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Blake v Senate Nursing Bureau Ltd
26 Nov 2008, R Arthur, AA 369A/08, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Applicant sought substantial contribution to actual costs of $4,570 including disbursements - Authoirty took into account actual costs incurred not inculding costs incurred attending mediation - Authority applied notional daily rate and increased it to allow for reasonable contribution incurred responding to counterclaims - Award of $3,000 considered reasonable contribution to costs
Result: Costs in favour of applicant ($3,000)
Chew v Aslan Consulting Ltd and Ors
9 May 2008, H Doyle, CA 63/08, (7 pages)
COSTS - Partially successful personal grievance - Two investigation meetings - Less than one day preliminary investigation meeting - One day substantive investigation meeting - Second respondent sought contribution to costs of $28,487.95 being 90 percent of actual solicitor-client costs and disbursements - Applicant submitted costs should lie where they fall and/or Authority should award applicant $1,000 costs with respect to preliminary investigation and assess costs for substantive investigation on notional daily rate - Second respondent submitted notional daily rate not appropriate because nature of applicant's claim and manner case conducted fell well outside usual conduct of cases in Authority - Applicant submitted issue as to reasonableness of respondent's cost - Applicant disputed respondent's claims about nature of claims - Authority found second respondent successful in interlocutory investigation - Second respondent entitled to costs award - However, found second respondent's claim inconsistent with role of Authority and matter did not justify award of full solicitor/client costs - Applicant to pay second respondent contribution to costs of $2,500 with disbursements of $260.15 - Authority found was very important case to parties and accordingly justified higher level of preparation - Second respondent had to answer wide ranging claims, increasing amount of preparation time required - Authority found not just to determine costs simply on notional daily rate as disregarded particular characteristics of case - However, found second respondent's claim of 90 percent actual costs not reasonable or justified - In all circumstances fair and reasonable costs award for substantive investigation was $5,000 plus disbursements of $511.88
Result: Costs in favour of second respondent ($7,500) ; Disbursements ($772.03)
Cloete v Tyres Direct Ltd
12 Mar 2008, M Urlich, AA 89/08, (7 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent claimed employment terminated by operation of valid fixed term agreement ("FTA") - Authority found fixed term clause in employment agreement met requirements of s66 Employment Relations Act 2000 - Applicant requested meeting to discuss issues with salary payments and work vehicle - At meeting applicant advised fixed term clause invoked and employment terminated immediately due to respondent's financial situation - Applicant paid until expiry of fixed term - Authority found FTA could not end through notice at will - Authority found applicant's employment did not end by operation of fixed term agreement as fixed term not ended - Found applicant made redundant - Authority satisfied genuine redundancy - However, respondent failed to discuss redundancy proposal with applicant and allow opportunity for comment - Applicant not treated fairly and reasonably - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Applicant claimed incurred bank fees as result of late payment of salary on two occasions - Authority found bank records showed salary paid on specified date each month - Authority found link between bank fees and salary payment not made out - Applicant claimed suffered disadvantage when company vehicle issued with exchanged for another - Parties disputed number of times vehicle exchanges occurred - Strongest element of applicant's claim, if could be made out, that respondent failed to discuss exchange and attempt to accommodate applicant's concerns - However, claim not specific enough for Authority to make any findings - No unjustified disadvantage - REMEDIES - No contributory conduct - Applicant's claim for lost wages could not succeed as received all monies owed under valid FTA - Dismissal placed financial and emotional stress on applicant and applicant's family - $3,000 compensation appropriate - COUNTERCLAIM - Recovery of monies - Respondent sought repayment of alleged salary advances - Applicant denied any salary advances made - Respondent provided no evidence to support claim - Respondent also sought reimbursement of costs to repair company vehicle applicant damaged - Applicant admitted damaged vehicle - When damage reported at time respondent took no action Authority found respondent had no grounds to revive issue post dismissal - Claims dismissed - COSTS - Applicant to be reimbursed filing fee - Senior Sales Consultant
