Borlandelli v Sydney Luxury Smash Repairs Pty Ltd [2026] FedCFamC2G 358

1. On 5 March 2025 the applicant, Mr Borlandelli, filed a Form 5 in this Court's small claims jurisdiction under Division 3 of Part 4.1 of the Fair Work Act 2009 (Cth) (FW Act). Mr Borlandelli claimed that:

(a) he was employed by the respondent, Sydney Luxury Smash Repairs Pty Ltd (SLSR);

(b) his employment was covered by the Vehicle Repair, Services and Retail Award 2020 (Award);

(c) on 24 October 2024 SLSR terminated his employment without notice;

(d) at the time SLSR terminated Mr Borlandelli's employment, SLSR:

(i) was obliged, but failed, to give him two weeks' notice or payment of $5,441.64 in lieu (notice amount); and

(ii) he was entitled to be paid $5,937.10 for accrued but untaken annual leave (annual leave amount); and

(e) SLSR failed to pay Mr Borlandelli these amounts.

1. SLSR did not appear at a directions hearing before a Registrar on 27 May 2025. The Registrar consequently made orders (Orders) purportedly pursuant to r 17.05(2)(a), but in fact pursuant to r 13.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (former GFL Rules) that SLSR pay the notice and annual leave amounts, together with interest and costs. Subrule 13.06(2) of the former GFL Rules provided that, where a party to a proceeding is absent for a hearing, the Court or a Registrar may make an order of the kind mentioned in sub rule 13.05(1), (2), or (4), or any other order. Paragraph (d) of r 13.05(2) provided that, if a respondent is in default, the Court may give judgment or make any other order.
2. SLSR now applies pursuant to r 17.05(2)(a) of the former GFL Rules,[1] that the Court set aside the Orders. Paragraph (a) of r 17.05(2) of the former GFL Rules provided that the Court may vary or set aside a judgment or order if it has been made in the absence of a party.

1. By letter dated 23 January 2025 Mr Garan, the solicitor for Mr Borlandelli, sent a letter to Mr Green, the solicitor for SLSR, in which he said he was instructed that SLSR failed to pay to Mr Borlandelli $5,441.64, being his two weeks' notice pay, and $5,012, being Mr Borlandelli's accrued, but untaken, annual leave. Mr Garan further said that unless SLSR paid these amounts by 29 January 2025, Mr Borlandelli would commence proceedings without further notice.
2. Mr Green responded by email sent to Mr Garan on 29 January 2025. Mr Green said that, as Mr Garan knew, SLSR disputed Mr Borlandelli's claims, noting that these claims are "also the subject of Proceedings currently on foot in the Fair Work Commission". That is a reference to a proceeding Mr Borlandelli commenced in the Fair Work Commission (FWC Proceeding) for remedies for unfair dismissal. Mr Green further said:

(a) the "current Proceedings" (that is, the FWC proceeding) are "misconceived, to the extent they claim alleged unpaid wages and/or entitlements";

(b) to commence a fresh set of proceedings "without regularising the formal and substantive defects" with the FWC proceeding "would constitute an abuse of process";

(c) Mr Borlandelli was in default of orders the FWC had made; and

(d) he was "astounded" Mr Garan would commence a proceeding in this Court, not only in light of the above, but because he must be aware that the Fair Work Ombudsman "offers an investigative and enforcement service for unpaid wages and entitlements free of charge, without the need for Court intervention".

1. On 5 March 2025 Mr Borlandelli filed a Form 5 to which I refer at the beginning of these reasons. Mr Borlandelli based his claim for accrued but untaken annual leave on information contained in the last payslip SLSR provided to him.
2. The matter came before a Registrar on 29 April 2025, who directed that SLSR file its affidavit material by 6 May 2025, and that the matter be listed for a case management hearing on 27 May 2025.
3. On 7 May 2025 SLSR filed an affidavit made by its receptionist, Ms Zahra, who deposes as follows:

(a) Ms Zahra had "read the statements provided by the staff of [SLSR] to the investigator appointed by the insurer for the two workers' compensation claims that [Mr Borlandelli] has on foot";

(b) Ms Zahra then interviewed "several of our staff, who made the statements", and "held discussions with them and Mr Pierce ", who appears to be the controller of SLSR; and

(c) the "outcome of this investigation was a list of the dates when [Mr Borlandelli's] absence was unexplained, or unapproved, and when he exceeded his entitlements"; and Ms Zahra lists those dates.

