Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Penalty / three charges of misconduct / failed to comply with s 147 notice in relation to four clients / HELD / regulatory body hampered by practitioner’s repeated failures to engage with it / practitioner dismissively treated serious departures from conduct expected of solicitors / unable to acknowledge practice was not providing the service clients were entitled to expect / practice was erratic, unresponsive and not an isolated lapse / lawyers owe duty to comply with current regulatory regime and whether regime may change in future is irrelevant / serious practice deficits / 18 prior findings of unsatisfactory conduct mark practitioner as problematic / no credible explanation for behaviour / medical evidence inadequate / no means of measuring ways to help practitioner practise safely / not fit and proper / compensation declined as no opportunity given to respond / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Liability / misconduct / licensee charged under s73b for marketing lots without agency agreements, misrepresenting lot sizes & failing to ensure purchasers obtained professional advice, disclosing confidential information, and failing to ensure agreements contained material GST particulars before signature / Real Estate Agents Act 2008, s3, s73, s91 / Professional Rules 2012, r5.1, r6.1, r6.4, r9.1, r9.6, r9.9, r9.17 / HELD / breach of r9.6 / marketed lots by taking prospective purchasers to them, without agency agreement / breach of r5.1 and r6.4 / misrepresented lot sizes & lacked understanding of plans / should have sought clarification or recommended professional advice / purchasers relied on incorrect information / breach of r6.1, r9.1, r9.17 / disclosed vendor’s financial position without authority / breach of r5.1 and r9.9 / failed to ensure GST schedules were completed before agreements signed / breaches were seriously negligent or incompetent / charges upheld

Negligence / Heavy rain caused section of bank bordering Applicant and Respondent property to slip / Slip damaged Applicant’s trailer / Applicant claimed damages of $791.60 / Applicant claimed legal costs of $3,762.00 / Respondent counterclaimed legal costs of $1,951.32 / Held: Respondent did not breach duty of care / Neither party entitled to costs / Claim dismissed.

[2023] NZEmpC 48 Bird v Vice-Chancellor of the University of Waikato (Costs Judgment of Judge J C Holden, 29 March 2023) COSTS – GUIDELINE SCALE – costs awarded – no basis for awarding costs on costs.

Misleading behaviour / diligence and due care / professional practice requirements / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl18a, cl22, cl24b, cl24c, cl25a, cl25e, cl25f, cl26b / HELD / adviser misled complainant into believing an NZQA assessment had been filed, giving false reasons for delays / behaviour not explained by confusion or deterioration in health / also, admits failing to forward INZ emails, breach of cl26b / filed incomplete application & failed to advise that lodgement had failed, and failed to file EOI in a timely manner & provide timely updates, breaches of cl1 and cl26b / failed to provide written agreement covering new work, breach of cl18a / admits he did not issue invoices for fees & delayed refund due to financial difficulties before funds were payable, breach of cl22, cl24b, cl25a, cl25e, cl25f, cl24c / complaint upheld

Claim for costs - Part 14 District Court Rules 2014. Appellant is entitled to costs. Outcome: Appeal allowed. Appellant awarded $22,442.50 costs and $11,695.39 disbursements.

Liability and penalty / misconduct for failing to follow up on immigration work for three clients / misleading employer and client about progress of work / providing regulated services without supervision / unsatisfactory conduct for failing to secure client documents / Lawyers and Conveyancers Act 2006, section 9 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 4.2 / rule 11.1 / HELD / misconduct was serious having regard to length of time over which conduct endured, serious consequences for clients and element of deception / strike-off not appropriate due to practitioner’s young age, inexperience and lack of supervision / rehabilitative pathways could not be explored as practitioner did not attend hearing / Committee’s costs too high for a formal proof claim with a less-than-half-day hearing / Tribunal ordered two years’ suspension / practitioner to pay reduced Standards Committee’s costs ($35,000) and full Tribunal’s costs

Sanctions / adviser submitted EOIs without instructions and failed to communicate with INZ or the client for long periods / lacked diligence and due care / nine unprofessional acts breaching 10 Code provisions / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2a, cl2e, cl15b, cl24c, cl26b, cl26e, cl26f, cl27b, cl28c / HELD / second appearance before Tribunal, with prior decision involving dishonest or misleading behaviour / ill-health an important mitigating factor / has not renewed licence / no submissions on sanctions from complainant or adviser despite extensions / adviser censured / ordered to pay $4,000 financial penalty, having regard to breaches, disciplinary record and health / no submissions as to a fair and reasonable refund for service fee and the Tribunal declines to speculate / $5,070 refund ordered for application fees not incurred / no compensation sought by complainant

[2023] NZEmpC 42 Chen v WNY Group Ltd (Costs Judgment of Judge Kathryn Beck, 16 March 2023) COSTS – GUIDELINE SCALE.

[2023] NZEmpC 39 Wilson-Grange Investments v Guerra (Judgment of Chief Judge Christina Inglis, 14 March 2023) NON-DE NOVO CHALLENGE - PERSONAL GRIEVANCE - Authority did not make an error in finding reduction in wages to be personal grievance, even in circumstances of COVID-19 lockdown - Authority did not make an error in finding a personal grievance for an unfair disciplinary process or in awarding costs.

Junior O’Connell complaint – no longer suitable to be a certificate holder after repeated failure to appear in court on violence and dishonesty charges – warrants issued – certificate cancelled.

Contract / Applicant purchased property from Respondent / Toilet overflowed when flushed and found that septic tank overflowing with sewerage / Applicant claimed cost to replace septic tank system and work performed to investigate fault / Held: sewerage disposal system not in reasonable working order on date of settlement in breach of vendor's warranties and undertakings / Applicant to be reimbursed for one third cost of least price to pay for new system / Respondent ordered to pay Applicant $8,908.83 / Claim partially allowed.

Contract / Applicant purchased saddle from Respondent through marketplace / Applicant received report that saddle showed obvious asymmetry and does not pass initial stationary checks to ensure it is safe to be ridden / Respondent disputed report and asked for saddle to be returned so she could obtain own assessment / Respondent declined to disclose who would do the investigation / Applicant declined to return saddle / Held: Applicant to courier saddle to Respondent / Respondent to either refund purchase price of saddle or inform registrar that dispute not resolved and second hearing required