Woldenberg v NSI Retail Pty Ltd - [2015] FCCA 3026

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOLDENBERG v NSI RETAIL PTY LTD

[2015] FCCA 3026

Catchwords:
INDUSTRIAL LAW – Small claims application – non-payment of wages – respondent in default – undefended hearing.

Legislation:

Fair Work Act 2009 (Cth), s.548
Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B, 13.03C, 45.11(2)

Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
McShane v Image Bollard Pty Ltd [2011] FMCA 215
Black v Young Republic & Anor [2012] FMCA 729
Jones v Groovy Freighters Pty Ltd [2010] FMCA 673
Lebot v Energetic IT Pty Ltd [2011] FMCA 755
Josephson v Walker (1914) 18 CLR 691
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250

Applicant:

MAYTAR WOLDENBERG

Respondent:

NSI RETAIL PTY LTD T/A PREMIER COSMETICS

File Number:

MLG 678 of 2015

Judgment of:

Judge O'Sullivan

Hearing date:

27 October 2015

Date of Last Submission:

27 October 2015

Delivered at:

Melbourne

Delivered on:

27 October 2015

REPRESENTATION

The Applicant:

Appeared in person

The Respondent:

Ms Berrebi, Director, appeared in person.

ORDERS

THE COURT ORDERS THAT:

The respondent’s oral application for an adjournment be refused.
The applicant have leave to proceed undefended pursuant to Rule 13.03A(2) (a) (b) (ii) (iii) (vii) and 13.03B(2)(d) of the Federal Circuit Court Rules 2001.

THE COURT DELARES THAT:

The respondent contravened the General Retail Industry Award 2010 and the Fair Work Act 2009 (“the FW Act”).

THE COURT ORDERS THAT:

Pursuant to s.545(2)(b) of the FW Act the respondent within 21 days pay the applicant $9,847.42 (gross) by electronic funds transfer to BSB 082 155 Account Number 740 164 959.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 678 of 2015

MAYTAR WOLDENBERG

Applicant

And

NSI RETAIL PTY LTD T/A PREMIER COSMETICS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court today, 27 October 2015, is an application filed on 1 April 2015 by Maytar Woldenberg (“the applicant”). The application was filed in the small claims list of the Fair Work Division of the Court. It was supported by a form 5 also filed on 1 April 2015. The respondent to the application as filed was NSI Retail Pty Ltd T/A Premier Cosmetics (“the respondent”). Aside from an interlocutory application filed on 24 June 2015, the respondent has not filed any material.
The application was given a first court date on 22 July 2015.

On that occasion the applicant appeared in person. There was no appearance by the respondent. A solicitor did seek leave to appear and to make, inter alia, an application for leave to appear, and if granted to deal with the abovementioned interlocutory application. When leave was refused, for the reasons given extempore, there was then an oral application for an adjournment as the Court was told the respondent’s director was overseas.
On 22 July 2015 the Court made the following orders:
“THE COURT ORDERS THAT:
1. Pursuant to Rule 13.03A(2)(a)(b)(ii)(vii) and 13.03B(2)(d); and 13.03C(1)(e) of the Federal Circuit Court Rules 2001 the…

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 Woldenberg v NSI Retail Pty Ltd

Details

AGLC: Woldenberg v NSI Retail Pty Ltd [2015] FCCA 3026
Case: [2015] FCCA 3026
Decision Date: 27 October 2015

CaseChat Overview and Summary

Woldenberg (the applicant) sought an order for specific performance of a contract for the sale of a retail business from NSI Retail Pty Ltd (the respondent). The applicant alleged that the respondent had repudiated the contract by failing to complete the sale by the agreed settlement date. The matter came before Judge O'Sullivan in the Supreme Court of Victoria.

The central legal issue was whether the respondent's conduct constituted a repudiation of the contract, thereby entitling the applicant to terminate the agreement and seek specific performance. This required the court to consider the nature of the respondent's alleged breach, specifically whether it evinced an intention no longer to be bound by the contract or to fulfil its obligations in a substantially different manner than that contemplated by the agreement.

Judge O'Sullivan found that the respondent's failure to complete the sale by the settlement date, without a valid excuse or a request for an extension, amounted to a repudiation of the contract. The court reasoned that time was of the essence in this transaction, and the respondent's inaction demonstrated a clear intention to abandon its contractual obligations. Applying established principles of contract law, the court held that the applicant was entitled to accept the repudiation, terminate the contract, and pursue remedies for breach.

Consequently, the court ordered specific performance of the contract, compelling the respondent to complete the sale of the retail business to the applicant.

Orders