Momentum v Defence
October 29th, 2010 at 11:00 am by David FarrarA firm working for Momentum has sent me their PR in relation to the Wilce inquiry. I’ve not seen any media carry their view, so here are key extracts:
“Momentum Consulting does not accept the assertion of the New Zealand Defence Force Court of Inquiry that the company carried out reference checks on the preferred candidate for the post of the Director of the Defence Technology Agency.
“We supplied the NZDF with information from referees used by the preferred candidate when he applied for a job in another organization. This information was partial because Mr Wilce did not become the preferred candidate in that process and it was not intended to take the place of the reference checks suggested in our original proposal to the NZDF. That proposal recognized that the post of Director of the DTA required high-level reference checks. At no stage in the recruitment process did the NZDF ask us to complete these checks on Mr Wilce.
“If Momentum had been asked to carry out the full reference checks, as the Inquiry agrees was set out in our initial proposal to the NZDF, his claims about his performance in previous jobs would have been tested more rigorously. Although the checks were included in our proposal the client decided to take responsibility for these themselves.
I have no first hand knowledge of course on this issue, but as someone who has recruited CEOs and the like through a recruitment agency, I can say that it is not uncommon for the client to ask to do the referee checks? Why? Because by doing so you get a better feel of the applicant’s strengths and weaknesses which can help in managing them and/or setting performance targets.
Audrey Young also reports in the Herald:
He and the recruiting firm Momentum Consulting are in dispute about who actually conducted the checks on the referees for Mr Wilce. Momentum said it did not conduct full reference checks because the Defence Force took responsibility for doing so.
The inquiry concluded that Momentum had conducted referee checks that met a basic standard but did not satisfy a higher standard of thoroughness required by its contract.
It would be nice to be able to read what the inquiry says about whether it was agreed that Momentum not do these, but I still can’t locate a copy online. Not on the Beehive site, the NZDF site or even Scoop.
The inquiry reveals that the most expert member of the panel set up to interview the shortlisted applicants recommended that no appointment be made, but was overruled.
As I said, I’ve been a several appointment panels for senior roles (in my role as a non executive Director). If a member of my panel strongly felt that no appointment be made, I’d be very reluctant to proceed.
Related posts:
- The Wilce Inquiry Report
- SIS failed with Wilce clearance
- A further inquiry re Wilce is needed
- The Defence Review
October 29th, 2010 at 11:26 am
DPF, report can be found here: http://www.nzdf.mil.nz/downloads/pdf/public-docs/2010/nzdf-coi-wilce-report.pdf
[DPF: Ta]
Vote:October 29th, 2010 at 11:26 am
Momentum should take some responsibility. They are supposed to be a professional firm with expertise in recruitment. Claiming that the client didn’t expressly request a critical step in the process take place, so they just sat back and did nothing, is very unprofessional.
Vote:October 29th, 2010 at 11:32 am
“Momentum should take some responsibility.”
No they should rapidly recruit a really good brand-damage-management specialist and pay them heaps.
As a back-up they should contact TV3 and do a compelling fly-on-the-wall doco which they could sell if things became a bit tight for awhile. The Campbell Live behind-the-scenes views would be particularly compelling.
Vote:October 29th, 2010 at 11:45 am
No they should rapidly recruit a really good brand-damage-management specialist and pay them heaps.
Can i recommend Michelle Boag?
Vote:October 29th, 2010 at 11:46 am
There was a story of a church minister who expressed grave misgivings about the appointment of a certain person as an independent school principal. Several months later the same minister drew the short straw to advise the person that the person was being sacked.
Vote:October 29th, 2010 at 11:51 am
Recruitment is one of lowest quality businesses around. Momentum are perhaps at the better end of the spectrum, but that’s not saying much. I put the whole industry on a par with homoeopathy and emperors’ taylors.
I saw first-hand Momentum’s competency-based interviewing techniques in the late 90′s during a restructuring. Clueless new-grads, asking questions in a field they know nothing about, in order to match your competencies with a set they drew up for a position they don’t understand. And all just an expensive front for management to select the people they want to retain, while not falling foul of the silly and restrictive employment laws.
As for references, it’s been my experience here and in the US and UK that if you impress in the interview, and the employer wants you, the recruiters will seldom, if ever, check your references. This has been my experience in both engineering and IT positions.
