Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Negligence / Applicant outside her house when her cat was hit by the Respondent’s car / Cat required emergency treatment / Vet fees were over $3000.00 / Applicant sought a contribution of $500 from the Respondent towards treatment / Whether the Respondent negligently caused the injuries to the Applicant’s cat / Whether the Respondent was liable to pay the portion of vet fees claimed / Held: Respondent was not negligent as there was nothing he could have done to prevent the accident  /  Claim dismissed.

Costs – s 149 Accident Compensation Act 2001.The Appellant wished not to pursue the appeal.Outcome: appeal dismissed. 

Contract / Consumer Guarantees Act 1993 / Applicant applied to reject a television he purchased from the Respondent / Applicant wanted to receive a refund or a replacement TV / TV required repair twice over eight year period / TV was repaired without costs and the Applicant was offered a replacement TV during repair period / Whether failure of the goods was of substantial character / Held: failure of the goods was not of substantial character, was not rejected within a reasonable time and can be repaired /  Claim dismissed.

Liability / two charges of misconduct / practitioner acted on two loan agreements where he provided funds to a client, acting for both parties / contravened trust accounting regulations / Conduct and Client Care Rules 2008, rule 5.4 / rule 5.4.3 / rule 6.1 / HELD / reckless disregard of rules against acting in conflict of interest or duties / misconduct charge proved / trust account errors regarded as breach simpliciter / negligence not established / practitioner not the only lawyer responsible for trust account / unsatisfactory conduct found / parties to file penalty submissions

Complaint / Committee made findings of unsatisfactory conduct / complaint lawyer failed to recognise conflict of interest / complainant not liable for lawyer’s fees / fee invoices are not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 9 / HELD / matters of contractual liability are for the Courts to decide / lawyer should pursue payment of the invoices through the Court / lawyer should not have accepted instructions to act for both creditors in the same matter / lawyer ordered to pay costs to NZLS / Committee’s decision confirmed / section 211(1)(a)

Fencing / Fencing Act 1978 (FA) /  Parties owned adjoining sections / Applicant built a retaining wall and fence / Applicant asked Respondent to share 50% of the costs, $1656.05 / Respondent only agreed to pay $1000 / Applicant claimed $3,086.30 for the full cost of the retaining wall and $1656.05 for fencing as well as legal fees and interest / Held: retaining wall was only required because of the actions of the Applicant’s builder / Fence was attached to the retaining wall so deemed part of the same structure / Applicant failed to serve the Respondent with a FA notice / Respondent not compelled to pay for the retaining wall/fence structure / Interest and legal fees are only awarded in exceptional circumstances and do not apply here / Claim dismissed.

[2022] NZEmpC 142 Alkazaz v Enterprise IT Ltd (Costs Judgment of Judge J C Holden, 15 August 2022) COSTS - GUIDELINE SCALE - uplift awarded because of conduct.

Negligence / Applicant was driving her car down a street on a day where there was high wind / A branch from Applicant’s tree fell and hit the bonnet of the Respondent’s car / The vehicle was damaged in the incident and since written off / Applicant claims $4,915 for the car repair and transport costs / Held: Respondent’s were negligent as the tree falling was reasonably foreseeable / Claim allowed / Respondent ordered to pay applicant $3,300.

Contract / Respondents rented a storage unit from Applicant company / Applicant company made three claims / Firstly, Applicants claimed Respondents breached the contract by not paying the fee due / Secondly, Applicants claimed Respondents were responsible for damage to  storage units caused by a third party / Lastly, Applicants claimed Respondents had abandoned the storage unit / Held: Respondents breached the contract by not paying the fee due / However, Applicant had not taken steps to minimise its loss / Respondents as renters were responsible for damages caused by third parties to their unit and adjoining units / Respondents did not abandon the storage unit, but the Applicants were within their rights to remove and dispose of the goods in the unit / Respondents ordered to pay Applicant $200 in costs to repair storage unit damage / Applicant could not claim the cost of breach of contract as they had breached the contract themselves by not providing the second swipe card / Claim gran…

Negligence / Car driven by second Respondent collided with the rear of car driven by first Respondent / First Respondent’s car then veered into shop occupied by Applicant / Considerable damage caused / Applicant’s insurer has met the costs of repairs and now claims those costs from first Respondent, their insurer, and second Respondent / Held: second Respondent fully liable for the damage / Impact from behind might have caused first Respondent to react in confused way and accelerate into shop / Claim against first Respondent dismissed / Second Respondent to pay Applicant’s insurer $17,285.20.

Liability and penalty / salesperson charged under s73a / agency charged under s73ciii or s73b / salesperson forged signatures on six agency agreements / agency internally disciplined salesperson when first forgery discovered, but did not report misconduct to REAA / Real Estate Agents Act 2008, s3, s73a, s73b, s73ciii, s91, s110, s1102e, s110A / Professional Rules 2012, r7.2 / HELD / salesperson admitted disgraceful conduct / forgery deceitful, disgraceful, despite no loss or financial gain / ordered censure / licence would have been cancelled if held, instead s1102e order made prohibiting engagement for five years / no fine / agency admitted wilful contravention of r7.2, s73ciii charge upheld / internal handling motivated by welfare concern, but should have advised REAA of concerns with report / after learning of first forgery, should have investigated other sales / low-level wrongdoing / ordered censure / $2,000 fine / 50 per cent costs ($4,000), split evenly

Complaint / Committee declined to take further action / litigation matter / complaint lawyer was negligent and incompetent in litigation / fees complaint / Committee determined no special circumstances to deal with the fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / Lawyers and Conveyancers Act, section 138(1)(f) / HELD / arguments put forward by complainant are founded on allegations that have not been argued and decided / claim before the court represents the best opportunity for complainant to pursue his defence and seek recompense / Committee’s decision confirmed / section 211(1)(a)

Contract / Card charges / Hotel / Applicants were guests at Respondent’s hotel / Respondents charged Applicant’s credit card $200 without notifying them / Respondents claim this was because of damage in the room / Applicants claim there was no damage / Applicants claim the charge was unfair / Held: Respondents have burden of proof to prove the damage and justify the charge to the Applicant’s credit card / Held: Respondents have not discharged burden of proof as their evidence is from over six months later / Held: no legal basis for the Respondents to charge the Applicant’s credit card $200.00 / Respondents ordered to repay the $200 / Claim upheld.