1. Ms Zahra further deposes that, following her discussions with Mr Pierce and SLSR's staff, Ms Zahra formed a number of beliefs about reasons for which Mr Borlandelli was absent from work. Ms Zahra says, however, that "[w]e need to make further enquiries with the rest of our staff and have sought the production of documents in the [FWC proceeding] relating to these allegations".
2. On 13 May 2025 SLSR filed an affidavit made by Mr Katralis, an accountant. Mr Katralis says SLSR uses an MYOB accounting system, which relies on human data entry, and that Ms Zahra is responsible for inputting the data into MYOB for SLSR's staff hours, leave, and company expenses; and Mr Katralis's role as accountant was to prepare and lodge BAS statements each quarter, and lodge documents for single touch payroll PAYG obligations, and annual tax returns. Mr Katralis further says that:

(a) under cl 29.4(c) of the Award annual leave does not accrue on overtime; for that reason he needs to go back through SLSR's financial records and deduct all of the credited annual leave for the overtime Mr Borlandelli worked;

(b) Ms Zahra informed Mr Katralis that Mr Borlandelli was "doing overtime to a substantial degree, or at least claiming it, but she was not distinguishing between ordinary hours and overtime"; and

(c) Mr Katralis was shown a "number of statements in the" FWC proceeding, and "formed the view that the payslips issued to [Mr Borlandelli] and the single-touch payroll data submitted to the Australian Taxation Office regarding him were wrong", and that Mr Katralis needs to revise his calculations accordingly.

1. Mr Katralis prepared a spreadsheet he says he prepared "during [his] review of [Mr Borlandelli's] absences from work", which he prepared on the assumption that "what I have been told about the matter to be true". Mr Katralis says, however, that he could not complete his analysis until the FWC proceeding was concluded, because a "proper determination of the final annual leave entitlement of [Mr Borlandelli] requires me to take into consideration any notice period that may or may not be owing to" Mr Borlandelli.
2. On 26 May 2025 the FWC delivered its decision in which it concluded SLSR's dismissal of Mr Borlandelli was "extremely unfair", and awarded compensation in the amount of $5,441.64 gross, and $625.79 for superannuation. The first amount represented the notice amount.
3. On 27 May 2025 the matter came before the Registrar. Mr Garan appeared for Mr Borlandelli; but there was no appearance on behalf of SLSR. Mr Garan applied for a default judgment, relying on an affidavit he made on 27 May 2025 to which he annexed the FWC's decision, and a letter dated 23 January 2025 to SLSR's lawyer to which I have referred. The Registrar made the following orders:

Pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), within 28 days of the date of this order, the Respondent pay:

(a) the Applicant:

(i) $5,937.10 on account of annual leave payable on termination of the Applicant's employment (70.57 hours at $84.13 per hour);

(ii) $5,441.64 on account of notice (2 weeks' pay in lieu of notice, at $2720.82 per week);

(iii) $470 on account of filing fees;

(iv) $4,381.27 on account of costs (see Schedule 2 of the Rules: $3,354.70 for initiating an application up to the completion of the first court date; and two daily hearings (at $342.19 per hearing) plus a 50% loading);

(v) $592.67 on account of interest on the amounts referred to in (a)(i)- (ii) and (b)(i) (assuming that these amounts were payable upon the termination of the Applicant's employment on 24 October 2024);

(b) into the Applicant's superannuation account:

(i) $625.79 on account of superannuation (payable on the payment in lieu of notice referred to in paragraph (a)(ii) and calculated at 11.5%).

THE COURT NOTES THAT:

1. The Respondent did not appear at the case management hearing on 27 May 2025.

2. The Court was satisfied that the Respondent was aware of the hearing on 27 May 2025 as the Respondent was in attendance at the last court date on 29 April 2025 at which the matter was listed for a case management hearing on 27 May 2025.

3. The Court was satisfied that the Respondent was in default by its non-attendance at the case management hearing (rule 13.04(2)(iii) of the Rules).