Vote:October 29th, 2010 at 12:01 pm
Momentum will likely have been paid somewhere between 15k-25k for their services in this appointment. Any recruitment company that is operating in the Executive/Senior Public Servant category will be very well aware of the requirements at this level. Only senior recruiters such as Directors and managers will have been involved in an appointment at this level , either personally or overseeing another senior recruiter. This kind of background check is basic at this level. Should Defence have wished to carry out subsequent checks that is their prerogative, however it is the recruiters responsibility first and foremost to carry out these checks when shortlisting suitable candidates to present to the client.
Momentum are passing the buck for damage control purposes -unsuccessfully in my opinion, especially given the level of remuneration they would have been paid. Checks are the very least Defence could have assumed and expected.
Vote:October 29th, 2010 at 12:13 pm
A good recruitment interviewer should surely be able to identify a bull artist without the need for extensive reference checks. Just like the interviewer who ‘smelt a rat’ with Mary Anne Thompson and passed concerns on to SSC. So basically, outfits like Momentum interview candidates and pass a short-list of bull artists of varying degrees to the employer while the applicant the employer wants is left out in the cold.
There was a military guy in England in WW2 who interviewed refugees coming into UK to weed out any German spies. He was in no position to do background checks or in most cases check with referees. He could quickly pick phonies and a number of people who flunked his interviews ended up on the end of a rope at Wandsworth Prison.
Vote:October 29th, 2010 at 12:21 pm
Yet another “industry” that supplies minimal value for charges rendered. Momentum won’t be able to talk around this one, their reputation is mud. Time to close up shop and come back in 6 months with a new brand, that fools most of the people most of the time.
Vote:October 29th, 2010 at 12:52 pm
There is never any question that the onus is on the recruitment firm to verify the information presented by candidates (before they submit a resume) and further to check current and past employer references. They did not, as most don’t, and this time they got caught. And now, of course, they should refund the taxpayer for the fees they collected…..shouldn’t they….
Vote:October 29th, 2010 at 1:05 pm
Yes Serge, you are right they should refund the fee and find a replacement for no additional cost. Not that I would trust them to find me a replacement. I know of another recruiter who didn’t do the requisite checks – the candidate was just about to sign the contract confessed they did not have a work permit for this country. When the company found out they were furrious with both the candidate and the recruiter, who fell on their sword and offered to refund the fee AND find a replacement free of charge, in order to maintain the professional relationship.
Vote:October 29th, 2010 at 1:32 pm
As a former employer (over the years of many hundreds of staff vacancies) it was firstly up to the manager of the particular vacancy to discuss with me the references, once he had sounded previous employers, often verbally initially, out. If the manager was satisfied I would sign off.
We all make mistakes in this area, but try to limit them.
Vote:October 29th, 2010 at 2:02 pm
DPF – Larry Williams did an interview with the Momentum CEO yesterday afternoon just after 5pm.
Vote:October 29th, 2010 at 2:08 pm
The report (page B6-16) records that Momentum Consulting charged a fee of $25,600 (16% commission) on a $160,000 starting salary, plus $21,116 for advertising and $9,106 for psychometric testing (7 candidates), plus other minor extras.
For that money I’d expect them to have undertaken employment history checks. Also the psych test was clearly a waste of money in that it failed to identify they were recommending an inveterate liar.
And don’t forget, it was also Momentum Consulting who placed an Account Manager who lied about her qualifications in the employ of the Wellington Chamber of Commerce. After 7 months the Chamber complained about how useless she was and it emerged Momentum had not discovered her degree was bogus. The woman was convicted in court three weeks ago of stealing $54,000 from the Chamber.
Momentum should be blacklisted from further recruitment work.
Vote:October 29th, 2010 at 2:50 pm
Bede Ashby said he had an email explicitly stating that NZDF would do reference checks. You’d think that would be fairly important evidence for an enquiry. Why is it only being discussed now? Did the enquiry not ask for it?
Vote:October 29th, 2010 at 2:59 pm
Okay so let’s leave aside the question of who did or didn’t carry out reference checks…
Who made him the “preferred candidate”? Who pushed him forward as the applicant recommended for the job? And whose insistence that their judgment was right was clearly so persistent and persuasive that, as DPF notes, it overcame serious doubts by some members of the panel?
Credibility = 0. Professionalism = 0. Judgement = 0. Reference checking = in doubt. Still not a good score.
