| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 253 |
| Hearing date | 25 Jul 2012 |
| Determination date | 25 July 2012 |
| Member | E Robinson |
| Representation | R Uptom ; No appearance |
| Location | Auckland |
| Parties | AG Walters Ltd v Pouwhare |
| Summary | COMPLIANCE ORDER – Applicant sought compliance with settlement agreement (“SA”) – Authority found respondent unlikely to comply with SA unless compliance order made – Compliance ordered – Interest payable on instalments outstanding under SA – PENALTY – Applicant sought penalty for respondent’s breach of SA – Found applicant suffered some harm as result of respondent’s breach of SA – Found respondent’s breach of SA flagrant and deliberate – Found public confidence in SAs undermined if perception that parties able to breach SA with impunity - $1,000 penalty appropriate – Authority ordered payment by instalments – COSTS – Less than one day investigation meeting – Applicant sought contribution towards costs – Respondent to pay applicant $600 contribution towards costs |
| Abstract | Applicant sought compliance with settlement agreement (“SA”) and penalty for respondent’s breach of SA. Applicant sought contribution towards costs. Under SA respondent agreed to repay amount owing to applicant in instalments. Respondent made payment of one instalment only.;AUTHORITY FOUND –;COMPLIANCE ORDER: Respondent unlikely to comply with SA unless compliance order made. Compliance ordered. Interest payable on instalments outstanding under SA.;PENALTY: SA provision that respondent to repay amount owing in instalments deprived applicant of immediate use of applicant’s money and put applicant to additional expense trying to obtain payment. Applicant suffered some harm. Respondent’s breach of SA flagrant and deliberate. Public confidence in SAs undermined if perception that parties able to breach SA with impunity. $1,000 penalty appropriate. Authority ordered payment by instalments.;COSTS: Less than one day investigation meeting. Respondent to pay applicant $600 contribution towards costs. |
| Result | Applications granted; Compliance ordered; Interest (5%)(instalments outstanding under settlement agreement); Penalty ($1,000)(payable to applicant); Costs in favour of applicant ($600); Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Compliance Order |
| Statutes | ERA;ERA s137(1)(a)(iii);ERA s149;ERA s149(4);ERA s149(4A);ERA Second Schedule cl11;ERA Second Schedule cl12;ERA Second Schedule cl15;Judicature Act 1908;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Auckland_253.pdf [pdf 227 KB] |