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Balfour v Central Hawkes Bay Support and Counselling Services Inc
31 Aug 2007, PR Stapp, WA 107A/07, (4 pages)
COSTS - Unsuccessful breach of confidentiality and good faith claims - Less than one day investigation meeting - Respondent sought 80 percent of actual and reasonable costs - Actual costs incurred $7,225 - Relied on Calderbank offer and did not include previous Counsel's costs - Applicant submitted costs should lie where they fall as determination challenged to Employment Court - Pragmatic settlement offer made and applicant put on notice indemnity costs would be sought - However, offer tried to avoid publicity for respondent and did not recognise matter of principle for applicant - Applicant could be excused for not accepting - Authority calculated reasonable costs as $3,520 - Respondent awarded 60 percent of reasonable costs
Result: Costs in favour of respondent ($2,112) ; Disbursements ($25)
Barry v Anoop Investments Ltd
2 Jul 2007, M Urlich, AA 11A/07, (4 pages)
PRACTICE AND PROCEDURE - Supplementary determination regarding quantum of remedies - Authority had ordered reimbursement of lost wages - Parties unable to agree on calculation - Respondent's version of calculation fairly reflected agreement between parties - Holiday pay to be calculated on outstanding sum - COSTS - Investigation meeting less than one day - Applicant sought contribution of $6,000 to total costs of over $9,000, plus disbursements - Respondent sought fair contribution to costs incurred of $7,000 - Submitted had to defend unmeritorious claims - Appropriate to award $2,000 costs to applicant
Result: Orders accordingly ; Costs in favour of applicant ($2,000)
Baugen v Gavin & Susan Ure t/a Affordable Plumbing and Gas Ltd
24 Aug 2007, GJ Wood, WA 93A/07, (3 pages)
COSTS - Authority had concluded it lacked jurisdiction as applicant not employee - One day investigation meeting - Respondent sought contribution to costs of $10,751.40 of total costs of $16,290 - Also suggested additional costs be awarded for documents and chronology provided, rebuttal evidence to applicant's unnecessarily complicated claims, and supplying of two sets of submissions - Applicant's presumption Authority had no jurisdiction to determine costs because matter challenged to Employment Court incorrect - Applicant represented himself - Not to be penalised for not presenting case in as efficient manner as experienced representative would have - Fact statement in reply required before engaged in mediation irrelevant - Case not test case, in many ways standard employment relationship problem - No account taken of lack of payment for work applicant did for respondent, as payment did not arise form employment relationship - Costs to follow event - Appropriate to award costs of $2,000 plus disbursements awarded
Result: Costs in favour of respondent ($2,000) ; Disbursements ($15.39)
Brinkman v Versatile Buildings Ltd
13 Sep 2007, L Robinson, AA 164A/07, (3 pages)
COSTS - Partially unsuccessful personal grievance - Two day investigation meeting - Respondent's actual costs were $30,903 - Sought contribution of $19,216 being principally costs incurred after Calderbank offer rejected by applicant - Applicant submitted costs should lie where they fall - Argued respondent's costs extraordinarily high and would punish applicant - Also contended would deter other applicants from bringing claims - Applicant genuinely sought reinstatement and vindication, therefore not liable for respondent's costs on indemnity basis - Calderbank offer treated as additional consideration - Applicant's personal circumstances particularly relevant - Appropriate to award $1,500 per day of investigation meeting without further component to recognised Calderbank offer - Applicant not personally responsible for unsatisfactory presentation of claim - Applicant sole income earner and limited means to meet award
Result: Costs in favour of respondent ($5,000)
Darbyshire & Anor v PPCS Ltd
29 Aug 2007, D Asher, WA 73A/07, (5 pages)
COSTS - Unsuccessful health and safety claim and compensation claims - 3 ½ days investigation meeting - Respondent sought contribution to costs of $18,374 of total costs of $20,540 - Respondent made two Calderbank offers before and during investigation meeting - Respondent sought indemnity costs - Applicants submitted costs to lie where they fall or be reserved until outcome of challenge - Also claimed was test case related to s28A(8)(b) Health & Safety in Employment Act 1992 - Focus of investigation largely parties contractual obligations - Appropriate costs follow event - Respondent put to costs of responding to applicants urgent application, unnecessarily extended investigation, and obtaining expert evidence - Also had to address disparity claims ultimately not pursued - Applicant absences during investigation resulted in extra costs - Respondent entitled to contribution to costs
Result: Costs in favour of respondent ($10,000)
Denton v Gorrie Fuel (SI) Ltd
