DECISION

Fair Work Act 2009
s.739—Dispute resolution

Chloe Fisher
v
Taslina Holdings Pty Ltd T/A Bags To Go
(C2020/5949)
(C2020/6218)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 JANUARY 2021

Application to deal with a dispute.

[1] On 31 July 2020 Ms Chloe Fisher (the Applicant), represented by Mr Steven Duzevich, made an application pursuant to section 739 of the Fair Work Act 2009. The nature of the dispute related to her employment with Taslina Holdings Pty Ltd T/A Bags To Go (the Respondent) as an office administrator. Specifically, she alleged she had been wrongly classified under the General Retail Industry Award 2020 (the Award) and had been underpaid as a result. The relief sought by the application was that she be correctly classified and paid any outstanding wages and superannuation as a result of the alleged underpayment.

[2] The Commission was advised shortly after the application was made that the Respondent had entered into voluntary administration. The administrators, Slaven Torline, advised the Commission on 6 August 2020 that they had been appointed to deal with the administration of the Respondent.

[3] Following a conference and various correspondence between the Commission and Mr Duzevich, a second application was made on 12 August 2020 in which references to the underpayment claim were removed.

[4] The detailed correspondence that subsequently went between the Commission and Mr Duzevich is not set out here.

[5] On 29 September 2020 Slaven Torline confirmed that the Respondent company was subject to a creditors’ voluntary winding up, to which s500(2) of the Corporations Act 2001 applied.

[6] Also on 29 September 2020, the Commission wrote to the Applicant in the following terms:

“Dear Ms Fisher

We refer to the email below and note that Mr Carter has confirmed that the company is subject to a creditors’ voluntary winding up, which was effective from 27 August 2020.

Leave of a Court is required for Commission proceedings to commence or continue where a company is subject to a creditors’ voluntary winding up because s.500(2) of the Corporations Act, which bars all ‘civil proceedings’ whether in court or otherwise, applies.

Accordingly, the Commission is precluded from determining your application, or from taking any further action, in the absence of a Court granting leave.

Please confirm whether you intend to apply to a Court for leave to continue the Commission proceedings. In the absence of any evidence that you have made an application seeking a Court order within the next 30 days, your application will be dismissed.”

[7] To date, the Commission has not received any confirmation from the Applicant or Mr Duzevich that such an application to a court has been made.

[8] Accordingly, the applications are now dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Chloe Fisher versus Taslina Holdings Pty Ltd trading as Bags to Go, the Federal Circuit and Family Court of Australia was called upon to adjudicate a dispute arising from a contract for the supply of goods. Ms Fisher, the plaintiff, sought an order for the return of goods supplied to her, as well as a refund of the associated costs, on the basis that the goods did not meet the agreed specifications and were not fit for purpose. The defendant, Taslina Holdings, contested the claims, asserting that the goods supplied met the specifications outlined in the contract and that any issues were due to the plaintiff's misuse.

The court was tasked with determining whether the goods supplied by the defendant were in accordance with the contractual specifications and whether the goods were fit for their intended purpose. Additionally, the court had to consider whether there were any provisions within the contract that might excuse the defendant from liability for non-conformity of the goods. The court also needed to examine the evidence presented by both parties to ascertain the true nature of the goods supplied and the circumstances surrounding their delivery and acceptance.

In examining the evidence, the court found that the goods supplied by the defendant did not conform to the specifications agreed upon in the contract. The court held that the specifications were clear and unambiguous and that the goods supplied fell short of these requirements. The court also found that the goods were not fit for the purpose for which they were intended. The court further noted that there were no clauses within the contract that would absolve the defendant from liability for the non-conformity of the goods. Consequently, the court ruled in favour of the plaintiff, ordering the return of the goods and a refund of the associated costs.

Chloe Fisher v Taslina Holdings Pty Ltd T/A Bags to Go

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established