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 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
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
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…
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- AGLC
- Knight and Sullivan (No.2) [2008] FMCAfam 55
- Case
- [2008] FMCAfam 55
- Decision Date
CaseChat Overview and Summary
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
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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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