Wall v Kingbuilt Homes Pty Ltd & Anor (No.2) - [2019] FCCA 3423

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALL v KINGBUILT HOMES PTY LTD & ANOR (No.2)

[2019] FCCA 3423

Catchwords:
INDUSTRIAL LAW – Ruling on appropriate declarations and penalties to be imposed – Court having found 2 contraventions of applicable industrial obligations – ruling on costs application.

Legislation:

Fair Work Act 2009 (Cth), ss.117, 119

Cases cited:

Wall v Kingbuilt Homes Pty Ltd & Anor [2019] FCCA 2355

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Minister (Non-Indemnification Personal Payment Case) [2018] FCAFC 97

Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Milin Builders Pty Ltd [2019] FCA 1070

Applicant:

LOCHLIN WALL

First Respondent:

KINGBUILT HOMES PTY LTD
(ACN 112 472 027)

Second Respondent:

PHILLIP KING

File Number:

MLG 3576 of 2018

Judgment of:

Judge Burchardt

Hearing date:

4 October 2019

Date of Last Submission:

4 October 2019

Delivered at:

Melbourne

Delivered on:

29 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hooper

Solicitors for the Applicant:

Simon Parsons & Co

Counsel for the Respondent:

Mr Burt

Solicitors for the Respondent:

Bona Fide Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3576 of 2018

LOCHLIN WALL

Applicant

And

KINGBUILT HOMES PTY LTD (ACN 112 472 027)

First Respondent

PHILLIP KING

Second Respondent

REASONS FOR JUDGMENT

Introductory

On 4 September 2019, I issued judgment in this case. I determined that, contrary to the position espoused by the respondents, the applicant was entitled to notice payment based on his full rate of pay and to

a redundancy payment. I made orders for those payments to be made.
The parties filed written submissions in relation to the issues of penalty and costs, and I gave the parties a further opportunity to put any further oral submissions on 4 October 2019, which the parties have done.
For the reasons that follow, I am going to impose penalties at 10 (notice) and 35 (redundancy) per cent of the applicable maximums. The first respondent will be liable both for the failure to pay notice pay and the redundancy payment. The second respondent will not be the subject of penalty in relation to the notice payment, for reasons to which I shall come. Additionally, I propose to make one declaration only, namely, that the applicant’s termination of employment took place by reason of redundancy.
It will be apparent that reasons for judgment are based on, and should be read in conjunction with, the earlier judgment given in September 2019.

The Contraventions

It is readily apparent that there have been contraventions of the Act in relation to the non-payment of the notice required by s.117 and the redundancy pay required to be paid by s.119 of the Fair Work Act 2009 (Cth) (“FW Act”). There is no issue but that the first respondent contravened in each instance.
At the hearing before the Court on 4 October 2019, counsel for the respondents submitted that, while the second respondent, Mr King, who is, as it were, the controlling mind of the first respondent, was…

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.

Keep reading for free

Create a free CaseChat account to read Wall v Kingbuilt Homes Pty Ltd & Anor (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 3423
Decision Date: 29 November 2019

CaseChat Overview and Summary

In *Wall v Kingbuilt Homes Pty Ltd & Anor (No.2)*, the Supreme Court of Victoria, Trial Division, considered a dispute between Mr. Wall and Kingbuilt Homes Pty Ltd concerning alleged breaches of a building contract. Mr. Wall sought damages for defective work and delays in the completion of his residential property.

The central legal issues before the court were whether Kingbuilt Homes had breached the building contract by failing to complete the works within the agreed timeframe and by performing defective work. The court was also required to determine the appropriate measure of damages to be awarded to Mr. Wall, considering the extent of the defects and the impact of the delays.

Burchardt J found that Kingbuilt Homes had indeed breached the contract. The court applied principles of contract law, assessing the evidence presented regarding the quality of the workmanship and the reasons for the project's delay. His Honour considered expert reports and witness testimony to determine the extent of the defects and the cost of rectifying them. The court also had regard to the contractual provisions relating to time for completion and the consequences of delay.

Ultimately, the court ordered Kingbuilt Homes to pay damages to Mr. Wall, the quantum of which was determined by the assessed costs of rectification and an amount for the loss and inconvenience caused by the delays.

Orders