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Unjustified disadvantage) ; Application dismissed (Counterclaim) ; Disbursements in favour of applicant ($70)
Cooper v Levin Meats Ltd
1 May 2008, L Robinson, WA 40A/08, (3 pages)
COSTS - Successful personal grievance - However, Authority declined to award remedies as dismissal would have been justifiable but for procedural defects - One day investigation meeting - Respondent argued as applicant did not obtain remedies respondent should be regarded as successful party, and so entitled to order for costs - Respondent made offer that if applicant withdrew claim would not pursue costs - Authority did not agree that as applicant did not obtain remedies to be regarded as unsuccessful - Declaration dismissal unjustifiable of value - Applicant succeeded in personal grievance and respondent succeeded in resisting claim for remedy - Both parties successful in equal part - Authority considered it proper parties bear own costs
Result: Costs to lie where they fall
Kinney v Security First Holdings Ltd
7 May 2008, G J Wood, WA 58/08, (2 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Applicant sought $2,000 contribution to costs - Applicant claimed Authority had to provide applicant with evidence as respondent failed to, and respondent delayed proceedings by seeking adjournment before investigation meeting - Respondent claimed as applicant mostly unsuccessful in claims respondent should be awarded costs - Respondent noted applicant legally aided - Authority found ordinarily be appropriate for costs to lie where they fall - However, applicant should not have had to attend investigation meeting to receive pay during her suspension - Authority accepted unreasonable for respondent not to supply evidence - Costs award in favour of applicant for $500 appropriate
Result: Costs in favour of applicant ($500)
L J Mackle Ltd v Shaw
3 Dec 2008, P Cheyne, CA 182/08, (2 pages)
COSTS - Withdrawn application of Breach of Contract - No investigation meeting - Applicant claimed respondent breached implied term in employment agreement causing it loss, therefore respondent obliged to pay damages - Respondent denied liability for loss suffered, submitting parties had agreed to final resolution of all employment matters in 2005 - Applicant's solicitors not aware of full and final settlement, application eventually withdrawn - Respondent sought indemnity costs for defending proceedings and applicant's resistance to that - Applicant submitted respondent failed to respond to queries which could have prevented proceedings being filed - Authority found oversight of settlement not fault of respondent but of applicant - Proceeding should never have been initiated - Respondent submitted legal costs were $2,000 - Costs found to be excessive to defend proceedings - Award of $750 costs appropriate
Result: Costs in favour of respondent ($750)
Liley v Fashion Traders Group Ltd
26 May 2008, R Arthur, AA 189/08, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated settlement - No appearance for respondent - Authority satisfied respondent had not complied with settlement - Compliance ordered - PENALTY - Authority found penalty appropriate not only to mark respondent's blatant breach of agreement but to act as deterrent to parties who entered settlement agreements but failed to honour them - Respondent's withholding of payment appeared deliberate and for no good reason - Penalty of $1,000 appropriate, split between applicant and Crown - COSTS - Applicant entitled to reasonable contribution to costs - Costs of $400 awarded - Respondent warned of consequences of failure to comply with Authority's orders
Result: Compliance ordered ; Penalty ($1,000)($500 payable to Crown)($500 payable to applicant) ; Costs in favour of applicant ($400) ; Disbursements in favour of applicant ($70)(Filing fee)
Pleace v Cunningham
13 May 2008, J Crichton, CA 39A/08, (4 pages)
