| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 163 |
| Hearing date | 17-Mar-17 |
| Determination date | 06 June 2017 |
| Member | R Arthur |
| Representation | W Reid ; K Ashcroft |
| Location | Tauranga |
| Parties | Dellaway-Smith and Anor v Wildzog Investments Ltd and Anor |
| Other Parties | Smith ; Saunders |
| Summary | PRACTICE AND PROCEDURE - Whether applicants could pursue personal grievance against first respondent company (“WIL”) or second respondent (“S”) personally - Undisclosed principal - Companies Act 1993 s25 |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: More likely than not that first applicant’s employment agreement did not refer to WIL. At outset of employment S did not meet onus of making plain to first applicant that WIL was principal and S was agent. Doctrine of undisclosed principal applies and first applicant may pursue personal grievance against S. Evidence about second applicant’s employment agreement inconclusive. Not more likely than not that WIL concealed from second applicant. Doctrine of undisclosed principal does not apply to second applicant. Second applicant likely knew that employment obligations really incurred on WIL’s behalf. Not just and equitable for S to be liable for employment agreement omitting name when employment agreement prepared by first applicant. S not personally liable under s 25 of Companies Act 1993. |
| Result | Application partially granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | Companies Act 1993 s25 ; Companies Act 1993 s248(1)(c) ; Companies Act 1993 s318(1)(d) ; ERA s174E ; ERA Second Schedule cl10 |
| Cases Cited | Clarence Holdings Ltd v Hall (2001) 9 NZCLC 262 (CA);Cuttance (T/A Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321 (EmpC);Knauf v Marshall [2015] NZHC 1717;Wilson v Bruce Wilson Painting & Decorating Ltd [2014] NZEmpC 83 |
| Number of Pages | 14 |
| PDF File Link: | 2017_NZERA_Auckland_163_amended.pdf [pdf 286 KB] |