23 Aug 2007, H Doyle, CA 68A/07, (6 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority had reserved leave on calculation of holiday pay if parties could not agree on sum - Parties unable to resolve issue - Applicant's hourly rate $10.00 - Authority calculated applicant's entitlement in accordance with formula s9(3) Holidays Act 2003 - Respondent ordered to pay applicant $634 for 8 alternative holidays and arrears claim - COSTS - Successful personal grievance - ½ day investigation meeting - Applicant submitted actual costs exceeded $4,000 and sought a contribution of $2,500 - Respondent argued applicant attempted to increase costs by conduct, failing to file documents on time and bringing inadmissible evidence - Also submitted holiday pay matter should have been dealt with by Labour Inspector - Not persuaded would have greatly impacted on costs had matter been dealt with elsewhere - Challenge to Employment Court not good reason to not determine costs - No good reason not to make award of costs to successful applicant - Adjustment in award for delay in lodging briefs - Fair and reasonable contribution to applicant's costs awarded
Result: Quantum specified ; Arrears of holiday pay ($634) (Public Holidays) ; Costs in favour of applicant ($1,800)
Douglas v Hames Sharley International Ltd
2 Mar 2007, L Robinson, AA 24A/07, (3 pages)
COSTS - Successful compliance order and penalty - Application dealt with on papers - Applicant sought full costs of $12,376, plus disbursements - Submitted respondent on notice full costs would be claimed if record of settlement not complied with by given date - Claimed notice was Calderbank offer - Also alleged respondent's delays and ongoing refusal to comply added considerably to costs - Respondent argued award of $1,000 appropriate and notice letter of demand, not Calderbank offer - Notice not regarded as Calderbank offer by Authority as not kept open for sufficient time - Settlement clear and required no more than performance by parties - Respondent always on notice that ran real risk of ultimately being called to meet costs of default , especially as non-compliance deliberate - Applicant should not have had to pay to compel respondent to do what it voluntarily agreed in good faith to do - Something approaching indemnity costs called for - Contribution of $10,000 appropriate
Result: Costs in favour of applicant ($10,000)
Farley v Nugget Point Resort Ltd
5 Apr 2007, H Doyle, CA 36/07, (2 pages)
COSTS - Successful personal grievance - Partially successful counterclaim - Two day investigation meeting - Applicant's actual costs and disbursements $13,595 - Respondent argued costs would unfairly penalise it and unreasonable given remedies paid - Submitted costs should lie where they fall - Approximately 3/4 of investigation spent on personal grievance claim - Starting point $3,000 per day - Parties to meet own costs of counterclaim, therefore costs reduced by 1/4 - Witness expenses and hearing fee appropriate disbursements - Claim for food allowance adequately met by witness expenses
Result: Costs in favour of applicant ($4,500) ; Disbursements ($325)(Witness expenses) ; ($300)(Hearing fee)
Farmer & Anor v Advance International Cleaning Systems (NZ) Ltd & Anor
31 Jul 2007, PR Stapp, WA 46A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought costs - Standard matter, tariff approach applied - Applicant entitled to contribution to costs - Authority not prepared to accept claim for photocopying without supporting receipts
Result: Costs in favour of applicant ($2,500) ; Disbursements ($70)(Filing fee)
Fenerty v Max Tarr Industrial Ltd
20 Jun 2007, D Asher, WA 71A/07, (3 pages)
COSTS - Substantive determination amended duration and extent of restraint of trade - Matter determined on the papers - Applicant sought $5,000 costs - Two Calderbank offers made by applicant rejected by respondent - Respondent sought contribution of $3,000 plus disbursements to total costs of $7,060 - Claimed applicant entirely unsuccessful in application - Applicant succeeded significantly in respect of original application and costs to follow event - Nothing to justify full costs - Applicant entitled to $1,500 costs
Result: Costs in favour of applicant ($1,500)
France v Robin Cosmos t/a Sabotage
23 Jul 2007, M Urlich, AA 165A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant's actual costs $8,409 including disbursements - Applicant sought full costs - Applicant entitled to contribution to reasonably incurred costs - No grounds for indemnity costs or mediation costs to be included - Matter not complex - Award reasonable given nature of claim, time involved and parties' conduct - Nothing in case to justify award outside usual range - Applicant awarded contribution to costs plus disbursements
Result: Costs in favour of applicant ($2,000) ; Disbursements ($127.65)
Hertel v GCB Construction Ltd and Ors
19 Apr 2007, GJ Wood, WA 57/07, (2 pages)
