Previous Section | Table of Contents | Next Section
Aerengamate v Optimum Performance Ltd
15 Aug 2006, D King, AA 200A/06, (1 pages)
COSTS - Successful personal grievance - Length of investigation
meeting not specified - Applicant legally aided with $770 grant - Fees incurred
reasonable, respondent to meet full
costs
Result:
Costs in favour of applicant ($770)
Booker (Labour Inspector) v Gill t/a Gills Cleaning Services
15 Sep 2006, V Campbell, AA 294/06, (3 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought holiday
pay, interest, penalty and costs - Outstanding holiday pay owed upon termination
of employment - No appearance by respondent - No good cause for failure to
attend - Authority satisfied respondent served notice of investigation meeting -
Respondent failed to keep or produce wage and time records - Prejudiced
applicant's ability to bring accurate claim - Arrears of holiday pay due and
owing - Interest 8.5 percent - Applicant directed to serve copy of determination
on respondent forthwith - PENALTY - Respondent in breach of ERA s130 2000 for
failure to keep wage and time records - Appropriate penalty be imposed - COSTS -
Applicant entitled to filing fee -
Cleaner
Result: Application granted ; Arrears of holiday pay ($555.69)(Payable to Labour Inspector) ; Interest (8.5%) ; Penalty ($250)(Payable to Crown) ; Orders accordingly ; Disbursements in favour of applicant ($70)(Filing fee)
Clark v Northland Hunt Incorporated
7 Feb 2007, Perkins J, AC 6/07, (1 pages)
COSTS - Unsuccessful de novo challenge to determination of
Employment Relations Authority (see: AC 66/06) - Defendant sought
contribution of $18,240 towards total costs of $31,478.91 including GST and
disbursements - Amount sought was based on category 2B High Court scales
- Costs in Employment Relations Authority already dealt with by Authority
- HELD - Starting point for costs in Employment Court was sum
actually incurred by defendant amounting to $16,173.13 - Was modest fee
for nature of proceedings - Reasonable contribution to costs actually and
reasonably incurred was $11,000 - Plaintiff to pay defendant
$11,000
Result: Costs in favour of defendant ($11,000)
Darling v Platinum Properties Ltd
31 Jul 2006, P Cheyne, CA 78A/06, (2 pages)
COSTS - Partially successful personal grievance, arrears claim and
penalty - 1½ days investigation meeting - Applicant sought costs of at
least $9,288, being 66 percent of actual costs - Respondent argued any costs
should be limited to $1,600 in line with Calderbank offer made following
mediation - Calderbank offer irrelevant as fell short of mark - Award of costs
only to cover work for investigation meeting, not mediation - Applicant's
application for amendment to legal aid grant undecided - Authority inferred
grant for purposes of mediation and extension requested to cover Authority
proceedings - Grant would probably limit amount counsel able to charge - Given
difficulties, best course was to start with assessment of time reasonably
required for applicant's participation in investigation process - Authority
considered steps required by counsel and determined 32 hours professional time
required - At reasonable rate of $200 per hour, reasonable fees would be $6,000
- Authority mindful modest award would see largely successful applicant out of
pocket - However, not determining factor - Proper point of reference was level
of costs reasonably incurred - No evidence about respondent's ability to meet
award of costs despite claim was start-up enterprise operating monthly deficit -
Respondent introduced substantial amount of evidence that on its view of events
must have been irrelevant - Resulted in matter taking more than single day and
caused extra costs
Result: Costs in favour of applicant ($4,500) ; Disbursements ($70)(Filing fee) ; ($150)(Meeting fee)
Farmers Transport Ltd v Kitchen
27 Feb 2007, Shaw J, WC 6/07, (1 pages)
COSTS - Unsuccessful de novo challenge to determination of
Employment Relations Authority (see: WA 44/06) - Defendant sought costs
for Authority and Employment Court proceedings - Authority had already
awarded $3,000 costs in favour of defendant - For Court, defendant sought
contribution to actual costs of $17,025 including GST plus disbursements of
$27.68 - One day hearing - Plaintiff alleged defendant's costs
unreasonable - HELD - Costs order in Authority was not specifically
challenged and there was no reason to interfere with it - Because
counsel's hourly rate was not known and no breakdown of amount claimed was
supplied, an alternative and more certain approach was to apply the High Court
