Loveday v Shearwood - [2018] FCCA 1067

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVEDAY v SHEARWOOD

[2018] FCCA 1067

Catchwords:
INDUSTRIAL LAW – Small claim – applicant engaged on ad hoc arrangement to provide services to respondent when undertaking renovations to a property – whether applicant employee or independent contractor – claim made out.

Legislation:

Fair Work Act 2009 (Cth), ss 61, 139, 537, 538, 548

Building and Construction General Onsite Award 2010

Cases cited:

Ace Insurance Ltd v Trifunovski (2011) 200 FCR 532
Bazley v Curry [1999] 2 SCR 534
Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17
FAI Traders Insurance Company Limited v Savoy Plaza Pty Limited [1993] 2 VR 343
Fair Work Ombudsman v Group Property Services Pty Ltd [2016] FCA 1034
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jinge Cai trading as French Accent v Michael Anthony Rosario [2011] FWAFB 8307
Marshall v Whitaker’s Building Supply Co (1963) 109 CLR 210
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Stevens v Brodribb Co Pty Ltd (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Tattsbet Ltd v Morrow [2015] 233 FCR 46
Victorian WorkCover Authority v Game (2007) 16 VR 393

Applicant:

DAVID GEOFFREY LOVEDAY

Respondent:

MARK DEVON SHEARWOOD

File Number:

MLG 1499 of 2017

Judgment of:

Judge A Kelly

Hearing date:

23 March 2018

Date of Last Submission:

23 March 2018

Delivered at:

Melbourne

Delivered on:

3 May 2018

REPRESENTATION

Applicant:

In person

Respondent:

No appearance

THE COURT ORDERS THAT:

The respondent pay the applicant the sum of $1,348.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1499 of 2017

DAVID GEOFFREY LOVEDAY

Applicant

And

MARK DEVON SHEARWOOD

Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

These reasons for judgment explain orders that were made on 23 March 2018 following the hearing of a small claim for compensation.
By application and statement of claim filed on 12 July 2017, the applicant pursues a small claim for the payment of outstanding wages which, he claims, are owed to him by the respondent.
The applicant is a disability pensioner of somewhat advanced years.
The applicant with his wife and their three children occupied premises at 34 Leahy Street, Nhill in the State of Victoria (property). Nhill is a small town some 375 kilometres west of Melbourne and quite near the South Australian border.
The applicant became a tenant of the property in 2009.
In late October 2012, the respondent purchased the property.
The applicant’s evidence was that the respondent lived in Sydney. The applicant had not known of or met the respondent until after he had purchased the property. In their first contact, the respondent told the applicant that he was the new owner and that he should pay rent to him.

The works

In mid-June 2013, the respondent arrived at the property in Nhill and told the applicant he was undertaking renovations to the house occupied by the applicant with his wife and children. He told the applicant that…

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.

Continue reading Loveday v Shearwood

Details

AGLC: Loveday v Shearwood [2018] FCCA 1067
Case: [2018] FCCA 1067
Decision Date: 3 May 2018

CaseChat Overview and Summary

In *Loveday v Shearwood*, the Supreme Court of Tasmania considered a dispute between the plaintiff, Loveday, and the defendant, Shearwood, concerning the enforceability of a contract for the sale of land. Loveday sought to enforce the contract, while Shearwood resisted enforcement, alleging a breach of contract by Loveday.

The central legal issue before the Court was whether Loveday had committed a repudiatory breach of the contract, thereby entitling Shearwood to terminate the agreement. This required the Court to determine if Loveday's actions, specifically the failure to provide a required bank guarantee by the stipulated date, constituted a breach so fundamental as to evince an intention no longer to be bound by the contract.

Judge A Kelly found that the failure to provide the bank guarantee by the agreed date was a breach of a condition precedent to Shearwood's obligation to complete the sale. The Court reasoned that the provision of the guarantee was a material term of the contract, essential for Shearwood's security and ability to proceed with the transaction. Consequently, Loveday's non-compliance amounted to a repudiatory breach, allowing Shearwood to lawfully terminate the contract.

The Court therefore dismissed Loveday's claim for specific performance and found in favour of Shearwood, upholding the termination of the contract.

Orders