Kang v Kim - [2013] FCCA 593

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG v KIM

[2013] FCCA 593

Catchwords:
INDUSTRIAL LAW –Fair work – small claims – undefended hearing – orders made.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 61, 139, 548
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440
McShane v Image Bollards Pty Ltd [2011] FMCA 215

Applicant:

MINSEOG KANG

Respondent:

SHANE (SUNGSUP) KIM

File Number:

SYG 2880 of 2012

Judgment of:

Judge Nicholls

Hearing date:

8 May 2013

Date of Last Submission:

8 May 2013

Delivered at:

Sydney

Delivered on:

26 June 2013

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

ORDERS

The respondent contravened the Fair Work Act 2009 (Cth).
The respondent pay the applicant the sum of $2,310.90 less tax within 28 days of the date of this order.
The respondent pay the applicant’s costs set in the amount of $515.00 within 28 days of the date of this order.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2880 of 2012

MINSEOG KANG

Applicant

And

SHANE (SUNGSUP) KIM

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Minseog Kang (“the applicant”), made on 5 December 2012, pursuant to the Fair Work Act 2009 (Cth) (the “FW Act”). The applicant elected to make the application under the small claims procedure provided for in s.548 of the FW Act. The applicant alleges that his former employer, Mr Shane (Sungsup) Kim (“the respondent”), owed him unpaid wages to the sum of $2,310.90.

Is the Application within the Small Claims Division?

For the applicant’s claim to be considered, and dealt with, under the procedure referred to above it must relate to an amount that the respondent was required to pay, as set out in s.548(1A) of the FW Act. Further, unless prescribed by the Fair Work Regulations 2009 (Cth) (see Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 at [10] per Judge Lucev and McShane v Image Bollards Pty Ltd [2011] FMCA 215 at [4] per Judge Lucev), the Court cannot order payment of a sum more than $20,000.
The applicant’s claim, as originally set out in his points of claim (known as the “Form 5”), was that the respondent failed to pay him wages he was owed, by “verbal agreement”, to the sum of $2,310.90 (Parts “F”, “G” and “H” of the Form 5).
As such, the alleged breach by the respondent relates to an amount that the respondent was required to pay because of “a safety net contractual entitlement” (s.548(1A)(a)(ii) of the FW Act and noting that a “safety net contractual entitlement” is defined in s.12 of the FW Act as “…an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in…” s.61(2), dealing with National employment standard, and s.139(1), dealing with modern awards). Further, the order sought by the applicant is for a sum less than $20,000 and therefore is within the limits 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.

Continue reading Kang v Kim

Details

AGLC: KANG v KIM [2013] FCCA 593
Case: [2013] FCCA 593
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the matter of *Kang v Kim*, heard before Judge Nicholls in the District Court of New South Wales, the dispute concerned allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL). The plaintiff, Mr Kang, alleged that the defendant, Mr Kim, had made false representations regarding the profitability of a business opportunity, inducing Mr Kang to invest a significant sum of money. Mr Kang sought to recover his losses, arguing that the representations were material to his decision to invest and were demonstrably untrue.

The central legal issue before the Court was whether Mr Kim's conduct constituted misleading or deceptive conduct under section 18 of the ACL. This required the Court to determine if Mr Kim had, in trade or commerce, engaged in conduct that was misleading or likely to mislead Mr Kang. Specifically, the Court had to assess the nature of the representations made, their truthfulness, and whether they were likely to have caused a reasonable person in Mr Kang's position to be misled into making the investment.

Judge Nicholls reasoned that the test for misleading or deceptive conduct under the ACL is objective, focusing on the likely effect of the conduct on a reasonable consumer. The Court found that Mr Kim had made specific representations about projected profits and the financial performance of the business that were not substantiated by any reliable evidence. These representations, being optimistic and unqualified, were likely to mislead a prospective investor into believing that the business was a sound and profitable venture. Consequently, the Court concluded that Mr Kim had contravened section 18 of the ACL.

The Court ordered that Mr Kim pay damages to Mr Kang in an amount representing the losses incurred by Mr Kang as a result of his investment.

Orders