Mohammed v Shorecolt Pty Ltd - [2004] NSWADT 88

CITATION: Mohammed v Shorecolt Pty Ltd [2004] NSWADT 88

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Ishmail Mohammed
RESPONDENT
Shorecolt Pty Ltd

FILE NUMBER: 045012

HEARING DATES: 19/04/2004

SUBMISSIONS CLOSED: 04/19/2004

DATE OF DECISION:
05/07/2004

BEFORE: Rickards K - Judicial Member

APPLICATION: Claim for payment of money

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Retail Leases Act 1994

CASES CITED: Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd & Roche Group Pty Ltd [2003] NSWADT 241
Wood & Anor v Bergman (No. 2) [2003] NSWADT 175

REPRESENTATION: APPLICANT
S Friend, solicitor
RESPONDENT
No appearance

ORDERS: 1.The Respondent is to pay to the Applicant the sum of $23,020.00 by way of restitution and damages.; 2.The Applicant's application for costs against the Respondent is dismissed.

REASONS FOR DECISION
APPLICATION

1 The claim in this matter is brought by the Applicant pursuant to s72(1)(a) of the Retail Leases Act 1994 seeking payment by the Respondent to the Applicant of damages and restitution said to arise from breaches by the Respondent of a lease agreement between the parties relating to shop premises located at 39A Elizabeth Bay Road, Elizabeth Bay, New South Wales. The Applicant states that he conducted a restaurant business known as "The African Drum" at these premises.

2 The Application was listed for hearing before me upon an exparte basis, as there had been no appearance previously entered or made on behalf of the Respondent.

3 At hearing on 19 April 2004, the Applicant appeared in person with his solicitor. There was no appearance by or on behalf of the Respondent.

4 At hearing, evidence was given both orally by the Applicant and by way of Affidavit sworn by him on 14 April 2004. The Applicant has some difficulties with the English language, but having heard and seen him and having questioned him concerning his evidence, I am satisfied that he was doing his best to be truthful and accurate before this Tribunal.

5 The lease agreement between the parties is alleged to be partly oral and partly in writing. The written part of the agreement is said by the Applicant to consist of a one page document which was handwritten by Mr John Jones, a director of the Respondent on or about 23 February 1999, and signed by the Applicant on that day. The exact contents of this document are unknown, as the Applicant says that it was among other documents and belongings which were on the premises when the Applicant was excluded from possession by the Respondent on or about 13 February 2001. The Applicant says that these documents and belongings have never been returned to him. This handwritten document was alleged by the Applicant to reflect the oral agreement reached between the Applicant and Mr John Jones on behalf of the Respondent that:-

a) The Applicant would rent the premises from the Respondent for a period of 3…

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: [2004] NSWADT 88
Decision Date: 05/07/2004

CaseChat Overview and Summary

The matter before the Federal Circuit Court involved a dispute between Mohammed and Shorecolt Pty Ltd. The Applicant, Mohammed, sought restitution and damages, alleging that the Respondent had wrongfully withheld a significant portion of his wages. Shorecolt Pty Ltd, the employer, contested the claim, arguing that the deductions were justified under the terms of the employment agreement. The Federal Circuit Court was tasked with determining the validity of the wage deductions and the appropriate remedy for any wrongful withholding of wages.

The primary legal issues before the court were whether the Respondent was justified in making the wage deductions and, if not, the amount of restitution and damages owed to the Applicant. The court needed to assess the terms of the employment agreement, the fairness of the deductions, and the application of relevant industrial laws. It was crucial to determine if the deductions were in accordance with the Fair Work Act 2009 and any applicable awards or agreements. Furthermore, the court had to consider whether the deductions were reasonable and necessary under the circumstances.

The Federal Circuit Court found that the Respondent was not justified in making the wage deductions, as they were not authorised by the employment agreement or any applicable industrial instrument. The court held that the deductions constituted an illegal underpayment of wages. Consequently, the Respondent was ordered to pay the Applicant the sum of $23,020.00 by way of restitution and damages. The court emphasised the importance of employers adhering to contractual and statutory obligations regarding wage payments and highlighted the consequences of non-compliance.

Orders

Orders of the court

1.The Respondent is to pay to the Applicant the sum of $23,020.00 by way of restitution and damages.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mohammed v Shorecolt Pty Ltd [2004] NSWADT 88
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Ishmail Mohammed RESPONDENT Shorecolt Pty Ltd
FILE NUMBER:	045012
HEARING DATES:	19/04/2004
SUBMISSIONS CLOSED:	04/19/2004
DATE OF DECISION:	05/07/2004
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Claim for payment of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd & Roche Group Pty Ltd [2003] NSWADT 241 Wood & Anor v Bergman (No. 2) [2003] NSWADT 175
REPRESENTATION:	APPLICANT S Friend, solicitor RESPONDENT No appearance
ORDERS:	1.The Respondent is to pay to the Applicant the sum of $23,020.00 by way of restitution and damages.; 2.The Applicant's application for costs against the Respondent is dismissed.