4. The Court was satisfied costs could be awarded on the basis that the Applicant had offered to settle the annual leave underpayment claim for a lesser amount in January 2025 and failure to settle the proceedings prior to the commencement of these proceedings constituted an unreasonable act or omission under section 570 of the Fair Work Act 2009 (Cth).

5. Pursuant to r 17.05(2)(a) of the Rules, the Court may vary or set aside a judgement or order made in the absence of a party.

6. The amount payable in respect of unpaid wages/ employment entitlements may be subject to applicable taxation in the hands of the applicant.

7. Information regarding the enforcement of court orders is available on the court's website (see www.fcfcoa.gov.au/gfl/enforcement ).

1. The order incorrectly states it was made pursuant to 17.05(2)(a) of the former GFL Rules. The order appears to have been intended to be made pursuant to r 13.06(2) and r 13.05(2)(b) of the former GFL Rules.
2. On 27 May 2025 Mr Garan sent an email to Mr Green requesting that SLSR make payments in accordance with the orders by 24 June 2025. Mr Garan sent a further email on 1 July 2025 demanding payment. On 11 July 2025 Mr Garan arranged to be posted to SLSR a demand pursuant to s 459E(2)(e) of the Corporations Act 2001 (Cth) (459E notice) demanding payment of the amounts specified in the orders made on 27 May 2025.
3. Mr Green responded by email sent on 12 July 2025. Mr Green stated that SLSR had filed material with the FWC "regarding costs, which addresses the fact that, inter alia, your client (via you) obtained a duplicitous Judgment in the FCFCA Proceedings in our absence". Mr Green further referred to "an ongoing investigation into the truthfulness of your client's workers' compensation claims, which has potentially significant implications including a cause of action arising for our client to recoup all monies spent with respect to the dispute between the Parties to date". Mr Green also demanded that Mr Borlandelli withdraw the 459E notice.
4. In the meantime, on 2 June 2025 SLSR paid to Mr Borlandelli $3,534.64, which was the notice amount of $5,441.64, less tax. SLSR made this payment pursuant to the orders the FWC made on 15 May 2025; and on 5 August 2025 SLSR paid $625.79 to Mr Borlandelli's superannuation account. On 15 August 2025 SLSR paid to Mr Green $5,494.50, being the amount of costs the FWC, on 8 August 2025, ordered SLSR pay to Mr Borlandelli.
5. On 5 August 2025 SLSR applied for an order pursuant to r 17.05(2)(a) of the former GFL Rules that the Orders be set aside. SLSR supported that application with an affidavit made by Mr Green filed on 5 August 2025. In his affidavit Mr Green provided an explanation for his not having appeared at the hearing on 27 May 2025, and why he had taken no steps until 5 August 2025 to apply to set aside the Registrar's orders. In addition, Mr Green deposed as follows:

With respect and without criticism to the Court, it seems the Court may not have been given the full picture of what had transpired between the Parties and related matters, including the fact that, in the FWC Proceedings, the Applicant was awarded the exact same relief as what it sought in these Proceedings in terms of notice pay and superannuation, the Applicant had been entirely indemnified by workers' compensation payments since his termination, and he had also been historically overpaid annual leave and superannuation (see the affidavits of Zahra and Katralis, filed on 7 and 13 May 2025, respectively). The Respondent's position is that there is a huge raft of disentitling conduct on the part of the Applicant in the context of a costs order, which we are sure the Court was not made aware of.

1. Mr Green exhibited to his affidavit documents which, he says, included an affidavit filed in the FWC proceeding for the purpose of a costs application, saying that he relied on that evidence "mutatis mutandis, for the time being", until the outcome of the costs hearing is known. Mr Green concludes his affidavit by asking the Court that, in the interests of justice and fairness, the Orders be set aside.
2. On 8 August 2025 Registrar Donovan made the following orders:
   1. The Orders dated 27 May 2025 are amended to reflect those orders being made in Sydney (not Brisbane).
   2. Order 1(a)(ii) of the Orders dated 27 May 2025 is vacated (that order required the Respondent to make a payment to the Applicant on account of 2 weeks' pay in lieu of notice).
   3. Order 1(a)(v) of the Orders dated 27 May 2025 is amended to refer to $293.12 in interest (rather than $592.67 - this is to account for Orders 2 and 4 of these orders) (such interest being applied to the annual leave component of the orders dated 27 May 2025 only (i.e. Order 1(a)(i)), calculated at the Federal Court of Australia pre-judgment interest rate, applied from 24 October 2024 (the date the Applicant's employment ended) to 27 May 2025 (the date the orders were issued)).
   4. Order 1(b) of the Orders dated 27 May 2025 is vacated (that order required the Respondent to make a payment to the Applicant on account of superannuation, calculated on the 2 weeks' payment in lieu of notice amount referred to in Order 1(a)(ii)).