ARREARS OF WAGES - First respondent ("CGB") sold business to third party - At time of sale applicant owed wages - Sum remained unpaid due to dispute over liability between CGB and purchaser - Responsibility for payment lay with CGB - Following sale CGB had no assets and unable to pay applicant - Third respondent, as principal of CGB, undertook to personally take responsibility for payment - Had since resiled from undertaking because believed could not afford payment - Arrears due and owing by CGB - Applicant also entitled to interest - Issue of third respondent's personal liability reserved - Claim against second respondent dismissed - COSTS - Length of investigation meeting not specified - Applicant sought $2,000 costs - Much of sum must have related to claims against purchaser - First respondent never disputed liability - $400 contribution appropriate
Result: Application granted against first respondent ; Arrears of wages ($10,375.42) ; Interest (7.5%) ; Costs in favour of applicant ($400)
Hunt & Ors v Transportation Auckland Corporation Ltd t/a Stagecoach Auckland
22 Nov 2006, R Arthur, AA 119A/06, (3 pages)
COSTS - Unsuccessful personal grievance - Two day investigation meeting - Respondent sought contribution of $10,800 to total costs of $27,473 plus disbursements - Applicants submitted award of up to $3,000 appropriate - Although financial means not subject of detailed evidence could assume moderate after long service with respondent on relatively modest salaries - Respondent sought increase to daily tariff as Calderbank offer rejected and matter required detailed evidence - Hourly counsel's rate of $300 used in respondent's calculation higher than usually allowed in Authority - Relatively little more required from respondent replying to three applicants than one - Matter did not warrant going beyond usual daily rates - Authority made $500 deduction as initial investigation meeting delayed by respondent filing additional evidence out of time - Third applicant's claim not determined as unable to attend investigation - Whether liable for costs - Equity and good conscience meant applicants jointly and severally liable - Respondent incurred costs in response to all three claims - In reality, outcome determined all three claims - Contribution of $4,000 appropriate
Result: Costs in favour of respondent ($4,000) ; Disbursements ($348.08)
Johns v Shell New Zealand Ltd
31 Jul 2007, PR Stapp, WA 88A/07, (3 pages)
COSTS - Unsuccessful application for adjournment of investigation meeting - Length of investigation meeting not specified - Respondent sought costs - Applicant also requested respondent to pay his costs - Applicant failed to appear or have a representative present at investigation meeting, putting respondent to unnecessary cost by failing to get adjournment - Costs to follow event in favour of respondent - Respondent tried to mitigate losses by arranging affidavits instead of witness attendance - Applicant had employment relationship problem worthy of defence at investigation - In circumstances, threshold for full costs not met - Authority's assessment of contribution to costs 90 percent of reasonable costs - Costs to relate to full investigation meeting as if had taken place over full day - Applicant deliberately delayed investigation and without good cause did not appear - Respondent entitled to contribution to costs
Result: Costs in favour of respondent ($3,312)
Kennedy v Stockman & ANor
8 Mar 2007, K Raureti, AA 63/07, (3 pages)
COSTS - First respondent abandoned claim to have original investigation reopened - Applicant alleged actions caused additional unnecessary costs - First respondent failed to abide by timetable or withdraw application in timely manner - Authority not provided with any information as to how first respondent's conduct unnecessarily added to expenses, or dollar value of cost incurred, let alone value of additional unnecessary costs - Authority not in position to make considered award for costs, therefore no award of costs for matter - Even if had more information, unlikely would have awarded costs against first respondent personally as inclined to view in original determination that first respondent agent for second respondent
Result: No order for costs
Knight & Ors v Transportation Auckland Corporation Ltd & Anor
27 Nov 2006, L Robinson, AA 331A/06, (3 pages)
COSTS - Authority declined to investigate statement of problem - Investigation meeting less than one day - Respondent sought indemnity costs of $3,117 on basis applicants' conduct lacked merit and substantive issue before Employment Court when claim brought - Alternatively, sought contribution of $2,750 - Applicants submitted costs should lie where they fall - Applicants' claim had no basis - Baseless claim ought rightly attract indemnity costs - However, equity and good conscience required regard to ability to pay - Modest incomes - Applicants jointly and severally liable for $1,500 contribution to costs
Result: Costs in favour of respondent ($1,500)
MacPherson v Travers
9 Mar 2007, R Arthur, AA 65/07, (5 pages)
