Sutton v BE Australia WD Pty Ltd (No 5) [2017] NSWSC 1636

Supreme Court New South Wales

Medium Neutral Citation: Sutton v BE Australia WD Pty Ltd (No 5) [2017] NSWSC 1636 Hearing dates: 25 November 2016; 9 and 27 February 2017; 29 June and 22 September 2017 (further written submissions) Date of orders: 28 November 2017 Decision date: 28 November 2017 Jurisdiction: Common Law Before: Walton J Decision: The plaintiff shall file within 7 days of the publication of this judgment short minutes of order reflecting this judgment which shall be dealt with administratively in Chambers by the Court. Catchwords: UNFAIR CONTRACT – ex parte proceedings – implications of settlement with second defendant – costs – indemnity basis – gross sum order – directions for final orders Legislation Cited: Civil Procedure Act 2005 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations Commission Rules 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2003) 54 NSWLR 738 Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689 Sutton v BE Australia WD Pty Ltd (No 4) [2017] NSWSC 1123 Category: Costs Parties: Mary Sutton (plaintiff) BE Australia WD Pty Ltd (first defendant) Representation: Counsel: M Gibian (plaintiff) (ex parte)

Solicitors: Gilbert + Tobin (plaintiff) File Number(s): 2016/26450

Judgment 1. HIS HONOUR: By a second further amended summons Mary Sutton ("the plaintiff") sought declaratory relief and monetary payments, pursuant to s 106(1) and (5) of the Industrial Relations Act 1996 (NSW) (hereafter referred to as "the Act"), against BE Australia WD Pty Ltd ("the first defendant") and Phillip James Davidson ("the second defendant") regarding work performed by the plaintiff for the first defendant. The proceedings against the second defendant were dismissed upon the basis of consent orders, without admission of liability, for the payment of a sum of $350,000 inclusive of costs. 2. The balance of the matter concerning the first defendant proceeded before the Court, ex parte.