THE COURT NOTES THAT:

• On 26 May 2025, the Fair Work Commission issued a decision (Borlandelli v Sydney Luxury Smash Repairs Pty Ltd [2025] FWC 1428 (Decision)) awarding the Applicant compensation in the sum of two weeks' notice plus superannuation on that notice (paragraph [66] of that decision).
• In light of this Decision, it is unnecessary for the Court to also make an award for notice and superannuation on that notice.
• While the Decision was referred to in the hearing of this matter on 27 May 2025, the Court had not had an opportunity to read the Decision in full in the hearing on 27 May 2025.
• The above amendments are made pursuant to Rule 17.05(2)(a) and Rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
• Information regarding the enforcement of court orders is available on the court's website (see www.fcfcoa.gov.au/gfl/enforcement ).

1. On 3 September 2025 the Registrar ordered that SLSR's application be referred to a Judge. The application came before me on 19 September 2025. On that occasion I ordered that the application be set down for hearing before me on 17 October 2025. The application was later fixed for hearing on 18 December 2025.
2. On 3 September 2025 SLSR filed a further affidavit made by Mr Katralis. Mr Katralis noted that, although he understood the FWC awarded Mr Borlandelli compensation equal to two weeks' wages, Mr Borlandelli "has not cooperated or provided any further information or documentation to either the Respondent, or iCare, as part of their ongoing investigation into [Mr Borlandelli's] workers' compensation claims." Mr Katralis further deposed as follows:
   1. However, as set out in my first affidavit, the Award does not provide for the accrual of anneal [sic] leave of superannuation on overtime. While the Respondent did not previously accrue or pay annual leave or superannuation on overtime, when it switched to new bookkeeping software on 1 August 2024, the default settings automatically did do so, unbeknownst to, and unintended by, the Respondent. I only discovered it when the data and reports got to me to undertake the BAS. As such, prior figures attributed to the Applicant were incorrect and inflated.
   2. The Applicant had claimed enough overtime between 1 August 2024 and 24 October 2024 that the system showed him as having accrued 4.68 hours in leave, which needs to be deducted. As such, the Applicant's true annual leave balance is actually $764.69.
   3. As to superannuation, at the rate of 11.5% that was applicable from 1 July 2024, the hourly rate of accrual for the Applicant was $8.23. At 7.6 hours per day, the daily accrual rate was$62.54, and at 38 hours per week, the weekly accrual rate was $312.74, and the quarterly accrual at an average of thirteen weeks was $4,065.62.
   4. The Respondent pays superannuation for each quarter in accordance with the statutory deadlines. The superannuation for the December 2024 quarter for the Applicant was paid on 14 February 2025 via our superannuation clearing house, QuickSuper, prior to the commencement of these Proceedings
   5. Adjusting for the overtime errors alone requires a deduction of $38.51, although at 29 days of unauthorised leave, a further deduction of $1,813.56 is required.
3. On 15 October 2025 Mr Borlandelli filed an affidavit in which he responds to the affidavits of Ms Zahra and Mr Katralis. In relation to the affidavit of Ms Zahra, Mr Borlandelli refers to the following findings of the FWC:[2]

[17] The case advanced by SLSR during the hearing was that the reason for Mr Borlandelli's dismissal was a series of unauthorised absences from work and ongoing poor performance from Mr Borlandelli.

[18] Mr Pierce's witness statement identified a series of dates where Mr Borlandelli allegedly took annual leave and sick leave.7 Mr Pierce explained during cross-examination that his wife, Bianca, prepared the list and that he did not review SLSR's business records to verify that Mr Borlandelli was absent on the relevant dates. Bianca Pierce was not called to give evidence by SLSR. Mr Borlandelli provided Google Maps extracts which purport to show that he travelled to and from work on several of the dates where Mr Pierce claims he was absent.

