Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2024] NZEmpC 26 Pyne v Invacare New Zealand Ltd (Costs Judgment of Chief Judge Christina Inglis, 23 February 2024) COSTS – GUIDELINE SCALE – High Court Rules apply in the Employment Court to procedural matters, not substantive matters like the determination of costs – Calderbank offers should be evaluated in the context of inherent imbalance of employment relationships and encouraging enforcement of employment rights – Calderbank offer ignored – costs awarded.

Contract / Parties were flatmates / Respondent as head tenant asked Applicant to leave the flat and have room professionally cleaned due to drug use / Applicant vacated property but failed to have room cleaned / Applicant claimed for return of $721 bond / Respondent counterclaimed for costs of having Applicant’s room cleaned and for security cameras purchased in response to threats allegedly made by Applicant / Held: implied agreement between parties that if Applicant used drugs inside the property, they were required to pay for professional cleaning to remove drug residue / Applicant not liable for cost of security cameras / Applicant required to pay $531.30 for cleaning, entitled to remaining $189.70 of bond / Respondent ordered to pay Applicant $189.70 / Claim and counterclaim partially allowed.

Contract / Consumer Guarantees Act 1993 / Applicant bought spa from Respondent / Spa motor failed and Respondent refused to remedy problem / Applicant claimed $1,798 from Respondent / Held: supplier of Applicant's spa most likely Respondent, who was operating business at the time / Applicant does not have a contract with new business owner / Spa not of acceptable quality / Applicant entitled to payment of costs to fix problem with spa / Respondent should be given an opportunity to remedy fault in spa /  Respondent ordered to pay Applicant $378 / Claim allowed in part.

Sanctions / adviser’s service contract omitted details of second adviser and payment terms / refund clause did not comply with Code / mismanaged client funds / failed to provide file notes in client file / failed to confirm material discussions / failed to manage filing system / failed to ensure visa application documents were correct and complete / Code of Conduct 2014, cl1, cl19a, cl19i, cl24a, cl25a, cl25b, cl25e, cl25f, cl26aiii, cl26c, cl26d / HELD / fifth appearance before Tribunal / gravity of wrongdoing at higher end of moderate given high number of breaches / mismanagement of client funds most serious breaches, but no deceit / no training as adviser recently completed training and wrongdoing occurred before training undertaken / Tribunal cannot ignore systemic wrongdoing / partial refund due to breadth of failures / no compensation as adviser’s conduct did not cause declined visa / adviser censured / ordered to pay $6,000 financial penalty / ordered to refund fees of $1,438

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to carry out Weathertightness Report on property in order to satisfy Applicant’s bank / Applicant paid $920.00 for inspection and report / Bank requested photographs of moisture meter readings / Respondent offered to take photographs for further $200 plus GST / Applicant engaged another inspector to provide information / Applicant claimed Respondent’s report not fit for particular purpose and Respondent failed to provide its service with reasonable care and skill / Applicant claimed refund of $736.00, being 80 percent of price paid / Held: Report fit for purpose / Service provided with reasonable care and skill / Photographs not usually required / Claim dismissed.

Contract / Applicant sold a property to Respondent / Respondent negotiated price reduction due to asbestos in the building / After settlement, Applicant found that Respondent was in negotiation with another party to sell the property / Remedial work for asbestos had not been carried out / Applicant claimed he should be reimbursed as he agreed to lower selling price on basis that remedial work would be carried out / Held: not unusual for prices to be reduced due to state of a property / Agreement between parties was for price reduction as asbestos would be costly to remove / Neither the negotiation nor the agreement required Respondent to remove asbestos / Claim dismissed.

Objection to valuation by Council - Land Valuation Proceedings Act 1948, s 19(8)(b) – Rating Valuations Act 1998, s 36 – Valuation agreed by consent – No costs order.

Consumer law / Fair Trading Act 1986 (FTA) / Consumer Guarantees Act 1993 (CGA) / Applicant booked rental car with First Respondent using Second Respondent’s website, paid $18.02 deposit / When collecting car, Applicant was advised by First Respondent of $150 surcharge due to Applicant’s age / Applicant refused to pay surcharge as it had not been advised at time of booking, sought refund of deposit / Refund initially refused, but later paid after claim filed / Applicant sought $90 for Tribunal filing fee and $2500 damages for stress and inconvenience / Held: Second Respondent misled Applicant as to price of rental car, breaching FTA / First Respondent was not responsible for content on website, so had not breached FTA / First Respondent failed to provide customer service with reasonable care and skill, breaching CGA / Immediate loss suffered by Applicant was $18.02, which had been refunded / No further compensation payable / Claim dismissed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased car from Respondent / Car had significant mechanical problems / Applicant said Respondent misrepresented condition of car / Applicant would like to cancel agreement and claimed for refund and servicing costs / Respondent said he sold car in good faith / Held: insufficient evidence to show that a misrepresentation has been made / No compelling evidence that Respondent knew there was something wrong with the car / Claim dismissed.

[2024] NZEmpC 20 VXO v Te Whatu Ora (Interlocutory Judgment (No 2) of Judge J C Holden, 16 February 2024) APPLICATION FOR STAY – no grounds for stay - APPLICATION FOR SECURITY FOR COSTS – no basis for security for costs.

Objection to valuation adopted by Council – Rating Valuations Act 1998, s 36 – Valuation agreed by consent – No costs order.

Consumer law / Fair Trading Act 1986 / Applicant purchased two tickets for a concert for $356.30 / Tickets were later advertised at a special price of $99.00 / Applicant claimed that when she bought the tickets she asked if they were the cheapest price available / Applicant claimed $203.30, being the difference between the price she paid and the discounted ticket price, plus filing fee / Held: no guarantee made when Applicant purchased tickets that they would be lowest price / No law prohibiting promotion of subsequent discounts for an event / Respondent did not engage in misleading or deceptive conduct / Claim dismissed.

Negligence / Applicant and Respondent were neighbours with a shared driveway / Respondent had a pile of scoria that was uncontained / Applicants property flooded on three occasions during storms as a result of debri washed down from the Respondents property / Applicant claimed $235.75 for costs of clearing the drain and $514.94 for two days' lost income / Held: Respondent was liable for part of the drain blockage but there were other contributory factors / Unreasonable for Respondent to compensate for two days' income / Respondent ordered to pay $493.22, drainlayer cost and half the amount claimed for loss of income / Claim granted in part.