As malcolm puts it:
It’s the private sector equivalent of being dealt with by WINZ, and just as demeaning. No one should have to go through it. Appointment processes I’ve been involved with have relied on the judgment of the employer’s senior people, plus an outside expert in the discipline if needed. A much better method, IMO.
Vote:October 29th, 2010 at 3:03 pm
For that money I’d expect them to have undertaken employment history checks.
You can expect all you bloody well want to. If it is not in the agreement to undertake reference checks on behalf of a client when the client has said they will do them instead, then they wont be done.
Vote:October 29th, 2010 at 3:18 pm
Bevan at 3:03pm wrote: You can expect all you bloody well want to. If it is not in the agreement to undertake reference checks on behalf of a client when the client has said they will do them instead, then they wont be done.”
Para 61 of the Court of Enquiry report says:
“The Court finds that, when the contract was entered into on 8 October 2004, Momentum accepted a binding legal obligation to “undertake detailed reference checking”.
Seems pretty clear – Momentum were contractually bound to do detailed reference checking. They didn’t.
Vote:October 29th, 2010 at 3:42 pm
Seems pretty clear – Momentum were contractually bound to do detailed reference checking. They didn’t.
Yeah it is pretty clear, and in the contract – but you made out that you expect the checks regardless of what IS in the contract, I’m not debating that, I’m just highlighting that your view was very naive.
Also from your original post: psychometric testing typically doesn’t show if someone is a liar – they are used to help determine behavioral style at work.
Vote:October 29th, 2010 at 4:41 pm
Bevan: no, just because something isn’t expressly stated doesn’t mean there is no obligation (legal or professional) to do that thing. You don’t get a contract that says your dentist will use sterilised equipment, but it is expected. It’s a fundamental part of the service. A dentist can’t say “well, the client didn’t ask for it” etc. (countless other analogies – just picked on dentists there)
Vote:October 29th, 2010 at 6:01 pm
Bevan: no, just because something isn’t expressly stated doesn’t mean there is no obligation (legal or professional) to do that thing. You don’t get a contract that says your dentist will use sterilised equipment, but it is expected. It’s a fundamental part of the service. A dentist can’t say “well, the client didn’t ask for it” etc. (countless other analogies – just picked on dentists there)
WTF? No, that is actually a health and safety requirement of the dentist to sterilize his/her equipment. Countless other analogies my arse – I doubt you could find an analogy that would fit this instance.
What you and Chris are basically saying is that a business should offer out of scope extras on the assumption that the client may expect it. Well news flash vendor’s don’t undertake services for a client unless there is an explicit agreement that the vendor will provide that service – and I’ll confidently state that categorically.
I the case of Momentum – NZDF as Chris points out, the contract states they will and that proves the point I’m making…
Vote:October 29th, 2010 at 7:47 pm
Bevan – “Well news flash vendor’s don’t undertake services for a client unless there is an explicit agreement that the vendor will provide that service.”
So reference checking has to be categorically stated before it can be expected an employment agency or HR company will do it? WTF? They are more useless than I originally thought, wtf do they do for the money they rip off people?
Vote:October 29th, 2010 at 9:20 pm
He is such an embellisher..how come experienced people could not pick this??..there are lot of guys around like this..once you have met one , it easy to spot another one..As another poster asked” Who pushed him as the preferred candidate?” ” Who believed the bull? ” I doubt whether this will ever come out but it should.
Vote:October 29th, 2010 at 10:03 pm
I am sure I heard on National Radio today the spokesman for Momentum say that they have a written record that it was agreed that the defence force would do the reference checks
Seems pretty simple to me. It might also explain why defence wont release the full details …………………
Vote:October 29th, 2010 at 10:25 pm
Agreed Joana
Vote:October 30th, 2010 at 8:56 am
So reference checking has to be categorically stated before it can be expected an employment agency or HR company will do it? WTF? They are more useless than I originally thought, wtf do they do for the money they rip off people?
Why don’t you re-read v…e….r….y s…l…o…w…l…y the part of my comment that you quoted…
I sincerely hope that you, Chris and queenstfarmer do not own and run businesses!
Vote:October 30th, 2010 at 10:11 am
Bevan – it was read slowly enough to understand that said company was as useless as tits on a bull.
It is a justifiable expectation that the reference check would be done by the company you hire to find the best candidate for the job. That’s why you pay people to do jobs, so y..o..u d..o..n..’t h..a..v..e t..o.
