| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 318/05 |
| Hearing date | 5 Jul 2005 |
| Determination date | 22 August 2005 |
| Member | J Scott |
| Representation | M Smyth ; B MacDonald |
| Location | Auckland |
| Parties | Kendrick Family Trust v Barnes |
| Summary | JURISDICTION - Applicant sought to recover overpayment of monies made to respondent - Whether employment relationship - IRD deemed respondent to be employee - Applicant more credible witness - Real nature of relationship - Intention of parties to go into business together - Respondent provided expertise and overtime to have opportunity to build 50 percent equity shareholding in business - Contract for services at initial stage - In practice relationship worked in manner consistent with common intention of parties - Respondent had full autonomy in day to day operations of restaurant - Fully integrated into business however that was also consistent with relationship in nature of partnership - Predominant intention at time parties entered into relationship was that they would ultimately become partners - Relationship in nature of partnership though arrangements not yet finalised - In interim respondent entered into contract for services - No jurisdiction - Had respondent been an employee would have been a strong argument for holding him liable for the PAYE not deducted by him when he paid himself |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s6 |
| Cases Cited | Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114;Koia v Carlyon Holdings Ltd [2001] ERNZ 585 |
| Number of Pages | 10 |
| PDF File Link: | aa 318_05.pdf [pdf 56 KB] |