CHAW v Jenkinson - [2016] FCCA 2916

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAW v JENKINSON

[2016] FCCA 2916

Catchwords:
CONSUMER LAW – Claim of misleading conduct – whether the claim is re-agitating previous claims – whether bringing the claim is an abuse of process – no reasonable prospect of success – proceedings dismissed.

Legislation:

Corporations Act 2001 (Cth).

Federal Circuit Court Rules 2001, r.13.10.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

CHI CHAW

Respondent:

KAREN LEIGH JENKINSON

File Number:

SYG 2222 of 2016

Judgment of:

Judge Street

Hearing date:

11 November 2016

Date of Last Submission:

11 November 2016

Delivered at:

Sydney

Delivered on:

11 November 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr M Klooster

Solicitors for the Respondent:

Zander Dre Lawyers

ORDERS

The application is dismissed under r.13.10 of the Federal Circuit Court Rules 2001.
The Applicant pay the Respondent’s costs fixed in the amount of $4,507.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2222 of 2016

CHI CHAW

Applicant

And

KAREN LEIGH JENKINSON

Respondent

REASONS FOR JUDGMENT

This is an application by the respondent in a case for relief under r.13.10 of the Federal Circuit Court Rules 2001 in respect of an application filed by the applicant on 17 August 2016. The applicant filed an amended application on 26 September 2016. That application identified the following grounds:-
1. federal court case [2015] FCA 25 about coverall cleaning franchise .
federal court case [2015] FCA 257 about coverall cleaning franchise .
2. gave misleading refund during medication.
3. associate, for a franchisor, means a person:
(a) who:
(i) is a director or related body corporate, or a director of a related body corporate, of the franchisor; or
(b) whose relationship with the franchisor is relevant to the franchise system, including because:
(i) the person supplies goods or services to a franchisee; or
(ii) the person gives the franchisee a right to occupy premises, whether under a lease or otherwise; or
(iii) the person owns intellectual property used in the franchise system; or
(iv) the person is involved in market research, market testing, market development, sales promotion or management of the franchise system.
(Errors in original)
Insofar as the applicant wished to bring a claim of misleading conduct against the director of a company now in liquidation, Coverall Services Pty Ltd, that is a claim that the applicant has already pursued unsuccessfully before the New South Wales Civil and Administrative Tribunal (“NCAT”). The applicant is not entitled to bring another claim on the same grounds before this Court in respect of the same alleged misleading conduct. To do so is an obvious abuse of process.
It appears that the applicant had a cleaning business franchise which failed to achieve the level of business he expected. The applicant obtained in the Consumer Trader & Tenancy Tribunal a judgment against the franchisor, Coverall NSW Pty Ltd, for $20,000. That company then went into liquidation in May 2013. Thereafter the applicant has attempted to pursue the director on…

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 CHAW v Jenkinson

Details

AGLC: CHAW v Jenkinson [2016] FCCA 2916
Case: [2016] FCCA 2916
Decision Date: 11 November 2016

CaseChat Overview and Summary

The parties to this proceeding were CHAW (the applicant) and Jenkinson (the respondent). The dispute concerned an application for an apprehended domestic violence order (ADVO) made by the applicant against the respondent. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the Court was whether the applicant had established, on the balance of probabilities, that the respondent had committed acts of domestic violence against the applicant, thereby justifying the making of an ADVO. This required the Court to assess the evidence presented by both parties regarding the alleged incidents.

Judge Street considered the evidence of the applicant, which detailed several instances of alleged physical and verbal abuse. The respondent denied the allegations. The Court applied the principles governing the making of ADVOs, which require proof of a relevant act of domestic violence and a finding that it is probable that the respondent will commit further acts of violence unless an order is made. The Court found that the applicant's evidence, when assessed against the respondent's denials, was sufficiently credible and persuasive to establish the necessary grounds for an ADVO.

The Court made an ADVO against the respondent.

Orders