FUIMAONO & ANOR v HOUIA [2017] NZCA 540

FUIMAONO & ANOR v HOUIA [2017] NZCA 540 [22 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA322/2017[2017] NZCA 540BETWEEN HEATHER FUIMAONO AND MAHIAFUIMAONOApplicantsAND LEEANNE HOUIARespondentHearing: 20 November 2017Court: Miller, Cooper and Asher JJCounsel: F Handy for ApplicantsA Knowsley for RespondentJudgment: 22 November 2017 at 2.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B No order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The applicants seek leave to appeal under s 214 of the Employment RelationsAct 2000 from an Employment Court decision holding that they, rather than theircompany, were the respondent's employers and so personally liable to paycompensation for her unjustified dismissal.1[2] The necessary point of law identified is that the Court misinterpreted theintention to create legal relations which is fundamental to the law of contract.The applicants concede that the Court cited the relevant principles of law, but it is saidthat had they been applied correctly a different answer must have resulted.[3] In our view, the case turns on its facts, or to put it another way it raises noserious question of law. In essence, the applicants complain that theEmployment Court discounted evidence tending to show that the company was theemployer. The Court correctly directed itself that it must consider the real nature ofthe relationship and it focused on the objective indicia.2 The findings that it madewere plainly available to it.[4] In any event, the applicants face two further difficulties which appear to renderthe proposed appeal moot. The first is if they contracted as agents they did so withoutdisclosing the principal. It is no answer to this that they did disclose what the Courtfound was their own trading name. The second is that s 25(2) of the Companies Act1993 applies, meaning they are personally liable unless that would not be just andequitable. The applicants were personally responsible for the respondent's dismissal.All that might be said in their favour is that they did not intend to deceive by failingto disclose the company's name.[5] The application for leave to appeal is dismissed. As the applicants are legallyaided, we make no order as to costs.Solicitors:Rainey Collins, Wellington for Respondent1 Fuimaono v Houia [2017] NZEmpC 63. Reference should be made to the decision for an accountof the facts.2 At [41]–[46].