[19] I am not satisfied on the balance of probabilities that Mr Borlandelli took unauthorised absences during his employment with SLSR. It is not clear from the evidence that Mr Borlandelli was absent from work on the dates identified by Mr Pierce. Mr Pierce admitted during cross-examination that several of the dates were not correct. The evidence also does not establish that any of Mr Borlandelli's absences were not authorised. SLSR clearly operates in a relatively informal manner and that makes it very difficult to retrospectively assess whether any absence was authorised or not. That is particularly the case when Mrs Pierce is the person responsible for maintaining leave records and she was not called to give evidence.

[20] The vague hearsay evidence led by Mr Pierce is not sufficient to establish that Mr Borlandelli took unauthorised absences during his employment with SLSR. The taking of [sic]

unauthorised absences did not provide a valid reason for Mr Borlandelli's dismissal.

1. In response to Mr Katralis's affidavit of 8 May 2025, Mr Borlandelli says he has reviewed that affidavit, but he is unable to determine how Mr Katralis made his calculations.
2. At 9.18 am on 18 December 2025 Mr Green's office sent an email to my Associate's inbox attaching an affidavit made by Mr Green on 18 December 2025, an affidavit made by Ms Zahra on 17 December 2025 (incorrectly stated to have been made on 17 November 2025), and a document headed "Respondent's Outline of Submissions". In his affidavit Mr Green deposes to matters that go to explaining SLSR's delays. Mr Green also deposes to matters that are more in the nature of submissions. Mr Green deposes:

(a) to his having written to Mr Garan on 28 April 2025 identifying what he submitted was the clear duplication between the issues raised in this proceeding and the FWC proceeding;

(b) to Mr Garan having issued the 459E notice;

(c) Mr Borlandelli's being a net financial position equal to or better than that when he was working as from 15 November 2024 when Mr Borlandelli lodged a workers' compensation claim;

(d) Mr Borlandelli's being double compensated;

(e) Mr Borlandelli's failing to produce documents in the FWC proceeding;

(f) to his having a clear recollection that when the Registrar made directions on 28 April 2025 that the clear intent of the Court was to wait until the FWC made its decision, "and thereafter to allow the Parties to engage in settlement negotiations and/or marshal, file and serve further evidence in respect of their respective cases so that this matter could be heard"; and

(g) to Mr Borlandelli's having allegedly misled iCare.

1. In her second affidavit, Ms Zahra provides a "final payslip" which she prepared "in accordance with the calculations set out" in Mr Katralis's second affidavit. Ms Zahra also refers to the outcome of Mr Borlandelli's workers' compensation claim, which was for that claim to be rejected.
2. In its outline of submissions, SLSR submits that:

(a) Mr Borlandelli's commencement of this proceeding was unnecessary, particularly as SLSR "had consistently indicated a willingness to meet all amounts properly owed", having suggested that the parties could involve the services provided by the Fair Work Ombudsman;

(b) this proceeding was commenced prematurely;

(c) Mr Borlandelli persisted to move this Court in circumstances where relief had already been granted by the FWC;

(d) Mr Borlandelli failed to bring to the Court's attention the FWC's decision on 27 May 2025 when he obtained default judgment;

(e) Mr Borlandelli took unnecessary further steps, such as the issuing of the 459E notice;

(f) the costs Mr Borlandelli incurred have been self-imposed; and

(g) Mr Borlandelli moved for default judgment "knowing that exculpatory evidence had been served on" Mr Garan "rendering entirely the commencement and maintenance of these Proceedings an abuse of process, while concealing that from the Court".

1. Mr Garan appeared on behalf of Mr Borlandelli, and Mr Green on behalf of SLSR. The parties relied on the affidavits they had filed. Mr Green repeated the substance of the submissions he made in his latest affidavit, and in SLSR's online submissions.
2. Mr Garan submitted that the only issue was whether Mr Borlandelli had $5,937.10 worth accrued but untaken annual leave, as represented by SLSR's own payslips it issued to Mr Borlandelli. Mr Garan submitted that SLSR's records prove that it owed Mr Borlandelli the annual leave amount; and that the material on which SLSR relied was incapable of casting any doubt that the payslip accurately recorded that SLSR owed $5,937.10 accrued but untaken annual leave.

