Catchwords: CONSUMER LAW – Action under s.236 of the Australian Consumer Law (ACL) in relation to loss and damage suffered as a result of misleading or deceptive conduct alleged to have been constituted by a corporation making a representation in respect of a future matter – whether a representation as to a future matter was made – whether the corporation had reasonable grounds for making it – whether applicant relied on the representation – whether the director of the corporation was involved in making the representation – whether director had knowledge of the essential elements of the corporations’ contravention of s.18(1) of the ACL.
INDUSTRIAL LAW – Claim for contravention of s.323 of the Fair Work Act 2009 (Cth) (FW Act) – whether there was an agreement or term of an employment contract that, in addition to the remuneration stipulated in the employment contract, the employee would be entitled to a share of fees employee earned for his employer for work done on weekend – whether director of employer company was involved in employer company’s failure to pay money earned by the employee as a result of such term or agreement – whether at time of termination of employment contract employee had earned accrued annual leave or whether annual leave had in effect been taken – whether director of the employer company was involved in employer company’s failure to make superannuation contributions.
RESTITUTION – Claim for the recovery of franchise fees paid under franchise agreement – whether franchisor represented that fees would be refunded if franchisee would not take up the business provided for in the franchise agreement – whether in any event money paid to franchisor would be recoverable from respondents who were not the franchisor.
[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
AGLC
Le v Resultsmart Group Pty Ltd [2016] FCCA 2246
Case
[2016] FCCA 2246
Decision Date
CaseChat Overview and Summary
The proceeding involved claims brought by the applicant, Mr Le, against Resultsmart Group Pty Ltd and its director, Mr. David John Smith. Mr Le alleged contraventions of the Australian Consumer Law (ACL) and the Fair Work Act 2009 (Cth) (FW Act), as well as claims in restitution. The dispute concerned representations made about a future matter, alleged underpayment of wages and entitlements, and the recovery of franchise fees.
The court was required to determine several legal issues. These included whether Resultsmart Group Pty Ltd engaged in misleading or deceptive conduct in contravention of section 18(1) of the ACL by making representations about a future matter without reasonable grounds, and whether Mr. Smith was involved in this contravention. The court also had to consider whether there was an agreement entitling Mr Le to a share of fees earned for weekend work, whether Mr. Smith was involved in the company's failure to pay these amounts, and whether Mr Le had accrued annual leave at the time of termination. Furthermore, the court needed to assess whether the franchisor represented that franchise fees would be refunded if Mr Le did not take up the business, and if such fees were recoverable from the respondents.
In relation to the ACL claim, the court found that representations were made about a future matter, but the applicant failed to establish that the company lacked reasonable grounds for making them. The court also found that Mr. Smith was not involved in the alleged contravention. Regarding the FW Act claims, the court determined that there was no agreement for Mr Le to receive a share of fees for weekend work, and that Mr Le had not accrued annual leave at termination. The court also found no involvement by Mr. Smith in any failure to make superannuation contributions. On the restitution claim, the court found that the franchise agreement did not contain a term for the refund of fees, and that the respondents were not the franchisor, thus not liable for the recovery of those fees.
Consequently, the court ordered that the application be dismissed.