| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 35 |
| Hearing date | 20 Feb 2012 |
| Determination date | 27 February 2012 |
| Member | H Doyle |
| Representation | B Gray ; P Brits |
| Location | Dunedin |
| Parties | Breen v Adams Plumbing and Drainage (2010) Ltd |
| Summary | COMPLIANCE ORDER – Applicant sought compliance order requiring that respondent comply with terms of settlement agreement – Parties agreed that respondent would facilitate and make easy the return of items owned by applicant – Applicant claimed some tools had not been returned – Respondent managing director claimed all tools owned by applicant had been returned – Applicant marked tools on stock and plant list which were to be excluded from sale and purchase agreement – Authority not satisfied tools marked by applicant intended to be full list of tools owned by applicant – Respondent counsel informed applicant that not allowed on respondent premises under any circumstances and issued with trespass notice – Respondent informed applicant that obligation on applicant to prove owned other tools – Found unlikely applicant made up entire list of tools that did not own – Found respondent would have facilitated return of tools if applicant had been allowed on site to prepare list for both parties to consider at early stage – Found respondent did not facilitate return of applicant’s tools and equipment and therefore breached settlement agreement – Found inappropriate to order compliance in relation to tools applicant claimed still outstanding as no practical benefit in doing so because both parties looked for them and they were not found – Found respondent did not have to return tools in red container – Found respondent had to return tools in white container – Leave reserved for applicant to obtain compliance order if respondent did not return tools in white container – PENALTY – Applicant sought penalty for respondent’s breach of settlement agreement – Found deliberate decision not to allow applicant on site at early stage after settlement to identify own tools resulted in lack of clarity around establishing what property was owned by whom – Found applicant suffered harm from breach as inevitable that applicant would not be able to recover all property given passage of time – $2,500 penalty appropriate |
| Result | Application granted (penalty) ; Penalty ($2,500)(Payable to applicant) ; Application dismissed (compliance order) ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s136(2);ERA s137;ERA s149(1);ERA s149(3);ERA s149(4);ERA s151;ERA Second Schedule cl10(1) |
| Cases Cited | South Tranz Ltd v Strait Freight Ltd [2007] ERNZ 704 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_35.pdf [pdf 50 KB] |