JURISDICTION - Whether applicant employee - Applicant attended job interview at premises - Alleged one week paid trial agreed to - Claimed worked three days then became sick - Sought arrears for days worked and claimed unjustifiably dismissed - Respondent denied agreement reached, claimed reference checks unsatisfactory and did not employ applicant - Recalled applicant hung around factory next week seeking work but denied instructed him to work - Respondent also submitted if applicant were employed it would have been by company, not personally - Authority had little hesitation joining company as second respondent as aware of proceedings and properly liable if any remedies required - Applicant failed to establish employment relationship existed - No jurisdiction - COSTS - Respondent sought costs related to advice obtained prior to investigation meeting - Had not replied to applicant's original emails or provided statement in reply - Respondent did not take opportunities to dissuade applicant from continuing claim or inform Authority of merits - Meant Authority had to go through full investigative process - Appropriate to let costs lie where they fall
Result: Application dismissed ; Costs to lie where they fall
Matich v Fairfax New Zealand Ltd
4 Sep 2007, L Robinson, AA 228A/07, (2 pages)
COSTS - Applicant not employed by respondent - Less than one day investigation meeting - Respondent sought contribution of $1,500 to total costs of $4,565 - Applicant resisted application for costs - Argued justified in declining offer to become employee - Claimed investigation delayed because of respondent's witness' unavailability - Also claimed ought to have been advised by Authority when lodged problem that she did not "have a case" - No information from applicant regarding ability to pay but from circumstances appeared financially constrained - Contribution of $1,000 appropriate
Result: Costs in favour of respondent ($1,000)
McGregor v Mobil Oil New Zealand Ltd
24 May 2007, D Asher, WA 69A/07, (5 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought contribution to total costs of $16,613 - Submitted Authority should apply discretion to ensure applicant received benefit of $15,000 compensation award - Argued respondent had greater resources and did not act in good faith by abusing dominant financial position to try to force applicant to withdraw - Applicant alleged originally advised there would be no deals so no option but to pursue application - Details of without prejudice offer set out by applicant ignored because Authority did not accept confidentiality waived - Respondent submitted $1,000-$3,000 award appropriate - Did not rely on Calderbank offer - Claimed applicant complicated substantive proceedings and had not attempted to agree costs - During substantive investigation Authority reminded parties of need to ensure costs incurred reasonable - Employment relationship problem no different from many others and warranted similar costs award - No grounds for full costs - Problem should have settled at mediation - Applicant entitled to recover $3,000 costs
Result: Costs in favour of applicant ($3,000)
Monahan v Lister's Pioneer Services Ltd
31 Aug 2007, Y Oldfield, AA 156A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant unrepresented at investigation meeting and did not claim costs - However, respondent sought costs on solicitor/client basis - Respondent submitted Calderbank offer made it clear respondent would seek full costs if applicant failed to bear offer - Respondent's actual costs $5,268 - Settlement offer reasonable - Refusal of Calderbank offer put respondent to unnecessary costs - Applicant only responsible for additional costs incurred after Calderbank offer refused - Respondent entitled to reasonable contribution to additional costs
Result: Costs in favour of respondent ($1,000)
Mosen v Anfield Engineering Ltd
23 Jul 2007, V Campbell, AA 171A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent sought contribution to total costs of $2,953 plus disbursements - Matter not complex and costs to follow event - Respondent entitled to contribution to costs
Result: Cost in favour of respondent ($750)
Panel Holdings Ltd v Paki
28 Aug 2007, D King, AA 232A/07, (3 pages)
COSTS - Successful breach of contract - Unsuccessful personal grievance - Length of investigation meeting not specified - Applicant's costs included $13,369 legal fees, $596 disbursements and $15,655 for forensic accounting services - Also sought $10,000 for executive time - Some legal fees related to mediation - Circumstances justified increase to usual tariff - Appropriate for respondent to pay costs incurred by applicant to investigate her activities - Authority not convinced there were grounds to award executive time
Result: Costs in favour of applicant ($5,000) ; Disbursements ($595.55) ; Forensic Accounting Fees ($15,654.98)
Pegram v Heritage Productions Ltd