scale of costs - Category 2 band B of the High Court scales amounted to
$8,320 - Plaintiff to pay costs of $8,320 plus GST plus disbursements of
$27.68
Result: Costs in favour of defendant ($8,320 plus GST plus disbursements of $27.68)(Court) ;Costs in Employment Relations Authority confirmed
Flight Centre v Keys
11 Aug 2006, H Doyle, CA 120/06, (4 pages)
COSTS - Applicant discontinued claims against respondent before
substantive investigation meeting but after interlocutory matter and number of
telephone conferences - Respondent sought actual costs of $8979, including
mediation costs, plus disbursements - Authority not prepared to award costs for
mediation - Claim against respondent no more substantial than others in
Authority but had degree of legal complexity - As no investigation meeting
Authority not able to form view on whether claim brought for wider commercial
reasons - No direct evidence respondent's current employer funded defence - No
grounds to justify actual costs - Considered reasonable costs would be about
$3,000 even for experienced counsel - Disbursements not specified - Fair and
reasonable in circumstances to make higher than normal award for claim
discontinued before investigation
Result: Costs in favour of respondent ($2,000 including disbursements)
Humphry v Murphy's Kitchen and Home Renovators Ltd
14 Feb 2007, P R Stapp, WA 27/07, (2 pages)
COSTS - Successful personal grievance - One day investigation
meeting - Applicant sought costs - Applicant received legal aid of $2,820 -
Appropriate to fix contribution as 75 percent of that sum - Respondent submitted
costs should lie where they fall - Claimed issues with ability to pay any sum
awarded - Unrealistic costs should lie where they fall - Authority not convinced
respondent lacked ability to pay
Result: Costs in favour of applicant ($2,115) ; Disbursements ($86.40)
Hyde v Hospitality Services Ltd
27 Jul 2006, GJ Wood, WA 83A/06, (2 pages)
COSTS - Unsuccessful personal grievance as applicant acquiesced in
changes imposed on her - Length of investigation meeting not specified -
Respondent sought contribution of $6,000 to total costs in excess of $15,000 -
Respondent argued actual costs increased by Authority's request for second
investigation meeting day - Applicant submitted costs should lie where they fall
as respondent significantly breached obligations and did not come to Authority
with clean hands - Applicant only unsuccessful in claim because delayed raising
grievance until found new employment - Clear case where successful party should
not receive contribution to costs
Result: Costs to lie where they fall
IHC New Zealand Incorporated v Fitzgerald
28 Feb 2007, Shaw J, WC 7/07, (1 pages)
COSTS - Successful de novo challenge to determination of
Employment Relations Authority (see: WC 19/06) - Plaintiff sought costs
for both Employment Relations Authority and Employment Court proceedings -
Sought contribution of $13,000 plus disbursements of $3,063.71 towards total
costs of $23,000 plus GST and disbursements - Plaintiff submitted it was
not for profit organisation and modest award would amount to punishment for
acting properly - Defendant claimed she was impecunious - HELD
- Costs incurred by plaintiff reasonable - Financial circumstances
of defendant meant proportion of costs it would normally be entitled to had to
be reconsidered - Although she lost the challenge, the defendant did not
bring a hopeless or unmeritorious case - Notwithstanding defendant's
less than satisfactory conduct in course of case, it would be unconscionable to
make costs award in light of defendant's financial hardship and certain
knowledge that she would be unable to meet those costs - Award of costs
against defendant would amount to punishment - In present circumstances
plaintiff was unlikely to be able to recover any award which would render it
nugatory - Costs were to lie where they
fell
Result: Costs to lie where they fall
Johnson v Badminton New Zealand Ltd
21 Jul 2006, H Doyle, CA 38A/06, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation
meeting - Respondent sought contribution of $7,516 to total costs of $11,274 and
wanted it noted that it was non profit organisation - Applicant argued award of
that nature would be punitive - Submitted award should be at lower end of scale
- Applicant overseas and counsel unaware of whereabouts - No submission
regarding applicant's ability to pay costs - Respondent's non profit status
taken into consideration - Respondent entitled to contribution to costs plus
disbursements - Entitled to half counsel's airfare - Recognised option to
instruct local counsel but that respondent had head office outside area -
