Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2021] NZEmpC 158 HR Processing 2008 Ltd (formerly known as OSS Ltd (in liquidation)) (Costs judgment of Judge B A Corkill, 20 September 2021) APPLICATION FOR COSTS – company went into liquidation prior to determining quantum of costs – consent of liquidator not required – application for leave to file out of time not an “originating application” – application granted – guideline scale.

[2021] NZEmpC 154 Jackson v The Aorere College Board of Trustees (Costs Judgment of Chief Judge Christina Inglis, 16 September 2021) COSTS – guideline scale considered – costs awarded.

Consumer Guarantees Act 1993 / Guarantee of acceptable quality / Rejection of goods / Damages / Applicant purchased car from Respondent in January 2019 / Mechanical breakdown insurance was taken out in relation to the car with the Second Respondent / In March 2020 the car’s engine was replaced by the Third Respondent / Applicant states replacement engine has failed and claims refund of purchase price and repair costs / Held: Applicant not entitled to reject car and receive refund from Respondent / Lost right to reject goods as not done within reasonable time per s 20 CGA / Held: Applicant entitled to damages of $1844.12 from Respondent / Car not of acceptable quality per s 18 CGA / Claim allowed in part / Claim against Second and Third Respondents dismissed

Fencing Act 1978 / Applicants and Respondents own neighbouring properties / Applicants claimed fence between properties not adequate and served Respondents with a notice under the Fencing Act (the Act) asking Respondents to replace fence and pay cost / Respondents served cross notice under the Act stating fence was adequate and did not need replacing / Respondents stated if it did they should only be liable for 50 percent of cost of replacement / Whether the existing fence adequate in terms of the Act / If not, what were reasonable costs for replacement / Whether Respondents damaged the fence and were liable to pay full replacement cost / Held: fence not adequate in terms of the Act / reasonable costs to replace fence are $7,495.00 / condition of fence cannot said to have been caused by Respondents / per s 9 of the Act, each party liable for 50 percent of cost of replacement / Respondent ordered to pay $3,747.50 to Applicant / claim allowed

[2021] NZEmpC 144 Crossen v Yangs House Ltd (Costs Judgment of Judge K G Smith, 7 September 2021) COSTS – LEGAL AID – unsuccessful party was legally aided – no exceptional circumstances to justify award of costs – costs lie where they fall.

Negligence / appeal against Registrar rejecting complaint / adviser in error in advising that residence application could be made offshore / corrected error before application deadline ended but complainant already departed NZ / adviser failed to satisfactorily apologise / Registrar rejected complaint on basis it disclosed trivial or inconsequential matters / Immigration Advisers Licensing Act 2007, s 442, s451, s54 / Code of Conduct 2014, cl 1 / not accepted error caused loss of the chance of residence / adviser discovered mistake after appellant left NZ but before his planned resignation from employment / appellant could have returned to NZ / Registrar has discretion in deciding to pursue complaints / disciplinary threshold not reached / adviser eventually gave correct advice before it was too late, and refunded fee and other costs / failure to satisfactorily apologise thoughtless rather than deliberate, could not justify formal disciplinary process / appeal rejected.

02.09.2021 | Judge D.H. Stone | Section 18(1)(a) Te Ture Whenua Māori Act 1993 | Judgment as to Costs

Charge laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(a) of the Act. Tribunal records it would have ordered cancellation of licence if that had been open to it to do so. Defendant ordered to pay $1650 as contribution towards Committee's costs.

Complaint / Committee declined to take further action / estate matter / complaint lawyer did not maintain proper standards of professionalism, did not act competently or in a timely manner, and did not respond to requests for information in a timely manner / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / complaint by estate beneficiary / a lawyer instructed by an executor owes the executor client-duties / executor is responsible to court and beneficiaries for proper implementation of will / lawyer’s obligations more limited than executors / executor sought indemnity prior to distribution and lawyer was obliged to follow instructions / matter progressed in a timely manner / fee fair and reasonable / no evidence of instructions to delegate work to legal executive to lower fees / section 211(1)(a)

Application for review of Registrar's determination under s 112 of the Real Estate Agents Act 2008. Application for award of costs against Registrar in respect of hearing in the Tribunal. Outcome: Registrar to pay $15,000 as contribution towards costs.

Review / Committee declined to take further action / subdivision consent and easement / complaint lawyer not competent in advising complainant to take judicial review proceedings, did not raise relevant matters in the proceedings, and did not advise on litigation risk / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7.1 / VM v XZ [2020] NZLCRO 216 / HELD / lawyer advised complainant of litigation risk and discretionary nature of judicial review / indication law was “well-settled” by judge / no evidence lawyer’s arguments lacked merit / representation was meticulous / adverse costs order cannot be considered part of lawyer’s fee in fee complaint / comparison between fees and High Court Rules scale a useful starting point, but not a determinative factor / applicable test for fees is in rule 9 and 9.1 / Committee’s superficial fee analysis must be returned to the Committee for first instance determination / section 209 / Committee…

[2021] NZEmpC 133 Ngawaka v Global Security Solutions Ltd (Interlocutory Judgment of Judge K G Smith, 17 August 2021) APPLICATION FOR SECURITY FOR COSTS – no evidence of potential in ability to pay – costs unlikely to arise as both parties are self-represented – application declined.

[2021] NZEmpC 134 MacLeod v Wellington City Transport Ltd (Judgment of Judge B A Corkill, 17 August 2021) NOTICE OF DISCONTINUANCE – file closed – no issue as to costs.