Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Sanctions / adviser failed to request client file from INZ / failed to provide client with opportunity to review s61 requests prior to lodgment / failed to provide written agreement for second s61 request / Immigration Advisers Licensing Act 2007, s3, s50, s50A, s51 / Code of Conduct 2014, cl1, cl18a / HELD / third appearance before Tribunal / fourth complaint recently upheld / adviser’s failings not an isolated incident but misconduct occurred before Tribunal’s prior decisions / adviser’s disciplinary history shows a pattern of misconduct that continued over a prolonged period / protecting and properly informing a client involves ensuring there is a written contract and the client is aware of what is happening / medical evidence gives context but not a justification for wrongdoing during relevant period / adviser’s misconduct is not of itself serious / acknowledges professional failings / adviser censured / ordered to pay $2,000 financial penalty / ordered to refund fees of $2,200.

Contract / Applicant owns interest in claim against Respondent / Respondent was director of a company that had contract to use telephone services / The company was removed from Companies Register / Telephone services were provided for a further three months / Applicant claims costs of services for that three month period against Respondent as they consider her to be personally liable / Held: respondent did not contract in her own name for telephone services, nor was she a guarantor / Contracting party was therefore a company / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased fishing drone from Respondent that included product care replacement option and promotional gift cards / Fishing drone did not function and could not be repaired or replaced / Applicant claimed $5,100 / Held: Applicant entitled to refund of purchase price including product care / Applicant not obligated to return value of gift cards / Respondent ordered to pay Applicant $5,100 / Claim allowed.

Penalty / two charges of misconduct / falsely stated cost of client’s drug assessment report / deleted electronic copy of report and failed to inform client or client’s new lawyer of report / Lawyers and Conveyancers Act 2006, section 3 / HELD / admitted lie about drug report bill only at the hearing / lie was deliberate / combination of behaviours which fundamentally breached fiduciary relationship and trust brings strike-off into play / Tribunal noted practitioner’s years of service as lawyer and to community, and numerous references which had considerable impact on penalty orders / aggravating features include vulnerability of client and resultant imbalance of power / mitigating features include client not having paid the bill yet, years of good service and generally good reputation / Tribunal ordered censure, 12 months’ suspension, supervision upon return to practice, and therapy / practitioner to pay Standards Committee’s and Tribunal’s costs

[2023] NZEmpC 74 Nelmac Ltd v Reunited Employees Assoc Inc (Judgment of Judge K G Smith, 16 May 2023) FIXING COLLECTIVE AGREEMENT – CHALLENGE – no breach of good faith by employer – union breached good faith by raising pay claim late and refusing to deal with recognised bargaining agent – Authority was correct to fix collective agreement as a consequence of the breach of good faith – JURISDICTION – Court could not have fixed collective agreement – COSTS – decision was not of public interest such that costs should lie where they fall – daily tariff awarded.

Liability / licensee charged under s73 and s72 for communications with tenants as selling agent regarding consent for viewings / Evidence Act 2006, s50 / Real Estate Agents Act 2008, s4, s72, s73, s91, s109 / Residential Tenancies Act 1986, s48 / Professional Rules 2012, r5.2, r6.3, r9.1 / admissibility / Tenancy Tribunal and District Court decisions admissible / misconduct charges not proven / does not meet threshold for disgraceful conduct, not proven wilful or reckless breach of r6.3, or seriously incompetent or seriously negligent real estate work / unsatisfactory conduct found / breach of s72a, s72b (for breach of r5.2, r6.3) & s72d / licensee was acting as a real estate agent during conduct / harassed and threatened tenants / demonstrated unsound knowledge of Residential Tenancies Act 1986 / charges partially upheld / penalty decision to follow 

Contract / Applicant contracted Respondent as an independent licensed salesperson / Respondent ended contract and agreed to refund marketing advance but disagreed to refund polytechnic training costs or Real Estate Agent licensing fee / Held: Respondent agreed to refund additional training and licensing fees if she left within the first two years of contract / Respondent ordered to pay Applicant $4,051.35 / Claim allowed.

Claims for costs on appeal Part 14 District Court Rules 2014. Outcome: Appellant awarded $859.50 in costs on appeal. Appeal allowed.

Contract / Reasonable price / Applicant did roofing work for Respondent / Applicant claimed invoice payment $25,995.75 / Held: estimate provided by Respondent's construction consultant regarded as best evidence of reasonable price / Applicant did not seriously challenge calculations / Respondent ordered to pay Applicant $15,182 / Claim partially allowed.

Penalty / misconduct / former licensee found guilty under s73a (disgraceful conduct) for failing to account for $92,210 of bond money relating to 49 residential tenancies paid to his property management company to be transferred to Tenancy Services / instead, bond money was retained for use by his businesses / Real Estate Agents Act 2008, s3, s73a, s93, s110, s110A / HELD / theft of over $92,000 is at high end of misconduct and undermines purpose of the Act which is to protect the interests of consumers / consumers are entitled to expect licensees to act with honesty and integrity / licensee provided no evidence of financial circumstances / first appearance before Tribunal, but wrongdoing was not an isolated incident / admitted misconduct and apologised, but only at the last moment at the hearing / if licensee still retained a licence it would have been cancelled / censured / ordered to pay $15,000 financial penalty / 50 per cent costs ($17,477.75)

Liability / two charges for failing to pay compensation to two clients per Standards Committee orders / dollar amounts involved were minimal / practitioner admitted breaches but disagreed with merit of orders / did not acknowledge wrongdoing / unsuccessful in appeals and judicial reviews relating to orders / whether conduct misconduct or unsatisfactory conduct / Lawyers and Conveyancers Act 2006, section 7(1)(a) / HELD / refusal to comply with orders comprises contravention of fundamental obligation to uphold rule of law and facilitate the administration of justice / practitioner’s wilful actions in mistreating complainants of first compensation order put them to extraordinary trouble and expense / attacked their integrity and credibility / practitioner was rude and condescending to second complainant / continued refusal and improper challenges to compensation orders characterise his wilful disobedience / misconduct proved / parties to file penalty submissions

Negligence / Applicant’s car damaged by van driven by First Respondent / First Respondent driving van in course of employment for Second Respondent / First Respondent was on phone to Second Respondent at time of collision / Applicant’s insurer claimed $3,962.53 repair costs / Held: First Respondent owed duty of care to check for cars approaching / Duty did not rest with Applicant who was in own lane / First Respondent breached duty of care / Second Respondent vicariously liable for First Respondent’s negligence / Repair costs were reasonable, excluding COVID-19 cleaning charge as no active cases at time / Respondents ordered to pay Applicant’s insurer $3,922.28 / Claim allowed.