Si Hui Yi v Jopech Pty Limited & Ors [2010] NSWIRComm 161

Industrial Court of New South Wales

CITATION: Si Hui Yi v Jopech Pty Limited & Ors [2010] NSWIRComm 161

Si Hui Yi (Applicant) Jopech Pty Limited (First Respondent) Peter Mooney (Second Respondent) PARTIES: Chris Quinn (Third Respondent) Wayne Kenneth Hosier (Fourth Respondent) Rimini Limited (Fifth Respondent) Stuart Trevor Beadle (Sixth Respondent)

FILE NUMBER(S): IRC1984 of 2009

CORAM: Kavanagh J

CATCHWORDS: DEFAULT JUDGMENT - within an application under s106 of the Industrial Relations Act 1996 - against fourth respondent - notice of application provided to fourth respondent - no attendance at hearing by fourth respondent - no filing of Reply to application - affidavit provided by fourth respondent as to personal circumstance before conciliation but no further communication after listing of application for default - other relevant parties settled - basis of order considered - no order as to costs

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 3 November 2010 EXTEMPORE JUDGMENT DATE: 3 November 2010

Mr M Lawson of counsel (Applicant) LEGAL REPRESENTATIVES: Austin Haworth & Lexon Legal

No appearance (First to Sixth Respondents)

JUDGMENT:

- 2 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: KAVANAGH J

Wednesday 3 November 2010

Matter No IRC 1984 of 2009

SI HUI YI v JOPECH PTY LIMITED & ORS

Application under s106 of the Industrial Relations Act 1996

EX TEMPORE JUDGMENT

[2010] NSWIRComm 161

1 This is an application to enter a default judgment made by the applicant in a claim brought under s 106 of the Industrial Relations Act 1996. On 14 December 2009, Si Hui Yi filed a claim against six respondents alleging an unfair contract. The evidence reveals Ms Yi paid the sum of $49,711.27 to a representative of the first respondent as the price for a franchise entitled "CleanTastic". That franchise, CleanTastic, was owned and operated by Jopech Pty Ltd of which the fourth respondent, Wayne Kenneth Hosier, is a director. 2 Ms Yi went to the training related to the operation of the franchise but received no work under the contract. 3 Orders against all of the other respondents to the application have been made by agreement although it is noted that the first respondent, Jopech Pty Limited, is in liquidation. The settlements which have been agreed to with the second, third, fifth and sixth respondents in various ways are individual settlements made on a confidential basis. 4 Mr Hosier forwarded to the Court an affidavit of 22 January 2010 as to his circumstances and the company's affairs. This was done prior to the conciliation. However, although that affidavit explains his personal circumstance there is still no reply filed to the claim. 5 The fourth respondent did not fully attend at conciliation although he made himself available for one telephone call (as the transcript reveals). When the various parties settled in favour of Ms Yi, the fourth respondent was invited to contribute. He refused. 6 On 21 July 2010, Ms Lee, solicitor for the applicant received an email from a Queensland solicitor purporting to act for the fourth respondent. Four other emails were exchanged between solicitors as to possible settlement of Mr Hosier's interest then no further contact. 7 The applicant on 31 August 2010 made application that a default judgment be entered against the fourth respondent in the sum of $26,711.27. The fourth respondent was advised directly of this application for a default judgment order. Correspondence was also forwarded to the solicitor for the fourth respondent as to the hearing of this application. I am persuaded from notations on file and from the applicant's solicitor's correspondence that considerable efforts have been made to notify as to the hearing of this application for default judgment against Mr Hosier. No correspondence or contact has been made either to the Court or the Registry by the fourth respondent or by the solicitor with whom the applicant had dealings. There is no solicitor representing Mr Hosier on the record. There is no appearance before the Court by either Mr Hosier or the Queensland solicitor (who had contacted the applicant's solicitor on behalf of Mr Hosier) or any nominated Agent. 8 On 6 October 2010, the applicant's solicitor handed to the Court a communication from the fourth respondent which contained a Reply to the Summons for Relief which Reply has never been filed in Court. In content, it simply denies all pleadings. 9 The application before me is for an order against the fourth respondent in the sum of $26,711.47. Why that sum? The evidence from the affidavit of the solicitor, Ms Lee, persuades the applicant paid $49,711.27 for the franchise. The applicant has received in total the sum of $23,000 collectively from each individual settlement. Mr Hosier has refused to resolve his interest in the application filed against his interest. That is his right but he was obliged to attend or be represented at Court to meet this application. 10 Mr Hosier, I am persuaded, was a Director of the franchise company. Two other directors of that company (in liquidation), Mr Moonie and Mr Quinn, have settled as to their liability. Mr Hosier has refused to attend or instruct for representation at the hearing of this application. In such a circumstance, I can see no reason why I do not deal with the application brought to enter a default judgment against the fourth respondent in the sum pleaded which amount would put Ms Yi back into the circumstances she was prior to paying for the said franchise.