| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 128 |
| Determination date | 23 August 2011 |
| Member | H Doyle |
| Representation | R Towner ; P Churchman, L Brook |
| Location | Christchurch |
| Parties | Warren Skerrett Investments Ltd and Anor v Broad |
| Other Parties | Camelot New Zealand Ltd Partnership |
| Summary | PRACTICE AND PROCEDURE – Application for joinder – Respondent working for another company trading as Southern Wealth Management Ltd (“SWM”) - First applicant (“WSIL”) claimed respondent breached restraint of trade clause and solicited up to 21 of WSIL’s clients - WSIL sold business to proposed second applicant (“CNZL”) – CNZL sought order to join proceeding – CNZL claimed WSIL’s title, other rights in business and assets passed to CNZL free of encumbrances including employment agreements – WSIL claimed joining CNZL necessary to enable Authority to effectively investigate problem without need for separate applications – Respondent claimed CNZL should not be joined to proceedings as respondent and CNZL not parties to employment relationship and therefore Authority had no jurisdiction – Respondent claimed restraint of trade not assignable, no valid cause of action and CNZL failed to attach sale and purchase agreement to application – Authority found had jurisdiction to determine whether CNZL could enforce restraint of trade and not satisfied could reject CNZL’s application without investigation – Found real possibility of separate proceedings occurring and joining CNZL would enable Authority to effectually dispose of employment problem – CNZL to be added as party to proceedings - WSIL sought documents from SWM – SWM provided information on how WSIL’s clients became SWM’s clients but objected to disclosing any other information – Documents requested by WSIL between SWM and clients included correspondence records, advertising material, invoices and receipts - SWM claimed requested documents not necessary to determine whether restraint of trade enforceable, included records that would be highly prejudicial if released to competitor and was “fishing expedition” – Found request for document relating to named clients for two year restraint period not excessive – Found application not “fishing expedition,” WSIL had sufficiently established was documentation pertaining to clients and confidentiality not in itself ground to resist disclosure – Found information relating to possible loss and damage to respondent should also be provided - Found clients outside restraint of trade region relevant until Authority determined restraint’s scope, however information in telephone records could be ascertained from other requested documents – No order for SWM to produce telephone records – SWM to provide correspondence records, advertising material and receipts and invoices |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s160(1);ERA s160(1)(a);ERA s221 |
| Cases Cited | Carter Holt Harvey Ltd v Hastie unreported, Colgan J, 5 May 2003, AC 10B/03;Jackel (NZ) Limited v Ireland unreported, J Scott, 4 March 2004, AA 75/04;PGG Wrightson Ltd v Jary [2008] ERNZ 476;Post Haste Couriers Ltd v Casey unreported, Holland J, 24 October 1989, CP 83/89;Precision Tracking (NZ) Ltd v Tait unreported, H Doyle, 16 December 2009, CA 216/09 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Christchurch_128.pdf [pdf 35 KB] |