22 Jun 2007, P Cheyne, CA 43A/07, (3 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Two Calderbank offers made to applicant - Respondent argued none of costs eventually incurred would have arisen if first Calderbank offer accepted - Sought substantial contribution to total costs of $4,820 - Applicant submitted costs should lie where they fall - Felt Calderbank offers too low and wanted day in court - Appropriate to depart from principle costs follow the event - Applicant to make reasonable contribution to respondent's costs - No argument about inability to pay and costs award should be offset against compensation payable to applicant - Both offers made by respondent reasonable and one of them should have been accepted - Refusal to accept resulted in unnecessary legal costs - Matter relatively uncomplicated - No reason to depart from tariff assessment of costs
Result: Costs in favour of respondent ($2,000)
Preston v Comtec Communications Ltd
22 Aug 2007, J Crichton, CA 63A/07, (3 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought contribution to costs of $2,500, being less than 50 percent of actual costs - Applicant put to additional time and expense reviewing material advanced by subject witness in preparation for investigation meeting - Witness' evidence unhelpful in resolving matter - Nothing out of ordinary about case - Suitable tariff based approach - Given increases over time, average daily rate would be around $2,500 - Applicant entitled to contribution to costs
Result: Costs in favour of applicant ($2,500)
Prins & Ors v Tirohanga Group Ltd (formerly Tirohanga Rural Estates Ltd)
16 May 2007, Colgan, CJ, AC 27/07, (1 pages)
COSTS - Successful non de novo challenge (see: [2006] 1 ERNZ 321) - 3 day hearing - Plaintiffs sought solicitor/client indemnity costs of $68,314.13 (including disbursements of $2,659.13) - Plaintiffs made Calderbank type offer prior to Authority investigation - Plaintiffs submitted offer and defendant's improper conduct in proceeding and during employment justified indemnity costs - HELD - Defendant's improper conduct during employment relationship marked already by compensatory awards and monetary penalty - Improper conduct during litigation may be reflected in costs award - Outlandish opinions by defendant's managing director in original brief of evidence not repeated in Court - Inappropriate for defendant's managing director to allege in Court that plaintiffs had altered material facts - Defendant's repeated failures to comply with judicial directions in conduct of proceeding, despite very clear warnings from Judge, both delayed case and put
plaintiffs to increased cost - Adverse credibility finding should not form basis of award of increased costs - Creation of self-serving documents by defendant's managing director relevant - Settlement offer relevant - Defendant should not be required to pay cost of attendance at Court of two counsel - Indemnity costs of what Court considered reasonable awarded - Costs in favour of plaintiffs ($47,536.63 including disbursements)
Result: Costs in favour of plaintiffs ($47,536.63 including disbursements)
PRP Auckland Ltd (formerly Axiom Rolle PRP Valuations Services Ltd) v Kapadia
27 Jun 2007, M Urlich, AA 194/07, (3 pages)
COSTS - Successful breach of contract claim - One day investigation meeting - Applicant sought contribution of $4,750 towards actual costs of $15,000 - Respondent submitted applicant's conduct unnecessarily increased costs by not settling or defending application in face of clear evidence of breach - Actual costs incurred by applicant - Applicant argued because was successful party, costs should follow event and particular characteristics of case meant tariff based approach not appropriate - Respondent submitted applicant raised false and voluminous allegations resulting in complex and expensive litigation, and declined settlement offer - Also argued premature to set costs as challenge before Employment Court - Award fairly recognised case out of ordinary in terms of complexity and level of preparation required, while balancing impact award may have on respondent due to his financial circumstances - Applicant entitled to contribution to costs - Applicant retained property of respondent - Given inadequate information before Authority, no order for return of property
Result: Costs in favour of applicant ($2,700)
Ryan & Anor v Waipa Youth & Anor
7 May 2007, J Scott, AA 140/07, (17 pages)
UNJUSTIFIED DISADVANTAGE - Serious misconduct - Following an investigation, first and second applicants ("R") and ("P") suspended and dismissed for alleged disobedience, dishonesty, and using work time and materials for personal use - No provision to suspend in employment agreements - Respondent failed to establish situation existed to justify immediate suspensions - No opportunity to comment or inquiries made of applicants' prior to suspensions - P's suspension completely unfounded - Fair and reasonable employer would have consulted applicants before suspending - Wholly deficient process - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Except for two grounds of dismissal, misconduct not established - Applicants spent unreasonable amount of work time on personal and family activities - Evidence suggested R challenging and poor manager - R created files in names of real individuals without their knowledge or consent - Constituted misconduct