Entitled to full costs of executive directors airfare - Not prepared to allow
costs for President who was not required to
appear
Result: Costs in favour respondent ($2,300); Disbursements($293)(Counsel Airfare); ($208.02)(Travel); ($74.06)(Photocopying & judgments); ($9.15)(Tolls)
Kennedy v Stockman and Anor
21 Jul 2006, M Urlich, AA 173A/06, (2 pages)
COSTS - Successful personal grievance - Length of investigation
meeting not specified - Applicant sought award approaching actual costs of
$5,915 - Claimed incurred additional costs due to second respondent's conduct -
Applicant entitled to fair contribution to costs reasonably incurred - Authority
satisfied applicant put to unnecessary additional expense - Second respondent
ordered to pay costs to applicant - Authority declined to make order against
first respondent personally - Employer was second
respondent
Result: Costs in favour of applicant ($3,000)
Kumar v McDonald's Restaurant (New Zealand) Ltd
31 Jul 2006, A Dumbleton, AA 180A/06, (2 pages)
COSTS - Unsuccessful personal grievance - More than three day
investigation meeting - Respondent sought contribution to costs of $23,760 and
disbursements of $250, being 66 percent of solicitor-clients costs of $45,765 -
Respondent noted union acknowledged would indemnify applicant for any award of
costs - Applicant submitted matter not complex and maximum of $6,000 costs
appropriate - Length of investigation meeting generally not matter for one party
to criticise other about as subject to overall control of Authority - Parties
need to consider carefully level of representation - Parties not expected to do
work of Authority and cases should not fail because relevant evidence not
uncovered or presented, or because parties unaware of procedure - Level of fees
charged matter between respondent and its counsel - Applicant should not
automatically become fully responsible simply because unsuccessful -
Investigation meeting could have been concluded in 2-2½ days - Authority
permitted applicant to bring evidence in attempt to show complainants lied to
respondent - If they had lied would not make dismissal unjustified, but
Authority would have expected respondent to consider whether, morally if not
legally, obliged to reinstate applicant and take disciplinary action against
complainants - Applicant failed to show any injustice done - Union should have
ascertained exactly what complainants were stating before pursuing line of
inquiry before Authority - For at least one day of investigation meeting
applicant must bear responsibility of unnecessarily prolonging investigation -
Higher level of costs fixed partly for extra day, and also for additional time
needlessly taken up after applicant supplied second, much more extensive,
statement of evidence part way through investigation - Resulted in need to
recall respondent's key witnesses - Investigation meeting treated as lasting
three full days - Costs fixed at $1,800 for two days and $,3,600 for third
day
Result: Costs in favour of respondent ($7,200) ; Disbursements ($250)
McGreal v Television New Zealand Ltd
22 Feb 2007, Perkins J, AC 3A/07, (1 pages)
COSTS - Unsuccessful application for declaration whether employee
or independent contractor - Defendant sought $10,000 contribution towards costs
- 3½ day hearing - Plaintiff alleged impecunious, medical difficulties
and care of children - HELD - defendant's reasonable actual costs likely
to have been substantially greater - Defendant's concession generous -
Having embarked on proceeding only appropriate that plaintiff make contribution
- Costs in favour of defendant ($10,000) - Payment by instalments -
Amounts to be negotiated between
parties
Result: Costs in favour of defendant ($10,000) ; Orders accordingly
New Zealand Tramways & Public Transport Employees Union Incorporated & Anor v Transportation Auckland Corporation Ltd & Anor
23 Feb 2007, Full Court, AC 9/07, (1 pages)
COSTS - Unsuccessful de novo challenge (see: AC 61A/06)
- Defendant sought contribution of $15,000 plus disbursements of $148.56
to actual costs of $18,306.56 - Plaintiff alleged matter a test case
- HELD - Even though case consisted primarily of an issue of
construction of a collective agreement the arguments depended upon the effect of
a statutory overlay and its interpretation - Interpretation of statute was
of general importance - First case to come before the Court involving
consideration of relevant amendment to Holidays Act 2003 - Interpretation
would be of assistance in drafting and construction of employment contracts
generally - Costs to lie where they
fell
