Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Scaffolding hiring charge / Respondent entered into a contract with Applicant for reroofing and guttering of a property for $674,500.00 / Quoted cost included cost of installing and dismantling scaffolding / Respondent paid $232,702.50 as a deposit / Applicant claimed $30,000 for scaffolding hire charges not paid by Applicant in accordance with the contract / What were the terms of the contract / Whether there had been a breach of contract / If so, what remedy was available / Held: Respondent breached contract / Term of contract required Respondent to pay for weekly rental cost of scaffolding / Respondent had the benefit of the scaffolding for entire reroof process / Remedy was damages to put the innocent party back in the position, they would have been in but for the breach / Respondent ordered to pay Applicant $30,000 / claim allowed

Contract / Applicant contracted by Respondents to quote for renovation of property through Respondent's son / Applicant advised Respondent’s son 2% charge of sum of work quoted to be paid as deposit, absorbed in cost if quote accepted, payable if not accepted / Asbestos testing required at property for quote / Applicant contracted third party to complete asbestos testing / Respondents were present during testing / Quote provided by Applicant was rejected by Respondents as double the agreed budget / Applicant claims 2% sum of quote and cost of asbestos testing / Whether Respondents liable to pay 2% sum for quote / Whether Respondents liable to pay for asbestos testing / Held: Respondents not liable to pay 2% sum as Respondents did not authorise son to act on their behalf to agree to this charge / Quote provided was well outside of budget / Both parties jointly liable to pay third party costs for asbestos testing / Claim allowed / Respondent ordered to pay Applicant $2,167.75

Consumer Guarantees Act 1993 / Applicant purchased puppy from respondent for $3,000 / Puppy required multiple surgeries / Applicant's insurance company paid $15,000 to applicant under pet insurance policy / Applicant claimed $30,000 for puppy's treatment and loss of income / Respondent offered to take puppy back / Applicant declined offer, respondent elected to refund the purchase price / Whether respondent made false or misleading representations to applicant about puppy, inducing her to enter into the contract / Whether puppy was of acceptable qualilty / What remedy, if any, was available to applicant / Held: no misrepresentation established / Failure of guarantee of acceptable quality of puppy / Given extent of puppy's problems, failure of substantial character / Applicant already been refunded purchase price / Applicant did not establish she suffered initial treatment and diagnosis costs that were not covered by insurance / No further remedy available / Outcome: claim dismissed.

Contract / Contract and Commercial Law Act 2007 / Applicant purchased a vehicle from the Respondent for $3,400.00 / Respondent had purchased the vehicle from a friend / A finance company had a security interest registered over the vehicle / Finance company repossessed the vehicle as money was still owing / Respondent claimed he did not know money was owing when he purchased the vehicle / Applicant claiming $4,00.00 from Respondent / Whether the Respondent breached the contract of sale with the Applicant / What remedy was the Applicant entitled to / Held: Implied condition and warranties had been breached / Respondent did not have the right to sell the vehicle to the Applicant whether he knew there was a security interest or not / Applicant did not enjoy quiet possession of the vehicle / Applicant was entitled to damages for the breach of a warranty / Measure of damages was the estimated loss resulting from the breach / Damage was the price the Applicant paid to the Respondent / Applica…

[2021] NZEmpC 119 Bowen v Bank of New Zealand (Costs Judgment of Judge J C Holden, 3 August 2021) COSTS – GUIDELINE SCALE – financial hardship less important because attempting to have matter removed was not necessary – costs awarded.