going to heart of professional and ethical obligations as counsellor, and those to respondent - Respondent erred by not putting specific allegations about conduct to applicants - Entire dismissal process dogged by bias and predetermination - Actions not those of fair and reasonable employer - Dismissals unjustified - Remedies - Had investigation been fair, respondent would have concluded R guilty of serious misconduct justifying dismissal - No lost remuneration due to contributory conduct - Appalling process treated P as part of "job lot" with R - P's contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY - P's wages and holiday pay due and owing - COSTS - 3½ day investigation meeting - Respondent's failure to follow directions of Authority reflected in costs awards - Failures added to time and difficulties of investigation - Respondent refused to attend mediation - Matter should have been disposed of in two days - Respondent to pay $10,000 contribution to costs - Manager/Counsellor and Administrator
Result: Application granted (First applicant) ; Compensation for humiliation etc ($2,500)(Unjustified disadvantage) ; ($10,000)(Unjustified dismissal) ; Application granted (Second applicant) ; Reimbursement of lost wages (Quantum to be determined reduced by 25%)(3 months) ; Arrears of wages and holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($3,500)(Unjustified disadvantage) ; ($12,500 reduced to $9375)(Unjustified dismissal) ; Costs in favour of applicants ($10,000)
Shell v Ohibro Ltd (formerly called Gandalf Group Ltd)
30 Aug 2007, D Asher, WA 123/07, (7 pages)
DISCRIMINATION - UNJUSTIFIED DISADVANTAGE - No appearance for respondent - Applicant's unchallenged evidence accepted - Applicant alleged discriminated against on grounds of family status - One month after returned from parental leave, forced to accept different and less satisfactory part-time position - Without prior warning, applicant called into meeting and handed redundancy letter - Authority satisfied director's attitude changed markedly for worse when returned from parental leave - Because of family status, position unilaterally changed and employment terminated on grounds of claimed redundancy - Respondent's actions not fair and reasonable in circumstances - Discrimination established - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Following dismissal, applicant saw vacancy at respondent advertised - No consultation or exploration of alternatives to redundancy, including advertised vacancy - No evidence redundancy genuine - Termination procedure grossly unfair - Respondent also breached good faith, particularly s4(1A) Employment Relations Act 2000 obligations - Dismissal unjustified - Remedies - Discrimination and callous actions caused significant distress - Actions took no account of applicant's vulnerability, or financial contribution to her family - Global award of compensation for humiliation etc appropriate - COSTS - Applicant awarded $1,974.25 in costs and disbursements - Receptionist
Result: Applications granted ; Reimbursement of lost wages ($1,250 nett) ; Compensation for humiliation etc ($15,000) ; Costs in favour of applicant ($1,974.25)
Sheriff v RW & AC King Ltd
27 Jul 2007, L Robinson, AA 153A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent permitted to proceed with application for costs out of time as applicant failed to oppose application for leave - Respondent incurred total costs of $5,871 plus disbursements and sought contribution to costs - Submitted actual costs reasonable although figure included mediation - Calderbank offer rejected by applicant - Appropriate to depart from daily tariff
Result: Costs in favour of respondent ($4,000)
Taylor v eCom New Zealand Ltd
30 Jan 2007, K Raureti, AA 21/07, (4 pages)
PRACTICE AND PROCEDURE - Application for stay of proceedings - Five determinations issued relating to employment relationship problem - Applicant sought stay of last two determinations, for damages and costs - Applicant had applied to Employment Court for de novo challenge of both determinations - Submitted could pay amounts by way of monthly instalments but preferred to hold payments until matters heard by Court - Respondent submitted applicant provided written undertaking as to damages and therefore waived right to stay - Claimed challenges not filed expeditiously - Authority satisfied challenges being actively progressed without undue delay - Applicant's financial circumstances not those of impercuniosity - When interim reinstatement ordered, Authority placed considerable importance on, and drew attention to, implications of undertaking - Important to maintain confidence of employer community that undertakings serious and enforceable in normal circumstances - Respondent, who had been successful in all proceedings except interim reinstatement, had right to expect fruits of success - Application for stay declined - COSTS - Matter decided without investigation meeting - Respondent sought costs for expense associated with applicant's indulgence - Applicant had certain rights and exercised them through appropriate legal avenues - Submissions very brief - Costs to lie where they fall
