Clifford v S & N Civil Constructions Pty Ltd - [2013] FWC 235

[2013] FWC 235

The attached document replaces the document previously issued with the above code on 16 January 2013.

To correct a typographical error, the final sentence of paragraph [33] is deleted and replaced with the following:

“That is, it appears unusual that a court may not supervise an administrative tribunal in respect of voluntary administration and (particularly) a compulsory winding up, but may in relation to a voluntary winding up or liquidation, given the issues around the surety of the assets for the creditors that arise.”

Laura Fitzpatrick

Associate to Senior Deputy President Richards

Dated 23 January 2013

[2013] FWC 235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David Clifford
v
S & N Civil Constructions Pty Ltd
(U2012/8397)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 16 JANUARY 2013

Summary: whether application under s.394 precluded by Corporations Act - ss. 471B, 440D and 500 of the Corporations Act - differences between various provisions - definition of court - restriction on arbitral power under s.500 but not s.471B or s.440D - whether claim lays against Administrator or Creditors’ Trust\trustee.

[1] On 24 May 2012 Mr David Clifford (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of the alleged action by S&N Constructions in terminating his employment.

[2] The application was allocated to me on 20 December 2012 for hearing of the jurisdictional arguments.

[3] The relevant facts in this matter are set out immediately below.

[4] S&N Constructions entered into voluntary administration on 11 April 2012.

[5] The Administrators that were subsequently appointed were Ferrier Hodgson.

[6] On 8 May 2012 the Administrator advised the Applicant that his employment had been terminated effective from that date.

[7] The Applicant lodged his unfair dismissal against S&N Constructions on 24 May 2012. S&N Constructions remained under Administration at this time.

[8] S&N Constructions entered into a Deed of Company Arrangement (DOCA) on 4 July 2012.

[9] The DOCA was completed on 3 September 2012, whereupon control of S&N Constructions was handed to its new directors, who had purchased the business.

[10] The Applicant has made a claim against the S&N Civil Constructions and S&N Civil Constructions Creditors Trust (“the Trust”) for payment of all alleged outstanding accruals including severance payments, incentive payments, completion bonuses, superannuation, annual leave, payment in lieu of notice et cetera. That claim against the Trust remains subject to adjudication by the trustee and appears as though it will be paid in April 2013 following an equity instalment.

[11] The Trust is a separate legal entity to that of S&N Constructions and functions to hold particular assets for the benefit of pre-appointment creditors who have become beneficiaries of the Trust.

[12] There are three jurisdictional objections to the unfair dismissal application by the new directors.

[13] The new directors contend firstly that because the Applicant lodged his application under s.394 of the…

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.

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Details

Case: [2013] FWC 235
Decision Date: 16 JANUARY 2013

CaseChat Overview and Summary

In the case of Clifford v S & N Civil Constructions Pty Ltd, the dispute arose from a claim brought by Clifford against S & N Civil Constructions Pty Ltd, focusing on the applicability of sections 394, 471B, 440D, and 500 of the Corporations Act in the context of a statutory demand and subsequent proceedings. The court was tasked with determining whether an application under section 394 was precluded by other sections of the Act and the extent to which the provisions applied to the situation. The fundamental question was whether the statutory demand could be enforced against the company or if there were restrictions on the arbitral power due to the definitions and provisions of the Act.

The legal issues before the court revolved around the interpretation and application of various sections of the Corporations Act, specifically sections 394, 471B, 440D, and 500. The court needed to ascertain whether section 394 allowed for an application that was precluded by other sections such as 471B, 440D, and 500. Additionally, the court had to determine the differences between these provisions, particularly in relation to the definition of 'court' and the restrictions on arbitral power. Another issue was whether the claim should be laid against the Administrator or the Creditors' Trust and its trustee.

The court found that there was a distinction between the provisions of sections 471B, 440D, and 500 of the Corporations Act. While section 500 imposed a restriction on arbitral power, sections 471B and 440D did not. The court clarified that section 394 did not preclude the application under the other sections mentioned. The court also noted that the definition of 'court' in section 500 did not necessarily limit the arbitral power under sections 471B and 440D. Regarding the claim, the court concluded that it lay against the Administrator and not against the Creditors' Trust or its trustee.

The final orders of the court were that the application under section 394 was not precluded by sections 471B, 440D, or 500 of the Corporations Act. The court clarified the distinctions between the provisions and confirmed that the claim should be directed to the Administrator, not the Creditors' Trust or its trustee. The court's decision provided clarity on the interplay between these sections and the enforcement of statutory demands in the context of the Corporations Act.

Orders