Marie v Trustee for Aspire Residences Unit Trust

This case was not a final hearing about whether an employer had breached the Fair Work Act. It was a later dispute about what happened after the parties had already settled an employment proceeding.

Rebecca Marie had started a Federal Court case against the Trustee for Aspire Residences Unit Trust. The Court said her claim broadly alleged contraventions of Part 3-1 of the Fair Work Act arising from the termination of her employment on 16 May 2024. The proceeding was referred to mediation and the parties resolved it by signing a Deed of Release dated 31 March 2025.

Under that deed, the employer agreed to pay $15,000 without admission in exchange for the usual releases. Payment had to be made within 14 days after the employer received the deed signed by the applicant. The deed also said that within 48 hours after payment, the parties would file consent orders dismissing the proceeding.

The problem was that payment was late. It was made on 23 April 2025, nine days after the due date. On the same day, before she had been notified of the EFT, the applicant filed an interlocutory application. She wanted the proceeding reopened, an urgent hearing, enforcement of the deed, or alternatively that the deed be set aside for repudiation so the original claim could continue.

The judgment records a very tight sequence. The application was lodged at 12.40 pm. The email notifying the applicant of payment was sent at 12.41 pm. The application was accepted for filing later that day at 5.49 pm.

The applicant was self-represented. The respondent was legally represented by a solicitor from Irwell Law. That procedural detail matters because the Court's reasons show a practical focus on what each side did after the payment issue arose.

The applicant relied on three affidavits. She said the delay in payment had caused serious emotional and financial stress and worsened her health symptoms. She also asked the Court to consider directing the employer to provide extra compensation and to impose civil penalties. The Court noted that the claims made in her affidavits did not align with the interlocutory application itself.

The judgment also records that the employer had offered to pay an extra $100, while the applicant referred to an interest calculation of about $30 by analogy with the post-judgment interest rate. That detail helps explain the practical setting of the dispute. By the time the Court came to decide the application, the settlement money had already been paid, but the parties were still fighting about what legal consequences should follow from the delay.

There was also an attempt to resolve the matter without a judicial decision. On 9 May 2025, a Registrar offered the parties a further mediation. The applicant declined to participate. Later, on 13 March 2026, the judge ordered that any dismissal application be dealt with by written submissions and determined on the papers. The respondent filed submissions on time. The applicant filed a reply after obtaining an extension of time.

So the Court was dealing with a narrow but important post-settlement question: once the money had been paid, was there still anything the applicant could properly obtain through an interlocutory application in the existing proceeding?

The Court had to decide the legal effect of a late payment under a settlement deed. More specifically, it had to work out whether the applicant could use the existing Federal Court proceeding to get any of the relief she sought after the employer had paid the settlement sum.

That involved several separate questions. Could the original employment proceeding be reopened because the employer paid late? Could the deed still be enforced summarily in the existing case? Could the deed be set aside for repudiation through an interlocutory application? And if the application failed, did the Fair Work Act costs protection apply, or was this really a contract dispute?

The Court approached the issue by focusing on the legal character of the deed. A settlement deed is a contract. The judgment said that where a legal proceeding has been compromised by contract, a breach of the settlement terms generally gives rise to a new cause of action unless the compromise itself is being set aside. It does not automatically enliven the original proceeding that led to the settlement.

The Court also recognised that there can be scope to enforce a contractual compromise summarily in an existing proceeding where the validity of the compromise is not in issue and no contested question of fact arises. But that possibility only helps if there is still something practical left to enforce.

Justice McElwaine dismissed the interlocutory application. The Court accepted that the application to enforce the compromise was properly lodged at the time it was filed because payment had not yet been made. But that was not the end of the analysis. Once payment was made, the application became inutile when consideration was given to what was left to enforce.

That point is important. The Court was not saying the application was necessarily wrong at the instant it was filed. It was saying that after payment, the relief sought through that interlocutory mechanism was no longer available in any practical or legal sense.

The first order sought by the applicant, reopening the proceeding for further consideration because of the employer's failure to comply with the deed, was described as misconceived. The Court said breach of a non-essential time stipulation is not a ground to impeach a compromise. The deed did not contain a time is of the essence clause, and the applicant did not rely on recognised grounds for impeaching a compromise such as incapacity, mistake, misrepresentation, fraud or undue influence.

The second order sought, that the employer show cause why it had failed to comply with the deed, was described as meaningless in a breach of contract case.

The third category of relief also failed. To the extent the applicant sought specific performance or a mandatory injunction to enforce the deed, those remedies could not be granted because the deed had already been performed by payment. To the extent she sought to set aside the deed for repudiation, the Court said that relief was not available by interlocutory application in the existing proceeding. A new proceeding was required.

The Court also noted that the applicant's material raised larger questions of causation and damages, including medical and financial stress issues. Those were contestable factual issues and were not suitable for summary determination on the interlocutory application.

The Court ordered the applicant to pay the respondent's costs of the interlocutory application from 30 April 2025. The judge accepted that the application had, in part, been filed as a last resort before payment was made. But the Court focused on what happened after payment. Acting reasonably, the applicant should have withdrawn the application once the settlement money had been received. By persisting, she caused unnecessary costs to be incurred.

The costs reasoning is commercially significant. The original proceeding had been brought under the Fair Work Act, but the Court said that did not mean the applicant automatically had the benefit of section 570. The interlocutory application was not brought in relation to a matter arising under the Fair Work Act. It concerned breach of contract. That meant ordinary costs principles could apply.

For businesses, there are several practical points. First, settlement deeds need active administration. A missed payment date can trigger urgent applications even if the legal position later favours the payer. Secondly, deed wording matters. The Court placed weight on the fact that the deed did not make time essential and did not provide that the original proceeding could be revived if the settlement terms were breached.

If parties want stronger consequences for late payment, or a clearer enforcement route, those matters need to be addressed in drafting.

Thirdly, communication matters almost as much as payment itself. Here, the payment notification email was sent one minute after the application was lodged. That timing shows how a small delay in processing or communication can create a court filing that might otherwise have been avoided.

Finally, businesses should not assume that a post-settlement dispute will stay within the same legal frame as the original employment case. Once the issue becomes compliance with the deed, the dispute may be treated as contractual, with different procedural and costs consequences.

The timeline helps explain why the Court reached the result it did. The original employment proceeding began in July 2024. The parties settled in March 2025. Payment was due 14 days after the employer received the signed deed, but it was made nine days late on 23 April 2025. The applicant filed her interlocutory application on the same day, one minute before the payment notification email was sent. A further mediation was offered in May 2025 and declined.

The dismissal application was then managed by written submissions and decided on the papers, with judgment delivered on 6 May 2026.

The case therefore stands as a short but useful authority on the limits of interlocutory relief after a settlement deed has been performed, even if performance was late.