Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Decision Date: 21 March 2014. Charges laid under s 91 of the Real Estate Agents Act 2008

[2014] NZEmpC 37 Puna Chambers Inc (formerly The Montessori Foundation) v Christensen [Costs Judgment of Judge Inglis, 14 March 2014] COSTS – Defendant seeks full costs against plaintiff after successful strike out application – No invoices provided in support of application – Costs of $3,629.00 would be reasonable – Indemnity costs not appropriate – Discount in costs not warranted – Plaintiff is ordered to pay defendant $2,500.00 as contribution toward costs.

[2014] NZEmpC 40 Dumolo v Lakes District Health Board [Judgment of Judge Perkins, 14 March 2014] CHALLENGE TO AUTHORITY DETERMINATION – Plaintiff dismissed for serious misconduct – Serious misconduct related to the removal of organisational property, namely, a DVD disc, for plaintiff’s own personal use - Dismissal occurred on 14 May 2010 and therefore prior to amendment to s 103A Act – Test is what a fair and reasonable employer “would” have done in all the circumstances – On balance, a fair and reasonable employer would have taken disciplinary action short of dismissal – Held dismissal unjustifiable – Remedies reduced under s 124 for plaintiff’s contributory conduct – Cross challenge concerned Authority’s costs determination – Held in appropriate cases representation by in-house counsel, advocates or employees will not necessarily preclude award of costs – But in view of findings in this case the Authority’s costs determination should not be disturbed -  Costs reserved.

[2014] NZEmpC 41 Nisha v LSG Sky Chefs Ltd [Judgment of Chief Judge G L Colgan, 14 March 2014] STATEMENT OF CLAIM – Challenge to Authority determination filed one day out of time – Calculation error on the part of applicant’s solicitors – Opposed by respondent – Respondent would have been aware of applicant’s intention to file challenge – Respondent unlikely to have suffered any prejudice – Adequate explanation for delay – Lack of success in first instance proceedings does not indicate a challenge’s lack of merit – Grant of application to be conditional on fulfilling order of Court in relation to order for stay of execution on costs determination

Determination on costs TRI-2012-100-000102/DBH: 5951. Decision date 11 March 2014.

Negligence / car collision / Applicant’s insurance company claimed against First Respondent for repairs / First Respondent counterclaimed against Second Respondent for necessary repairs, as driver of Applicant’s car / Held: while Tribunal placed little weight on First Respondent’s admission of liability, not persuaded that accident caused by Second Respondent / First Respondent failed to take sufficient care while driving / costs claimed were actual and reasonable / claim allowed, First Respondent ordered to pay insurance company $4,855.85 / First Respondent’s counterclaim dismissed

Candyland Ltd v Javis costs - lost wages and compensation

The Salad Bowl v Howe Thornley costs

Sale of Goods Act 1908 / goods bought by description / Applicant purchased a mini chipper/shredder from the Respondent / on two occasions the machine broke down and returned to the Respondent / Respondent found that the machine was missing a part / Applicant requested a refund / issue of whether goods bought by description have an implied condition that the goods are of merchantable quality / Respondent argued the store policy states that no warranty is offered and caveat emptor applies / Held: there must be an express agreement that the implied conditions of the Sale of Goods Act 1908 does not apply / the machine was not of merchantable quality at the point of sale / Respondent is to pay $1,000.00 to the Applicant being the purchase price of the machine.

Decision date: 4 Febraury 2014. The appeal under ACA 8/13 concerns an appeal against the costs awarded by the Review Officer in respect of three applications for review of decisions made by ACC in 1988, in the course of considering Mr Smith’s request for a reassessment of his lump sum compensation award for permanent disability, reinstatement of his earnings related compensation that had ceased in 1981, and retraining assistance to become a diesel mechanic. The Corporation is to pay Mr Smith costs of $2,000.00 and disbursements of $150.00 less any sums paid to date.

Decision Date: 03 February 2014. Charges laid under s 91 of the Real Estate Agents Act 2008

Contract / Applicant provided refrigeration advice and services to the Respondents / Applicant and Respondents agreed the new evaporator was not working / Applicant agreed to re-install the old evaporator at no cost to the Respondents / Applicant kept the new evaporator / when it came time to pay the Applicant, the Respondents withheld $3,000 from the total amount charged, stating that this reflected the cost of the new evaporator retained by the Applicant / issue of whether Applicant’s fees should be reduced for the cost of the evaporator and any installation costs / Held: the Applicant failed to supply the evaporator, and retained ownership and possession of it, so is not entitled to the payment for the evaporator / cost of evaporator is to be deducted from the $3,000 / Applicant is entitled to the remainder payment of $1,462.05 for the pipe work.

Contract / Consumer Guarantees Act 1993 / Applicant purchased a hover mower from Respondent / mower ran unevenly and was difficult to start so Applicant returned it for repairs / after receiving it back it ran no better and was returned again / 6-8 weeks later when Respondent attempted to return the mower Applicant rejected it and requested a full refund / Applicant claimed for repairs to their old mower, purchase price of the hover mower and the filing fee / Held: mower is not of acceptable quality / ongoing problems with starting and running that are intermittent / supported by evidence from a lawnmower shop owner who inspected the mower / issues and length of time they occurred mean the failures are of a substantial character / Applicant entitled to reject the mower under the Consumer Guarantees Act 1993 and entitled to full refund but not repair costs (of old mower) or filing fee / claim allowed, Respondent ordered to pay Applicant $988.