pty Limited
PARTIES: SECOND APPLICANT: Alto Prestige Pty Limited
RESPONDENT: BMW Australia Limited
FILE NUMBER(S): IRC 470 of 2007
CORAM: Marks J
CATCHWORDS: Unfair contract s106 proceedings - motor vehicle dealer contracts - respondent seeks by motion to have proceedings struck out for want of jurisdiction and power - interlocutory strike out application should not be entertained until the appropriate stage in the proceedings - facts have been sufficiently established to consider interlocutory application - work performed by employees or directors of the applicant was not performed in accordance with the dealer agreements - intention and effect of dealer agreements was to create motor vehicle distributorships - dealer agreements do not fall within s106 - court lacks jurisdiction to deal with proceedings - relief sought by applicants is not directed to any provision of dealer agreements whereby work is performed in an industry - relief sought is not within the power of this Court to grant - motion to have proceedings dismissed upheld - summons struck out
LEGISLATION CITED: Industrial Relations Act 1996 ss105, 106
Agar v Hyde (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Batterham v QSR Limited (2006) 226 CLR 237 Caltex Oil (Australia) Pty Ltd v Feenan (1981) 1 NSWLR 168 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Majik Markets v Brake and Service Centre (1991) 28 NSWLR 443 McDonald's Australia Holdings Limited and anor v Industrial Relations Commission of New South Wales and 2 ors [2005] NSWCA 286 Old UGC v Industrial Relations Commission of New South Wales (2006) 225 CLR 274 Sin Yong Yim and Tai Sik Kim v Industrial Relations Commission of New South Wales and anor [2007] NSWCA 77 Wirraway (NSW) Pty Ltd and anor v Ultratune Australia Pty Ltd [2006] NSWIRComm 300
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