Petris v Timelio Pty Ltd - [2024] VSC 293

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST – MATTHEWS J

S ECI 2023 02174

BETWEEN:

ANDREW PETRIS	First Plaintiff/ First Defendant by Counterclaim
CHARLOTTE PETRIS	Second Plaintiff/ Second Defendant by Counterclaim
v
TIMELIO PTY LTD (ACN 169 389 771)	Defendant/ Plaintiff by Counterclaim

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF RULING:	7 June 2024
CASE MAY BE CITED AS:	Petris v Timelio Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 293

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PRACTICE AND PROCEDURE — Application for joinder — Whether individual directors of defendant company should be joined to proceeding — Proposed cause of action is involvement in contraventions of civil remedy provisions under the Fair Work Act 2009 (Cth) — Whether this court has jurisdiction — Judiciary Act 1903 (Cth), s 39(2) — Fair Work Act 2009 (Cth), ss 539, 545, 546, 550 — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b) — Tucker v State of Victoria [2021] VSCA 120 — Tucker v State of Victoria [2018] VSC 389 — Re Optimisation Australia Pty Limited (2018) 362 ALR 374.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs / Defendants by Counterclaim	Mr L Magowan of Counsel	FSC Law
For the Defendant/Plaintiff by Counterclaim	Mr D Briggs of Counsel	Partners Legal Solutions

Contents

Overview

Relevant law and legal principles

Rules on joinder of parties and pleading amendments
The FWA
The Court’s jurisdiction

Questions for the Court

Submissions

Plaintiffs’ submissions
Timelio’s submissions

Consideration

Conclusion

HER HONOUR:

Overview

This ruling concerns an application by Andrew and Charlotte Petris, the plaintiffs and defendants by counterclaim (herein, the Plaintiffs), to join Wayne Phillips and Symon Brewis‑Weston (the Proposed Defendants) to the proceeding and to amend their pleadings accordingly (the Joinder Application).
The Plaintiffs are a married couple and the founders of the defendant company, Timelio Pty Ltd (Timelio), which is an invoice financing business. The Plaintiffs are former directors, shareholders (through their related entity, Garden Street Ventures Pty Ltd (Garden Street Ventures)) and employees of Timelio. On 14 July 2022, the Plaintiffs, Timelio and Garden Street Ventures entered into a settlement deed, by which the Plaintiffs’ employment and directorships with Timelio (and other related companies) was ended (the Settlement Deed).[1]
[1]The Settlement Deed was also entered into by Garden Street Ventures Pty Ltd as trustee of the Sophia Rose Trust, a company of which the Plaintiffs are directors.
On 23 May 2023, the Plaintiffs commenced this proceeding against Timelio, alleging that they are owed employment entitlements (including annual leave, long service leave, salary and superannuation), as required by the Settlement Deed, and in connection with their implied contracts of employment and entitlements under the Fair Work Act 2009 (Cth) (FWA). The Plaintiffs also make a claim in respect of convertible notes issued by Timelio to them which Timelio had failed to redeem. By counterclaim, Timelio seeks damages for breaches of contract, misrepresentation and breach of their…

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 Petris v Timelio Pty Ltd

Details

AGLC: Petris v Timelio Pty Ltd [2024] VSC 293
Case: [2024] VSC 293
Decision Date: 7 June 2024

CaseChat Overview and Summary

Petris sought to join individual directors of Timelio as parties to the proceeding, claiming they contravened civil remedy provisions under the Fair Work Act 2009 (Cth). The application was brought in the Supreme Court of Victoria. The dispute centred on whether the individual directors should be joined to the proceeding, specifically in relation to their alleged involvement in contraventions of civil remedy provisions. The court was also required to determine if it had jurisdiction to hear the matter under the Judiciary Act 1903 (Cth), s 39(2).

The court considered the statutory framework, including the Fair Work Act 2009 (Cth), ss 539, 545, 546, 550, and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b). It examined relevant case law, including Tucker v State of Victoria [2021] VSCA 120, Tucker v State of Victoria [2018] VSC 389, and Re Optimisation Australia Pty Limited (2018) 362 ALR 374. The court concluded that the application for joinder was not appropriate as it did not meet the criteria under r 9.06(b) and did not fall within the court's jurisdiction. It found that the matter was more appropriately addressed in a proceeding specifically targeted at the directors.

The court dismissed the application for joinder and made no orders for costs. The decision was based on the court's interpretation of the relevant statutory provisions and the case law cited, which did not support the joinder of the individual directors in this proceeding.

Orders