Kidd v Cowan - [2020] NZCA 681

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA475/2020
[2020] NZCA 681

BETWEEN	CHARLES KIDD IN PARTNERSHIP WITH GEOFFREY KIDD TRADING AS KIDD PARTNERSHIP Applicant
AND	GEORGE ROBERT COWAN Respondent

Court:	Clifford and Gilbert JJ
Counsel:	S N McKenzie for Applicant P G Skelton QC and J R Copeland for Respondent
Judgment: (On the papers)	21 December 2020 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicant is to pay the respondent costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application by the Kidd Partnership (the Partnership) for leave to appeal the decision of the Employment Court that the transfer of land valued at $80,000 by the Partnership to Mr Cowan could not be offset against wages that the Partnership owed to Mr Cowan.[1]

Background

[1]Cowan v Kidd [2020] NZEmpC 110 [Employment Court decision].

The Partnership comprises Mr Kidd and his son, Geoffrey. It operates businesses, including farms and a rest home, and owns property in and around Winton.
Mr Kidd and Mr Cowan were once friends. Concerned about Mr Cowan’s living situation after he was left without a home, in April 2009 Mr Kidd invited Mr Cowan to stay with him and his partner in a separate apartment forming part of their home. Mr Cowan accepted that offer. Mr Cowan lived in that apartment, and later in a cottage at the rest home owned by the Partnership, rent-free until October 2016.
For most of that period Mr Cowan worked part time for the Partnership. He drove trucks, and assisted with Partnership building projects. Mr Cowan last worked for the Partnership in May 2016. Mr Cowan never had a written employment agreement, nor did he receive wages.
In July 2010 the Partnership transferred a parcel of land to Mr Cowan near the Partnership’s rest home.[2] The arrangement was structured as a sale, with an assigned value of $80,000 for the land. Mr Cowan paid no money for that land.
[2]At [16].
The relationship between Mr Cowan and the Partnership deteriorated and eventually completely broke down. In late 2015 or early 2016 Mr Cowan claimed wages from the Partnership. The Partnership refused that claim. In July 2016 Mr Cowan lodged a personal grievance, claiming he was in an employment relationship with the Partnership and for wages owing for the period 27 July 2010 to 23 May 2016. In his claim for wages, Mr Cowan did not recognise he had been provided with free accommodation and the piece of land in return for the work he performed.
Before the Employment Relations Authority, the Partnership accepted there had been an employment relationship, denied Mr Cowan had worked all the hours he claimed, disputed the hourly wage he sought, and said that he had been provided with the free accommodation and the piece of land in exchange for the work he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kidd v Cowan

Details

AGLC: Kidd v Cowan [2020] NZCA 681
Case: [2020] NZCA 681
Decision Date: 21 December 2020 at 4.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether the Kidd Partnership, trading as Kidd Partnership, had leave to appeal against the Employment Court's decision that the transfer of land valued at $80,000 by the Partnership to Mr Cowan could not be offset against wages that the Partnership owed to Mr Cowan. The Kidd Partnership argued that the Court of Appeal should grant leave to appeal on the basis that the Employment Court had failed to consider the Court's inherent jurisdiction to act in equity and good conscience when calculating wage arrears. The Kidd Partnership submitted that the Court of Appeal's decision in Kidd v Beaumont was authority for the proposition that the Court could take into account the provision of valuable consideration, such as the transfer of land, when calculating wage arrears. Mr Cowan argued that the application did not raise any question of law and that the Employment Court was correct to conclude that the transfer of land could not be taken into account in the calculation of wages owed to him.

The Court of Appeal considered the provisions of the Employment Relations Act 2000 and the Wages Protection Act 1983, which require that wages be paid in money only, subject to certain exceptions. The Court of Appeal held that the Kidd Partnership's proposed question of law was not one of general or public importance, as the law was clear that deductions from wages could only be made for lawful purposes with the written consent of the worker. The Court of Appeal held that the Employment Court did not err in concluding that the transfer of land could not be taken into account in the calculation of wages owed to Mr Cowan. The Court of Appeal declined the Kidd Partnership's application for leave to appeal and ordered the Kidd Partnership to pay Mr Cowan's costs for the standard application on a band A basis and usual disbursements.

Orders