1. At the hearing I informed Mr Garan and Mr Green that I would determine both the application to set aside the Registrar's orders (as amended on 8 August 2025), and the substantive question, namely, whether SLSR owes the annual leave amount of $5,937.10.

1. As I have noted, SLSR applies pursuant to r 17.05(2)(a) of the former GFL Rules (now r 24.04(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules)), to set aside an order the Registrar made pursuant to r 13.06(2) and r 13.05(2)(b) of the former GFL Rules.
2. The principles that govern the exercise of a power such as that provided for by r 24.04(a) of the GFL Rules have been considered in a number of cases. It would be convenient to refer to Finklestein J's consideration of the principles in Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd:[3]

The way the discretionary power to set aside a default judgment is to be exercised was considered by the House of Lords in Evans v Bartlam [1937] AC 473. There the Law Lords said that, while there are no hard and fast rules, it was usual for the defendant to (a) give some satisfactory explanation for his failure to take the step that led to judgment being entered; (b) bring his application to set aside the judgment without undue delay; and (c) show that he has some serious (or prime facie) defence to the action: see Lord Wright at 489, Lord Atkin at 479-480 and Lord Russell at 481-482.

1. After referring to a number of other authorities, his Honour said:[4]

What these authorities show is that the judge must decide what is just or fair in all the circumstances. This involves weighing up the extent to which the defendant is prejudiced by allowing the order to stand and the prejudice to the plaintiff in setting the order aside: Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596 at 605. It also involves the defendant showing some defence on the merits, for it is only if he has some defence that he will be seriously prejudiced if refused a trial. But, in the end, the judge's discretion is not to be exercised on any hard or fast rule. How the discretion is to be exercised will depend upon all the circumstances of each particular case.

1. I will assume that SLSR has provided an adequate explanation for not having appeared before the Registrar on 27 May 2025. The question to be determined is whether SLSR has shown it has some defence on the merits to Mr Borlandelli's claim for accrued but untaken annual leave. I am satisfied that it has not shown it has any defence or any arguable defence.

1. SLSR's principal defence appears to be that the amount of accrued but untaken annual leave recorded in the payslip it issued to Mr Borlandelli is incorrect; and it is incorrect for two reasons. The first is that Mr Borlandelli was absent from work on a number of days for unknown and unauthorised reasons; and the second is that SLSR's accounting system incorrectly accrued leave on overtime work Mr Borlandelli performed.
2. As to the first reason, SLSR principally relies on the first affidavit of Ms Zahra in which she deposes to a belief that Mr Borlandelli was absent from work on 13 occasions for which he accrued annual leave. Ms Zahra, however, does not identify any information on the basis of which it is possible to assess the accuracy of her asserted beliefs. Ms Zahra refers to having read statements provided "by the staff of the Respondent to the investigator" for the two workers' compensation claims she made; to having interviewed "several of our staff, who made the statements", and to her having held discussions with Mr Pierce. Ms Zahra, however, does not identify the persons whose statements she had read or had interviewed; and she does not identify the information those persons provided to her, or the information, if any, Mr Pierce conveyed to Ms Zahra. Ms Zahra also does not identify how she came to conclude on the basis of the statements she read, and the discussions she says she had with staff and Mr Pierce, that Mr Borlandelli was absent from work on the 13 occasions she purports to identify.
3. As for the second reason for which SLSR says the payslip it provided to Mr Borlandelli is incorrect, the only evidence on which SLSR relies is the assertion Mr Katralis makes in his second affidavit that when SLSR "switched to new bookkeeping software on 1 August 2024, the default settings automatically did do so, unbeknownst to, and unintended by, the Respondent". Mr Katralis, however, does not identify the source of these assertions; and he does not provide any documentary evidence it is reasonable to suppose it would be in the position of the SLSR to have provided, if it were true that:

(a) SLSR switched to a new bookkeeping system on 1 August 2024;

(b) the new system contained default setting which accrued leave on the earning of overtime; and

(c) the new system in fact accrued leave on overtime Mr Borlandelli worked.