Result: Costs to lie where they fall
Penniall v 101 Realty Ltd
15 Aug 2006, D King, AA 237A/06, (1 pages)
COSTS - Successful compliance order - Length of investigation
meeting not specified - Applicant sought costs of $900 plus disbursements -
Respondent did not attend investigation meeting - Apart from stating found
hourly rate extortionate, made no costs submissions - Simple matter that could
have been easily resolved by respondent - Applicant entitled to contribution to
costs
Result: Costs in favour of applicant ($700) ; Disbursements ($70)(Filing fee)
Pepene v Idea Services Ltd
16 Aug 2006, D King, AA 149A/06, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation
meeting not specified - Respondent sought award of costs of $4,500 out of total
costs $5,935 plus disbursements - Applicant in receipt of accident compensation
- Compensation based on part time employment since departure from respondent -
Statement from ACC indicated financial resources limited - No reason for costs
not to follow the event, however in circumstances substantial contribution would
be punitive - Applicant to make reasonable contribution to costs of $500 plus
disbursements
Result: Costs in favour of respondent ($500) ; Disbursements ($626)(Travel)
Sullivan v Maxwell Marine Ltd
17 Aug 2006, R Arthur, AA 249A/06, (1 pages)
COSTS - Successful personal grievance - One day investigation
meeting - Applicant sought $3,500 plus disbursements as reasonable contribution
to total costs of $5,400 - Respondent argued matter warranted an award of normal
costs only - Nature of case did not require variation from notional daily rate -
Respondent ordered to pay contribution to costs of $2,000 plus
disbursements
Result: Costs in favour of applicant ($2,000) ; Disbursements ($109.30)(expenses);($70)(filing fee)
Sword v Collins Travel Ltd
25 Jul 2006, J Wilson, AA 135A/06, (2 pages)
COSTS - Successful personal grievance - Length of investigation
meeting not specified - Applicant sought contribution of $2,220 to total costs
of $3,556 plus disbursement of $225 - Submitted put to expense of two
investigation meetings as respondent not represented at first due to illness -
Respondent failed to file costs submission - While investigation somewhat
unusual because of need to hold two separate investigation meetings, nothing to
indicate award of costs should be substantially outside usual
awards
Result: Costs in favour of applicant ($1,500) ; Disbursements ($225)
Williams v Kimberleys Fashions Ltd
5 Feb 2007, Perkins J, AC 4/07, (1 pages)
COSTS - Successful de novo challenge to determination of
Employment Relations Authority - Plaintiff's Authority proceedings
conducted on contingency basis - Plaintiff received legal aid for
challenge - Plaintiff sought full solicitor client costs - In
alternative, sought $10,127.75 as advanced by legal aid - Plus $8,544 for
costs and disbursements in Authority - Plus $2,812.50 for costs relating
to submissions on costs and stay of proceedings in Authority following the
determination - Plus $1,968.75 for costs relating to obtaining legal aid
- Plus $3,150 for costs for drafting submissions in support of costs in
Employment Court - Defendant submitted appropriate award was two-thirds of
actual costs and allowed by Legal Services Agency - At Court's
request plaintiff provided calculation based on category 2B High Court scales,
which amounted to $15,680 plus disbursements of $1,761.45 - HELD -
No contribution to costs in Authority because proceedings were conducted on
contingency basis and no costs incurred - Extent of costs in Employment
Court was limited to amount of legal aid - Court exercised discretion not
to reduce costs from legal aid amount - Defendant to pay plaintiff
$10,127.75 inclusive of disbursements - Authority's costs award set
aside
Result: Costs in favour of plaintiff ($10,127.75)
Wilson v Classic Manufacturing Ltd
20 Jul 2006, L Robinson, AA 220A/06, (2 pages)
COSTS - Successful personal grievance - 1 half day investigation
meeting - Applicant sought indemnity of actual costs of $10,375 plus
disbursements - Claimed limited means to pay costs - Alleged respondent
prolonged investigation with unreasonable points, entitling applicant to great
contribution to costs - Respondent argued indemnity costs not warranted and
approaches to settle made prior to investigation - Suggested contribution of
$1,500-$2,000 appropriate - Applicant entitled to reasonable contribution to
costs but not on indemnity basis - Nothing to warrant departure from usual
approach to costs
Result: Costs in favour of applicant ($4,500)
Previous Section | Table of Contents | Next Section