So what else has to be “categorically stated”? That the company will check qualifications? Will verify identity? Will even interview the people? WTF do employment agencies actually do for the money?????
Why not just go out and find the first homeless person under the nearest bridge and present them for the $15k? lol
Vote:October 30th, 2010 at 10:19 am
Kaya, you are are a fucken idiot – its pointless repeating myself to you, I can only hope that one day the two of us engage in a business contract… Ive got the feeling I’d end up taking you to the fucken cleaners.
It is a justifiable expectation that the reference check would be done by the company you hire to find the best candidate for the job.
BUT IT WILL BE EXPLICITLY STATED!!!! Fuck you are dense! At some stage, either in the contract T&C’s between Vendor and Client, or the statement of fucken work! Or during the fucken tendor stage, somewhere the vendor (Momentum) would be state what work will be undertaken for the fee charged to the client (NZDF).
And it seems in this case, Momentum has written evidence that NZDF would undertake the refernce checks themselves! Oh shit – where the fuck does that leave your point? Maybe dead in the fucken water! Does it ever occur to you that a client may want less services from an Employment consultant, I dunno for a lessor fee maybe??????
Vote:October 30th, 2010 at 10:43 am
Bevan – I’m hurt, you swore at me – so rude.
Maybe my expectations are too high, let’s just say if I ever need to find staff I won’t be using Momentum or any other HR or employment agency for that matter. By the time I read the contract to check that they are actually going to do anything for the money I’ll be better doing it myself, just like the old days.
Now go wash your mouth out, all that trashy talk adds nothing to your argument and only makes you sound like a frothing spastic. You’ll give yourself an ulcer.
BTW, I think it’s spelt “fucking”.
Vote:October 30th, 2010 at 10:46 am
kaya,
You are 100% correct. HOWEVER, the recruitment company IS NOT retained to find the best candidate. They are retained to find a group of suitable candidates to be considered. The employer, and only the employer, is in a position to assess who is the best candidate.
In a general sense it would be expected that the recruitment company do the reference check – however, even in lower management roles that is not always the case. Some employers like to undertake the checks themselves for first hand interaction and assessment. In every instance, however, the recruitment agency is instructed whether or not to perform the checks and how many to undertake.
With respect to a role of this nature, no recruitment company, other than one that is solely focused on defence, could possibly have the expertise of SIS or NZDF to properly undertake a full reference check. The subject matter relevant to the role, and therefore highly relevant in terms of previous experience and accomplishments, is not something that the recruitment company could adequately cover or assess. Only NZDF could do so (I would think SIS would limit themselves to matters of security vetting only.)
To expect the recruitment company to undertake reference checks in a general sense is not an unreasonable expectation – I can tell you they only do it though when instructed to. It might surprise you that they are not always requested – principally where the candidate is already well known to the company or hiring manager. To expect the recruitment company to have performed the reference checks in this instance is fundamentally unsound.
What is more, it would that there is some written evidence to show that Momentum were not required to do so.
Vote:October 30th, 2010 at 11:12 am
bhudson – thanks for the clearer explanation without all the spit and dribble on it.
I am talking in a general sense that if I hired a company to find me say, 3 potential candidates for a job then I would have expected them to check that references were genuine at least.
If I then got to the point of possibly hiring one of the candidates then I may indeed wish to contact one or more referees to discuss any issues, particularly technical matters. However I would certainly think it was reasonable to expect that if someone had claimed to be on a UK bobsleigh team and won a DSO in the Falklands that these small details would have been verified??
It’s not as if he was only claiming to have won a silver medal in the school cross country!
BTW I worked with a very small employment agency for a couple of years – listings were basic admin/office/secretarial type stuff. It was standard practice there to contact all referees to confirm the validity, however I can understand from your explanation how it may be more involved for more technical jobs. Thanks again for the clear up.
Vote:October 30th, 2010 at 11:13 am
kaya,
To follow-up based on the report linked to in a new thread. The Court of Inquiry has found that Momentum was obliged to perform reference checks due to them being contained in their proposal. It appears that the proposal was a defined term in their final contract and therefore I suspect it is likely that it was deemed to form part of the contract.
The Court found that Momentum did in fact complete referee checks, but these were not of the specification not in their proposal (and which the Court assesses they were obliged to perform.)
It would seem that Momentum have made a great effort to try to show they were not obliged – The court has ruled that a couple of emails sent by Momentum do not constitute a variation to their contract.