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were drivers in a vehicle collision / Collision occurred when Respondent was passing a truck and Applicant exited driveway onto road / Applicant claimed $5,000 from Respondent / Respondent’s insurer counter-claimed $8,317.85 from Applicant / Which party caused the collision / Whether Respondent contributed to the collision / Whether costs claimed reasonable / Held: it is more likely than not that Respondent caused collision / Applicant failed to give way to a vehicle on the roadway when he exited the driveway in breach of legislation / Respondent created situation with risk / Applicant beared greater responsibility and respective liability assessed as 80:20 / Costs accepted and proved reasonable / Applicant liable for 80% of Respondent’s loss / Applicant ordered to pay $4,312.13 to Respondent / Claim and counter-claim allowed

Review / Committee declined to take further action / litigation fees / complaint lawyer was not efficient, legal fees exceeded recovery, and did not invoice in accordance with terms of engagement / fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 29 / VM v XZ [2020] NZLCRO 216 / HELD / Committee incorrectly applied reg 29 / only reviewed last nine months of fees / Committee’s fee complaint analysis was superficial and proceeded only on the basis of the complaint and the response / Committee directed to reconsider complaint / section 209

Appeals under s 111 of the Real Estate Agents Act 2008. Appeals against decision to take no further action on complaint of collusion, Committee’s finding that licensees guilty of unsatisfactory conduct in relation to non-disclosure, and appeal against penalty. Outcome: appeals dismissed. Applicant allowed costs.

Contract / Section 144 of the Contract and Commercial Law Act 2017 / Applicant supplied Respondent stock / Respondent only sold small portion of stock and wished to return remaining stock in exchange for credit / Applicant claimed $15,000.00 towards invoices / Respondent counterclaimed $3,340.00 for storage costs / Held: Applicant not obligated to accept the goods return / Respondent must make payment for the goods in accordance with the contract / Applicant limits claim in accordance with Tribunal’s jurisdictional limit / Respondent ordered to pay Applicant $15,000.00 / Claim allowed.

Contract / Flatmate agreement / Respondent entered applicant’s bedroom multiple times when intoxicated in the night / Applicant sought repayment of bond of $350 from the respondent / Respondent sought rent and miscellaneous costs from applicant / Whether the applicant entitled to cancel the contract / Whether the amount claimed was proven / Held: implied term of contract that the head tenant should not enter the flatmate’s exclusive use area without their consent / privacy and personal security an essential party of the contract / Breach was sufficient to justify the applicant cancelling the contract / Respondent suffered financial loss resulting from a situation of his own making / Respondent ordered to pay $350 to the applicant / Claim granted.

Contract / Payment / Applicants entered into contract with company to do plumbing work for First Respondent / Work halted as First Respondent could not pay invoices / After Applicant met with Second Respondent work continued / Two further invoices issued and not paid / Applicant claims Second Respondent said he would personally pay for work / Applicant claims $6,002.99 from Second Respondent / Second Respondent claims he was facilitator and payments he made were paid as loan to First Respondent / Held: Second Respondent had personally paid company for previous work and said he would pay for work to finish job / Second Respondent did not say he was acting as agent for First Respondent / Second Respondent liable for payments on basis he promised to personally pay / Claim allowed except for costs and claimed interest / Discretionary interest granted, calculated in accordance with Interest on Money Claims Act 2016 / Second Respondent ordered to pay Applicant $5,193.51.

Negligence / Applicants involved in car collision with Respondent / Applicants and Applicant's insurer claim repair costs on basis Respondent caused the crash / Damage to cars supported view that Respondent caused crash by failing to give way / Applicant’s use of flush median was legal but more care was needed / Damage to Applicant's car suggests he was not travelling slowly / Held: Respondent has 75% liability and Applicant 25% / Respondent liable for 75% of repair cost to Applicants car / Respondent must pay Applicant's insurer $5893.60

Contract / Roof work / Applicant requested a quote from the respondent for roof work / Quoted price of $3,252.00 was accepted by applicant / Applicant paid fifty percent deposit and respondent carried out work / Applicant had no issue with the quality of work / applicant believed he was overcharged due to number of workers and time spent on the roof work  / Applicant refused to pay balance owed on contract / Respondent counterclaimed $1,626.00 / Whether the law provided an opportunity for a fixed price contract to be reviewed / Whether the respondent mispresented the amount of work or materials needed / Held: time to explore whether bargain was reasonable was before agreement was made not after work was done, unless a price for work was not set in the contract /no misrepresentations made by the respondent regarding the work to be carried out / contract was clear about how work would be done and the price charged / outstanding amount is overdue / Applicant ordered to pay $1,626.00 to th…