1. Thus, there is no evidentiary basis for supposing that SLSR incorrectly accrued annual leave to Mr Borlandelli.

1. None of the other matters on which SLSR relies is capable of giving rise to any arguable defence. First, Mr Borlandelli was entitled to commence a proceeding in this Court to recover award and other amounts to which he was entitled under the FW Act. The FWC did not have jurisdiction to determine those applications. That is so, even though the compensation the FWC ordered SLSR pay was equivalent to the notice amount. SLSR's liability arose from two sources, one being SLSR's breach of the Award, and the other being FWC having found that SLSR unfairly dismissed Mr Borlandelli from his employment.
2. It is the case that although SLSR's liability to pay the two weeks' wages arose from two different sources, the liability related to the one loss, which meant that Mr Borlandelli could only recover the amount but once.[5] And that is what Mr Borlandelli did when on 8 August 2025, after SLSR paid to him the compensation the FWC ordered it to pay, Mr Borlandelli applied to vary the Orders by removing the order that SLSR pay the notice amount.
3. Second, SLSR has asserted that Mr Borlandelli engaged in dishonesty in making a workers' compensation claim after SLSR terminated his employment. It is, however, a fundamental and long-established principle that, in all cases based on fraud, "particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires";[6] and "if a case of fraud is to be mounted, it should be pleaded specifically and with particularity".[7] SLSR has not sufficiently articulated any case based on fraud. Further, SLSR has not articulated how a case based on fraud is capable of defeating Mr Borlandelli's claim for accrued but untaken annual leave, an entitlement provided for by s 90(2) of the FW Act.
4. Third, there is no basis for SLSR's contention that Mr Borlandelli's commencement of this proceeding was an abuse of process. Mr Borlandelli, through Mr Garan, made a clear demand for the payment of the notice and annual leave amounts before he commenced this proceeding, giving SRSL an opportunity to pay those amounts without putting Mr Borlandelli to the expense of commencing this proceeding. SRSL did not in its letter in response identify any arguable defence to Mr Borlandelli's claims; and throughout the ten-month life of this proceeding, SLSR has not identified any arguable defence.

1. I am satisfied that Mr Borlandelli has proved that he is entitled to be paid accrued but untaken annual leave in the amount of $5,937.10. Given that I have found that SLSR has not raised any arguable defences, it follows I am satisfied that even if Mr Borlandelli did not obtain default judgment, he would have been entitled to judgment in the amounts provided for in the Orders at the time they were made, and would have been entitled to the amounts stated in the Orders, as amended by the orders made on 8 August 2025.

1. Mr Borlandelli applies for an order for costs pursuant to s 570(2)(b) of the FW Act, which provides that a party to proceedings may be ordered to pay the costs in relation to a matter arising under the FW Act if the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. Mr Borlandelli relies on the letter dated 23 January 2025 Mr Garan sent to Mr Green demanding that SLSR pay to Mr Borlandelli $5,441.64, being his two weeks' notice pay, and $5,012, being what Mr Borlandelli claimed was his accrued, but untaken, annual leave. Mr Borlandelli relies on his having obtained judgment for $5,937.10, being $900 more than was initially demanded.
2. I am satisfied that SLSR's actions in defending the proceeding Mr Borlandelli commenced in this Court were unreasonable from the outset. Although the proceeding had been on foot for almost 11 months, SLSR has been unable to articulate or present any arguable defence to the claims Mr Borlandelli made for the payment of the notice and annual leave amounts. I therefore propose to order that SLSR pay Mr Borlandelli's costs of SLSR's application to set aside the Orders, and that those costs be set in the amount provided for in item 3 of Part 2 of Schedule 2 to the GFL Rules, namely, $3,640.09.

a) The interlocutory application filed on 5 August 2025 be dismissed. > > b) SLSR pay Mr Borlandelli's costs of the interlocutory application set in the amount of $3,640.09.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Now r 24.04(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[2] Jorge Borlandelli v Sydney Luxury Smash Repairs Pty Ltd [2025] FWC 1428, at [17]-[20].

[3] Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755, at [7].

[4] Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755, at [10].

[5] As for the rule against double recovery, see my discussion in Tzovaras v Jeandin [2014] FCCA 2039, at [52]-[57].

[6] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P). The quote was made in the context of actions to set aside judgments for fraud, but it was prefaced by the words: "As in all actions based on fraud".

[7] Forrest v Australian Securities and Investments Commission ( 2012) 247 CLR 486; [2012] HCA 39 at [26].