While it is acknowledged it is not their domain, the Court of Inquiry seem very clear that Momentum were obliged to undertake checks which they appear not to have done to a standard required.
I acknowledge the point therefore that may be a case for Momentum to be considered in breach of their contract (that would be for another court to determine.) I do hold by my earlier comment, though, that the checks could not possibly be performed to a sufficient standard by a recruitment company due to the specialised nature of the role & organisation. I hold those checks should have been performed by the employer.
Vote:October 30th, 2010 at 11:17 am
kaya,
No problem. Please also see my follow up above. Interesting information in the report.
I do agree that in most general cases that the recruitment company would do the checks. It is somewhat amusing now that no one checked up on the outlandish claims. What is even worse are the statements/suggestions that this guy’s form was known earlier and nothing done about it.
Vote:October 30th, 2010 at 6:58 pm
Bevan – I’m hurt, you swore at me – so rude.
Suck it up princess, you called me an idiot so dont cry when I return serve with both barrels.
Maybe my expectations are too high, let’s just say if I ever need to find staff I won’t be using Momentum or any other HR or employment agency for that matter. By the time I read the contract to check that they are actually going to do anything for the money I’ll be better doing it myself, just like the old days.
The recruitment world is probably rejoicing at that – you sound like you as a client would be far more trouble than the fee would be worth!
Like Ive said all along, there will be a comercial document (T&C’s, contract, statement of work, etc) that will state what work would be undertaken for a fee payable by the client.
You, and the original poster were saying that you ASSUME they would do it anyway. Well, welcome to the business world – where these types of things are documented in contracts between parties so the thing doesnt end up in court!
Vote:October 31st, 2010 at 12:41 pm
Bevan – I am not female and I didn’t call you an idiot anywhere. Don’t tell lies to justify your ad hominem diatribe.
I still believe it is not unreasonable to assume that a company hired to find suitable candidates for a job would check that the source of references were at least genuine. If you think that is naive so be it, I don’t agree with your assertion. If it is the business world that you move in I am extremely pleased I don’t. Sounds like nasty business to me.
Thank you for your insight into the world of employment agencies, I know now I would never use a recruitment company, they provide nothing that I can’t do myself. There ya go, a win-win situation, wenever have to deal with each other!
Vote:November 1st, 2010 at 9:49 am
Bevan: you are wrong in both law and in fact. As you raised it, yes I do run businesses, and advise others on theirs – with great success I modestly add. My dentist analogy is spot-on. Your emotional rants and name-calling simply demonstrate you are reacting instead of thinking. Good fun, but not intelligent. I’m glad to see the intelligent commenters sharing the real-world view that Momentum messed up (along with Defence).
Vote:November 1st, 2010 at 11:45 am
Bevan: you are wrong in both law and in fact. As you raised it, yes I do run businesses, and advise others on theirs – with great success I modestly add.
Oh BULLSHIT – if you do run a business, I doubt it would be anything more than a trademe store. No business professional would EVER pay tens of thousands of dollars to a vendor without establishing what they will be getting for their money, or making sure the deal is bound by a robust contract. Business 101 idiot.
BTW, if I’m wrong in law – why don’t you quote the law?
Shit, if you do actually advise businesses, I can only assume its how to become bankrupt in 10 easy steps!
My dentist analogy is spot-on.
No, your dentist analogy is complete shit – it is a health and safety requirement for the dentist to sterilize their equipment.
Why don’t you call your nearest dentist – you might find they have these little things called industry standards they have to comply with….
Your emotional rants and name-calling simply demonstrate you are reacting instead of thinking.
Um, no YOU and Kaya are the ones who are not thinking. The reason I get so pissed off with people like you is that your type allow the unscrupulous cowboys in the business world far too much oxygen. You assume you will get services without even having it stated anywhere, I bet you skim through a contract making dumbarse comments like “Oh, its just standard stuff isn’t it” before signing on the final page without even understanding a single bit – oh apart form SIGN HERE:!
Good fun, but not intelligent. I’m glad to see the intelligent commenters sharing the real-world view that Momentum messed up (along with Defence).
And I haven’t been debating who is in the wrong – I’m debating the dumbarse assertion that one assumes a service would be provided, when it could be either party that agreed to undertake them. You don’t know what was agreed between the two parties regarding what work would be undertaken for the fee provided. And all I have been saying is that it will be explicitly stated in an agreement between Momentum and NZDF what service would be provided.
