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NSW S106 UNFAIR CONTRACTS - ALTERNATIVES s106 gives a wide discretion to remedy unfair contracts - excluded matters are Common Law - Mutual Trust and Confidence
UK case Malik & Mahmud v Cank Credit [1998] ac 20
negative duty - employer not to do certain things - a party will not, without
reasonable and proper cause, conduct itself in a manner likely to destroyor seriously
damage the relationship of confidence and trust between employer and employee.
Court Of Appeal has been very active in s106 matters - critical of Commission. s179 protects decisions of Commission. Court of Appeal cannot force a change. Some now applying to CA before decision - even as Summons issued - Mitchforce
collateral documents - need to get whole contract into one document if possible - contract relating to work performed in an industry - See Brunings Case - where emails talk of additional interrelated matters. Also GGC Case. Another problem - Ct Appeal - if you have a contract - s106(5) read down in Solution 6, relief must be closely related to performance of work. appeal to H Ct. Sydney Water - a mere breach is not an unfair contract - appeal still on. |
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