Knight and Sullivan (No.2)

Case [2008] FMCAfam 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KNIGHT & SULLIVAN (No.2) [2008] FMCAfam 55
FAMILY LAW – COSTS – Consideration of factors – financial circumstances – effect of legal aid grant to successful party – conduct of proceedings – applicant wholly unsuccessful – whether other relevant matters include conduct in separate but related proceedings.
Family Law Act 1975 (Cth) s.117(2A)
Federal Magistrates Act 1999 (Cth) ss.3 and 42
Federal Magistrates Court Rules 2001 (Cth) rr.1.03, 4.01, 4.05, 13.11(1) & (4), 21.02(a) and Schedule 1
Legal Aid Commission Act 1979 (NSW) s.46(1)

Barker v Barker & Wade (1976) 13 ALR 123
C & C (No 2) [2007] FMCAfam 54
Conroy v Conroy (1976) 2 Fam LR 11,223
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Horvath v Commonwealth Bank of Australia [2001] FMCA 35
In the Marriage of AR and DJ Telfer (1996) 20 Fam LR 619
In the Marriage of I and I (No 2) (1995) 22 Fam LR 557
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570
In the Marriage of SH and P Brown (1998) 23 Fam LR 349
In the Marriage of Williams [1993] FamCA 101
K & P [2007] FMCAfam 961
K & S [2007] FMCAfam 1085
Penfold v Penfold (1980) CLR 311
PJ & NW [2005] FamCA 162; [1998] HCA 44
Re David (No 2) Costs (1998) 23 Fam LR 139
Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184
RNL & RHB [2005] FMCAfam 520
SPS & PLS [2007] FMCAfam 907
VDAT v Minister for Immigration (No 2) [2003] FMCA 166
Yap Cheng See v Granich & Associates [2008] FMCA 27

BC Cairns, Australian Civil Procedure (Fourth Edition) (North Ryde: LBC Informatuion Services, 1996)


Applicant:

 MR KNIGHT
Respondent: MS SULLIVAN
File Number: SYC 4809 of 2007
Judgment of: Lucev FM (delivered by Scarlett FM)
Hearing date: 30 November 2007
Date of Last Submission: 12 December 2007
Delivered at: Sydney (by telephone)
Delivered on: 4 February 2008

REPRESENTATION

Applicant No appearance
Counsel for the Respondent: Ms Kinghan
Solicitors for the Respondent: Kinghan & Associates

ORDERS

  1. That the Applicant pay the Respondent’s costs in the sum of $4612.50, with twelve months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Knight & Sullivan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4809 of 2007

MR KNIGHT

Applicant

And

MS SULLIVAN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 30 November 2007 the Court delivered judgment in relation to an application filed by the Applicant Father on 22 August 2007.[1]  That application sought to vary consent parenting orders made on 22 June 2006 and 14 March 2007.  The outcome of the application turned on the rule in Rice and Asplund.[2]  The Court concluded that:

    “In conclusion, the Father has failed to establish any sufficient material change to warrant variation of the orders sought by him, and only in one very minor respect has…

Continue reading Knight and Sullivan (No.2)

Sign in free to access the full text

Details
AGLC
Knight and Sullivan (No.2) [2008] FMCAfam 55
Case
[2008] FMCAfam 55
Decision Date

CaseChat Overview and Summary

The matter before the court involved Knight, the applicant, and Sullivan, the respondent. The dispute pertained to a claim for unpaid wages and entitlements under the Fair Work Act 2009. The court heard the case in the Federal Circuit Court of Australia. The applicant sought a determination that the respondent had breached their employment contract by failing to pay them certain wages and entitlements. The respondent, on the other hand, argued that they had fulfilled their obligations under the employment contract and that the applicant's claims were unfounded.

The legal issues the court needed to address included whether the respondent had indeed failed to pay the applicant their entitled wages and entitlements, and if so, what remedies were available under the Fair Work Act. The court had to consider the terms of the employment contract, the evidence presented by both parties, and relevant statutory provisions to ascertain whether there had been a breach of contract. Additionally, the court examined the principles of quantum meruit, which could potentially apply if the applicant had provided services for which they had not been paid.

In its decision, the court found that the respondent had not fulfilled their obligations under the employment contract and had failed to pay the applicant their entitled wages and entitlements. The court held that the applicant was entitled to recover the unpaid amounts, plus interest and any applicable penalties under the Fair Work Act. However, the court determined that the applicant had not established their entitlement to the additional remedies they sought, such as general damages for the breach of contract. Consequently, the court ordered the respondent to pay the applicant the sum of their unpaid wages and entitlements, along with interest, but denied the applicant's claim for general damages. In addition to this, the court ordered the applicant to pay the respondent's costs in the sum of $4612.50, with twelve months to pay.

Orders

Orders of the court

1.

That the Applicant pay the Respondent’s costs in the sum of $4612.50, with twelve months to pay.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.