Result: Application dismissed ; Costs to lie where they fall
Tufuga v Sleepyhead Manufacturing Company Ltd
30 Jul 2007, P Montgomery, CA 28A/07, (4 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Applicant rejected Calderbank offer - Respondent submitted investigation meeting unnecessarily prolonged by applicant calling witnesses whose evidence irrelevant, and urged Authority to award full indemnity costs of $13,247 plus disbursements - Submitted total legal costs in vicinity of $22,000 - Applicant submitted unable to meet financial commitments and unable to pay costs due to hardship - Requested costs lie where they fall - Cases did not warrant award of full indemnity costs, and award would be punitive - Respondent successful party and would normally be awarded contribution to costs - However, Authority an equity and good conscience jurisdiction - Any award would inflict hardship on applicant's family and fall upon partner to repay debt, which would be unjust - Costs to lie where they fall
Result: Costs to lie where they fall
Watt v Canterbury District Health Board
13 Feb 2007, P Cheyne, CA 15/07, (2 pages)
COSTS - Successful breach of contract claim and partially successful personal grievance - Length of investigation meeting not specified - Considerable overlap in evidence and grounds relied on for each claim - Unsuccessful unjustified dismissal claim more significant claim, and applicant's success in unjustified disadvantage claim led to modest award of compensation or damages - Authority noted applicant did not succeed with all factual allegations advanced in support of claims - In essence respondent claimed should be treated as successful party - Applicant submitted was successful in two out of three claims, and evidence for dismissal claim had to be heard in respect of successful claims - Claimed costs should lie where they fall - Respondent succeeded on major part of case - Would be wrong to award costs against it - Similarly, applicant enjoyed more than pyrrhic measure of success, would be wrong to order contribution to costs - Costs to lie where they fall
Result: Costs to lie where they fall
Wheeler v Fishers Meats Ltd
9 Feb 2007, L Robinson, AA 28/07, (4 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Parties signed Record of Settlement whereby respondent agreed to pay applicant compensation by specified date - Compensation not received by specified date - Applicant advised would seek enforcement, and filed application for compliance in Authority - On date application filed, respondent paid compensation - Applicant sought legal costs of $790 plus filing fee - Applicant not obliged to give notice sought compliance or make demand for payment - Date payment required clear in Settlement - Not relevant respondent did not receive reminder until in default - Failed to meet its obligations and comply with Settlement - Applicant's costs of enforcement should not have been incurred, and reasonable - Entitled to recover costs - Respondent to pay $720 in costs plus filing fee
Result: Costs in favour of applicant ($720) ; Filing fee ($70)
Whittaker v Les Baty Engineeing Ltd
12 Feb 2007, P R Stapp, WA 24/07, (4 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Not constructive to direct matter to mediation - Respondent confirmed agreed sum not paid - Respondent stated had concerns about applicant and produced Statutory Declaration from third party in support - Declaration had little relevance to enforcement - If genuine issues arose from signing of settlement proper action should have been taken in separate proceedings - Compliance ordered - Respondent warned of consequences of failure to comply - COSTS - Based on three hours work and representation at $125 hour, reasonable costs for matter $375
Result: Compliance ordered ; Costs in favour of applicant ($375) ; Disbursements ($70)(Filing fee)
Wood v Cardinal Freight Distribution Ltd
23 Aug 2007, J Crichton, CA 62A/07, (4 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought contribution of $7,000 towards actual costs of $12,100 plus filing fee and air fares - Authority considered may have been further movement in average costs for one day investigation meetings since PBO Ltd (formerly Rush Security Ltd) v Da Cruz (cited below) - No reason to depart from principle costs follow event - Notional daily rate principle would have resulted in contribution of $3,000 - Applicant's costs appeared on high side, but some costs function of difficulties in dealing with respondent - Contribution to costs of $4,000 appropriate - Claimed air fares on basis, but for proven default of respondent, applicant would have found alternative employment in NZ, but as consequence of respondent's bad faith, forced to look overseas - Appropriate respondent pay air fares of applicant and wife
Result: Costs in favour of applicant ($4,000) ; Disbursements ($70)(Filing fee) ; ($1,050.94)(Air fares)
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