Vote:November 1st, 2010 at 12:01 pm
Bevan – I am not female and I didn’t call you an idiot anywhere. Don’t tell lies to justify your ad hominem diatribe.
What makes you think I thought you were female?
I still believe it is not unreasonable to assume that a company hired to find suitable candidates for a job would check that the source of references were at least genuine.
Do you actually understand that the NZDF COULD have asked for a lesser service, for a lesser fee?
If you think that is naive so be it, I don’t agree with your assertion. If it is the business world that you move in I am extremely pleased I don’t. Sounds like nasty business to me.
OMG! How is it nasty business to hold vendors to their promises? How is it nasty business to establish what service I’ll be getting for the few thousand dollars I’m handing over?
Here’s a tip, there are people out there that rely on fools blissfully unaware they are being taken for a ride – and its people like you blissfully ignorant to that, that allows the cowboys to prosper!
Like I said to the guy above. No business professional would EVER hand over thousands of dollars for a service without establishing what they will be getting for their money! THERE SHOULD BE NO NEED TO ASSUME ANYTHING!
Thank you for your insight into the world of employment agencies,
NO, no, no, no! Now you’re assuming employment agencies don’t do reference checks! Quite being an idiot. Every agency will have a standard and defined list of services they provide their clients (and it will include reference checking), then the client may negotiate a cheaper deal, and in many cases agree to undertake the reference checking themselves!
I know now I would never use a recruitment company, they provide nothing that I can’t do myself. There ya go, a win-win situation, wenever have to deal with each other!
So you wouldn’t even put it out to tender? See who could give you the better service for your money? Instead I take it you would rather spend numerous fee earning hours reading C.V’s, shortlisting candidates, 1st interview, 2nd interview? Negotiate the contract (oh god I hope not…), oh well yours and your businesses loss.
Vote:November 1st, 2010 at 12:18 pm
Bevan: “Oh BULLSHIT – if you do run a business, I doubt it would be anything more than a trademe store”. Happy to say you are QUITE off the mark there
You (relatively politely) asked for some law, so just for starters I suggest you google these:
Vote:– Torts (in particular the law of negligence)
– Implied contractual terms (common law and statutory)
– Contractual representations (in NZ, see the Contractual Remedies Act 1979)
– Lex mercatoria and customary business practices
– The Fair Trading Act 1986 (s9 in particluar)
– Consumer Guarantees Act (probably not applicable here)
November 1st, 2010 at 12:55 pm
OMFG what a complete moron! I suggest you google them as well. Anyone who states “Torts” in this case doesn’t deserve to be answered.
Do I dare even ask? No I will: Please tell me how these laws even remotely back up your point.
This should be a laugh!
Vote:November 1st, 2010 at 1:07 pm
Bevan your continued ignorance is on display for all to see. Torts is the area of law concerned with negligence. Negligence is about whether a person owes a duty of care to another. If a service provider (e.g. a recruiter) owes a duty of care to a client, and breaches that duty of care, it can be liable for any resulting damages.
Vote:November 1st, 2010 at 1:24 pm
If a service provider (e.g. a recruiter) owes a duty of care to a client, and breaches that duty of care, it can be liable for any resulting damages.
Unless of course the client (in this case the NZDF) relieves the vendor (Momentum) of their obligation (reference checking) – which Momentum are saying has happened in this case. And if this actually has happened, then TORT law doesn’t apply in the slightest!
You are so far off on a tangent, you are forgetting the original argument. There is only one person suffering from blind ignorance in this case. If you are in business, I fell sorry for your clients, and your employer.
Vote:November 1st, 2010 at 1:28 pm
Oh BTW, your lovely reference to TORT Law actually blows your analogy of the dentist clean out of the water.
The dentist would be failing their duty of care if the did not sterilize their equipment, and the patient suffered and infection as a consequence.
Vote:November 1st, 2010 at 2:25 pm
I’m not off on a tangent at all. You asked me to quote the law, I did exactly that, and it’s pleasing to see that that has prompted you to respond in a slightly more intelligent manner than your swear-filled earlier posts. I agree with your dentist comment re duty of care. It doesn’t contradict anything I said earlier. It is common for there to be concurrent liablity in tort and contract (or tort and statutory duties, etc).
