| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 34/10 |
| Hearing date | 23 Jul 2009 |
| Determination date | 28 January 2010 |
| Member | R Arthur |
| Representation | A Lubbe ; no appearance |
| Location | Auckland |
| Parties | ANZ National Bank Ltd v Hussain |
| Summary | BREACH OF CONTRACT - No appearance for respondent - Respondent suspended while applicant investigated allegations respondent’s breaches of mortgage application processing procedures amounted to negligence and had allowed fraudulent activities to occur - Respondent resigned and did not attend disciplinary meeting requested by applicant - Authority found respondent breached terms of employment by not carrying out duties with reasonable diligence and by not complying with applicant’s procedures - Found respondent’s conduct prejudiced safe and proper conduct of applicant’s business - Authority declined to infer respondent was party to fraudulent activities - Applicant provided extensive evidence of losses claimed incurred as result of respondent’s actions - Authority found respondent’s actions causative of applicant’s losses - Found prospect of losses readily apparent to reasonably intelligent person contemplating respondent’s conduct - Found no independent or intervening cause of losses - Found respondent liable for losses incurred by applicant - Found inquiry to quantify damages could be subject of separate investigation and determination of Authority, if applicant wished to pursue that option - Authority noted applicant had capped claim for special damages at AUD$1 million, although actual loss could be greater - PENALTY - Applicant claimed penalties for breach of employment agreement - Authority found breaches not technical or inadvertent - Found breaches either deliberately careless or reckless given respondent’s knowledge of applicant’s procedures - Found as applicant received commission on mortgage applications effectively profited from own breaches - Authority found as were repeated breaches award of penalty on each application appropriate rather than global award – Found $3,000 penalty for each breach appropriate - Respondent to pay applicant $54,000 in penalties - Mobile Mortgage Manager |
| Result | Application granted ; Penalty($54,000)(Payable to applicant) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s134;ERA s135;ERA s135(5);ERA s136;ERA Second Schedule cl12 |
| Cases Cited | F v Attorney-General [1994] 2 ERNZ 62;Finsec v AMP [1992] 1 ERNZ 280;Janata Bank v Ahmed [1981] ICR 791;Jupiter General Insurance Co v Shroff [1938] 3 All ER 67;Lister v Romford Ice [1957] AC 555;Medic Corporation Limited v Barrett (No 2) [1992] 3 ERNZ 977;R v Findlay [2007] NZCA 553;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 13 |
| PDF File Link: | aa 34_10.pdf [pdf 43 KB] |