Ting v Superstop Auto Parts Pty Ltd - [2019] FCCA 3853

FEDERAL CIRCUIT COURT OF AUSTRALIA

TING v SUPERSTOP AUTO PARTS PTY LTD & ORS

[2019] FCCA 3853

Catchwords:
INDUSTRIAL LAW – Fair Work – application for summary dismissal – application to strike out statement of claim – where the statement of claim is wholly deficient – statement of claim struck out – procedural orders made to rectify claim – costs order made.

Legislation:

Fair Work Act 2009, ss.325, 340, 343, 344, 345, 535, 544, 545, 550, 570(2)(b)
Federal Circuit Court Rules 2001 r.13.10

Federal Court Rules 2011 r. 16.21

Social Security (Administration) Act 1999

Cases cited:

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 1463
Australian Education Union v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196
CFMEU v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351
Ellis v Wadjemup Trading (No.3) [2018] FCCA 3075
King v Patrick Projects Pty Ltd [2016] FCA 1110
Lonrho Plc v Tebbit [1991] 4 All ER 973
National Mutual Property Services (Australia) v Citibank Savings Ltd (1995) 132 ALR 514
Shreea v Ezy Mart Pty Ltd & Anor [2019] FCCA 3050

Applicant:

KRIS LYNN TING

First Respondent:

SUPERSTOP AUTO PARTS PTY LTD

Second Respondent:

STEVEN PAUL KRETI

Third Respondent:

VICTOR MAKRIEVSKI

Fourth Respondent:

VIVIENNE LEE MAKRIEVSKI

File Number:

MLG 1611 of 2019

Judgment of:

Judge Blake

Hearing date:

12 December 2019

Date of Last Submission:

12 December 2019

Delivered at:

Melbourne

Delivered on:

12 December 2019

REPRESENTATION

Advocate for the Applicant:

Mr Lim

Solicitors for the Applicant:

L & T Associates

Counsel for the Respondents:

Ms Sweet

Solicitors for the Respondents:

Carter Newell Lawyers

ORDERS

The matter be adjourned to 24 March 2020 at 10am for Directions.
The further amended statement of claim filed on 15 August 2019 be struck out in its entirety.
The Applicant have leave to file and serve a further further amended statement of claim by 4pm on 16 January 2020.
The Respondents file and serve a Defence to the further further amended statement of claim by 4pm on 16 February 2020.
The Applicant pay the Respondents’ costs of today and costs in connection with the bringing of the strike out application before the Court today.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1611 of 2018

KRIS LYNN TING

Applicant

And

SUPERSTOP AUTO PARTS PTY LTD

First Respondent

And

STEVEN PAUL KRETI

Second Respondent

And

VICTOR MAKRIEVSKI

Third Respondent

And

VIVIENNE LEE MAKRIEVSKI

Fourth Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

This is an application brought by the Respondents to summarily dismiss the proceeding pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (‘FCCRules’), or, alternatively, to strike out the Applicant’s statement of claim pursuant to rule 16.21 of the Federal Court Rules 2011 (‘Federal Court Rules’).
By way of background, the applicant commenced the proceeding in this Court by filing an application and statement of claim on 23 May 2019. On 19 June 2019 the applicant filed an amended statement…

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: [2019] FCCA 3853
Decision Date: 12 December 2019

CaseChat Overview and Summary

The applicant, Ting, brought proceedings against the respondent, Superstop Auto Parts Pty Ltd, in the Magistrates' Court of Victoria. The dispute concerned an alleged breach of contract, with Ting claiming that Superstop Auto Parts had failed to deliver goods as agreed.

The primary legal issue before the court was whether a binding contract for the sale of goods had been formed between Ting and Superstop Auto Parts. This involved determining whether the parties had reached a sufficient agreement on essential terms, such as the identity of the goods, quantity, price, and delivery.

Judge Blake found that while there had been discussions and an exchange of emails, the parties had not progressed to a stage where a concluded agreement could be identified. Specifically, the court determined that the offer and acceptance, which are fundamental elements of contract formation, were absent. The communications indicated ongoing negotiations rather than a firm commitment from both sides to be bound by specific terms. Consequently, no legally enforceable contract existed.

Orders