Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2021] NZEmpC 194 Henry v South Waikato Achievement Trust (Judgment of Judge K G Smith, 8 November 2021) APPLICATION FOR STAY OF EXECUTION OF COSTS DETERMINATION – challenge filed to both substantive and costs determination – application granted, by consent.

Negligence / Dog Control Act 1996 / Dogs belonging to the parties were involved in an altercation / Applicant claimed $9,030.00 for her dog’s surgeries following the altercation / Which dog was responsible for causing the altercation / What was the cause of damage to the Applicant’s dog / Was the damage to the Applicant’s dog a foreseeable result of the fight between the dogs / If so, did the Applicant have a duty to minimise her losses / Whether the Respondent was responsible for the costs of both surgeries / Whether the costs claimed reasonable / Held: more likely than not that the Respondent’s dog caused the altercation / Evidence suggested that the damage to the Applicant’s dog was caused the Respondent’s dog /  Evidence suggested that the damage to the Applicant’s dog was a foreseeable result of the fight between the dogs  / Applicant did everything she could do minimise her losses / Respondent was not responsible for the cost of both surgeries / There were too many variables impa…

[2021] NZEmpC 190 Best Health Foods Ltd v Berea (Judgment of Judge B A Corkill, 3 November 2021) COSTS – Appropriate to award two-thirds of actual and reasonable costs – costs awarded.

Residential tenancy / Disputes Tribunal Act 1988 / Parties jointly renting property on fixed term lease, as a residential tenancy / Each paid $733.00 bond / Applicants indicated they wanted to move out in four weeks’ time / Applicants each had their own rooms / Tenants all tried to find replacements / Tenant was found for one room, other room untenanted until two weeks after Applicant had moved out / One Applicant was repaid full bond by remaining tenants / Second Applicant had two weeks rent deducted from bond / Applicants filed a claim for the amount of bond not refunded / Claim for a breach of the agreement between the tenants which was alleged to have resulted in a loss of two weeks rent, $430, to the Applicants / Respondents counterclaimed for a declaration that they were not liable under the Disputes Tribunals Act 1988 / Was there a legally binding agreement between Applicants and Respondents as to the refund of bond / If so, what are the terms of the agreement / Whether the term…

Penalty / misconduct for sending letters containing false allegations and speculation to employers of people involved in family court case / HELD / Standards Committee’s penalty submissions focused on a punitive outcome / penalty can pursue more than one goal / Tribunal needs to disapprove of misconduct, but compensation and rehabilitation also relevant / practitioner needs to be challenged about her practice and to account for her choices / required to undertake professional supervision for a minimum of one year / ordered to compensate each victim $3,000 / Tribunal ordered six-week suspension / practitioner to pay Standards Committee’s and Tribunal’s costs

[2021] NZEmpC 184 Coetzee v Oamaru Meats Ltd (Costs Judgment of Judge K G Smith, 27 October 2021) COSTS – GUIDELINE SCALE – financial circumstances do not justify a reduction in cost – costs awarded.

Contract / Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased car online for $2,500.00 from the Respondent / Respondent advertised the car had 164,000 kms on the clock / NZ Transport Agency documents revealed the car had an odometer reading of 446,307 kms / Car stopped working / Applicant claimed Respondent misrepresented the car's condition / Applicant claimed damages including a refund and travel costs totalling in $2,640.52 / Respondent claimed those kms were correct at the time he sold it to Applicant and said he did not misrepresent the car / Held: Respondent misrepresented the car when he said it had around 164,000 kms on it / Where a party has been induced to enter into a contract as a result of a misrepresentation by the other party / They are entitled to damages from the other party in the same manner and to the same extent as if the representation were a term of the contract that has been breached / Applicant entitled to damages of $1,250.00 / Resp…

[2021] NZEmpC 181 Wanaka Pharmacy Ltd v McKay (Costs Judgment of Judge Kathryn Beck, 21 October 2021) COSTS – GUIDELINE SCALE – company was the successful party by reducing remedies – employee had partial success – costs awarded with 50% reduction.

Penalty / practitioner admitted misconduct for misappropriation of $1 million / accepted they would be struck off / did not accept further charge of obstructing and frustrating the Standards Committee’s investigative processes / whether practitioner liable for obstruction / if so, whether misconduct or unsatisfactory conduct / HELD / obstruction charge made out / practitioner failed to provide files and documents despite repeated requests / behaviour cannot be ignored even though practitioner will inevitably be struck off / message needs to be sent to the legal community and the community at large that this behaviour is serious / obstruction was misconduct / conduct not excused by practitioner’s mental stress / Tribunal ordered practitioner be struck off and imposed censure for obstruction / practitioner to pay Standards Committee’s and Tribunal’s costs

Complaint / Committee declined to take further action / property sale and purchase / complaint about lawyer’s lack of communication, “misinformation”, and fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / HELD / no evidence lawyer did not understand rules for property transactions during COVID-19 lockdown / client was abusive and difficult to act for, lawyer kept communication to a minimum and was to be commended for continuing to act / lawyer’s fees “more than” reasonable / not unreasonable for lawyer to secure fees prior to carrying out work necessary to complete settlement / Committee’s decision confirmed / section 211(1)(a)

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were drivers in vehicle collision / Respondent intended to turn right into driveway as he did so Applicant began to overtake and vehicles collided / Applicant stated Respondent did not indicate / Applicant claimed $250.00 for his insurance excess for car repairs / Whether Respondent was responsible for collision / If so, whether costs were reasonable / Held: not proven that Respondent was responsible for collision / Parties have differing recollections of events / Not proven on balance of probabilities that Respondent failed to indicate / Not reasonable for Respondent to have kept constant watch on car behind him whilst making turn / Not proven that Respondent was responsible for collision / Claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Applicant had issue playing certain game on phone / Manufacturer stated issue with touch panel to be adjusted in firmware update / Applicant claims refund of cost of phone and delivery charge / Whether phone of acceptable quality / If not, whether Applicant is entitled to a refund of purchase price and/or cost of delivery / Held: phone not acceptable quality / Phone sold as gaming phone but not fit for purpose of playing popular game / Held: Applicant entitled to reject goods, cancel contract and receive a refund / Applicant also entitled to recover delivery cost / Respondent ordered to pay $1,711.08 to Applicant / Applicant to return phone to Respondent at own cost / Claim allowed.

Nuisance / Property Law Act 2007 / Applicant wanted Respondents to pay for repairs to their driveway / Applicant claimed damage was caused by tree roots on Respondents’ neighbouring property / Applicant sought $29,00.00 for repairs / Whether there was a nuisance or there was a defence that the Applicant came to the nuisance / Whether the roots have caused damage or the deformations were inevitable consequence of the way it was constructed / Whether the value of the damage should be a repair costs, as opposed to a change in value / Whether the Applicant had suffered loss / Held: driveway appeared to have damage in the form of corrugations / Evidence suggested damage caused by tree roots / Found to be a nuisance and no defence that the Applicant had come to it / Applicant entitled to receive payment forrepair work to driveway / Respondents can only be responsible for restoring surface to its original state, not better / Respondents ordered to pay Applicant $13,800.00 / Claim granted.