A Barrister's Blog

The Lighter Side of Law

 

by Paul Cutler

Fitness First

weightsAt the end of last month’s post, I alluded to a long running dispute between Ms Dubow and Fitness First. Apparently (according to Nine News she was a founding member of Fitness First and entitled to lifetime fixed fees).

Weight dropping

This all started to unravel in June 2004 when Justinian noted that Ms Dubow had received a letter from Fitness First’s legal counsel which included:

We note that you regularly attend the Body Pump classes at our Bond Street club and that you drop weights to the floor throughout those classes. The dropping of weights to the floor causes: 

  1. disturbance and distress to others in the class;
  2. damage to the flooring in the aerobics studio.

Please be advised that we require this behaviour to cease immediately.

You should be aware that we have the right under the terms of our membership agreement to terminate your membership for behaviour which we deem to be inappropriate and we do deem this behaviour as inappropriate.

Should you continue to drop weights to the floor during Body Pump classes, your membership will be terminated.

Further, should any damage be caused to the flooring in the aerobics studio as a result of you dropping weights to the floor, we will hold you responsible for the cost of repairing the damaged flooring.

Litigation and the SCNSW

Why am I not surprised that the matter wasn’t resolved by negotiation and that the membership was eventually terminated? Why am I also not surprised that this resulted in an application to the CTTT (as NCAT was then)? At the conclusion of the CTTT hearing in March 2005, Ms Dubow sought to withdraw her application. Also unsurprisingly Fitness First sought a costs order and Ms Dubow was ordered (in May 2005) to pay 75% of the costs.

Moving forward seven years to the judgment of Garling J in the SCNSW in February 2012, it’s probably fair to observe a degree of exasperation, when his Honour observed at [3]-[4]:

  1. The actual dispute between the parties that was before the CTTT, the details of it and the rights and wrongs of each party have now been lost in time. Since 2005, in a number of courts and in a variety of ways, Ms Dubow and FFA have been engaged in litigation dealing with the costs order made by the CTTT on 5 May 2005.
  2. On 18 November 2011, I embarked upon the hearing of four matters that had been commenced in the Supreme Court of NSW. Two of these were commenced by Ms Dubow, and two by FFA…..

So what happened? If you skip forward to paragraph [155] Ms Dubow’s actions in registering the Cost Certificates, obtaining judgments against FFA in the Local Court and the Supreme Court, and then attempting to enforce those judgments, were contrary to the terms of the stay order made by Hulme J (finally) in February 2008. Not to mention that she had no legitimate basis for seeking the entry of judgment in her favour and the enforcement of those judgments because she had already released her entitlement to those costs.

Creative commons acknowledgement for the photograph.

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