Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Contra Proferentum / Applicant entered contract with Respondent for house design work / Applicant had paid $11,040.00 and Respondent had completed much of the work before dispute arose over whether Council fees were included in contract / Applicant claims full refund of $11,040.00 / Respondent counterclaims for $12,000.00, comprising $4,657.50 for partial completion, $2,530.00 for cost of third party resource consent work and $3,000.00 for legal costs, time spent and interest / Held: agreement covered Council deposit fees but not structural design fees / Respondent implicitly accepted Applicant’s interpretation of contract but it is unreasonable to understand contract fees to cover full amount of Council fees / Held: Applicant not entitled to refund / work was already undertaken and it is possible for the work to be continued / claim and counterclaim dismissed.

[2022] NZEmpC 180 Malcolm v The Chief Executive of the Department of Corrections (Costs Judgment of Judge B A Corkill, 29 September 2022) COSTS – GUIDELINE SCALE – no further step was taken to obtain judgment without appearance – costs awarded with reduction.

Negligence / Car collision / Applicant and Respondent were both driving when their motor vehicles collided / Applicant’s vehicle was damaged / Neither party was insured / Applicant claimed for repair costs and associated costs / Held: Respondent breached their duty of care owed to Applicant in their use of a motor vehicle on the road / Respondent was driving the vehicle in the course of their employment / Respondent and Respondent's employer joint and severally liability for costs to Applicant / Repair costs more than value of car / Respondent and employer must pay Applicant for the replacement of the car, as well as the cost of using another car in the interim / Respondent and employer ordered to pay $2,600.00 / Claim granted in part.

[2022] NZEmpC 178 UXK v Talent Propeller Ltd (Costs Judgment of Judge B A Corkill, 27 September 2022) APPLICATION FOR COSTS - LEGAL AID - legally aided party was the successful party - scale costs not applied in legal aid context - costs awarded for legal aid invoices actually rendered with some deductions.

Contract / Applicant parked vehicle in carpark to attend gym / Applicant parked in neighbouring business carpark rather than gym carpark / Respondent provided parking enforcement services / Respondent sent Applicant notice for $95.00, for parking in business carpark / Applicant contacted Respondent, appealed fee, claimed it was honest mistake / Respondent declined appeal saying vehicle was parked in front of sign identifying carpark owner, which was not gym / Subsequently, Respondent advised Applicant of additional costs, bringing total owing to $320.00 / Later Applicant received email from credit agency seeking $416.71 / Applicant disputed liability / Applicant sought declaration of non-liability for $416.71 / Respondent counterclaimed for $425.35 at hearing / Held: sign in business carpark indicated it was not gym’s carpark / Sign did not constitute offer / Sign indicated unauthorised drivers could incur a fine for parking there / Respondent not providing parking, not offering anythi…

Contract / Applicant and his ex-partner were preparing their house for sale / Respondent was Applicant’s builder / Applicant was quoted a price for the repair of the home and Applicant agreed to pay half / Applicant was unable to access the home at the time of the repair work so Applicant’s ex-partner liaised with the Respondent about repair work / Applicant claims that ex-partner authorised additional work that was not known at the time of the quotation / Respondent invoiced a greater amount than the initial quotation to reflect additional work undertaken / Applicant claimed $1916.50 for the repair work costs / Held: Respondent’s ex-partner entered into a contract with Applicant / Respondent was not a party to the contract / Respondent was not consulted and did not give authority to give authority to carry out additional work / Claim partially approved, respondent to pay half of initial quotation.

Contract / Resource consent / Applicant, Respondent and third party hold resource consent for proposed driveway / Applicant claims cost of surveying, plumbing, and engineering design work for proposed driveway / Respondent denies liability for these sums on basis she has repeatedly informed Applicant she did not wish to proceed with construction of driveway / Held: signing resource consent application form and paying costs of application did not amount to entering contract to build shared driveway / expenses incurred by Applicant were incurred in situation where there was no reasonable expectation for Respondent to contribute / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to auction her painting / Applicant believed painting was an original / Respondent believed it was a copy / Reserve price of $100.00 was set / Applicant observed the auction online / Respondent appeared to be shaking his head at one of the bidders / Painting sold for $250.00 / Applicant believed Respondent told the buyer not to bid as it was not an original / Applicant believed the painting should have fetched $2000.00 / Applicant claimed $1750.00 from Respondent / Whether Respondent failed to provide service with reasonable skill and care / Whether Respondent engaged in misleading or deceptive conduct / Held: Applicant agreed to the reserve price / Respondent confirmed with the bidder that the painting had not been authenticated / Respondent acted with reasonable skill and care / No evidence of misleading or deceptive conduct by the Respondent / Applicant not proved any wrongdoing by the Respondent / Claim dismisse…

Contract / Respondent contracted Applicant plumber and gasfitter company to disconnect and install new steam and water pipes / job took longer than expected because sole director of Applicant company scheduled for surgery and had to send inexperienced staff instead / Applicant invoiced Respondent $8,438.48 / Respondent claims Applicant provided verbal estimate of $5,000 / Held: estimate given is not a fixed price, however it should not vary significantly unless there are unforeseen issues that arise / Applicant did not complete job at estimated price and did not discuss any extras with Respondents / Claim partially approved, Respondent to pay Applicant $5,750.00.

Contract / Respondent was walking her dog down a street opposite the Applicant’s property / Applicant came out of her house with a larger dog than Respondent’s / Applicant leaned into her car to clear some items / Applicant heard someone shouting and saw Respondent’s dog lying on the footpath / Later the Applicant received a phone call from the Respondent saying her dog was at the vet and needed a MRI scan costing $5,000 / Respondent refused to pay for the dog's treatment / Applicant paid for the MRI / MRI revealed there was no sign of a dog bite and that condition could have been caused by other factors / Respondent paid for additional vet bills when informed the dog would otherwise be put down / Applicant claimed $6,000 for cost of vet bill / Held: parties came to an agreement to share vet costs before coming to the Tribunal / Agreement should not be disturbed / Claim dismissed.

Claim for costs - Accident Compensation Act 2001. Question of amount of costs award to Appellant. Outcome: Appellant awarded costs and agreed disbursements $2438.40. 

Penalty / misconduct involving conflicts of interest / unsatisfactory conduct in dealing with trust account defaults / whether conduct should be marked by modest suspension / whether censure and contribution to costs sufficient / HELD / moderately serious misconduct / two occasions of conflict of interest / practitioner previously benefited from reduced suspension for previous offending / Tribunal refused to credit voluntary cessation from practice as “involuntary suspension” / prior disciplinary findings not aggravating factor, but pattern of disregard for professional standards can be observed / suspension appropriate / however, Standard Committee should not have pursued misconduct charge for minor defaults / Tribunal ordered three-month suspension / practitioner to pay 75 per cent of Standards Committee’s costs ($20,000) and Tribunal’s full costs