Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2024] NZEmpC 195 Smalley v Hamilton Hindin Greene Ltd (Interlocutory judgment of Judge Corkill, 9 October 2024) APPLICATION FOR AN ORDER FOR THE AUTHORITY TO INVESTIGATE – SECTION 178 OF THE EMPLOYMENT RELATIONS ACT 2000 – Employment Relations Authority removed entire matter to the Court – contextual matters, suitability of Court procedure and costs concerns were appropriately considered – s 178(6) does not bar removal – possible procedural issue does not invalidate the removal – natural justice was observed  – removal order was made properly – application dismissed.

Negligence / Vehicle collision / Applicant claimed Respondent came into her lane and collided with Applicant / Respondent stated he was not the driver of the vehicle at time of collision / Respondent provided evidence that he was on other side of town when collision occurred / Respondent stated he was not person in photo that Applicant took / Applicant claimed vehicle repair costs / Held: cannot be determined whether Respondent was the driver involved in the collision / Claim dismissed.

Property law / Fencing Act 1978 / Applicant and Respondents owned adjoining rural properties / Boundary fence between properties had sustained damage and required repairs / Parties agreed Applicant would provide materials for repair and Respondents would undertake the repairs / Due to delays, Applicant felt it was necessary to hire a contractor to complete the work / Applicant claimed $3,783.48 for half the cost of the contractor  / Held: agreement between parties ended when Applicant engaged a contractor without proper notice to the Respondents / Proper notice under the Fencing Act 1978 was not given therefore Respondent had no obligation to contribute towards costs / Claim dismissed.

[2024] NZEmpC 192 MGE New Zealand 2010 Limited & McKay Ltd v Campbell  (Consent Judgment of Judge King, 3 October 2024) CONSENT – INTERIM NON-PUBLICATION ORDERS LIFTED – COSTS ORDERED BY CONSENT

Lack of Jurisdiction – s 54, 64 and 134(1)(b) Accident Compensation Act 2001. Appeal against review decisions dismissing Appellant’s applications regarding unreasonable delay and lack of decision by the Corporation. Reviewer correct to conclude no jurisdiction to proceed with reviews as decisions had been issued before hearings. Corporation’s communications lacked clarity and caused uncertainty, therefore Appellant acted reasonably in applying for review. Outcome: first Decision as to costs quashed and costs awarded in Appellant’s favour. Appeal from Second Decision dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant entered 12-month contract with Respondent for high-speed internet services / Since commencing service, broadband speed achieved was considerably less than advertised / Applicant raised issues with Respondent but no solution was provided / Applicant decided to switch providers / Respondent charged $99 for notice period requirement and $99 early exit fee / Applicant claimed $198 for charges plus reimbursement of 50% of monthly charge for the six months the contract ran, being $300 / Held: speed of service was an essential term of the contract / As Respondent did not provide agreed speed, Applicant entitled to cancel contract / Applicant not liable for notice period and early exit charges / Reasonable that Applicant pay price for service commensurate with service received, in this case half the contract price / Applicant entitled to $300 compensation claimed / Respondent ordered to pay $498 / Claim allowed.

Objection to valuation by Council – Land Valuation Proceedings Act 1948, s 19(8)(b) – Valuation agreed by consent – No costs order.

[2024] NZEmpC 184  Carrington Resort Jade LP v Maheno (Costs judgment of Judge King, 27 September 2024) COSTS – successful application for costs

Property / Parties own cross-leased properties / Applicant sought Respondent's permission for significant changes to his property / Respondent opposed proposed alterations / Applicant incurred costs and claimed payment from Respondent / Held: it was Applicant's choice to obtain plans / Respondent not liable to reimburse Applicant's expenses / Claim dismissed.

Penalty / unsatisfactory conduct / licensee breached fiduciary obligation having entered into commission sharing agreement with purchaser which he failed to disclose to vendors / Real Estate Agents Act 2008, s72, s93, s110, s110A / Professional Rules 2012, r6.1, r6.3 / HELD / licensee’s conduct towards the serious end of unsatisfactory conduct, but not the graver wrongdoing of misconduct / wider real estate profession must be deterred from entering into arrangements unknown to client / first disciplinary matter in more than 10 years / licensee has had successful career, acknowledged wrongdoing and expressed remorse / licensee’s health considered / usual award of costs appropriate / licensee’s defence was unsuccessful but acted in good faith throughout proceedings / parallel civil proceedings immaterial to disciplinary costs / Tribunal ordered censure, $3,000 fine and 50 per cent costs ($22,000)

Contract / Property / Applicant purchased house from Respondent / Applicant found lights did not work in rainy weather and also incomplete earthquake repairs / Applicant and agent had problems with lights at viewings for property prior to settlement / Applicant found original floors present and peeling paint from windows, soffits and fascia boards / Chimney was not repaired / Only two of three EQC scopes of repair for property were available to purchasers / Third EQC scope allowed for removal and replacement of floors, painting on soffits and fascias, removal of chimney and associated repairs / Applicant was quoted $19,000 for repairs / Applicant claimed for costs to remedy issues with property / Held: failure of lights was breach by Respondent of warranty in agreement that utility or amenity systems for property were in good working order / Failure to disclose third EQC scope was misrepresentation by Respondent about status of earthquake repairs / Applicant's understanding that Respon…

Police v Sadat - potentially disqualifying charges and warrants for arrests due to failure to turn up to court - no longer suitable to be a certificate holder - COA expired so order made baring reapplication for 2 years.

Consumer law / Consumer Guarantees Act 1993 / Applicant acquired freezer as part of property purchase / Fridge stopped working and technician determined fault in compressor / Respondent as manufacturer confirmed fridge was irreparable but refused to compensate as fridge was received through private sale / Applicant claimed repair costs / Held: Applicant may bring a claim against the manufacturer though not the original supplier in trade / Respondent liable to pay reduced value of fridge based on its remaining expected life at time of failure, plus technician's fee to assess problem / Respondent ordered to pay Applicant $2892.05 / Claim allowed.