FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOTEKI v LEGNOR PTY LTD & ANOR | [2018] FCCA 1988 |
| Catchwords: COMPANY LAW – Applicant’s employer was first respondent – first respondent was aligned to group of companies based in Japan – entire business was funded by the group – second respondent was sole director and shareholder of first respondent – first respondent was a separate legal entity – second respondent did not challenge he was controlling mind of first respondent – second respondent an accessory to contraventions committed by the first respondent. |
| Legislation: Fair Work Act 2009, ss.44, 45, 340(1)(a)(iii), 550, 535(3) Fair Work Regulations 2009, reg.3.42 Restaurant Industry Award 2010 |
| Other materials: Davies & Worthington, Gower & Davies’ Principles of Modern Company Law (Sweet & Maxwell, 7th ed, 2003) |
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- Case
- [2018] FCCA 1988
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the second respondent was liable as an accessory to the contraventions committed by the first respondent, notwithstanding the first respondent's liquidation. Specifically, the court had to consider if the second respondent was knowingly concerned in the first respondent's actions, and whether the second respondent's own conduct warranted a finding of contravention. The court also needed to assess the appropriate relief to be granted against the second respondent, given the applicant's claims and the second respondent's conduct.
His Honour Judge Wilson found that the second respondent was the controlling mind of the first respondent and was knowingly concerned in all the acts done by the first respondent. The court reasoned that the second respondent's actions in underpaying the applicant and failing to provide entitlements were deliberate, driven by a desire for profitability, and not a result of oversight. The second respondent's argumentative, defiant, and confrontational stance, coupled with a lack of contrition or corrective measures, demonstrated a wilful refusal to pay amounts legitimately owed to the applicant. The court concluded that the second respondent was an accessory to the contraventions and that his liability was not contingent upon the solvency of the first respondent.
The court ordered that the second respondent pay pecuniary penalties for his contraventions of sections 44, 45, 340(1)(a)(iii), and 535(3) of the *Fair Work Act 2009* (Cth). The specific amount of the penalties was to be determined at a later hearing.
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