Kim v Naum BBQ Pty Ltd (No 2)

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…