Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Review / Committee declined to take further action / litigation fees / complaint lawyer was not efficient, legal fees exceeded recovery, and did not invoice in accordance with terms of engagement / fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 29 / VM v XZ [2020] NZLCRO 216 / HELD / Committee incorrectly applied reg 29 / only reviewed last nine months of fees / Committee’s fee complaint analysis was superficial and proceeded only on the basis of the complaint and the response / Committee directed to reconsider complaint / section 209

Appeals under s 111 of the Real Estate Agents Act 2008. Appeals against decision to take no further action on complaint of collusion, Committee’s finding that licensees guilty of unsatisfactory conduct in relation to non-disclosure, and appeal against penalty. Outcome: appeals dismissed. Applicant allowed costs.

Contract / Section 144 of the Contract and Commercial Law Act 2017 / Applicant supplied Respondent stock / Respondent only sold small portion of stock and wished to return remaining stock in exchange for credit / Applicant claimed $15,000.00 towards invoices / Respondent counterclaimed $3,340.00 for storage costs / Held: Applicant not obligated to accept the goods return / Respondent must make payment for the goods in accordance with the contract / Applicant limits claim in accordance with Tribunal’s jurisdictional limit / Respondent ordered to pay Applicant $15,000.00 / Claim allowed.

Contract / Flatmate agreement / Respondent entered applicant’s bedroom multiple times when intoxicated in the night / Applicant sought repayment of bond of $350 from the respondent / Respondent sought rent and miscellaneous costs from applicant / Whether the applicant entitled to cancel the contract / Whether the amount claimed was proven / Held: implied term of contract that the head tenant should not enter the flatmate’s exclusive use area without their consent / privacy and personal security an essential party of the contract / Breach was sufficient to justify the applicant cancelling the contract / Respondent suffered financial loss resulting from a situation of his own making / Respondent ordered to pay $350 to the applicant / Claim granted.

Contract / Payment / Applicants entered into contract with company to do plumbing work for First Respondent / Work halted as First Respondent could not pay invoices / After Applicant met with Second Respondent work continued / Two further invoices issued and not paid / Applicant claims Second Respondent said he would personally pay for work / Applicant claims $6,002.99 from Second Respondent / Second Respondent claims he was facilitator and payments he made were paid as loan to First Respondent / Held: Second Respondent had personally paid company for previous work and said he would pay for work to finish job / Second Respondent did not say he was acting as agent for First Respondent / Second Respondent liable for payments on basis he promised to personally pay / Claim allowed except for costs and claimed interest / Discretionary interest granted, calculated in accordance with Interest on Money Claims Act 2016 / Second Respondent ordered to pay Applicant $5,193.51.

Negligence / Applicants involved in car collision with Respondent / Applicants and Applicant's insurer claim repair costs on basis Respondent caused the crash / Damage to cars supported view that Respondent caused crash by failing to give way / Applicant’s use of flush median was legal but more care was needed / Damage to Applicant's car suggests he was not travelling slowly / Held: Respondent has 75% liability and Applicant 25% / Respondent liable for 75% of repair cost to Applicants car / Respondent must pay Applicant's insurer $5893.60

Contract / Roof work / Applicant requested a quote from the respondent for roof work / Quoted price of $3,252.00 was accepted by applicant / Applicant paid fifty percent deposit and respondent carried out work / Applicant had no issue with the quality of work / applicant believed he was overcharged due to number of workers and time spent on the roof work  / Applicant refused to pay balance owed on contract / Respondent counterclaimed $1,626.00 / Whether the law provided an opportunity for a fixed price contract to be reviewed / Whether the respondent mispresented the amount of work or materials needed / Held: time to explore whether bargain was reasonable was before agreement was made not after work was done, unless a price for work was not set in the contract /no misrepresentations made by the respondent regarding the work to be carried out / contract was clear about how work would be done and the price charged / outstanding amount is overdue / Applicant ordered to pay $1,626.00 to th…

Charges laid under s 91 of the Real Estates Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(b) (seriously incompetent or seriously negligent real estate agency work). Censured and ordered to pay a fine of $3,000. Ordered to pay $650 to the Authority as contribution towards the Committee's costs. Application for an order restricting publication declined.

Contract / Car advertised for sale on Facebook Marketplace / Applicant expressed interest / Respondent agreed to hold car until following day for agreed price / Respondent said he would take car for warrant of fitness next morning and adjust price accordingly / Respondent then sold car to another party without contacting Applicant / Respondent claims difference between what he had agreed to pay for the car and cost of getting another similar car, travel costs, and refund of Disputes Tribunal fees / Respondent counterclaimed that claim was frivolous / Held: Consumers Guarantees Act does not apply to the claim / There was a clear offer and agreed terms / There was acceptance of offer / There was adequate consideration / Parties intended to create legal relations / There was a contract between parties / Respondent breached contract by selling car to third party without notice to Applicant / Respondent owes Applicant $2450.00 being the difference between what he would have paid for the car…

[2021] NZEmpC 104 Oliver v Biggs (Costs Judgment of Judge B A Corkill, 8 July 2021) COSTS – DISCONTINUANCE – costs should be awarded because of lengths plaintiff had to go prior to discontinuance – guideline scale costs awarded with reduction.

[2021] NZEmpC 102 Crossen v Yangs House Ltd (Judgment of Judge K G Smith, 7 July 2021) SETTLEMENT AGREEMENT – FINALITY – whether settlement agreement covered minimum employment standards – settlement agreement wording was clearly to cover all issues between parties – s 149 settlement agreements can cover minimum standards if they are disputed - breaches of minimum standards were disputed in this case – settlement agreement resolved all issues between parties – IDENTITY OF EMPLOYER – no evidence that employee was employed by company owner in a personal capacity – PENALTY FOR FAILURE TO PROVIDE WAGE AND TIME RECORDS – Authority had discretion not to award a penalty – discretion was exercised appropriately – CHALLENGE TO AUTHORITY COSTS AWARD – evidence not provided – all challenges dismissed.

Property / Nuisance / Fencing Act 1978 / Applicant and Respondent were previously neighbours / Applicant claims $30,000.00 from Respondent for the costs of building a retaining wall and replacing a boundary fence / Respondent counterclaims $4,233.85 for costs incurred in defending Applicant’s claim / Whether Respondent was responsible for half the cost of fence and wall / If so, what remedy was available to Applicant / Whether the Respondent was able to claim her costs from Applicant / Held: Respondent no longer owner of the property next to Applicant / No evidence to suggest Respondent used former property in an unreasonable manner that interfered with the Applicant’s property / Held: Respondent not liable for half the cost of the fence or the retaining wall / No remedy available to Applicant / Reasonable to assume Applicant brought his claim based on a reasonable belief / Applicant not found to have unnecessarily prolonged proceedings / claim and counterclaimed dismissed.

[2021] NZEmpC 98 Head v Chief Executive of the Inland Revenue Department (Judgment of the Full Court, 5 July 2021) APPLICATION FOR STAY – whether costs should be determined while case is on appeal – convenient to decide costs close to substantive hearing – deciding costs now would allow Court of Appeal to consider all matters together – application declined.