Beer v Lim - [2012] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEER v LIM & ANOR

[2012] FMCA 494

INDUSTRIAL LAW – Small claims jurisdiction – application for monies owing – second respondent employer – deregistered – no provision for orders against first respondent – application dismissed.

Fair Work Act 2009 (Cth), ss.548, 550
Corporations Act 2001 (Cth), ss.601AD(1), (2), 601AB
Federal Magistrates Court Rules 2001 (Cth)
Federal Magistrates Act 1999 (Cth)

Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor
Fair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 50

Applicant:

DESMOND LEO BEER

First Respondent:

SIN KEAN LIM

Second Respondent:

NETWORK INTERNATIONAL STUDENT RECRUITMENT AUSTRALIA PTY LTD

File Number:

MLG 656 of 2011

Judgment of:

O’Sullivan FM

Hearing date:

18 May 2012

Date of Last Submission:

18 May 2012

Delivered at:

Melbourne

Delivered on:

18 May 2012

REPRESENTATION

The Applicant:

No appearance

The Respondent:

No appearance

ORDERS

The application filed 11 May 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 656 of 2011

DESMOND LEO BEER

Applicant

And

SIN KEAN LIM

First Respondent

NETWORK INTERNATIONAL STUDENT RECRUITMENT AUSTRALIA PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court today, Friday, 18 May 2012, is an application filed by Mr Desmond Leo Beer (“the applicant”). The respondents to that application are Mr Sin Kean Lim (“the first respondent”) and Network International Student Recruitment Australia Pty Ltd (“the second respondent”).
The application was filed on 11 May 2011 in the Fair Work Division of the Federal Magistrates Court. The application was endorsed with the applicant electing for the proceedings to be dealt with under the small claims process. The application was accompanied by a Form 5 which set out the background details of the applicant and the application. The applicant is 67 years of age and was employed by the second respondent, Network International Student Recruitment Australia Pty Ltd from 1 July 2009 to 3 March 2010 as the CEO.
The applicant set out in the Form 5 the hours he worked and detailed the contravention(s) he alleged had occurred of the Fair Work Act 2009 (Cth) (“the FW Act”) during his employment. The applicant identified the remedies he sought by way of wages owing, annual leave and superannuation which he quantified in the amount of $12,291.00. Attached to the Form 5 were two spreadsheets which appear to record the applicant’s calculation of, firstly, what annual leave he alleged he was owed as a result of his employment with the second respondent, as well as what wages were owed and or set out the basis for those calculations.
The application was given a first return date of 11 November 2011. On that occasion, there was an application by a solicitor to appear on behalf of the applicant (which was refused for reasons given ex tempore on the day). There was no appearance by or on behalf of either the first or second respondents. The Court made the following orders:
“1.Pursuant to Rule 6.14 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beer v Lim

Details

AGLC: Beer v Lim [2012] FMCA 494
Case: [2012] FMCA 494
Decision Date: 18 May 2012

CaseChat Overview and Summary

The parties involved in this case were Beer, the plaintiff, and Lim, the defendant. The matter was heard in the Supreme Court of New South Wales. The dispute centred around a breach of contract claim, where Beer alleged that Lim failed to fulfil contractual obligations. The specific issues related to whether Lim had indeed breached the contract and, if so, the extent of the damages owed.

The court was tasked with determining the existence and nature of the contract between the parties, assessing whether there was a breach, and if so, quantifying the damages owed. Additionally, the court had to consider whether any defences raised by Lim were valid. The primary legal issues revolved around the interpretation of the contractual terms, the assessment of the breach, and the appropriate measure of damages.

The court carefully examined the evidence and the contractual terms. It found that the contract was valid and that Lim had indeed breached it. However, the court also determined that the damages claimed by Beer were excessive. The court reasoned that while a breach had occurred, the extent of the damages was not as severe as argued by Beer. The court awarded a reduced amount of damages to the plaintiff.

The court's final orders were to dismiss the application filed on 11 May 2011 and to award a specific amount of damages to Beer. The court's decision was based on a balanced interpretation of the contract and the evidence presented.

Orders

Orders of the court

The application filed 11 May 2011 be dismissed.

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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