Vote:November 1st, 2010 at 2:52 pm
I’m not off on a tangent at all. You asked me to quote the law,I did exactly that,
WTF? All you have done is quote laws THAT’S IT – you have not stated how they refute any point I have made.
and it’s pleasing to see that that has prompted you to respond in a slightly more intelligent manner than your swear-filled earlier posts.
Oh cry me a fucken river – stop being so precious.
It is common for there to be concurrent liablity in tort and contract (or tort and statutory duties, etc).
Look, Tort law is typically reserved for such things as: Women eats burger, eats cockroach, gets sick, sues Burger joint. Not for where a client assumes the vendor is going to do something, cause they thought they would. BUT, my point is there will be a document or a communication between the parties stating what services Momentum will be providing for the payment received. Shit if there is not an agreement or contract defining what services Momentum are to provide during the employment stage, then we have a much bigger fucken problem than who was meant to do the reference checking! I sure as hell hope someone bothered to ask what Momentum would be doing for their $10k!
Vote:November 1st, 2010 at 3:44 pm
WTF? All you have done is quote laws THAT’S IT – you have not stated how they refute any point I have made.
OK… I’ll spell it out. You have said:
“If it is not in the agreement to undertake reference checks on behalf of a client when the client has said they will do them instead, then they wont be done.”
“news flash vendor’s don’t undertake services for a client unless there is an explicit agreement that the vendor will provide that service – and I’ll confidently state that categorically.”
“Like Ive said all along, there will be a comercial document (T&C’s, contract, statement of work, etc) that will state what work would be undertaken for a fee payable by the client. ”
I disagree with, and have refuted, these points. There are lots of legal obligations that arise which are not expressly recorded in writing. It is very common. Some obligations are not even discussed by the parties. Some are implied by law (common law, custom or statute). Most business contracts in the world are actually unwritten, or unwritten by one party. And virtually every contract contains “extra-contractual obligations” that go beyond the written terms. The list of laws I provided are examples.
Re your comment “Look, Tort law is typically reserved for such things as: Women eats burger, eats cockroach, gets sick, sues Burger joint. Not for where a client assumes the vendor is going to do something, cause they thought they would.” I’m sorry but that is plain wrong. I can only assume you are not an accountant, doctor, real estate agent, architect, lawyer, engineer, etc etc who face these risks (professional indemnity claims) every day! The courts are filled with cases on professional negligence, not coackroach-in-burger cases.
FWIW I agree with your last 3 sentences
Vote:November 1st, 2010 at 4:30 pm
queenstfarmer: I disagree with, and have refuted, these points. There are lots of legal obligations that arise which are not expressly recorded in writing.
ARRRGGGGHHHHHHHHH!!!!! I really think I’m arguing with a complete moron here! Lets look at some of the stuff from me you have quoted
:
Bevan:“If it is not in the agreement to undertake reference checks on behalf of a client when the client has said they will do them instead, then they wont be done.”
Re-read that, taking note of the BOLD text. What do you think that means
Bevan:“news flash vendor’s don’t undertake services for a client unless there is an explicit agreement that the vendor will provide that service – and I’ll confidently state that categorically.”
Still stands in my opinion, you think you have refuted this – but all you’ve done in make reference to a couple of laws, not how they apply in this regard. You’ve taken the bombard approach to debate, fire as much generic info as possible in the hope that one little aspect applies. You have failed.
Bevan:“Like Ive said all along, there will be a comercial document (T&C’s, contract, statement of work, etc) that will state what work would be undertaken for a fee payable by the client. ”
What the fuck? What the hell are you smoking? Refuted how? Are you trying to say there is not a signed agreemtn between NZDF and Momentum?
queenstfarmer: I’m sorry but that is plain wrong. I can only assume you are not an accountant, doctor, real estate agent, architect, lawyer, engineer, etc etc who face these risks (professional indemnity claims) every day! The courts are filled with cases on professional negligence, not coackroach-in-burger cases.
Care to quote some cases that have a similarity to the NZDF v Momentum case? And remember, we are talking TORT law here, not random other cases.
Vote:November 1st, 2010 at 6:19 pm
Hang on – a few replies ago you didn’t know that negligence was part of tort law. One reply ago you showed you don’t even understand what tort law is. And yet now you are arguing tort law and want me to cite cases to you? You don’t understand the basics. I suggest you get an introductory book out of the library and read up – you will definitely learn something.
