| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 389A/10 |
| Determination date | 21 December 2010 |
| Member | R Arthur |
| Representation | S Cook, G Mayes; D Erickson |
| Location | Auckland |
| Parties | Edwards v ERS New Zealand Ltd T/A Transpacific Industrial Solutions |
| Summary | COSTS - Partially successful restraint of trade claim - Unsuccessful personal grievance claim - Partially successful counterclaim for breach of contract and penalty - Two day investigation meeting - Applicant sought $14,000 contribution to total costs of $48,000 plus disbursements - Applicant’s claim based on notional daily rate of $4,000 for two day investigation meeting plus two days preparation time, minus deduction to reflect respondent’s partial success - Applicant submitted three factors favoured award of costs on basis proposed: applicant’s relative success, two “without prejudice” offers, and complexity of preparing for two full days of investigation meeting with large number of witnesses and many issues - Respondent claimed costs should lie where they fall as both parties enjoyed measure of success - Claimed “without prejudice” offers not relevant to costs in this particular case - Authority found central issue was whether applicant free to start new job as soon as notice period with respondent expired despite restraint of trade provision - Found costs follow the event on applicant’s success on that issue - Found starting point was usual daily tariff of $3,000 - Authority found tariff based assessment did not require additional days for preparation time - Found were two very full days of investigation so accepted should amount to extra half day - Found $7,500 in costs for two and a half days, subject to adjustment appropriate - Found while case lengthy not inherently more complex than many other matters coming before Authority - No increase in daily tariff warranted on that basis - Found “without prejudice offers” supporting factor in increasing award - However, offers required payment of disputed bonus - Bonus still in dispute between parties, therefore could not be said respondent would have been better off if had accepted either offer - Found because of that no adjustment necessary - Found respondent partially successful in counterclaims - Found $1,500 downward adjustment appropriate to reflect success - Respondent to pay applicant $6,000 contribution to costs plus disbursements |
| Result | Costs in favour of applicant ($6,000) ; Disbursements in favour of applicant ($893) |
| Main Category | Costs |
| Statutes | ERA Second Schedule cl15 |
| Cases Cited | Edwards v ERS New Zealand Ltd t/a Transpacific Industrial Solutions unreported, R Arthur, 27 Aug 2010, AA 389/10;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;The Chief Executive of the Department of Corrections v Tawhiwhirangi [2008] ERNZ 73 |
| Number of Pages | 4 |
| PDF File Link: | aa 389a_10.pdf [pdf 22 KB] |