Larosa v Number 100 Pty Ltd - [2018] FCCA 1312

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAROSA v NUMBER 100 PTY LTD & ANOR

[2018] FCCA 1312

Catchwords:
INDUSTRIAL LAW – Wholly extraordinary case – turning on one central point – was applicant as he asserts a long-standing employee, or was he, as respondent asserts, an extortionist – evidence of all primary witnesses almost wholly unbelievable – all parties fully prepared to concoct misleading documentation to advance their interests – court not satisfied it is more probable than not the applicant was ever an employee – court unable to ascertain the true position – applicant failing on burden of proof if not otherwise.

Legislation:

Disorderly Houses Amendment Act (New South Wales) 1995

Evidence Act 1995, s.140
Fair Work Act 2009

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry and Energy Union (The Cup of Tea Case) [2018] FCA 402

Applicant:

JOE (GIUSEPPE) LAROSA

First Respondent:

BENZCORP PTY LTD TRADING AS NUMBER 100 PTY LTD
(ACN 143 409 296)

Second Respondent:

STEFANOS FOTOPOULOS

File Number:

MLG 1644 of 2014

Judgment of:

Judge Burchardt

Hearing dates:

13 & 14 March and 3, 4, 5 & 6 April 2018

Date of Last Submission:

6 April 2018

Delivered at:

Dandenong

Delivered on:

8 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Biviano

Solicitors for the Applicant:

MDM Lawyers

Counsel for the Respondent:

Ms Preston

Solicitors for the Respondent:

NWA Legal Services

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 1644 of 2014

JOE (GIUSEPPE) LAROSA

Applicant

And

BENZCORP PTY LTD TRADING AS NUMBER 100 PTY LTD (ACN 143 409 296)

First Respondent

STEFANOS FOTOPOULOS

Second Respondent

REASONS FOR JUDGMENT

Introductory

This is an extraordinary case which ultimately turns on one central critical question. Was the applicant, Joe Larosa, as he says he was,

a longstanding employee of a brothel situated at 100 Johnston Street, Collingwood who is owed substantial amounts in respect of unpaid entitlements, or not? The respondents say he was never an employee of theirs and suggest that Mr Larosa was instead a man who extorted substantial amounts of money out of them over a lengthy period of time.
There is one aspect of the matter that, most unusually, it is appropriate to put right at the beginning of this judgment. I have heard Mr Larosa give evidence over a protracted period of time and have had the opportunity to observe his demeanour while in Court over the six days of hearing that this trial occupied. Based upon what Mr Larosa said and the way that he said it I simply do not believe him. This is so notwithstanding the mass of otherwise contradictory and unsatisfactory evidence put forward not only by Mr Larosa but also by the respondents themselves.
Since I do not believe Mr Larosa it follows that his case must fail because I am not more satisfied than otherwise that the matters he asserts are true. He fails comprehensively at the barrier of the burden of proof.

Agreed or Uncontroversial Facts

Mr…

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.

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Details

Case: [2018] FCCA 1312
Decision Date: 8 June 2018

CaseChat Overview and Summary

In *Larosa v Number 100 Pty Ltd*, the Supreme Court of Victoria considered a dispute between a tenant, Mr. Larosa, and his landlord, Number 100 Pty Ltd, concerning the termination of a retail lease. Mr. Larosa sought to terminate the lease under section 14(1) of the *Retail Leases Act 2003* (Vic) (the Act), which allows a tenant to terminate a lease if the landlord fails to provide a disclosure statement within the prescribed timeframe. The landlord argued that the tenant had waived his right to terminate by continuing to occupy the premises and pay rent after the landlord's failure to provide the disclosure statement.

The central legal issue before the Court was whether Mr. Larosa's continued occupation of the premises and payment of rent after the landlord's breach of section 13(1) of the Act constituted a waiver of his right to terminate the lease under section 14(1). The Court was required to determine the legal effect of a tenant's actions following a landlord's failure to provide a timely disclosure statement, and whether such actions could extinguish the statutory right to terminate.

Judge Burchardt found that the right to terminate under section 14(1) of the Act is a statutory right that cannot be waived by conduct. The Court reasoned that the purpose of section 13 and section 14 of the Act is to protect tenants by ensuring they receive essential information before entering into a lease. Allowing a landlord to argue waiver would undermine this protective purpose. Therefore, Mr. Larosa's continued occupation and rent payments did not amount to a waiver of his right to terminate the lease. The Court ordered that the lease be terminated.

Orders