Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2025] NZEmpC 99 Brown v The Clinician Holdings Limited (Costs Judgment of Judge M S King, 16 May 2025) COSTS – scale costs awarded to successful plaintiff – costs uplifted to take GST into account

Contract / Building services / Building Act 2004 / Applicant was head contractor and engaged Respondent as subcontractor for bathroom renovation in 2021 / Work by Respondent was substandard requiring full remediation / Applicant claimed $30,000 from Respondent for remediation costs / Held: Tribunal estopped from reaching finding Respondent’s work was not substandard because of Building Practitioners Board (BPB) decision that work was substandard / Referee relied on BPB decision confirming serious structural defects / Respondent not entitled to remedy due to substantial nature of defects / Applicant entitled to recover reasonable costs / Respondent ordered to pay Applicant $30,000 / Claim allowed.

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / applicant vendor alleged licensee failed to disclose conflict of independent dealings with purchaser, failed to adequately market property and settle transaction, and pressured vendor to sell by disclosing purchaser’s personal circumstances / Real Estate Agents Act 2008, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.1, r6.3, r6.4, r9.1, r9.2, r9.3, r9.4, r 9.14, r9.16 / HELD / no evidence of improper conflict management / licensee had advised applicant of interest in engaging with purchasers prior to ASP / subsequent dealings were independent / no evidence to support allegation of undue pressure / no evidence of breach of professional obligations in respect of sales price achieved / no evidence of substandard marketing or settlement papers / application dismissed / Registrar’s decision to take no further action confirmed

Contract / Construction / Building Act 2004 / Applicant engaged Respondent to build his new home / After taking possession, Applicant noticed cracks appearing at the front and rear of driveway / Applicant claimed $16,650 being the cost to remove and replace cracked areas / Held: Respondent did not carry out work on driveway with reasonable care and skill as cracks were large and noticeable and show an unacceptable deterioration in the concrete / Respondent was given an opportunity to provide remedy and refused / Applicant provided sufficient evidence of costs / Respondent ordered to pay Applicant $16,560 / Claim allowed.

Contract / Applicant contracted by Respondent to provide educational assessment services / Applicant alleged Respondent wrongly terminated her services / Applicant received 30-day termination notice but before final date, Applicant was locked out of the system and lost her allocated students / Applicant claimed $21,943.76 as compensation for loss of income, legal and application fees / Held: Respondent breached 30-day termination provision of contract / Practically terminated Applicant’s services immediately as removed her allocated students and locked her out of system / Applicant had reasonable expectation that she would complete the already allocated work / Respondent ordered to pay Applicant $4,600 / Claim allowed in part.

Costs claim for compensation decision – Public Works Act 1981, ss 84, 90, 90(2), 90(3) – No costs order.

Costs / first compensation referral decision / Tribunal awarded compensation to complainant in the sum of $35,101.65 / parties invited to file submissions on costs / Real Estate Agents Act 2008, s931ha, s1104, s1105, s1106, s110A / HELD / Tribunal’s approach to costs awards differs from civil court proceedings / under s110A, Tribunal to consider whether and to extent any party has participated in good faith, facilitated or obstructed information gathering, and facilitated the resolution of issues / approach to compensation referral prioritises access to justice and would not wish to deter complainants from seeking compensation due to potential costs exposure / no adverse factors indicating costs should be awarded in favour of either party / licensees generally cooperative throughout / costs to lie where they fall

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Contract and Commercial law Act 2017 / Applicants purchased puppy for $3,500 from Respondent who were breeders / Puppy passed away and Applicants claimed puppy born with medical disorder or had predisposition to seizures / Applicants claimed $30,000 comprised of purchase price, veterinary costs and general damages / Held: on balance of probabilities Respondent did not breach consumer legislation / Insufficient evidence puppy died from medical disorder or born with predisposition / Respondent did not misrepresent puppy’s health, or their return or refund policy / Insufficient evidence misrepresentation induced Applicants into entering contract / Cause of illness unknown / Applicants not entitled to compensation / Claim dismissed.

Costs on Review – s 148 Accident Compensation Act 2001; Dismissal for want of Prosecution. Appellant’s failure to file any submissions or attend hearing amounted to want of prosecution by Appellant of his appeal. No reason for appeal to remain alive unless Appellant intended to pursue it. Outcome: appeal dismissed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant purchased gaming massage chair from Respondent for $1,180 / Within six  months chair failed which Respondent repaired / A year later chair failed again / Respondent claimed warranty expired and refused to remedy unless Applicant paid labour or parts costs / Applicant refused / Once claim lodged in Tribunal Respondent offered repair or replacement / Applicant rejected that and claimed $1,980 equivalent to cost of purchasing comparable chair / Held: chair covered by warranty under CGA / Reasonable consumer would expect the chair to be operational two years later / Applicant offered Respondent reasonable opportunity to remedy and Respondent’s refusal precluded them from subsequent reliance on that right / Applicant entitled to full refund of purchase price but not entitled to cost of replacing chair / Respondent ordered to pay $1,180 / Claim allowed in part.

[2025] NZEmpC 88 Hurrell v Menopaws Ltd t/a Number 8 Café (Interlocutory (No 2) Judgment of Judge KG Smith, 2 May 2025) COSTS – costs following interlocutory application – scale costs awarded.

Penalty / managing director and agency guilty of misconduct under s73(c)(i) for failing to comply with s 85 notice / Real Estate Agents Act 2008, s3, s73ci, s85, s86, s93, s109A, s110 / Committee emailed director seven times, over eight months, requesting information required by to carry out the investigation into salesperson employed by agency / sustained failure to provide information / ensuring compliance with Act should have been foremost in licensee’s mind upon receiving s85 notice / subsequent improvements to regulatory processes considered / gravity of misconduct at mid-range licensees censured / director licensee fined $5,000, agency fined $10,000 / misconduct gave rise to reasonably incurred costs / no justification to depart from starting point of 50 per cent costs / licensees ordered to jointly pay $13,556.25 in costs

Contract / Applicant engaged Respondent to move boxes and furniture for $5,500 / Boxes were heavier than expected and Applicant unaware of weight limit / Applicant engaged another moving company / Applicant claimed $10,209 for time spent on sorting belongings and engaging another carrier, and compensation for inability to start business as intended / Held: Respondent has not proved there was more than 40 m3 of boxes and furniture / Applicant no obligation to comment on weight of boxes / Respondent has not proved Applicant agreed to pay extra / Respondent breached contract to deliver all of Applicant's belongings / Respondent liable to pay removal and storage costs / Applicant not entitled to receive compensation for lost income opportunity and costs of proceedings / Respondent ordered to pay Applicant $3,801.70 / Claim allowed in part.