Zylstra v Nocera Group Pty Ltd - [2017] FCCA 2289

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZYLSTRA v NOCERA GROUP PTY LTD

[2017] FCCA 2289

Catchwords:
INDUSTRIAL LAW – Set-off – whether set-off agreement proved – none proved – post office worker – various entitlements sought – no evidence from respondent beyond evidence in relation to set-off – sum claimed ordered.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth), Div.45.4

General Retail Award 2010
Postal Services Award 2003

Cases cited:

Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd [2000] VSC 415
Hussey v Horne-Payne (1879) 4 App Cas 311
James Turner Roofing Pty Ltd v Peters (2003) 132 IR 122
Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99
Poletti v Ecob(No 2) (1989) 31 IR 321

Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106

Joshua D Wilson, ‘Contractual Composition, Construction and the Matrix of Fact’ (March/April 2003) 89 Australian Construction Law Newsletter 36

Applicant:

ROSLYN ZYLSTRA

Respondent:

NOCERA GROUP PTY LTD

File Number:

MLG 1039 of 2017

Judgment of:

Judge Wilson

Hearing date:

12 September 2017

Date of Last Submission:

12 September 2017

Delivered at:

Melbourne

Delivered on:

20 September 2017

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Ms S. Kelly

Solicitors for the Respondent:

Goddard Elliot

I DECLARE THAT the respondent contravened the Postal Services Award 2003 and the General Retail Award 2010 by failing to pay the applicant wages, overtime, penalty rates, allowances and superannuation.

I ORDER THAT

by no later than 4.00 p.m. on 4 October 2017,

the respondent pay the applicant the sum of $6,702.79.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1039 of 2017

ROSLYN ZYLSTRA

Applicant

And

NOCERA GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 22 May 2017 the applicant Roslyn Zylstra

sought an order directing the respondent Nocera Group Pty Ltd to pay her $6,780.79. This was a “small claim” for the purposes of the

Fair Work Act
2009 (Cth) and for the purposes of Division 45.4 of the Federal Circuit Court Rules 2001 (Cth).
The amount sought by the applicant was made up of a collection of separate claims for –
a)unpaid wages of $3,346.55;
b)unpaid overtime of $770.00;
c)penalty rates of $145.64;
d)allowances of $680.50; and
e)
unpaid superannuation of $1,838.10 over the period

5 October 2016 to 9 May 2017.
The applicant asserted that she was entitled to payment of those amounts pursuant to the terms of various awards, each covering a different period of time. In the period August to September 2012,

the applicant said the terms of the Postal Services Award 2003 applied. She said that in the period from September 2012 and August 2014 the same award applied but she was then no…

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: [2017] FCCA 2289
Decision Date: 20 September 2017

CaseChat Overview and Summary

The parties to this proceeding were the applicant, Mr Zylstra, and the respondent, Nocera Group Pty Ltd. The dispute concerned an application by Mr Zylstra to set aside a statutory demand issued by Nocera Group Pty Ltd. The application was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether there was a genuine dispute about the existence of the debt for which the statutory demand was issued. Mr Zylstra contended that he had a counterclaim against Nocera Group Pty Ltd that exceeded the amount of the statutory demand, thereby entitling him to have the demand set aside.

Justice Wilson considered the evidence presented by both parties regarding the alleged counterclaim. Her Honour applied the principles established in cases concerning applications to set aside statutory demands, which require a genuine dispute to be demonstrated on the evidence. The court examined whether the counterclaim was substantial and bona fide, or merely a sham or vexatious attempt to avoid payment.

The application to set aside the statutory demand was dismissed.

Orders