| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 225 |
| Determination date | 15 October 2012 |
| Member | C Hickey |
| Representation | J Pullar ; B Laracy |
| Parties | Enosa v Black & White Fire Systems Ltd |
| Summary | PRACTICE AND PROCEDURE – COMPLIANCE ORDER: Applicant sought compliance with previous Authority determination and sought to join respondent’s director and new company (“2011”) to proceedings – Authority found before exercising discretion to order compliance with previous Authority determination Authority required further information about respondent’s financial position and real reason for incorporation of 2011 – Respondent to provide evidence of respondent’s financial position, including in relation to Inland Revenue Department, and business of each company including whether 2011 purchased any of respondent’s assets |
| Abstract | Applicant sought compliance with previous Authority determination and sought to join respondent’s director (“V”) and new company (“2011”) to proceedings. Authority previously ordered respondent to pay applicant $10,266.40 but respondent made partial payment only. After attempts by applicant to obtain payment V took steps to register 2011 as new company. V sole director and majority shareholder of respondent and 2011. Both companies had same registered office and V lived at same address as other shareholder in both companies. Respondent claimed had ceased trading, could not guarantee payment and no practical benefit in issuing compliance order against company about to cease to exist. Applicant claimed V acted to cause respondent to thwart Authority’s order by using sham of new company essentially carrying on respondent’s business. Respondent claimed genuine business reasons for establishing 2011.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE – COMPLIANCE ORDER: Before exercising discretion to order compliance with previous Authority determination Authority required further information about respondent’s financial position and real reason for incorporation of 2011. Respondent and V required to produce evidence demonstrating 2011 not sham or device set up to avoid compliance with previous Authority determination. Respondent to provide evidence of respondent’s financial position, including in relation to Inland Revenue Department, and business of each company including whether 2011 purchased any of respondent’s assets. |
| Result | Orders made; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s137(1)(b);ERA s161(1)(n);ERA s221;ERA Second Schedule cl4 |
| Cases Cited | McLennan v Internet Productions Ltd (in liq) [2003] 1 ERNZ 282;Mills v Metro Floor Canterbury (2002) Ltd (in liq) [2011] NZERA Christchurch 184;Spencer v Hughes Dairy Farms Ltd (2008) 8 NZELC 99,423;Square 1 Service Group Ltd v Butler [1994] 1 ERNZ 667 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Christchurch_225.pdf [pdf 178 KB] |