Wu v Enterprise CRM Solutions (Holdings) Pty Ltd (No 2)

[2022] FedCFamC2G 922

Federal Circuit and Family Court of Australia

(DIVISION 2)

Wu v Enterprise CRM Solutions (Holdings) Pty Ltd (No 2) [2022] FedCFamC2G 922

File number(s):	SYG 255 of 2022
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	27 October 2022
Catchwords:	PRACTICE AND PROCEDURE – Industrial law – declaration made that at conclusion of mediation the parties had entered into a binding agreement – whether order for specific performance of the agreement should be made – whether the proceeding should be further adjourned before deciding whether to order specific performance – specific performance ordered.
Cases cited:	Wu v Enterprise CRM Solutions (Holdings) Pty Ltd [2022] FedCFamC2G 731
Division:	Fair Work
Number of paragraphs:	9
Date of hearing:	27 October 2022
Solicitor for the Applicant:	Ms E Rowe of Slater & Gordon Lawyers, by telephone
Solicitor for the Respondents:	Mr A Tees of Legal Exchange, by telephone

ORDERS

SYG 255 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HAIBIN WU

Applicant

AND:

ENTERPRISE CRM SOLUTIONS (HOLDINGS) PTY LTD
First Respondent

BENJAMIN HORIN

Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	27 OCTOBER 2022

THE COURT NOTES THAT:

1.On 15 September 2022, purportedly pursuant to the agreement (Agreement) identified in the declaration made on 2 September 2022 (Declaration), the applicant provided to the respondents a deed of release (Deed) executed by the applicant, a copy of which has been marked exhibit B.

THE COURT DECLARES THAT:

2.The Deed is a deed as contemplated by the terms of the Agreement, and by the applicant having provided the Deed to the respondents on 15 September 2022 the applicant has performed his obligations under the Agreement.

THE COURT ORDERS THAT:

3.The respondents specifically perform their obligations under the Agreement within 14 days, by:

(a)paying to the applicant the sum of $13,500;

(b)providing to the applicant pay slips;

(c)providing to the applicant “PAYG summary/certificate for FY20-21”; and

(d)executing at least one copy of the Deed and providing such executed copy to the applicant.

4.If the respondents do not comply with order 3(d), the applicant shall be at liberty to tender a counterpart copy of the Deed executed by the applicant to a Registrar of the Court; and the Registrar, on being satisfied by affidavit that the respondents have not complied with order 3(d), execute the Deed on behalf of each respondent.

5.The parties have liberty to apply in relation to the implementation of these orders.

6.The question of costs is reserved.

7.By 3 November 2022 the applicant file and serve short written submission on the question of costs.

8.By 10 November 2022 the respondents file and serve short written submissions on the question of costs.

9.Unless by 17 November 2022 any party requests an oral hearing on the question of costs Judge Manousaridis shall be at liberty to determine the question of costs on the papers without any further hearing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Revised from transcript)

1. On 2 September 2022 I made a declaration that, at the conclusion of a mediation that occurred on 22 April 2022, the applicant and the respondents concluded an agreement containing the following terms:

   (a) Within 21 days after the applicant provides to the respondents the deed of release referred to in (b) the respondents must:

   (i)        pay to the applicant $13,5000;

   (ii)provide to the applicant pay slips;

   (iii) provide to the applicant “PAYG summary/certificate for FY20-21”; and

   (iv) provide to the applicant the deed of release referred to in (b) executed by each of the respondents.

   (b) The applicant must provide to the respondents a deed of release executed by him which contains:

   (i) terms to the effect of (a)(i), (ii), and (iii);

   (ii) a standard term or terms by which the applicant, on the one hand, and the respondents, on the other, release each other of all claims they have against the other, other than in relation to statutory entitlements;

   (iii) a standard term or terms by which the applicant and the respondents covenant to keep the contents of the deed of release confidential; and

   (iv) a standard term or terms by which the applicant and the respondents covenant not to disparage each other.

2. On the day that I made this declaration I also made an order that the proceeding be listed for a directions hearing at 9:30 am on 23 September 2022. I set out the purpose for my so listing the proceeding in paragraph 27 of the reasons for judgment on the basis of which I made the declaration.[1] I there said:

   This will give Mr Wu’s lawyers an opportunity to submit to the respondents a deed of release that reflects the agreement I have found the parties made, and gives the respondents an opportunity to consider whether the deed does reflect such agreement.  I anticipate that, before 23 September 2022, the parties will have agreed to, and executed, a form of deed of release, and they will have provided to my associate’s inbox proposed consent orders to finalise the proceedings. If, however, the parties will be in dispute about whether the deed of release Mr Wu provides does not reflect the agreement I have found the parties made, Mr Wu should, at the directions hearing on 23 September 2022, be in a position to produce the form of the deed of release he submits reflects the agreement, and apply to have the proceeding set down to determine whether an order for specific performance of the agreement I have found the parties made should be made, or whether some other relief should be granted.

