Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Co-Applicant engaged by Respondent to supply and install fibre-glass swimming pool / Applicant contracted to carry out earthworks required for pool installation / Pool installation delayed / Installation price increased / Pool colour not the colour chosen by Respondent / Applicant claimed unpaid balance of invoiced amounts / Held: contract terms and conditions allow Applicant to alter or amend estimate costs therefore Respondent is liable to pay Applicant actual invoiced cost of earthworks variation / Applicant entitled to pay reinstatement work incurred by Respondent / Applicant liable to refund price increase to Respondent / Applicant breached contract by supplying different pool to Respondent / Reduction in cost of pool shell charged an appropriate level of damages / Respondent ordered to pay Applicant $6,519.63 / Co-applicant ordered to pay Respondent $18,905.50 / Claim allowed in part / Counter-claim allowed in part.

Negligence / Land Transport Act 1988 / Land Transport (Road User) Rule 2004 / Collision between Applicant and Respondent’s vehicles at a roundabout / Dispute over which party was at fault / Applicant and her insurer claimed the cost of car repairs of $6,017.15 / Held: insufficient reason overall to prefer one account over another / Respondent not liable to pay for damage / Both parties bear the costs of their own repairs / Claim dismissed.

Contract / Fixed Price Building Contract / Applicant entered contract to purchase house and land package from Respondent / Applicant advised some aspects had not been completed at handover / Fridge water was a term in the contract / External stairs were not a term in the contract / No agreement made to vary the contract by removing bifold doors in the kitchen / Applicant not liable for work completed under stairs as no evidence that the change would be on a charge up basis / Held: Applicant successful for a refund of $220.00 paid for fridge water / Balance of claim for compensation struck out

Contract / Respondent booked one of Applicant’s bands for an event for $3,702.50 / Full payment was to be made 14 days prior to performance / Respondent agreed to terms proposed by Applicant / Respondent paid $289.50 deposit / Applicant said it was entitled to full payment / Respondent refused to pay $3,412.70 balance / Respondent said band started late and music was too slow to dance to / Applicant said it was unaware a dance band was required / Applicant sought an order that Respondent was liable to pay $4,206.00, for balance and related costs / Respondent counterclaimed that Applicant was liable to pay damages of $6,800.00 / Held: Respondent entitled to balance / Unable to find Applicant breached contract / Respondent did not specify it wanted a dance band until night of event / Respondent ordered to pay $3,412.70 / Claim allowed and counterclaim dismissed.

Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard) for miscommunication leaving prospective purchaser to understand he was asked to lie about reason for withdrawing offer / Real Estate Agents Act 2008, s3, s72, s110, s110A / HELD / low level of unsatisfactory conduct / licensee’s communication was garbled / no deceit involved / licensee cannot rely on clean record due to prior finding of unsatisfactory conduct / costs principles in TSM applicable to unsatisfactory conduct cases / orthodox position of 50 per cent costs can be displaced particularly where Committee failed on all charges and unsatisfactory conduct was not advanced by Committee but found by Tribunal / licensee admitted underlying facts early in case and admitted unsatisfactory conduct prior to hearing / no factors in s110A indicate costs should be awarded against licensee / censured / ordered to pay $2,000 financial penalty / no costs order made

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased motorhome from Respondent / Motorhome would not engage gears while travelling and required repairs / Applicant claimed repair and towing costs / Held: evidence showed premature failure of parts in transmission of motorhome / Respondent had opportunity to repair motorhome when notified but failed to be involved / Applicant entitled to all repair costs and consequential loss / Respondent ordered to pay Applicant $22,257.95 / Claim allowed.

[2023] NZEmpC 123 Boulton v Food Thingy Ltd T/A Bird the Word (Interlocutory Judgment of Judge J C Holden, 11 August 2023) SECURITY FOR COSTS – application not granted – plaintiff not shown to be impecunious.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased second-hand hearing aids and charger / Faults developed in both items / Items sent to Respondent manufacturer for repairs / Hearing aids were repaired under warranty, but warranty for charger had expired, Respondent charged $185.14 for repair / Applicant believed charger worth $400 new should have lasted longer / Applicant claimed for recovery of repair charge / Held: Applicant did not need to be original purchaser to bring claim against manufacturer / Reasonable consumer paying retail price would expect charger to last longer than 18 months / Charger failed within 18 months, therefore was not of acceptable quality / Respondent ordered to pay Applicant $185.14 / Claim allowed.

Contract / Applicant purchased house / Respondent acted as vendors’ solicitor / Applicant brought claim regarding purchase against Respondent as did not have contact details for vendors / Some imprecision in how Applicant named Respondent in claim / Respondent claimed Applicant’s claim was frivolous / Applicant requested $500 costs award / Held: Applicant raised no legal basis for claim against Respondent / Dispute arose from Applicant’s contract with vendors / Claim could only be brought against vendors / High threshold for finding claim frivolous or vexatious not met in this case / Applicant not acting in bad faith / Claim dismissed.

Appeal / auctioneer misinterpreted indication of maximum price as bid and put purchaser under undue pressure at auction / licensee misrepresented property’s location and number of bedrooms / Committee found unsatisfactory conduct for misrepresenting number of bedrooms and took no further action on other heads of complaint / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.4, r9.2 / HELD / purchaser’s narrative of auction events improbable / common practice for auctioneer to privately negotiate with bidders when auction stalled / threshold for undue pressure is high / purchaser more likely than not understood he placed bid / online advertising text itself misleading as to location of property, but advertising material in totality not misleading / purchaser’s email was a submission / submissions process followed by Committee was proper / Tribunal agreed with penalty imposed by Committee for same reasons as Committee / appeal dismissed / Committee’s decision confirmed

Contract / Consumer Law / Consumer Guarantees Act 1993 / Applicant provided weekly garden and ground maintenance services to Respondent / Respondent terminated contract / Applicant claimed $28,437.56 in outstanding invoices / Respondent counterclaimed $30,000 for costs incurred for garden maintenance following termination of Applicant’s contract / Held: Applicant’s work done to a reasonable standard / Insufficient evidence to support claims of complaints made by tenants or owner about garden / Planting plan proposed by new gardeners not required by failure of Applicant to provide services with reasonable car and skill / Respondent’s failure to pay invoices within seven days was breach of contract / Respondent ordered to pay Applicant $28,437.56 / Claim allowed, counterclaim dismissed.

Claim for costs on appeal. Outcome: Respondent order to pay Appellant $1,358.25 ($1,238.25 costs and $120 disbursements). Appeal allowed.

Tort / Applicant and Respondent were neighbours / Relationship between parties became strained / Applicant alleged Respondent threw stones at his house breaking windows, scratched his car, spray painted insult on shared fence / Respondent applied for restraining order against Applicant, proceedings later discontinued / Applicant claimed $9567.41 for cost of repairing property damage and legal fees incurred defending restraining order application / Held: no direct evidence Respondent caused any damage complained of / No legal basis for Tribunal to find Respondent liable for Applicant’s legal costs / In any case, parties agreed not to seek costs when discontinuing restraining order proceedings / Claim dismissed.