Larcombe v Mackereth - [2015] FCCA 2646

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARCOMBE v MACKERETH

[2015] FCCA 2646

Catchwords:
INDUSTRIAL LAW – Contraventions by company of Fair Work Act through non-payment of accrued by untaken annual leave and annual leave loading – no payment of superannuation entitlements – whether respondent involved in contraventions.

Legislation:

Fair Work Act2009, ss.43, 45, 539, 550(1), 550(2), 557(1)

Amusement, Events and Recreation Award 2010 cl.20.2

Corporations Act2001 ss.493 and 513B

Crimes Act 1914, s.4AA

FWO v Wegra Investments Pty Ltd [2012] FMCA 933
Giorganni v R [1985] HCA 29
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
McEvoy v Incat Tasmania Pty Ltd (2003) 46 ACSR 392
Midland Counties District Bank Ltd v Attwood [1905] 1 Ch 357

Applicant:

BRENTON LARCOMBE

Respondent:

RAYMOND MACKERETH

File Number:

BRG 558 of 2014

Judgment of:

Judge Jarrett

Hearing dates:

17 & 18 August 2015

Date of Last Submission:

18 August 2015

Delivered at:

Brisbane

Delivered on:

18 August 2015

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondent:

Mr Kronberg (directly briefed)

ORDERS

The respondent pay to the applicant the sum of $12,455.07 by way of unpaid annual leave and annual leave loading within 28 days of today.
The respondent pay a pecuniary penalty of $2160.00 with such sum to be paid to the applicant within 28 days of today.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 558 of 2014

BRENTON LARCOMBE

Applicant

And

RAYMOND MACKERETH

Respondent

REASONS FOR JUDGMENT

ex tempore

Mr Larcombe was employed by Klub Kruise Pty Ltd, a company now in liquidation, as its manager from on or about 7 July, 2002 until on or about 15 August, 2012. Save for Mr Larcombe’s 20 per cent shareholding in that company Mr Mackereth was, at all relevant times, the only director and shareholder of Klub Kruise Pty Ltd. The company voluntarily entered into liquidation on or about 13 August, 2012. A resolution of the company on that date effected the winding up. The relevant notice given to ASIC about the winding up suggests that it was a creditors’ voluntary winding up but, in fact, it was a members’ voluntary winding up. However, nothing turns on that.
There is no dispute in this case that the company did not pay to Mr Larcombe all of his entitlements when his employment came to an end. So much is admitted on the pleadings. Mr Larcombe’s claim is that he was owed annual leave entitlements, loading on those annual leave entitlements, amounts for superannuation, which ought to have been paid to him or on his behalf, and an amount which he describes as “notice”.
By these proceedings Mr Larcombe alleges that Mr Mackereth is liable to make good the company’s underpayments to him by reason of s.550(1) of the Fair Work Act2009.
Whilst Mr Mackereth admits most of the allegations against him he denies that he was the “controlling mind” of the company and that he was involved in…

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.

Keep reading for free

Create a free CaseChat account to read Larcombe v Mackereth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 2646
Decision Date: 18 August 2015

CaseChat Overview and Summary

This matter concerned a dispute between the applicant, Mr. Larcombe, and the respondent, Mr. Mackereth, concerning the ownership of a property located at 145 Old Cleveland Road, Capalaba. The applicant sought to have a caveat lodged by the respondent removed from the title of the property. The case was heard in the Supreme Court of Queensland.

The central legal issue before the Court was whether the respondent had a sufficient caveatable interest in the property to justify the continued existence of the caveat. Specifically, the Court had to determine if the respondent had established a *prima facie* case that he held an equitable interest in the property, arising from an alleged agreement for sale or a resulting or constructive trust.

Justice Jarrett found that the respondent had not established a *prima facie* case for an equitable interest. The Court considered the evidence presented by both parties regarding the alleged agreement for sale and the circumstances surrounding the transfer of the property. It was held that the respondent failed to demonstrate the necessary elements for either an express or implied trust, nor did he establish a binding agreement for sale that would give rise to an equitable interest. The Court concluded that the respondent's claim was speculative and lacked sufficient evidentiary support to warrant the continued encumbrance of the property by the caveat.

Consequently, the Court ordered that the caveat lodged by the respondent be removed from the title of the property at 145 Old Cleveland Road, Capalaba.

Orders