   [1] Wu v Enterprise CRM Solutions (Holdings) Pty Ltd [2022] FedCFamC2G 731

3. On 15 September 2022 the applicant’s lawyer provided to the respondents’ lawyer, and also to my associate’s inbox, a deed of release executed by Mr Wu, the applicant. The matter came back before me on 23 September 2022 and, as I understood it, there was an issue about whether I should order specific performance. Consequently, the matter was set down for hearing on that question, and that is what is before me this morning.

4. Mr Tees, who appeared for the respondents, did not make any submission to the effect that the deed that was provided does not reflect the agreement I found the parties had entered into and which is the subject of the declaration. Mr Tees gave me what he described as a “progress report” of the situation. He referred to the question of the pay slips. As I understood Mr Tees, the question there is that there was a difficulty due to the fact, as he put it, that the true employer of the applicant had been deregistered, and now it was in the process of being re-registered, and that that fact had hindered the ability of the pay slips to be identified and produced. A similar problem arose in relation to the PAYG documents. As for the payment of $13,500, Mr Tees said there was a cash flow problem with the first respondent, but that was something that, with more time, could be resolved. The essential submission that Mr Tees made was for the matter to be stood over for two to three weeks so that these matters could be further resolved. 

5. Mr Tees referred to two other matters. One was that the second respondent has “a medical situation”. The other was that there is an issue of company property which Mr Tees said the applicant still retains; although, what Mr Tees said about that was that the property is not owned by the first respondent, but is owned by the company that had been deregistered and has recently been said to be re-registered. In any event, as I have said, the essential submission Mr Tees made is that the matter should be adjourned for two to three weeks.

6. Ms Rowe, who appeared for the applicant, on the other hand, opposed that course on the ground that the matter has been litigated. Ms Rowe says she has not been contacted by Mr Tees where these issues could be explored. In my view, given there is no issue, or no issue has been raised, about whether the deed complies with the agreement that I have found the parties made, there is no reason, other than the reason to which I am going to come, for making an order for specific performance. That will be the appropriate remedy having regard to the various items and matters that is the subject of the agreement I found the parties made at the conclusion of the mediation, some of which are not compensable by an order for damages. 

7. The discretionary matter is the request for, in effect, an adjournment. The difficulties with that are two-fold. First, a significant amount of time has passed since this matter was resolved at a mediation and, further, a significant period of time has passed since the day on which I gave reasons for judgment, finding that the parties had reached an agreement. A second difficulty is that there is no material, other than what Mr Tees has told me, on the basis of which I could make any rational finding that adjourning the matter for two to three weeks would lead to the final disposition of this matter. Given the history of the matter, the inference that ought to be drawn, although it is not necessary for me to draw it, is that the parties will likely be in the same position if I assent to the matter being adjourned.

8. What I propose to do is to make an order for specific performance, but I will provide the respondents 14 days within which to comply with the order. The orders I have in mind would be, first, to note that a deed had been provided to the respondents on 15 September 2022; I will make a declaration that the deed, as contemplated by the agreement, has been provided pursuant to the agreement I have found; and then I will make an order that within 14 days the respondents comply with the obligations provided for in the agreement I have found, and these are to pay the amount of $13,500, to pay the applicant pay slips, to pay the PAYG summary certificate, and also to execute at least one copy of the deed executed by the applicant that has been provided to the respondents. I also propose to make an order that if this last mentioned order, that is to say the signing of the deed of settlement, is not complied with, I will grant the applicant liberty to approach a Registrar of the Court for the Registrar to execute on behalf of the respondents the deed of settlement. 

9. As to costs, Mr Rowe said she is not in a position to deal with costs, but I understand that an application for costs will be made.  All I propose to do in relation to that is to reserve costs and I will grant the applicant seven days to file short written submissions, the respondents to file short written submissions seven days thereafter, and then list the matter before me for hearing on costs, but noting that I would be prepared to deal with the question of costs in chambers or on the papers if the parties so agree.[2]

   [2] After I delivered these reasons I did not list for hearing the question for costs. Instead I ordered that “[u]nless by 17 November 2022 any party requests an oral hearing on the question of costs Judge Manousaridis shall be at liberty to determine the question of costs on the papers without any further hearing”.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       7 November 2022