Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2021] NZEmpC 223 UXK v Talent Propeller Ltd (Costs Judgment of Judge B A Corkill, 13 December 2021) COSTS – challenge was mostly successful but judicial review was unsuccessful – costs awarded.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased washing machine from First Respondent / Washing machine broke down within short period / Applicant approached First Respondent who put them in contact with Second Respondent / Second Respondent took away washing machine and refunded some of purchase price / Refund delayed for some time / Applicant was without a washing machine and had to make numerous trips to laundrette / During Covid-19 restrictions Applicant was unable to access laundrette / Applicant went to First Respondent numerous times for resolution / Applicant claimed breach of guarantee of acceptable quality under CGA / Applicant claimed damages for refund or replacement, consequential financial losses and consequential losses in form of emotional harm / Applicant claimed $30,000 to be paid equally by the Respondents / Held: breach of guarantee of acceptable quality / First Respondent to pay Applicant $119.00 refund / Emotional harm damages cannot be claimed…

Costs application by licensee / Committee withdrew charges against licensee close to substantive hearing / Real Estate Agents Act 2008, s 110A / survey of applicable principles for costs in READT / tribunals have broader costs discretion than courts / no rule that costs follow the event, but may be appropriate in some cases / requires something more than success / relevant that Committee is exercising a public function / licensee’s defence was that it is normal practice for agents to take client lists when leaving an agency, despite contractual obligations / expert evidence supported this defence / Committee lacked diligence in investigating defence before tribunal processes invoked and charges laid / appropriate case for costs to follow the event / quantum is a contribution towards reasonable actual costs / parties accept High Court costs scale is useful to assess reasonable costs / costs of $14,340 awarded to licensee  DP

Penalty / misconduct / duty of candour / failure to disclose relevant information to High Court in without notice application / whether suspension necessary / HELD / one-off reckless breach / no deliberate omission / no aggravating features / no prior disciplinary history / unable to cope with growth of sole practice / merged with large law firm to manage capacity, disclosed investigation, acknowledged failings and has support and supervision / Tribunal considered no risk of practitioner repeating conduct / high level of remorse, insight and responsibility for actions / practitioner incurred significant cost in disciplinary proceedings / notable community involvement and pro bono contributions / practitioner sought to use experience to educate young women about learning from mistakes / suspension not necessary / Tribunal ordered censure and $15,000 fine / practitioner to pay Standards Committee’s and Tribunal’s costs / interim suppression order of practitioner’s name discharged

Costs decision. Outcome: appellant's non-lawyer advocate awarded costs on a 1B basis, with a 50 per cent deduction.

Costs decision. Outcome: appellant ordered to pay costs of $1,910.

[2021] NZEmpC 198 Head v Chief Executive of the Inland Revenue Department (Costs Judgment of the full Court, 17 November 2021) COSTS – applications for costs by first and second defendants – first defendant sought two-thirds of actual and reasonable costs – second defendant sought guideline scale – HELD – complex proceeding – several interlocutory judgments – guideline scale did not recognise sufficiently the significant attendances – degree of importance associated with the proceeding but not a test case – two-thirds of actual and reasonable costs awarded to first defendant with deductions to recognise access to justice, matter of importance, overlap – scale costs awarded to second defendant with deduction to recognise overlap – applications granted.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased electric scooter from Respondent on TradeMe / Advertisement detailed scooter as included 60v motor / Once purchase was complete, Applicant found scooter held a 52v motor / Applicant claims $1650.00 for refund of purchase price and cost of installing 60v motor / Whether Respondent misrepresented scooter / Whether misrepresentation induced Respondent to purchase scooter / Held: Respondent advertised scooter under an innocent misstatement / Applicant induced to enter into contract by misrepresentation / Claim allowed, Respondent ordered to pay $495.00.

[2021] NZEmpC 194 Henry v South Waikato Achievement Trust (Judgment of Judge K G Smith, 8 November 2021) APPLICATION FOR STAY OF EXECUTION OF COSTS DETERMINATION – challenge filed to both substantive and costs determination – application granted, by consent.

Negligence / Dog Control Act 1996 / Dogs belonging to the parties were involved in an altercation / Applicant claimed $9,030.00 for her dog’s surgeries following the altercation / Which dog was responsible for causing the altercation / What was the cause of damage to the Applicant’s dog / Was the damage to the Applicant’s dog a foreseeable result of the fight between the dogs / If so, did the Applicant have a duty to minimise her losses / Whether the Respondent was responsible for the costs of both surgeries / Whether the costs claimed reasonable / Held: more likely than not that the Respondent’s dog caused the altercation / Evidence suggested that the damage to the Applicant’s dog was caused the Respondent’s dog /  Evidence suggested that the damage to the Applicant’s dog was a foreseeable result of the fight between the dogs  / Applicant did everything she could do minimise her losses / Respondent was not responsible for the cost of both surgeries / There were too many variables impa…

[2021] NZEmpC 190 Best Health Foods Ltd v Berea (Judgment of Judge B A Corkill, 3 November 2021) COSTS – Appropriate to award two-thirds of actual and reasonable costs – costs awarded.

Residential tenancy / Disputes Tribunal Act 1988 / Parties jointly renting property on fixed term lease, as a residential tenancy / Each paid $733.00 bond / Applicants indicated they wanted to move out in four weeks’ time / Applicants each had their own rooms / Tenants all tried to find replacements / Tenant was found for one room, other room untenanted until two weeks after Applicant had moved out / One Applicant was repaid full bond by remaining tenants / Second Applicant had two weeks rent deducted from bond / Applicants filed a claim for the amount of bond not refunded / Claim for a breach of the agreement between the tenants which was alleged to have resulted in a loss of two weeks rent, $430, to the Applicants / Respondents counterclaimed for a declaration that they were not liable under the Disputes Tribunals Act 1988 / Was there a legally binding agreement between Applicants and Respondents as to the refund of bond / If so, what are the terms of the agreement / Whether the term…