Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Consumer Guarantees Act 1993 / Applicant bought a pony from Respondent for her daughter / Pony had a substantial bucking habit which was not able to be resolved / Applicant claimed refund of the purchase price and costs associated with transport and upkeep of pony / Respondent claimed that the Applicant waited too long after purchase to raise concerns, was advised of pony’s tendency to buck, had caused an escalation of issue by delaying remedial work, had not viewed the horse or explained purpose pony was sought / Held: pony was misdescribed in advertisement / Pony was not of acceptable quality per Consumer Guarantees Act 1993  / Applicant entitled to reject the pony and get a refund / Claim allowed / Respondent to pay Applicant $5,000.00 / Respondent to arrange collection of pony / Ownership of the pony re-vested in Respondent

[2020] NZEmpC 1 Tupuanga v Auckland Meat Processors Ltd (Interlocutory Judgment of Chief Judge C Inglis, 28 January 2020) APPLICATION FOR SECURITY FOR COSTS – no evidence of impecuniosity – application dismissed.

Management of agreed repairs / disagreement over scope of works / determining reasonable costs / State Insurance policy / insurer required permission before expenses incurred / insurer’s control over reinstatement process / duty of good faith / implied condition that insurer obliged to have due regard to interests of insurer / insurer required to balance cost v risk / implied condition that insurer not to unreasonably withhold permission to incur expense / IAG reasonably withholding permission to replace skylights / IAG unreasonably withholding permission to seek Master Build Guarantee, to encapsulate roof, to repair T & G floor boards by gluing from below, and to incur professional inspection fees / fabric roof repair required IAG to balance weathertight risks with cost of repairs / IAG able to choose between reasonable alternative repair options for fabric roof / IAG unreasonable to refuse permission for homeowner’s proposal for repair of fabric roof as IAG’s favoured alternative rep…

[2019] NZEmpC 192 Johnson v Chief of the New Zealand Defence Force (Judgment of Judge B A Corkill, 19 December 2019) UNJUSTIFIED DISADVANTAGE – alleged sending of critical email – no action taken but assumption that allegation true - law on disadvantage considered – plaintiff put to burden of proof – inadequate enquiry – plaintiff was unjustifiably disadvantaged - $20,000 compensation plus 50% contribution to costs – interest – recommendation under s 123(1)(ca).

Case stated / application for referral of question of law to High Court / whether insurer’s obligation to pay repair cost of house to policy standard includes obligation to pay reasonable cost required to remedy defective repair work / insured’s claim for earthquake damage to house accepted / repair work completed & insurer paid full contract price / repair work defective / insured claims insurer should pay for cost of bringing house up to policy standard by repairing damage & rectifying defective repairs / Canterbury Earthquakes Insurance Tribunal Act 2019, s 53 / question one of contractual interpretation & so a question of law / question addresses primary cause of action raised against insured & requires urgent determination in High Court / positive or negative answer would lead to speedier & more cost effective outcome for insured / case stated likely to be provide important benefits, not only for insured, but for many other homeowners / application granted.

Complaint / Committee declined to take further action on complaint / liquidation matter / complaint by unsecured creditor that lawyer’s fee and structure unfair / lawyer entered a conditional fee agreement with liquidator / Committee decided applicant not a person chargeable and declined jurisdiction to consider complaint / Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 9 / Weathertight Homes Resolution Services Act 2006 / HELD / applicant not a party to fee agreement / lawyer acted for liquidator not applicant / applicant not a person chargeable with respondent’s bill of costs / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / lease renewal / complaint lawyer acted beyond instructions and did not seek payment from landlord for lawyer’s fees / Hunstanton v Camborne LCRO 167/2009 (10 February 2010) / Chean v Kensington Swan HC Auckland Civ-2006-404-1047, 7 June 2006 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / no evidence of professional standards issue / focus of complaint is on landlord’s failure to cover fees / fees reasonable / Committee’s decision confirmed / section 211(1)(a)

03.12.19 | Judge Coxhead | Te Ture Whenua Māori Act 1993, section 281 | Costs

Application under s 110A of the Real Estate Agents Act 2008, for costs.Application granted, parties given dates to file required documentation.

Review / Committee found unsatisfactory conduct / Family Court proceedings / complaint lawyer failed to protect interests and act in accordance with fiduciary duties / fee complaint / Family Court set aside relationship property agreement / Committee ordered $150,000 fee refund / Property (Relationships) Act 1976, section 21 / P v H LCRO 02/2009 / TJ v DM LCRO 261/2016 / HELD / elements of joint complaint vexatious / evidence does not support allegations in complaint / Committee may not order refund exceeding fees paid / lawyer kept client informed and provided competent advice / no evidence of assurances that costs position was secure / retainer uncertain with litigation risk / no further action on fee complaint as joint complaint vexatious / section 211(1)(b) / Committee’s decision reversed / section 211(1)(a) 

Contract / Contract and Commercial Law Act 2017 / Applicant purchased horse from Respondent in private sale / shortly after purchase horse displayed signs of lameness / Applicant advised by veterinary horse had arthritis in proximal intertarsal joint / Applicant claimed horse had arthritis at time of sale and was misrepresented by Respondent / Applicant claimed refund and vet bill costs required to diagnose horse with arthritis / Held: at time of sale it would not have been possible for signs of arthritis to be present based on evidence from two veterinarians / Respondent advised Applicant at time of sale that horse had history of OCD and could develop arthritis / Respondent did not misrepresent horse and held honest opinion on knowledge at time of sale / Claim dismissed

[2019] NZEmpC 164 Packwood v ANZ Bank New Zealand Ltd (Costs Judgment of Judge B A Corkill, 14 November 2019) COSTS –successful strikeout – ability to pay – financial circumstances relevant – guideline scale considered - costs awarded.

[2019] NZEmpC 161 Saunders v The Chief Executive of the Inland Revenue Department (Costs Judgment of Judge J C Holden, 13 November 2019) COSTS ON APPLICATION FOR STAY OF PROCEEDING – application withdrawn – costs order not opposed – costs awarded.