FEDERAL COURT OF AUSTRALIA
Basi v Namitha Nakul Pty Ltd [2019] FCA 743
File number: NSD 523 of 2019 Judge: WIGNEY J Date of judgment: 1 May 2019 Catchwords: INDUSTRIAL LAW – proceeding alleging serious contraventions of the Fair Work Act 2009 (Cth) – where applicant alleges being underpaid and overworked in contravention of the Restaurant Industry Award 2010 and the Fair Work Act 2009 (Cth)
INDUSTRIAL LAW – interlocutory application seeking freezing orders pursuant to r 7.32 of the Federal Court Rules 2011 (Cth) – where freezing orders were made – application for the extension of the freezing orders – principles of freezing orders – where the applicant had an arguable case for the purposes of r 7.35(1)(b) of the Federal Court Rules 2011 (Cth) – whether there was a danger that a prospective judgment would be wholly or partly unsatisfied because the respondents might either abscond or dispose of or remove their assets from Australia – whether the balance of convenience weighed against the continuation of the freezing orders – whether freezing orders lacked utility due to few assets – whether adverse publicity was a persuasive discretionary reason for refusing to extend the freezing orders – where Court was satisfied that there was a danger that any judgment obtained by the applicant would be wholly or partly unsatisfied if freezing orders were not extended – freezing orders extended until further order
Legislation: Fair Work Act 2009 (Cth) ss 44, 45, 90(2), 325, 343, 345, 535, 557A
Fair Work Regulations 2009 (Cth) reg 3.34
Federal Court Rules 2011 (Cth) rr 7.32, 7.35
Cases cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Curtis v NID Pty Ltd [2010] FCA 1072
Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) (2012) 90 ATR 711; [2012] FCA 1064
Deputy Commissioner of Taxation v Greenfield Electrical Services Pty Ltd (2016) 103 ATR 327; [2016] FCA 653
Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194; [2010] FCA 1014
Insolvency Guardian Melbourne Pty Ltd v Carlei (2016) 111 ACSR 236; [2016] FCA 72
Date of hearing: 1 May 2019 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 39 Counsel for the Applicant: Ms L Doust Solicitor for the Applicant: WorkLawyers Solicitor for the First Respondent: Mr B Gillard of Gillard Consulting Lawyers Counsel for the Second Respondent: The Second Respondent appeared in person Counsel for the Third Respondent: The Third Respondent appeared in person Counsel for the Fourth Respondent The Fourth Respondent appeared in person ORDERS
NSD 523 of 2019 BETWEEN: MIDHUN BASI
Applicant
AND: NAMITHA NAKUL PTY LTD
First Respondent
VAISAKH MOHANAN USHA
Second Respondent
PRIYADEVI SUNIL KUMAR (and another named in the Schedule)
Third Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
1 MAY 2019
THE COURT ORDERS THAT:
1.The orders…
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- Case
- [2019] FCA 743
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether Basi had an arguable case for the extension of the freezing orders under rule 7.35(1)(b) of the Federal Court Rules 2011 (Cth). The court had to consider whether there was a danger that the respondents might abscond or remove their assets from Australia, and whether the balance of convenience favoured the continuation of the freezing orders. Additionally, the court assessed whether the freezing orders lacked utility due to the respondents' limited assets and whether adverse publicity was a persuasive discretionary reason for refusing to extend the orders.
The court found that Basi had demonstrated an arguable case for the extension of the freezing orders, as there was a significant risk that the respondents might not satisfy any judgment awarded to Basi. The balance of convenience was deemed to favour the continuation of the freezing orders, as the risk of unsatisfied judgments outweighed the potential prejudice to the respondents. The court also determined that adverse publicity did not constitute a sufficient reason to refuse the extension of the orders. Consequently, the court extended the freezing orders until further order and set out specific deadlines for the filing of defences and replies, as well as scheduling a further case management hearing.
Orders
Orders of the court
1. The orders set out in Annexure A to the orders made by Robertson J on 9 April 2019 be extended until further order.
2. The respondents file and serve their defences on or before 15 May 2019.
3. The applicant file and serve any reply to the defences on or before 29 May 2019.
4. The matter be stood over for a further case management hearing before the docket judge on 5 June 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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