Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2021] NZEmpC 23 O’Boyle v McCue (Costs Judgment of Judge B A Corkill, 9 March 2021) COSTS – whether uplift is appropriate – Calderbank not taken into account because it was directed only to Authority investigation – issue of unpaid entitlements required significant attendances – costs increased by $4,000.

[2021] NZEmpC 20 Gate Gourmet New Zealand Ltd v Sandhu (Interlocutory Judgment (No 2) of Chief Judge Christina Inglis, 8 March 2021) APPLICATION FOR STAY OF DETERMINATION OF COSTS – substantive decision subject to appeal – determining costs now would layer additional costs – application granted.

Contract / Property Law Act 2007 / Fencing Act 1987 / Limitation Act 2010 / Respondents removed a shed on boundary between their and Applicants' properties leaving a concrete foundation / Boundary fence was damaged when concrete left exposed / Applicant removed concrete and erected new boundary fence / Applicant issued fencing notice / Respondents issued counternotice disagreeing with style of fence / Applicant claims $3,630.50 from Respondents in costs to remove concrete and erect boundary fence / Held: claim in breach of contract accrues from when shed removed and foundations left exposed / Length of time from when action accrued greater than six years / Claim barred by statue / Outcome: Respondents not liable for costs / Claim dismissed

Contract / Payment / Applicant entered into a contract with Respondent to complete an online personal training course / Respondent was liquidated and company sold to a third party / Third party seeks outstanding fees from Applicant, Applicant claims no money is owned to third party / Held: Insufficient evidence to show intention on part of Applicant and original Respondent to consent to the novation of the rights and obligation under the contract to a third party / Purported novation requires consent of Applicant which was not contained in terms of contract nor obtained from Applicant / No contract between Applicant and Respondent / Respondents counterclaim dismissed / Applicant not liable to pay $1, 846.39

Charges laid under s 91 of the Real Estate Agents Act 2008. Defendant found guilty of unsatisfactory conduct under s 72 of the Act. No penalty determined in this decision.

[2021] NZEmpC 12 Evans v JNJ Management Ltd (Costs Judgment of Judge J C Holden, 16 February 2021) COSTS – CALDERBANK OFFER – Calderbank offer did not include costs incurred to that point – employee still entitled to costs.

An appeal under section 111 of the Real Estate Agents Act 2008. Unsatisfactory conduct under s 89(2)(b) and s 73 of the Real Estate Agents Act 2008. Lack of information to make judgment that loss was suffered due to misrepresentation. Cross-appeal relating to costs order dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant took car to Respondent to have rust around windscreen of his vehicle repaired / Some months later Applicant was advised windscreen needed repairing again / Applicant claimed $1,787.20 for second rust repair costs as well as lost earnings / Whether rust repair was carried out with reasonable care and skill / Whether Applicant was entitled to remedies / Held: evidence indicated repair was carried out with reasonable care and skill / claim dismissed.

Penalty / misconduct for providing regulated services to the public other than in the course of her employment / inadvertent but serious technical breach of s 9(1) / lawfully provided trust administration services prior to admission / Lawyers and Conveyancers Act 2006, section 9(1) / HELD / continued to carry on trust administration while employed as solicitor / mitigating factors include unintentional breach, conduct stopped in 2015, and otherwise blameless record / name suppression declined as threshold to displace presumption of open justice not reached / risk to current firm is slight / Tribunal ordered censure / practitioner to pay Standards Committee’s and Tribunal’s costs

Complaint / Committee declined to take further action / insurance claim and franchise advice / complaint lawyers not competent, charged fees that were not fair and reasonable, and did not make it clear an invoice did not cover franchise advice from another firm / HELD / jurisdiction / application for review included request to review two determinations; one was out of time to review / Complaint Services’ decision to split complaint into two files is an administrative decision, review jurisdiction is to review aspects of Committee’s inquiry / nevertheless, decision to separate complaints logical / no evidence of professional conduct issue / disciplinary process does not closely analyse and second guess litigation decisions / mistaken assumption that an invoice covered franchise advice / franchise advice properly chargeable / fees fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / property transaction / complaint lawyer’s fees not fair and reasonable, advised opposing party the dispute was not worth litigating, inappropriately terminated retainer, and instructed a debt collector a day earlier than advised / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.2 / rule 4.2.3 / rule 7.1 / rule 9 / rule 9.1 / HELD / fees fair and reasonable / breach of rule 7.1 / lawyer failed to advise client as instructed / disciplinary response not warranted in context / lawyer terminated retainer 10 days before hearing / termination does not call for a disciplinary response in context of repeated failures to pay fees / lawyer withdrew instructions to debt collector on receiving complaint / Committee’s decision confirmed / section 211(1)(a)

Consumer / Applicant purchased a new build from Respondent's company with faulty central heating system / Company now removed from Register / Applicant claims $27,100.30 in repair and legal costs / Held: Applicant not able to seek redress from company as has been removed from Register by Respondent / Applicant can claim against Respondent personally / Claim is within Dispute Tribunal jurisdiction / Applicant was a consumer and law recognises imbalances between consumer and business in other areas of law / Applicant has legitimate breach of contract claim against company / Respondent had knowledge of failure when company removed from Register / Applicant entitled to claim repair costs / Breach of warranty / Breach of statutory guarantee / Legal costs largely not recoverable / Claim allowed / Respondent ordered to pay Applicant $14,047.80.

Contract / Contract and Commercial Law Act 2017 / Applicant sent a computer using a courier service / Respondent said the postal service was under a contract with another party / Following collection and before the item arrived at intended destination a redirection request was made / Computer never arrived at first destination or redirected address / Applicant unable to collect computer from depot due to Covid 19 restrictions /  Computer sent to redirected address but never arrived / Respondent said no ability to locate computer due to nature of contract with other party / Applicant claimed never given an option to pay for posting once the parcel was located at the depot or told there was anything irregular with tracking of the package / Applicant claimed $635.00 for costs of computer plus filing fee / No contract between parties and no liability at law from Respondent to Applicant for loss of computer / Applicant took a risk sending the parcel / Claim dismissed.