Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Fencing law / Fencing Act 1978 / Parties are neighbours and had obtained interim Fencing Act order for building a boundary fence / Decision finalises the interim order with some amendments where necessary / The parties sought an updated quote from builder to allow variations to fence not included in interim order / Order sets out matters relating to how fence is to be constructed, payment of costs, and the timeline for when parties should complete acts they have been ordered to / Order records discussion at hearing of issues with as-built plans affecting plumbing to assist parties to continue with as-built plans and make corrections to plan where necessary / Order records 2nd Applicant's agreement to use best endeavors to investigate matters relating to plumbing in as-built plans and to lodge corrected plans with local council as soon as practicable.

[2024] NZEmpC 242  Halse and CultureSafe NZ Ltd v Hamilton City Council & Anor (Interlocutory judgment of Judge Holden, 5 December 2024) NON-PARTY DISCOVERY – SECURITY – application for non-party discovery – applicant and non-party agree that discovery was appropriate but disagree over costs of application – order for non-party discovery made – order conditional on applicant paying security for costs

Tort / Applicant alleged Respondent damaged Applicant's car while it was parked / Applicant and Respondent were colleagues who did not get on well / Applicant viewed security camera footage overlooking car from neighbouring business immediately after discovering damage and saw Respondent walking around car / Respondent said they were walking around car to inspect and feel scratches already on car / Applicant and insurer claim for costs of repairs / Held: Respondent caused damage to Applicant's car as Respondent was only person around car on relevant day, Respondent's behaviour inconsistent with just looking at car, behaviour consistent with damage caused, clearly carrying something more than just items Respondent said in evidence they were carrying / Damage to car repaired for cost of $4684 / Applicant liable to pay full cost / Claim allowed.

Negligence / Property / Respondent lived as a boarder in the Applicant’s house / Respondent was required to move out after damage by carpet moths was found in his room / Applicant sought recovery of costs associated with the infestation / Held:  evidence indicated that the carpet moth damage was the result of the Respondent’s lack of care / Respondent failed to keep his room in a condition that prevented or limited the moths’ growth / Reasonable boarder would have noticed the carpet damage and the moths and would have brought that to the Applicant’s attention / Evidence indicated that the carpet was beyond repair / Costs cannot be awarded for printing photos for the Applicant’s claim / Respondent ordered to pay $1,597.50 for carpet damage and associated costs / Claim allowed in part.

Negligence / Traffic law / Applicant had stopped to turn right with Respondent driving towards Applicant in opposite lane / Head-on collision occurred and Applicant and witness said Respondent had veered into Applicant's lane / Applicant claimed $9075.51 for written off car and towing costs / Respondent counterclaimed for $17955 for repairs and towing costs / Held: more likely than not that Applicant remained in own lane and collision was caused by Respondent / Witness said Respondent's vehicle was coming towards Applicant's vehicle despite sufficient room in Respondent's own lane / Respondent had duty to not drive in way that causes damage to other vehicles or property / Respondent breached duty by causing damage to Applicant's car and was liable for reasonable costs of returning Applicant to position they would have been in if breach did not occur / Costs claimed were reasonable / Respondent to pay Applicant’s insurer $9075.51 / Claim allowed and counterclaim dismissed.

[2024] NZEmpC 230 Pilgrim & Ors v The Attorney General & Ors (Costs Judgment of Chief Judge Inglis, 27 November 2024) COSTS - GUIDELINE SCALE - proceedings are Category 3 - steps are band B and band C - no basis for uplift - no costs appropriate against Attorney-General - disbursements reserved  

Contract / Consumer Guarantees Act 1993 (CGA) / Applicants hired rental car from Respondent using online booking platform / Car was damaged by third party / Applicants returned vehicle and provided third party’s details to Respondent / Respondent charged Applicants $5,022.50 for insurance excess, indicated refund available if Applicants contacted booking platform / Booking platform advised insurance policy was with Respondent, Respondent should be contacted for refund / Applicants made numerous attempts to follow up but Respondent had not refunded excess / Applicants claimed $6,322.50 for the excess, credit card surcharge and costs related to resolving dispute / Held: rental contract provided basic insurance coverage with $4900 excess, refundable if hirer not at fault or third party admitted liability / Respondent breached CGA by failing to make reasonable effort to resolve matter in reasonable time / Respondent breached contract by failing to follow up with third party / Filing fee or…

Independence Allowance – Part 4, Schedule 1, Accident Compensation Act 2001. Whether the assessment of the appellant’s level of impairment was flawed. Held: assessment did not adequately analyse the appellant's pain in relation to the covered injuries of chronic pain due to trauma, nor did it sufficiently consider the covered injuries. Outcome: Review decision quashed. The Corporation is directed to conduct a further reassessment of the covered injuries. The appellant is entitled to reasonable costs.

Fencing / Fencing Act 1978 / Parties own neighbouring properties with hedge separating the properties / Respondents had planted hedge in 2015 / Parties believed hedge was on boundary but had discovered it was actually on Applicants' land / Applicants sought to replace hedge with fence as hedge not adequate / Respondents believed parties had agreed to hedge being planted in its position in 2015 / Applicants said their lack of knowledge where boundary was invalidated their consent to hedge being planted / Applicants claimed $11,290 for removal of fence and replacement of hedge / Held: hedge (as a live fence) was an adequate fence / Hedge did encroach on Applicants' land but did so because Applicants' consented to it being planted there / Parties more than likely believed at time hedge was planted that hedge was on boundary and so Applicants' consent was valid / Hedge was an adequate fence as it was healthy and attractive and provided adequate visual protection and was a non-invasive spec…

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

Negligence / Land Transport Act 1998 / Applicant and Respondent had a car accident / Applicant claimed the Respondent's car had crossed over the give way line which caused the Applicant to run into him as he turned in front / Respondent had insurance cover which had paid for their car repairs / Applicant did not have insurance cover / Applicant sought $6,200.00 for repair costs / Held: always for an Applicant to prove their claim on the balance of probabilities / Applicant needed to prove that the Respondent's was at fault / Photographs taken immediately after the collision suggested that the Respondent’s car was behind the give way line at the intersection at the time of the collision / Tribunal unable to find in favour of the Applicant / Claim dismissed.

[2024] NZEmpC 220 Very Nice Productions Limited v Ormond (Interlocutory Judgment of Judge King, 19 November 2024) SECURITY FOR COSTS – plaintiff acknowledges impecuniosity – merits of case uncertain – plaintiff’s financial circumstances not caused by defendant – no evidence that an order for security would impact plaintiff’s ability to pursue challenge – no evidence of bad faith – balance of convenience favours security for costs – full sum of likely costs could bring proceedings to end – security of $10,000 ordered