COSTS - Unsuccessful personal grievance - ½ day investigation meeting - Respondent sought contribution of $3,000 to total costs of just over $4,000 - Respondent claimed evidence showed respondent not applicant's employer and applicant given opportunities to settle matter, including Calderbank offer - Applicant claimed costs should lie where they fall because of applicant's financial position and own costs increased due to respondent's delay in responding to personal grievance claim - Authority agreed with applicant's submission about delay - Noted delay not fault of respondent's current counsel - Authority chose not to consider Calderbank offer, particularly because of timing of offer - Authority considered entitled to take into account unsuccessful party's ability to pay - Even if ignored applicant's financial circumstances and made order for costs, would deduct costs applicant had to unreasonably bear as consequence of respondent's delays - In circumstances, given that amount would have deducted similar to amount would have awarded, costs to lie where they fall
Result: Costs to lie where they fall
Reeper v Glenorchy Hotel and Backpackers Ltd
24 Mar 2009, H Doyle, CA 35/09, (4 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated settlement - No statement in reply lodged - No appearance by respondent at telephone conference - Authority issued notice of direction for respondent to provide reason for non-compliance - Respondent left voice message with Authority support officer - Support officer unable to contact respondent - Hearing date set down - Authority satisfied respondent failed to pay settlement sum due - Compliance ordered - Applicant claimed interest on settlement sum - Authority awarded interest from date of settlement until date of payment, as settlement sum comprised of arrears of wages - COSTS - Authority accepted applicant incurred additional legal fees due to respondent's non-compliance - Authority awarded reasonable costs and disbursements in favour of applicant
Result: Compliance ordered ; Interest (5%) ; Costs in favour of applicant ($625) ; Disbursements in favour of applicant ($70)(filing fee)
Short v Walton Special Vehicles and Conversions Ltd
25 Nov 2008, A Dumbleton, AA 245B/08, (3 pages)
COSTS - Successful personal grievance - Half day investigation meeting - Applicant sought $2,000 as contribution to total costs of $3,348 plus $253 disbursements - Several Calderbank offers made but declined - Applicant argued as all offers below amount applicant entitled to recover, should be disregarded and normal rules of costs - Respondent submitted $500 appropriate level of costs - Authority found case was unnecessary as was readily obvious from employment agreement, employer would have hard time proving justification for dismissal - Employer's tactical approach to investigation wasted applicant's time and money - Applicant's costs reasonable for type of investigation - Award of $1,350 appropriate in circumstances
Result: Costs in favour of applicant ($1,350)
Stavrovska v Uniform Group (Auckland) Ltd
24 Nov 2008, A Dumbleton, AA 272A/08, (2 pages)
COSTS - Unsuccessful personal grievance - Half day investigation meeting - Respondent entitled to contribution to costs - Respondent sought full costs of $2,428 - Authority deemed entitlement to full costs contrary to principle unless case of exceptional nature, which this was not - Applicant misguided in bringing claims which had very little merit - Respondent entitled to reasonable contribution to actual costs and disbursements
Result: Costs in favour of respondent ($1,450)
Stephens v Sticky Fingers 2006 Ltd
2 May 2008, J Crichton, CA 55/08, (3 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent sought contribution of $2,250 towards actual costs of over $9,000 - Respondent made Calderbank offer to applicant prior to investigation meeting - Applicant sought to have costs lie where they fall - Applicant's claim based on conduct of respondent and alleged inability to rely on Calderbank offer - Investigation meeting postponed due to respondent's counsel's error - Applicant blameless for delay and suffered unnecessary costs as result - Calderbank offer not made until after investigation meeting postponed - Authority satisfied Calderbank offer should be discounted - Respondent's claim for costs similar to additional costs incurred by applicant due to postponement - No reason for respondent to effectively benefit from own delay - Costs to lie where they fall
Result: Costs to lie where they fall
Te Ahuru v Utility Styles Ltd t/a Identity
2 May 2008, J Crichton, CA 19A/08, (3 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent sought $2,000 contribution to costs - Applicant advised had no assets, unemployed, and paying own legal costs by instalment - Applicant argued financial state should determine costs award - Authority found in normal course respondent, as successful party, entitled to costs - However, found proper to take applicant's financial position into account - In all circumstances Authority not persuaded costs order should be made - Because of impecunious nature of applicant, costs to lie where they fall
Result: Costs to lie where they fall
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