Kim v Naum BBQ Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kim v Naum BBQ Pty Ltd (No 2) [2025] FedCFamC2G 1627

File number: MLG 289 of 2023
Judgment of: JUDGE SYMONS
Date of judgment: 7 October 2025
Catchwords: INDUSTRIAL LAW – Practice and Procedure – applicants seeking declarations of contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) – application for default judgment against respondents in circumstances where they failed to comply with Court orders and to appear at hearing – default judgment entered in respect of applicants’ claim – respondents’ defence struck out and cross-claim dismissed – declarations of contravention – compensation awarded for underpayments and loss of entitlements – issue of penalty to be determined on the papers
Legislation:

 Fair Work Act 2009 (Cth), ss 44, 45, 90, 117, 323, 535, 536, 545, 570

Fair Work Regulations 2009 (Cth), regs 3.33, 3.34, 3.36, 3.37, 3.40, 3.42

Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth), rr 5.07, 5.09, 5.11

Federal Court Rules 2011 (Cth), r 5.23

Cases cited: Kidd v Kwek (No 2) [2024] FCA 194
Division: Division 2 General Federal Law
Number of paragraphs: 58
Date of last submissions: 6 October 2025
Date of hearing: 6 October 2025
Place: Melbourne
Counsel for the applicants: Mr A Jenshel
Solicitor for the applicants: Mann Lawyers
Solicitor for the respondents: There was no appearance by or on behalf of the first or second respondent

ORDERS

MLG 289 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JUNGHUN KIM

First Applicant

JIHYUN KYE

Second Applicant

AND:

NAUM BBQ PTY LTD (ACN 628 027 850)

First Respondent

BYOUNGWA LEE

Second Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

7 OCTOBER 2025

THE COURT DECLARES THAT:

1.Upon admissions deemed to have been made by reason of the first and second respondents’ default pursuant to r 5.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) there be judgment for the applicants against the respondents.

2.During the period from 1 April 2019 to 6 November 2022, the first respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (FW Act) in relation to the first applicant:

(a)contrary to s 535(1) of the FW Act, failed to make or keep records as prescribed by the Fair Work Regulations 2009 (Cth) (Regulations):

(i)Reg 3.34;

(ii)Reg 3.36(1);

(iii)Reg 3.37(1);

(iv)Reg 3.40(a); and

(v)Reg 3.33;

(b)contrary to s 535(3) of the FW Act and reg. 3.42 of the Regulations, failed to provide a copy of the records on request by the first applicant on 13 December 2022;

(c)contrary to s 536(1) of the FW Act, failed to provide payslips to the first applicant;

(d)contrary to ss 117 and 44 of the FW Act and clause 35.1 of the Restaurant Industry Award (MA000119) (Award), terminated the first applicant’s employment without notice and without payment in lieu of notice;

(e)contrary to…

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Details
Case
[2025] FedCFamC2G 1627
Decision Date

CaseChat Overview and Summary

The applicants, Junghun Kim and Jihun Kye, applied to the Fair Work Commission for declarations of contravention of civil remedy provisions under the Fair Work Act 2009, and compensation for underpayments and loss of entitlements against the respondents, Naum BBQ Pty Ltd and its director, Mr Lee. The applicants were employed by Naum BBQ but were terminated without notice and allegedly underpaid. The respondents failed to comply with Court orders and did not appear at the hearing. The applicants sought a default judgment against the respondents. The primary legal issue was whether the applicants were entitled to the relief they sought given the respondents’ non-compliance with Court orders. A secondary issue was the amount of compensation to be awarded to the applicants for underpayments and loss of entitlements.

The Court found that the respondents had contravened the civil remedy provisions of the Fair Work Act by terminating the applicants without notice and underpaying them. The Court also found that the respondents had failed to comply with Court orders and did not appear at the hearing, thereby warranting a default judgment. The Court struck out the respondents’ defence and dismissed their cross-claim. The Court awarded the applicants compensation for underpayments and loss of entitlements. The penalty issue was to be determined on the papers.

The Court entered a default judgment in respect of the applicants’ claim. The respondents’ defence was struck out and their cross-claim was dismissed. The Court made declarations of contravention of the civil remedy provisions of the Fair Work Act. The applicants were awarded compensation for underpayments and loss of entitlements. The penalty issue was to be determined on the papers.

Orders

Orders of the court

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Background

Background to the litigation

In pressing this application, the applicants relied upon the following material:(a)Application filed on 22 February 2023;(b)Amended statement of claim filed on 7 May 2023;(c)Affidavit of Junghun Kim filed on 19 September 2025;(d)Affidavit of Jihun Kye filed on 19 September 2025;(e)Affidavit of lawyer, Charlize Wu, filed on 29 September 2025; (f)Written submissions filed on 30 September 2025; and (g)Supplementary written submissions filed on 5 October 2025.BACKGROUNDEmployment arrangements and operation of Naum BBQ The applicants’ affidavit material records the following matters. Mr Kim is a chef who has worked at a number of establishments in Melbourne. Between 2014 and 2018, Ms Kye (who is Mr Kim’s wife) was employed as a manager at Oriental Spoon Restaurant and completed a Management Operations course at the William Angliss Institute. In around 2018, Mr Kim met Mr Lee while they were both working in the hospitality industry. Mr Lee operated a business “Seoul Meats”, which supplied meat to a restaurant in which Mr Kim was employed. Soon after, Mr Kim facilitated an introduction between Mr Lee and Ms Kye. Between March and May 2018, Mr Lee and Mr Kim entered into discussions with the intention of establishing a Korean restaurant. In or around May 2018, Mr Kim and Mr Lee met at the Crown Casino and made the decision to set up the restaurant, Naum BBQ through the company with the same name (the first respondent). Mr Lee established the company and appointed himself as the sole director, secretary, and shareholder. It is Mr Kim’s evidence that the joint venture agreement included terms that he (Mr Kim) would work as executive chef and the restaurant would be owned by Mr Kim and Mr Lee on a 50/50 share. On 12 February 2019, Mr Kim entered into an employment contract with Naum BBQ for the role of a chef. The contract (which was titled “Letter of Appointment”) contained terms including that Mr Kim would be paid an annual salary of $55,000 per year plus superannuation and that Mr Lee or Mr Kim may terminate the contract with the provision of one month’s notice.[1] [1] Annexure JK-2 to the Kim affidavit. Also in February 2019, Mr Lee offered Ms Kye a full-time position as operations manager of Naum BBQ. The terms of her employment were formalised through oral discussions and were not recorded in a written contract. Mr Lee offered to pay Ms Kye the same salary as Mr Kim (being $50,000 per annum) plus superannuation. In March 2019, Naum BBQ started trading. On or about 28 March 2019, Ms Kye commenced employment with Naum BBQ as operations manager. The role of operations manager included responsibility for the supervision and training of food and beverage staff, ordering and stock control. On or around 1 April 2019, Mr Kim commenced employment with Naum BBQ. In addition to the usual duties of a chef, Mr Kim was responsible for the supervision and training of kitchen staff, together with ordering and oversight of kitchen stock. On 6 November 2022, Mr Kim received a telephone call from Mr Lee, in which he (Mr Lee) informed him that the applicants’ employment with Naum BBQ had been terminated effectively immediately and they were not required to attend work from 7 November 2022.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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