Federal Court of Australia

Marie v Trustee for Aspire Residences Unit Trust [2026] FCA 553

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of the applicant filed 23 April 2025 is dismissed.

2.    The applicant is to pay the respondent’s costs of the application from 30 April 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    The applicant commenced this proceeding as long ago as 1 July 2024. Broadly, her claim contends contravention by her employer of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) arising from the termination of her employment on 16 May 2024. The proceeding was referred to mediation. A settlement was agreed and documented in the form of a Deed of Release dated 31 March 2025. Without admission, the employer agreed to pay $15,000 to resolve the proceeding in consideration of the usual releases. The Deed provided for payment to be made within 14 days of receipt by the employer of the Deed signed by the applicant. The Deed further provided that within 48 hours of payment, the parties will file consent orders dismissing the proceeding. It did not contain a time is of the essence clause.

2    It is common ground that the applicant provided a signed copy of the Deed to the employer’s solicitor on 31 March 2025, but the employer was late in making payment. Payment was not made until 23 April 2025, nine days late. Consent orders have not been filed.

3    On 23 April 2025, the applicant filed an interlocutory application. At the time of filing payment had not been received. The interlocutory application was lodged at 12.40pm. The making of the payment by EFT was notified to the applicant by email at 12.41pm. The interlocutory application was accepted for filing (and the applicant was notified of that) at 5.49pm. In the interlocutory application, the applicant seeks that the proceeding be reopened, an urgent hearing due to a contended deterioration in her health and financial hardship caused by the failure to make the payment on time, orders for enforcement of the deed or in the alternative that it be set aside for repudiation and then, for determination of the proceeding. The applicant has not repaid or offered to repay the money. The applicant relies on three affidavits in support of the interlocutory application. She asserts that the delay in payment “has caused me serious emotional and financial stress, impacting my mental health and worsening my [redacted] symptoms”. She “respectfully ask[s]” the Court to “consider” directing the employer “to provide extra compensation” and to impose civil penalties. Amongst other things, she discloses that the employer offered to pay her an extra $100 despite the interest calculation on the delayed payment being approximately $30 by analogy with the post judgment rate of interest of 10.35%. Her claims in the affidavits do not align with the interlocutory application.

4    On 9 May 2025, a Registrar of the Court offered the parties a further mediation. The applicant declined to participate. On 13 March 2026, I ordered that any application by the respondent to dismiss the interlocutory application be made in the form of written submissions by 4.00pm on 2 April 2026 and if made, the applicant was required to reply with her written submission by 4.00pm on 20 April 2026. I also ordered that any such application be determined on the papers. The respondent filed submissions as required. The applicant has filed her submission in reply, albeit after gaining an extension of time.

5    The respondent submits that the interlocutory application does not raise a matter within federal jurisdiction or is otherwise incompetent and should be dismissed with costs.

6    For the following brief reasons I have concluded that the interlocutory application must be dismissed.

7    The Deed does not provide that recourse may be had to the original claim in the event of non-compliance with the settlement terms. Rather, cl 4 provides that the applicant agrees to release and discharge the employer from all claims that she has or but for the release could or might have in respect of or arising out of her employment, including the proceeding. A breach of the terms of a contractual settlement of a legal proceeding gives rise to a new cause of action where there is no claim that the compromise should be set aside. It does not enliven the proceeding that led to the settlement: Mbuzi v AGL Retail Energy Ltd [2016] FCA 590 at [32]-[33], Edelman J. There is, however, scope to enforce a contractual compromise summarily in an extant proceeding where the validity of the compromise is not in issue and no contested question of fact arises: Roberts v Gippsland Agricultural and Earthmoving Contracting Co Pty Ltd [1956] VLR 555 at 562-563, Smith J; We Two Pty Ltd v Shorrock (No 2) [2005] FCA 934; (2005) 220 ALR 749 at [18]-[19], Finkelstein J; Soden v Soden [2024] FCA 1085 at [4]-[5], Derrington J.

8    Which brings me to the point. The interlocutory application to enforce the compromise was properly lodged as payment had not been made at that time. Thereafter, it became inutile when payment was made when consideration is given to what was left to enforce. The interlocutory application seeks orders that the proceeding: (1) be reopened “for further consideration” due to the employer’s “failure to comply with the terms” of the Deed; (2) that the employer “show cause why they have failed to comply” with the Deed; and (3) that “the Court orders the enforcement of the Deed, or the Court set (sic) aside the Deed on grounds of repudiation, enabling the substantive claim to proceed”.

9    No aspect of the relief sought by the applicant is now available by the mechanism of the interlocutory application. The first order sought is not one to enforce the compromise agreement and is misconceived in any event, in that breach of a non-essential time stipulation is not a ground to impeach a compromise. Despite the applicant’s submission that she does not seek to reopen the proceeding, that is precisely what the interlocutory application seeks to do. None of the recognised impeachment grounds (for example incapacity, mistake, misrepresentation, fraud or undue influence) are relied on: see generally, Foskett D, Foskett on Compromise (10th ed, Sweet & Maxwell, 2024) Chapter 4 and [12.01]-[12.07].

10    The second order sought is meaningless in a breach of contract case. The third order in the first part seeks specific performance or a mandatory injunction. Those remedies cannot be granted as the Deed has been performed. In the second part, an order to set aside the Deed on the grounds of repudiation is not available by interlocutory application in the proceeding; a new proceeding is required: Foskett at [12-02]. In her submissions, the applicant asserts that she relied on the agreed payment timeframe set by the Deed and the delayed payment has caused her serious emotional and financial stress. She attaches to one of her affidavits documents to support those claims, including a medical certificate which adverts to increased stress, emotional exhaustion and fatigue “related to a prolonged legal dispute”. That raises large questions of causation and damages. The applicant seeks to agitate contestable issues of fact that are inapposite for determination in a summary way on the interlocutory application: We Two at [19].

11    As to costs, the applicant resists on the basis that she gave notice of default before filing the interlocutory application and it was filed as a “last resort”. In part that is so, but it fails to address why the applicant persisted with the interlocutory application following payment. In my view there is no reason why costs do not follow the event. Although the proceeding was brought pursuant to the FW Act, it does not follow that the applicant has the benefit of s 570: Gussen v Swinburne University of Technology [2026] FCA 39 at [30]-[33], Hill J. The interlocutory application was not brought in relation to a matter arising under the FW Act. It concerned a breach of contract. Although as noted in part the interlocutory application was appropriately lodged before payment was made, acting reasonably the applicant should have withdrawn it after payment was received. Her failure to do so has caused unnecessary costs to be incurred. The appropriate order is that the applicant pay the costs of the interlocutory application from 30 April 2025, that being a period during which acting reasonably the interlocutory application ought to have been withdrawn or dismissed by consent.

Associate:

Dated:    6 May 2026