Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Negligence / Parties were involved in vehicle collision / Respondent was attempting to merge into Applicant’s lane / Respondent’s vehicle came into contact with Applicant’s passing vehicle / Both vehicles suffered damage / Applicant and his insurer claimed $5,143.95 for repair costs / Respondent denied liability, claiming Applicant caused accident because he was speeding / Held: suggestion that Applicant was speeding was speculation / Although Respondent did take care for most of the manoeuvre, in a brief moment she failed to see Applicant’s oncoming vehicle / Location of damage to cars was consistent with Applicant’s account of how the accident happened / Respondent ordered to pay $5,143.95 repair costs / Claim allowed.

Objection to valuation by Council – Rating Valuations Act 1998, s 36 – Valuation agreed by consent – No costs order.

Contract / Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased food product from Respondent for distribution to staff and customers prior to Christmas / Applicant’s employee saw a media report regarding a recall of Respondent’s product / Article advised product should be returned or disposed of / Applicant immediately contacted as many staff and customers as possible to warn them but most businesses had shut down for the holiday break / Applicant contacted Respondent seeking a refund of $6,054.75 purchase price / Respondent stated that the product must be returned for credit to be issued / Applicant claimed it was unreasonable to expect recipients to retain a tainted and unsafe product indefinitely / Applicant claimed for a refund / Held: food was not fit for human consumption / Food was considered to be perished at point of contract / Refund not dependent on return of goods / Applicant entitled to full refund / Respondent ordered to pay $6,054.75 / Claim allowed.

Contract / Respondent leased commercial premises from Applicant / Respondent sold its business, and the lease was assigned to the new business owner / The parties’ solicitors reconciled outstanding rent arrears, which were deducted from the bond paid under the lease, leaving a small balance for Respondent to pay / Applicant later became aware of some unpaid rates outstanding from when Respondent occupied premises / Applicant claimed $3,674.10 as outgoings payable by Respondent under the lease, being $3,071.55 in unpaid rates and $568.55 in late payment fees charged by Council / Respondent claimed that the reconciliation done when the lease was assigned to the new business owner was a full and final settlement / Held: the reconciliation recording rent arrears and legal fees to be offset against the bond amount did not constitute a full and final settlement, as there was no clear statement to that effect or consideration on either side / Respondent ordered to pay outstanding rates of $3,…

Consumer law / Consumer Guarantees Act 1993 / Respondent painted roof of Applicants’ home / Applicants claimed paint started bubbling within weeks / Applicants claimed $24,856.39 for cost of roof strip and repaint and reimbursement of coating specialist advice costs / Held: photos clearly showed blistering paint across all roof surfaces, plus several areas where paint work did not appear to have uniform finish / Respondent did not provide services with reasonable care and skill / Expert witnesses did not agree on cause of blistering, but on either explanation Respondent failed to exercise reasonable care and skill / $24,856.39 reasonable compensation / Applicants gave Respondent opportunity to put issue right but it had not done so in reasonable period of time / Applicants entitled to cost of someone else doing the work / Reasonably foreseeable Applicants would need to seek independence advice as to cause of issues / Respondent ordered to pay $24,856.39 / Claim allowed.

Date of decision: 31 May 2024.  Privacy Act 2020.  

Objection to valuation by Council – Rating Valuations Act 1998, s 36 – Valuation agreed by consent – No costs order.

Consumer law / Consumer Guarantees Act 1993 / Respondent completed house plans for the Applicant / Plans failed to achieve Council consent, as part of the property was designed over a storm water easement which could not be built over / Applicant sought a refund of design fees paid ($11,861.56) and engineering costs ($5,405.00) / Held: Respondent accepted it had made an error in not researching the limitations presented by the easement / Respondent breached requirement to act with reasonable care and skill and ensure plans were fit for purpose / Applicant entitled to a refund of fees paid and consequential engineering fees, totalling $17,266.56 / Claim allowed.

Contract / Company / Property Law Act 2007 / Applicant had a pre-existing personal guarantee to pay rent / Applicant claimed Respondent agreed to guarantee the rent liability under the sale and purchase agreement when she became director of the company / Company went into liquidation / Applicant as the guarantor had to pay his share of rental arrears and incurred legal costs / Applicant sought to recover $12,458.74 in rent and $2,326.66 in legal costs from Respondent / Respondent claimed she did not agree to accept any liability or to be a personal guarantor / Held: any contract of guarantee must be in writing and signed by the guarantor / Clause in agreement was not a personal guarantee / Respondent was not a personal guarantor and did not owe Applicant rent or legal costs / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to do a painting job / Work was complete and Applicant was invoiced / Applicant objected to paying full amount challenging the number of hours billed / Applicant claimed non-liability / Respondent claimed quote was a fixed price quote and hours were only estimated / Respondent noted number of hours was greater than Applicant's estimate due to required preparation work  / Respondent stated total number of hours did not diverge too much from the quote document / Respondent counterclaimed amount outstanding,  agreed at the hearing to be $3,081.78 / Held: price in the contract was clearly fixed and hours required were expressed as “approximate” / Applicant required to pay $3,081.78 to Respondent / Claim dismissed and Counter-claim granted.

Contract / Building / Fair Trading Act 1986 (FTA) / Applicant engaged First Respondent’s business to renovate a bathroom and ensuite at her house, to undertake remedial work on a sagging roof line, and to build a retaining wall / Total contract price was $123,276.85 / Partway through job, First Respondent sold business to Second Respondent / Ensuite was never completed / Claim in relation to ensuite resolved by settlement / Applicant claimed $25,400.00, being in part a refund of $21,424.50 paid for the retaining wall on the basis the work was unnecessary, plus cost for remedial work to the soffits / Held: Applicant’s evidence did not prove retaining wall was unnecessary / No dispute about quality of retaining wall itself / No breach of FTA by First Respondent / Insufficient evidence for claim regarding soffits / Claim dismissed.

Contract / Fair Trading Act 1986 / Applicant allowed employee to use company car for personal use / Employee exceeded time limit in carpark managed by Respondent / Respondent issued $65.00 breach notice to Applicant / Applicant refused to pay on basis it had no contract with Respondent / Respondent continued to demand payment / Applicant claimed $145.00 for filing fee and time spent dealing with Respondent’s letters / Respondent waived charges following notice of hearing, / Applicant continued with claim, arguing Respondent had engaged in misleading and deceptive conduct / Held: Respondent made misleading representation by asserting its terms and conditions bound owners of vehicles as well as drivers / $100.00 was conservative estimate of Applicant’s time and monetary loss involved in responding to Respondent’s misleading representation / Filing fee could not be awarded / Respondent ordered to pay $100.00 / Claim allowed in part.

Negligence / Applicant was involved in road collision with Third Respondent, driving a vehicle owned by First Respondent (her employer) / Each party maintained the other was responsible for collision / Applicant claimed $7,137.97 for cost of repairs and bringing claim / First Respondent counterclaimed $10,327.38 for cost of repairs / Held: on balance of probabilities, Third Respondent was responsible for collision / Most probably Third Respondent turned out of a driveway into the path of an oncoming car, thereby causing the collision / Third Respondent was driving First Respondent’s vehicle as its employee / First Respondent vicariously liable for Third Respondent’s actions / Costs claimed by Applicant for repairs was reasonable / Costs for bringing claim unable to be awarded / First and Third Respondents ordered to pay Applicant $6,637.96 / Claim allowed / Counterclaim dismissed.