Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract law / Consumer Guarantees Act 1993 / Applicant bought washing machine from Respondent / Washing machine’s depth was 720mm, different from online description 650mm / Applicant sought to return machine but Respondent declined request / Applicant claimed purchase price $1394.35 plus $270 consequential losses / Held: Machine inaccurately described by Respondent / Applicant entitled to reject goods and receive refund / Respondent ordered to pay Applicant $1664.35 / Claim allowed.

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent involved in collision / Respondent's insurer holding Applicant liable for $8,182.84 vehicle repair costs / Applicant claimed declaration of non-liability against Respondent / Held: if Respondent had not swerved, Applicant would have likely suffered more serious consequences / Respondent's insurer did not establish claimed amount was most cost-effective repair cost / Fifteen percent deducted from claimed amount / Applicant ordered to pay Respondent's insurer $7,000 / Claim allowed in part.

[2023] NZEmpC 34 Henry v South Waikato Achievement Trust (Costs Judgment of Judge K G Smith, 7 March 2023) COSTS - CONSENT.

Sale of Goods / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicant bought campervan from Respondent / Applicant damaged campervan and insured it / Insurer refused to pay all repair costs due to prior damage / Applicant claimed $17,896 payment of campervan / Held: Respondent misrepresented condition of campervan / Respondent ordered to pay Applicant $9,396 / Claim partially allowed.

Negligence / Respondent attended a party at Applicant’s house / Fight occurred and Respondent kicked in a pane of glass in Applicant’s front door / Chips of glass hit the TV screen causing damage / Applicant claimed $2,240.00 for damage / Whether costs were reasonable / Held: foreseeable that kicking the glass panel would damage the nearby TV / Applicant entitled to be restored to position before damage occurred / Reasonable compensation to replace the tv was $900.00 / Cost to repair glass pane was $239.30 / Respondent must pay Applicant $1,139.30 as compensation / Claim granted.

Claim for overseas rehabilitation costs - s 128 Accident Compensation Act 2001. Appeal of Reviewer's decision. Reviewer dismissed application for review of Corporation's decision. Corporation declined application for overseas treatment of selective dorsal rhizotomy. Outcome: appeal dismissed.

Sanctions / adviser failed to provide invoices on two occasions when fees were payable / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl22 / adviser has been licensed for almost 14 years, first appearance before Tribunal / accepts Tribunal’s decision / wrongdoing towards lower end of the spectrum / adviser cautioned / neither censure nor monetary penalty justified

Consumer law / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicants paid $65 for bottomless brunch at Respondent’s restaurant / Applicants informed after ordering their first round of food that additional food would incur extra charges / Terms and conditions did not specify whether bottomless brunch was limited to drinks / Applicants claimed Respondent breached consumer law / Applicants claimed food portions were too small and drinks did not contain sufficient alcohol / Applicants claimed $1,999.00 toward an apology, costs in preparing for hearing and purchasing food and drink in another restaurant / Held: Applicants did not receive full bargain they thought they had purchased / Applicants suffered loss of being able to order additional food at no extra charge and should get a partial refund / No evidence Respondent made false or misleading statements about the amount of alcohol in drinks / No proof about amount of food served / No receipts presented regarding costs for fo…

[2023] NZEmpC 28 Oliver v Biggs (Judgment of Judge B A Corkill, 28 February 2023) APPLICATION FOR COMPLIANCE ORDER – previous Costs awards have not been paid – no explanation made for ignoring Court orders – fine of $3,000 imposed – compliance orders made.

[2023] NZEmpC 20 Henry v South Waikato Achievement Trust (Judgment of Judge K G Smith, 22 February 2023) SUSPENSION – DISMISSAL – REMEDIES – decision to suspend not justified – employee not informed of real reason for suspension – decision to dismiss not justified – dismissal investigation flawed – compensation for lost wages – compensation for humiliation and injury to feelings – special damages awarded for legal fees incurred during dispute.

Negligence / Dog Control Act 1996/ Parties were neighbours / Respondents’ dog was found in Applicant’s garden / Applicant’s cat suffered injuries that required the cat to be euthanised / Whether Respondents liable for any damage caused by their dog / If yes, whether the Applicant was entitled to amount sought of $4,999,00 / Held: accepted that Respondent’s dog caused damage to the Applicant’s cat / Respondents liable for the damage caused by their dog / Respondents liable for vet bills not covered by insurance, $747.55 / Respondents also liable for cost of having the cat cremated and for the ashes box as it was not covered by insurance, $250 / Respondents also liable for Applicant’s travel costs, $17.60 / Respondents ordered to pay Applicant $1,015.15 / Claim granted in part.

Penalty / negligence for acting during conflict of interests / HELD / practitioner fell short of obligations due to handling of possible undue influence, failing to recognise conflict of interests, and correcting error in enduring power of attorney without recognising he was not independent / Tribunal accepts practitioner was actively protecting vulnerable client and was careful in obtaining medical evidence to show client had decisional capacity / conduct a relatively serious example of negligence / prior finding of unsatisfactory conduct an aggravating feature, but Tribunal noted it involved actions of staff member for which practitioner took responsibility / practitioner ought to have declined to act given vulnerability of client / mitigating features of long career and retirement, no public protection required / Tribunal ordered censure and $8,000 fine / practitioner to pay discounted Standards Committee costs ($45,000) and full Tribunal’s costs

Adviser failed to set out a full description of the services to be provided & the fees for those services in a written agreement / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl19e, cl19f, cl20a, cl22 / Immigration New Zealand (Calder) v Cleland [2019] NZIACDT 25 / HELD / adviser provided immigration advice and employment recruitment services to complainant in parallel without separation / in the absence of separation, the adviser’s professional obligations extend to the recruitment services / breach of cl19e and cl19f for failing to include description of recruitment services and associated fee information in written agreement / invoice provided did not contain a full description of recruitment services, but would not warrant disciplinary action / complainant’s narrative that recruitment services were not provided is rejected as false / complaint fee not fair and reasonable dismissed as no evidence provided of a reasonable fee