Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Application for review of Registrar's determination under s 112 of the Real Estate Agents Act 2008. Application for award of costs against Registrar in respect of hearing in the Tribunal. Outcome: Registrar to pay $15,000 as contribution towards costs.

Review / Committee declined to take further action / subdivision consent and easement / complaint lawyer not competent in advising complainant to take judicial review proceedings, did not raise relevant matters in the proceedings, and did not advise on litigation risk / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7.1 / VM v XZ [2020] NZLCRO 216 / HELD / lawyer advised complainant of litigation risk and discretionary nature of judicial review / indication law was “well-settled” by judge / no evidence lawyer’s arguments lacked merit / representation was meticulous / adverse costs order cannot be considered part of lawyer’s fee in fee complaint / comparison between fees and High Court Rules scale a useful starting point, but not a determinative factor / applicable test for fees is in rule 9 and 9.1 / Committee’s superficial fee analysis must be returned to the Committee for first instance determination / section 209 / Committee…

[2021] NZEmpC 133 Ngawaka v Global Security Solutions Ltd (Interlocutory Judgment of Judge K G Smith, 17 August 2021) APPLICATION FOR SECURITY FOR COSTS – no evidence of potential in ability to pay – costs unlikely to arise as both parties are self-represented – application declined.

[2021] NZEmpC 134 MacLeod v Wellington City Transport Ltd (Judgment of Judge B A Corkill, 17 August 2021) NOTICE OF DISCONTINUANCE – file closed – no issue as to costs.

Contract / Tort / Trespass / Applicant instructed his son to park in a private carpark / Respondent issued Applicant with a letter to pay $95 for the breach and $75 late payment / Applicant advised Respondent he had not received the first breach letter but paid the $95 / Applicant later received notice from a debt collection agency to pay $288.75 / Applicant sought declaration he was not liable to pay any further monies to the Respondent and claimed reimbursement of the filing fee / Whether the Applicant trespassed onto land by parking without authorisation / Whether the Applicant was a party to a contract by parking where he did / Whether the Applicant was entitled to a declaration that he was not liable to pay the breach fees / Held: $95 paid by Applicant for trespassing onto the Respondent’s land was more than sufficient compensation / No contract between the parties / No foundation for the Respondent’s notice seeking late payment or debt collectors’ fees / Applicant was entitled to…

Negligence / Duty of care / Applicant’s car was parked near a hockey stadium / Ball from the turf damaged the applicant’s car / Applicant claimed $1475.00 for damage to his car / Whether the respondents owed a duty of care / What duty was breached / If so, whether the breach caused damage and was foreseeable / What was the reasonable costs of repairing the damage / Held: duty of care for the occupier of the turf to take reasonable care to prevent harm resulting from their activities on the turf/ Applicant was a hockey player and was accustomed to how the turf was used / Applicant failed to discharge onus of proof that there had been a breach of duty of care by the respondents / No breach of duty of care found / claim dismissed.

Contract / Scaffolding hiring charge / Respondent entered into a contract with Applicant for reroofing and guttering of a property for $674,500.00 / Quoted cost included cost of installing and dismantling scaffolding / Respondent paid $232,702.50 as a deposit / Applicant claimed $30,000 for scaffolding hire charges not paid by Applicant in accordance with the contract / What were the terms of the contract / Whether there had been a breach of contract / If so, what remedy was available / Held: Respondent breached contract / Term of contract required Respondent to pay for weekly rental cost of scaffolding / Respondent had the benefit of the scaffolding for entire reroof process / Remedy was damages to put the innocent party back in the position, they would have been in but for the breach / Respondent ordered to pay Applicant $30,000 / claim allowed

Contract / Applicant contracted by Respondents to quote for renovation of property through Respondent's son / Applicant advised Respondent’s son 2% charge of sum of work quoted to be paid as deposit, absorbed in cost if quote accepted, payable if not accepted / Asbestos testing required at property for quote / Applicant contracted third party to complete asbestos testing / Respondents were present during testing / Quote provided by Applicant was rejected by Respondents as double the agreed budget / Applicant claims 2% sum of quote and cost of asbestos testing / Whether Respondents liable to pay 2% sum for quote / Whether Respondents liable to pay for asbestos testing / Held: Respondents not liable to pay 2% sum as Respondents did not authorise son to act on their behalf to agree to this charge / Quote provided was well outside of budget / Both parties jointly liable to pay third party costs for asbestos testing / Claim allowed / Respondent ordered to pay Applicant $2,167.75

Consumer Guarantees Act 1993 / Applicant purchased puppy from respondent for $3,000 / Puppy required multiple surgeries / Applicant's insurance company paid $15,000 to applicant under pet insurance policy / Applicant claimed $30,000 for puppy's treatment and loss of income / Respondent offered to take puppy back / Applicant declined offer, respondent elected to refund the purchase price / Whether respondent made false or misleading representations to applicant about puppy, inducing her to enter into the contract / Whether puppy was of acceptable qualilty / What remedy, if any, was available to applicant / Held: no misrepresentation established / Failure of guarantee of acceptable quality of puppy / Given extent of puppy's problems, failure of substantial character / Applicant already been refunded purchase price / Applicant did not establish she suffered initial treatment and diagnosis costs that were not covered by insurance / No further remedy available / Outcome: claim dismissed.

Contract / Contract and Commercial Law Act 2007 / Applicant purchased a vehicle from the Respondent for $3,400.00 / Respondent had purchased the vehicle from a friend / A finance company had a security interest registered over the vehicle / Finance company repossessed the vehicle as money was still owing / Respondent claimed he did not know money was owing when he purchased the vehicle / Applicant claiming $4,00.00 from Respondent / Whether the Respondent breached the contract of sale with the Applicant / What remedy was the Applicant entitled to / Held: Implied condition and warranties had been breached / Respondent did not have the right to sell the vehicle to the Applicant whether he knew there was a security interest or not / Applicant did not enjoy quiet possession of the vehicle / Applicant was entitled to damages for the breach of a warranty / Measure of damages was the estimated loss resulting from the breach / Damage was the price the Applicant paid to the Respondent / Applica…

[2021] NZEmpC 119 Bowen v Bank of New Zealand (Costs Judgment of Judge J C Holden, 3 August 2021) COSTS – GUIDELINE SCALE – financial hardship less important because attempting to have matter removed was not necessary – costs awarded.

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were drivers in a vehicle collision / Collision occurred when Respondent was passing a truck and Applicant exited driveway onto road / Applicant claimed $5,000 from Respondent / Respondent’s insurer counter-claimed $8,317.85 from Applicant / Which party caused the collision / Whether Respondent contributed to the collision / Whether costs claimed reasonable / Held: it is more likely than not that Respondent caused collision / Applicant failed to give way to a vehicle on the roadway when he exited the driveway in breach of legislation / Respondent created situation with risk / Applicant beared greater responsibility and respective liability assessed as 80:20 / Costs accepted and proved reasonable / Applicant liable for 80% of Respondent’s loss / Applicant ordered to pay $4,312.13 to Respondent / Claim and counter-claim allowed