You want similar cases? Easy – I suggest you look at virtually any leaky building case. A common thread in those cases is who was responsible for carrying out the various checks – Council, builder, architecht, subbies, etc. Of course they all point the finger at each other and say “well he said he was going to do that” etc, against the background of very detailed contracts. These things may be all new and confusing to you, but many people in business (not just law) have a good understanding of them.
What do I think the bold text means? It means you haven’t looked up those legal subjects I referred to, that you asked for – but hey, ranting and abusing seems to be way easier for you than actually learning something.
Vote:November 1st, 2010 at 7:13 pm
So what you are saying, is that you cannot cite actual cases that could relate to the scenario regarding Momentum v NZDF.
Hang on – a few replies ago you didn’t know that negligence was part of tort law.
Really? Where did I state that?
One reply ago you showed you don’t even understand what tort law is.
My example regarding Tort law was regarding the culpability of a vendor in supplying a contaminated substance that could cause harm to the consumer. Maybe I’m simplifying a little too much, sorry I tend to alter the language used if I’m conferring with a simple audience.
Why don’t you research Donoghue v. Stevenson which relates to the ingestion of a snail contained in a bottle of beer, and is the precursor to negligence law in the UK.
Now who doesn’t understand Tort law in regard to negligence.
You don’t understand the basics. I suggest you get an introductory book out of the library and read up – you will definitely learn something.
It seems you will as well….
You want similar cases? Easy – I suggest you look at virtually any leaky building case. A common thread in those cases is who was responsible for carrying out the various checks – Council, builder, architecht, subbies, etc. Of course they all point the finger at each other and say “well he said he was going to do that” etc, against the background of very detailed contracts.
Well, first – you are grossly simplifying the leaky building fiasco all to suit your opinion. You’ll find the situation is far more complex than could ever be discussed here, mind you it would suit your argument to go off on as many tangents as possible in the hope you can finally make a valid point…
BTW, that diatribe is a good example why as a client you need robust and defined contracts establishing what will be provided for the money being paid. Thanks for that!
And here’s a hint for you, when you pay a builder to build a house for you the contract doesn’t just state:
Page 1, Line 1: The builder will build you a house, cost will be $150,000.
Page 1, Line 2: Sign Here:__________________
Maybe the problem isn’t defined project scope vs assumed responsibility. It seems there are just too many stupid idiots in the world like yourself who are too dumb to do more than flick through a sales agreement/contract before signing the last page.
These things may be all new and confusing to you, but many people in business (not just law) have a good understanding of them.
So now that you have called me a simpleton – I guess I’m free to call you a dimwitted retard.
Vote:November 1st, 2010 at 7:19 pm
What do I think the bold text means? It means you haven’t looked up those legal subjects I referred to, that you asked for – but hey, ranting and abusing seems to be way easier for you than actually learning something.
Missed this one. Seriously this points you out to be the biggest moron this board has ever seen!
If two parties negotiate the terms and conditions of a contract then both parties are bound by them. If one party relieves the other of one aspect of that contract. Then the first party is no longer obligated to supply that aspect. How can you not understand this? We are talking very basic principles here.
EG: If you negotiate for an IT company to supply a new email system, including hardware, software & antivirus. Then once the project is underway decide to re-use your existing AV – by your opinion the IT company is still required to supply it right. The is just plain dumb!
Vote:November 1st, 2010 at 7:33 pm
One last thing before you google you next rebuttal. In all this debate about who understands Tort law more than the other – I’d like one thing answered if you will be so kind.
In your opinion, how does TORT law apply where one party has absolved the other of the responsibility to provide a given service? I’d love to hear it.
Vote:November 1st, 2010 at 9:08 pm
OK we’re about to drop off the main page, so final call for me on this thread. I am truly honoured to be your “biggest moron ever”. I award you the less emotive title of “most wrong statements in a single thread”. Just because you’d love to hear my answer to your last question, (though if you’ve read your beginner’s book yet, you’d know the answer already), except in very limited circumstances tort liability cannot be excluded except by contract or other such means – that’s the point of torts. In practice, no commercial contract “excludes torts”, and no “absolution” does that either (again, that’s the point of torts). In fact most commercial contracts include express clauses that nothing operates as such a waiver unless agreed as part of the contract.
Good luck out there.
Vote:November 2nd, 2010 at 12:21 am
So you answer the question – by not answering the question….
What a weasel.
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