Yedelian v Lanisa Pty Ltd

[2017] FCCA 1414

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEDELIAN v LANISA PTY LTD & ANOR [2017] FCCA 1414

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – claim for unpaid wages, annual leave and other employee entitlements under Fair Work Act 2009 (Cth) – no appearance by respondents and their default in compliance with Court orders and filing defences – application for monetary default judgment – default judgment granted.

Legislation:

Fair Work Act 2009, s.547

Federal Circuit Court Act 1999, s.76
Federal Circuit Court Rules 2001

Applicant: MIHRAN YEDELIAN

First Respondent: LANISA PTY LTD

Second Respondent: PETER MANCONI

File Number: SYG 3065 of 2016

Judgment of: Judge Dowdy

Hearing date: 13 June 2017

Date of Last Submission: 22 June 2017

Delivered at: Sydney

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Mr R Aslanian

Solicitors for the Applicant: Connect Legal

No appearance for the Respondents

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. Judgment for the Applicant against each of the First and Second Respondents pursuant to r.13.03B(2)(b) of the Federal Circuit Court Rules 2001 (Cth) in the amount of $78,805.83.

2. Leave reserved generally to the Applicant to apply for any further relief based on the Statement of Claim filed on 8 November 2016 or the already foreshadowed Amended Statement of Claim.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3065 of 2016

MIHRAN YEDELIAN

Applicant

And

LANISA PTY LTD

First Respondent

PETER MANCONI

Second Respondent

REASONS FOR JUDGMENT

1. On 13 June 2017 I heard an Application in a Case filed on 11 May 2017 in which the Applicant seeks certain declaratory and monetary relief and pecuniary penalties under the Fair Work Act 2009 (Cth) (the Act) on a default judgment basis against each of the Respondents pursuant to r.13.03B(2) of the Federal Circuit Court Rules 2001 (Cth) (the Rules) because of the Respondents’ default in compliance with r.13.03A, in that the Respondents have never appeared and have failed to file and serve their Defences to the Statement of Claim filed by the Applicant on 8 November 2016, as they were ordered to do by order 1 of the orders of the Court of 17 February 2017, which required such Defences to be filed and served on or before 13 March 2017.

2. At the hearing Mr Aslanian appeared as solicitor advocate for the Applicant.

3. I indicated to Mr Aslanian that the only default judgment that I would be prepared to entertain was one for debt or liquidated damages pursuant to r.13.03B(2)(b) of the Rules.

4. The Applicant tendered in evidence an Applicant’s Court Book which was admitted and marked “Exhibit A”.

5. I am satisfied by the evidence that the Respondents have been given proper notice of the existence of the proceedings generally and the order of the Court that they file Defences and of the hearing of the Application in a Case today for default judgment and that they have failed to pay any regard to the existence of the case and I note that they were each called three times outside the Court prior to the hearing commencing on 13 June 2017.

6. I note that the nature of the Applicant’s case arises out of the Applicant’s employment by the First Respondent as an employee involved in the making and production of pizzas at Crows Nest and I also find from the evidence led that the Second Respondent, Mr Manconi, was the sole director and shareholder of the First Respondent and was its controlling mind and will and that the First Respondent was but his alter ego.

7. I find that the Second Respondent was directly and knowingly concerned in and caused the contraventions I refer to below.

8. I further find, based on the evidence which has been led by the Applicant and on the facts pleaded in the Statement of Claim, which are not denied and which I can take to be true, that the First Respondent has committed contraventions under the Act and has also failed to make payments of wages that the Applicant was entitled to at common law and that the Second Respondent was knowingly concerned in the contraventions committed by the First Respondent.

9. I record that I am satisfied that those contraventions relate to non-payment and underpayment by the First Respondent to the Applicant of wages, 5 weeks in lieu of notice, non-payment of pro rata long service leave, non-payment of annual leave and non-payment of the Applicant’s annual leave loading amounting to a total owing by the Respondents to the Applicant in the sum of $75,381.62 as particularised in the Affidavit of Debt of Mr Aslanian affirmed on 21 June 2017.

10. I also find, based upon the said affidavit of Mr Aslanian, that pre-judgment interest (under both or either of s.547(2) of the Act and s.76(3) of the Federal Circuit Court Act 1999 (Cth)) on the amount of $75,381.62 is $3,424.21, making a total of $78,805.83 for which default judgment ought to be entered against each of the Respondents in favour of the Applicant.

11. Accordingly I will enter judgment for that latter amount and I shall also order that the matter stand over generally with liberty to the Applicant to apply for any further relief which he might be minded to apply for based on the filed Statement of Claim or the foreshadowed Amended Statement of Claim.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:       23 June 2017