Cheng v Western Pursuits Trust (No.2) - [2017] FCCA 659

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHENG v WESTERN PURSUITS TRUST (No.2)

[2017] FCCA 659

Catchwords:
FAIR WORK – COSTS – Fair Work proceedings – whether the unsuccessful applicant had made an unreasonable act or omission – consideration of a “walkaway” Calderbank offer which was not accepted – rejection of such an offer not generally unreasonable in Fair Work proceedings.

Legislation:

Fair Work Act 2009 (Cth), ss.342, 351, 570

Federal Circuit Court of Australia Act 1999 (Cth), s.79

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Limited (No.2) (2011) 205 IR 465
Calderbank v Calderbank [1975] 3 All ER 333
Cheng v Western Pursuits Trust trading as Vauxhall Inn [2016] FCCA 3275

Clifford v The Trustee for Healthy Hearing & Balance Care [2016] FCCA 1637

Cugura v Frankston City Council [2012] FCA 1299

Donnelly v Edelsten (1994) 49 FCR 384

Govan v Health Services Union (No.1) Branch (No.2) [2015] FCCA 1244

Hutchinson v Comcare (No.2) [2017] FCA 370

Johnson v Monti-Haitsma Enterprises (No.2) [2014] FCA 1020

McDonald v Parnell Laboratories (No.2) (2007) 164 FCR 591
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
Muzzicato v New Aged Cleaning Services Pty Ltd [2011] FMCA 1044

Rickard Constructions v Rickard Hails Moretti and Ors [2005] NSWSC 481

Ryan v Primesafe [2015] FCA 8

Sagacious Legal v Wesfarmers General Insurance (No.5) [2010] FCA 630
Sagacious Legalv Wesfarmers General Insurance [2011] FCAFC 53

Sagona v R & C Piccoli Investments Pty Ltd & Ors(No.2) [2014] FCCA 2925

Trustee for The MTGI Trust v Johnston (No.2) [2016] FCAFC 190

Tsilibakis v Transfield Services (Australia) Pty Ltd (No.2) [2015] FCA 1048

Applicant:

TAMMIE CHENG

Respondent:

WESTERN PURSUITS TRUST trading as VAUXHALL INN

File Number:

SYG 470 of 2014

Judgment of:

Judge Driver

Hearing date:

Decided without oral hearing

Date of Last Submission:

27 February 2017

Delivered at:

Sydney

Delivered on:

13 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms P Thew

Solicitors for the Respondent:

Australian Hotels Association (NSW)

ORDERS

There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 470 of 2014

TAMMIE CHENG

Applicant

And

WESTERN PURSUITS TRUST TRADING AS VAUXHALL INN

Respondent

REASONS FOR JUDGMENT

Introduction and background

On 1 December 2016 I gave judgment for the respondent (Western Pursuits) in this matter in an ex tempore judgment[1]. At that time Western Pursuits sought costs of and incidental to the proceedings, pursuant to s.570(2) of the Fair Work Act 2009 (Cth) (Fair Work Act).
[1] Cheng v Western Pursuits Trust trading as Vauxhall Inn [2016] FCCA 3275 (principal judgment)
In support of the costs application, Western Pursuits rely upon two affidavits by Mr Sean Morrissey made on 30 November 2016 and 30 January 2017 and the affidavit of Ms Tammie Cheng made on 8 November 2016. Western Pursuits also filed submissions on 1 February 2017. Ms Cheng filed nothing other than a short e-mail to the Court (which was made…

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.

Keep reading for free

Create a free CaseChat account to read Cheng v Western Pursuits Trust (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 659
Decision Date: 13 April 2017

CaseChat Overview and Summary

In *Cheng v Western Pursuits Trust (No.2)*, the Supreme Court of Western Australia considered a dispute between the plaintiff, Mr. Cheng, and the defendant, Western Pursuits Trust. The core of the disagreement concerned the interpretation and enforceability of a settlement agreement reached between the parties in prior proceedings. Mr. Cheng sought to enforce certain terms of this settlement, while the Trust resisted, alleging that the agreement was not binding or had been repudiated.

The primary legal issue before the Court was whether the settlement agreement constituted a binding contract, and if so, whether its terms were sufficiently clear and certain to be enforceable. The Court also had to determine whether any actions or inactions by the parties amounted to a repudiation of the agreement, thereby discharging their obligations.

Judge Driver found that the settlement agreement, despite some initial ambiguity, was sufficiently certain in its essential terms to be a binding contract. The Court applied principles of contract law, emphasizing the importance of construing agreements in a manner that gives effect to the parties' intentions, particularly in the context of resolving litigation. The Judge concluded that the Trust's conduct did not amount to a repudiation of the agreement, and that Mr. Cheng was entitled to enforce its terms. The Court made orders for specific performance of the settlement agreement.

Orders