Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2022] NZEmpC 195 New Zealand Port Primary Teachers’ Assoc v Board of Trustees for Rodney College (Costs Judgment of Judge Kathryn Beck, 26 October 2022) COSTS – GUIDELINE SCALE – costs should lie where they fall in the Authority – costs reduced because of partial success.

Costs applications by appellant and licensee / appellant unsuccessfully appealed Committee’s decision to take no further action / complaint and appeal alleged licensee was dishonest, acted in bad faith, and faked a document / Real Estate Agents Act 2008, s110A, s111 / HELD / no evidential basis for complaint / s110A2 factors not present / appellant did not lack good faith and did not obstruct process, and believed allegations to be true / no reasonable basis for appeal, particularly regarding dishonesty, fake document and bad faith allegations / licensee entitled to reasonable contribution towards costs, but in the absence of bad faith or obstruction, not entitled to indemnity costs / two-thirds of reasonable costs appropriate / costs of $11,560 awarded to licensee / no basis for appellant’s costs application

Complaint / Committee found unsatisfactory conduct / employment dispute matter / lawyer called complainant delusional and difficult / fee charged was excessive / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.1 / HELD / lawyer breached his obligation to act courteously and respectfully / clear explanation of charge out rate given / no contention to support lawyer lost faith in his client’s claim /no other professional obligations or duties breached / lawyer ordered to pay costs to NZLS / Committee’s decision confirmed / section 211(1)(a)

Negligence / Duty of care / Applicant’s house and garage destroyed by fire / Applicant claims if pressure release valve (PRV) near property worked properly, fire service would have been able to stop spread of fire to garage / Applicant claims Respondent liable for costs of contents of garage destroyed by fire / Did Respondent owe a duty of care to ensure PRV maintained / If so, did Respondent breach duty / If so, did breach cause loss of contents to garage / If so, what are losses / Held: Respondent owes duty of care to ensure PRVs maintained / Held: Respondent did not breach duty of care / Respondent had reasonable maintenance plain for PRVs and adhered to the plan / Claim dismissed.

Review / Committee declined to take further action / company matter / lawyer acting for more than one client on a matter / more than a negligible / lawyer continuing to represent company after assuring he would not / conflict of duties / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / r 8.7 / r 8.7.1 / HELD / lawyer breached r 6.1 / more than negligible risk to be unable to discharge obligations owed to one or more clients / not established that lawyer held information confidential to former client / lawyer did not engage with client in a disrespectful manner / Committee’s finding of no breach reversed / unsatisfactory conduct established / lawyer directed to pay fine and costs / other respects of Committee’s decision confirmed /section 215

Penalty / unsatisfactory conduct for failing to act competently and in a timely manner in court proceedings / unsatisfactory conduct for accepting funds paid on account of fees directly into his own account / misconduct for providing regulated services for client other than in the course of his employment / Lawyers and Conveyancers Act 2006, section 9(1)(a) / Trust Account Regulations 2008, reg 10 / HELD / client suffered adverse decisions and bankruptcy due to practitioner’s woeful performance / practitioner failed to appear at court hearings / his service was dilatory and disorganised / Tribunal ordered twelve months’ suspension / condition on suspension / before being issued with a new practising certificate, practitioner will have active ongoing supervision from appropriate senior person / practitioner should have realistic prospect of paying his debts to NZLS / Tribunal ordered refund of $5,800 to client / practitioner to pay Standards Committee’s and Tribunal’s costs

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a washing machine from the Respondent for $306.10 / Applicant used the washing machine regularly for a month without issue / Washing machine then began leaking and need repairing / Applicant claimed $466.10 for machine purchase price and the repairer call out fee / Held: Applicant accepted the goods in the condition they were in / Applicant used the machine for a month and posted positive feedback online after purchase,  having used the machine a few times / Machine found to be in good working order at the time of sale therefore there was no misrepresentation / Claim dismissed.

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.