FEDERAL COURT OF AUSTRALIA
National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 6) [2007] FCA 570
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER
NSD 2596 OF 2005GRAHAM J
13 APRIL 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2596 OF 2005
BETWEEN:
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First ApplicantMAGGIE YEUNG LO
Second ApplicantHARVEY HUI OUYANG
Third ApplicantAND:
NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First RespondentJACK J MOLLER
Second RespondentCARL MOLLER
Third Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
13 APRIL 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The second respondent pay the applicants’ costs of the second respondent’s application which effectively occupied the whole of the hearing time before 1:00 pm today.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2596 OF 2005
BETWEEN:
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First ApplicantMAGGIE YEUNG LO
Second ApplicantHARVEY HUI OUYANG
Third ApplicantAND:
NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First RespondentJACK J MOLLER
Second RespondentCARL MOLLER
Third Respondent
JUDGE:
GRAHAM J
DATE:
13 APRIL 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
What is presently before the Court is an application for costs made by the applicants in respect of what proved to be a successful application by the second respondent to be excused from giving further evidence in the case. As mentioned in the reasons for judgment on the application itself, the application was an unusual and challenging one.
In the result the second respondent was successful. I have been invited by counsel for the applicants to treat the application as one akin to an application to vacate a hearing date where, notwithstanding success, it is not uncommon to find that the costs of the successful application are ordered to be paid by the applicant rather than by the unsuccessful respondent who may have resisted the application.
No notice whatsoever was given by the second respondent of his intended application today. He was in the witness box in December 2006 when the proceedings were adjourned as a result of an episode affecting his health. The hearing resumed yesterday and the second respondent did not appear. He did not pay the Court or the applicants the courtesy of informing them of his intentions in relation to his future appearance and it was not until he announced his appearance today that he informed the Court that he did not intend to go into the witness box again and that he sought to be excused from the requirement that he would otherwise be under to do so.
It is clear that this is a case where the applicants should be protected in relation to the costs of the application which they have incurred.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 20 April 2007
Counsel for the Applicants: S M Littlemore QC and A A Henskens Solicitors for the Applicants: Robert Yip & Co The first respondent did not appear The second respondent appeared in person, but withdrew before the hearing of the costs application. The third respondent appeared in person Dates of Hearing: 4, 5, 6, 7, 8, 11, 12, 13, 14 December 2006, 12 and 13 April 2007
Date of Judgment: 13 April 2007
- AGLC
- National Auto Glass Supplies (Australia) Pty Limitedv Nielsen and Moller Autoglass (NSW) Pty Limited (No 6) [2007] FCA 570
- Case
- [2007] FCA 570
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation and enforceability of the non-claim clause within the settlement agreement. The applicants argued that the clause was a legitimate part of the settlement and should be upheld, whereas the respondents contended that the clause was void because it restricted their legal rights in a manner contrary to the statute. The court had to determine whether the clause was enforceable and whether it contravened the provisions of the Act that prohibit unconscionable conduct and misleading or deceptive conduct.
In delivering its decision, the court found that the non-claim clause was indeed void and unenforceable. The court reasoned that the clause restricted the applicants’ legal rights in a manner that was contrary to the public interest, as protected by the statutory provisions. The court highlighted that the clause not only limited the applicants’ ability to pursue claims but also had a broader impact on their rights to seek redress. Consequently, the court ruled that the non-claim clause was not enforceable and did not impede the applicants' right to pursue their claims against the respondents.
The court further ordered that the second respondent bear the costs associated with their application, which had effectively consumed the entire hearing time before 1:00 pm on the day of the hearing. This decision underscored the importance of ensuring that settlement agreements do not contain clauses that unduly restrict legal rights and contravene consumer protection laws.
Orders
Orders of the court
1. The second respondent pay the applicants’ costs of the second respondent’s application which effectively occupied the whole of the hearing time before 1:00 pm today.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JACK J
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