Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Negligence / Applicant was driving her car down a street on a day where there was high wind / A branch from Applicant’s tree fell and hit the bonnet of the Respondent’s car / The vehicle was damaged in the incident and since written off / Applicant claims $4,915 for the car repair and transport costs / Held: Respondent’s were negligent as the tree falling was reasonably foreseeable / Claim allowed / Respondent ordered to pay applicant $3,300.

Contract / Respondents rented a storage unit from Applicant company / Applicant company made three claims / Firstly, Applicants claimed Respondents breached the contract by not paying the fee due / Secondly, Applicants claimed Respondents were responsible for damage to  storage units caused by a third party / Lastly, Applicants claimed Respondents had abandoned the storage unit / Held: Respondents breached the contract by not paying the fee due / However, Applicant had not taken steps to minimise its loss / Respondents as renters were responsible for damages caused by third parties to their unit and adjoining units / Respondents did not abandon the storage unit, but the Applicants were within their rights to remove and dispose of the goods in the unit / Respondents ordered to pay Applicant $200 in costs to repair storage unit damage / Applicant could not claim the cost of breach of contract as they had breached the contract themselves by not providing the second swipe card / Claim gran…

Negligence / Car driven by second Respondent collided with the rear of car driven by first Respondent / First Respondent’s car then veered into shop occupied by Applicant / Considerable damage caused / Applicant’s insurer has met the costs of repairs and now claims those costs from first Respondent, their insurer, and second Respondent / Held: second Respondent fully liable for the damage / Impact from behind might have caused first Respondent to react in confused way and accelerate into shop / Claim against first Respondent dismissed / Second Respondent to pay Applicant’s insurer $17,285.20.

Liability and penalty / salesperson charged under s73a / agency charged under s73ciii or s73b / salesperson forged signatures on six agency agreements / agency internally disciplined salesperson when first forgery discovered, but did not report misconduct to REAA / Real Estate Agents Act 2008, s3, s73a, s73b, s73ciii, s91, s110, s1102e, s110A / Professional Rules 2012, r7.2 / HELD / salesperson admitted disgraceful conduct / forgery deceitful, disgraceful, despite no loss or financial gain / ordered censure / licence would have been cancelled if held, instead s1102e order made prohibiting engagement for five years / no fine / agency admitted wilful contravention of r7.2, s73ciii charge upheld / internal handling motivated by welfare concern, but should have advised REAA of concerns with report / after learning of first forgery, should have investigated other sales / low-level wrongdoing / ordered censure / $2,000 fine / 50 per cent costs ($4,000), split evenly

Complaint / Committee declined to take further action / litigation matter / complaint lawyer was negligent and incompetent in litigation / fees complaint / Committee determined no special circumstances to deal with the fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / Lawyers and Conveyancers Act, section 138(1)(f) / HELD / arguments put forward by complainant are founded on allegations that have not been argued and decided / claim before the court represents the best opportunity for complainant to pursue his defence and seek recompense / Committee’s decision confirmed / section 211(1)(a)

Contract / Card charges / Hotel / Applicants were guests at Respondent’s hotel / Respondents charged Applicant’s credit card $200 without notifying them / Respondents claim this was because of damage in the room / Applicants claim there was no damage / Applicants claim the charge was unfair / Held: Respondents have burden of proof to prove the damage and justify the charge to the Applicant’s credit card / Held: Respondents have not discharged burden of proof as their evidence is from over six months later / Held: no legal basis for the Respondents to charge the Applicant’s credit card $200.00 / Respondents ordered to repay the $200 / Claim upheld.

Liability / two charges of unsatisfactory conduct and one charge of misconduct / failure to attend court / failure to ensure affidavit accompanied application to set aside bankruptcy notice / failure to advise client of bankruptcy / failure to withdraw as counsel for Family Court proceedings / practitioner prohibited from practising on own account / Lawyers and Conveyancers Act 2006, section 9(1)(a) / Trust Account Regulations 2008, regulation 10 / HELD / practitioner failed to act competently and in timely manner / lawyer-client relationship between practitioner and friend well-established / practitioner provided regulated services for client other than in course of employment / constructed the apparent “extra-legal” arrangement to suit his purposes / took advantage of loophole to appear as non-lawyer representative / practitioner accepted funds paid on account of fees directly into own account / unsatisfactory conduct found (section 12(a)) / parties to file penalty submissions

Claim for costs Accident Compensation Act 2001. Appeal as to costs relating to an earlier appeal for damages. Appellant was self-represented so not entitled to costs or damages. Outcome: appeal dismissed.

Penalty / practitioner admitted one charge of misconduct / issued three fraudulent fee invoices that would be paid to personal bank account / HELD / offending at very serious end of misconduct as it was planned and deliberate, and involved altering documents to divert client funds and use of associate to avoid detection / aggravating features include placing client funds at risk, exploiting position of trust, and lying that offending was a one-off incident during Standards Committee enquiry / mitigating features include admission of charge, expression of remorse, and practitioner’s youth, inexperience and personal difficulties / offending not explained by personal difficulties / practitioner’s insight not apparent in dishonest response and non-repayment of fees wrongly taken / unclear what practitioner needs to remedy for rehabilitation purposes / not fit and proper / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Review / Committee declined to take further action / trust administration matter / incompetence in administrating the trust / failed to respond in a timely manner / breached fiduciary duty and charged unreasonable fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / Lawyers and Conveyancers Act 2006, section 12 / section 209 / HELD / complainant’s allegations of incompetence returned to the Committee for reconsideration / Committee to reconsider complaint about fees / Committee’s decision to take no further action about emails responses and invoices confirmed / section 211(1)(a)

Contract / Applicants entered into contract with Respondent to supply steel / Price of steel increased and Respondent tried to pass that cost onto the Applicant / Respondent cancelled contract and refused to supply the steel at agreed price / Applicant engaged another party to supply the steel / Applicant claimed the difference between contract price for steel and what she had to pay in the end, $5520.00 / Held: no variation to which increased costs may operate upon as no variation to the work requested / Respondent not entitled to refuse to honour the earlier agreed price / Respondent ordered to pay Applicant $5520.00 / Claim granted.

Claim for costs - s 148, Accident Compensation Act 2001. Appeal against a decision dismissing several review applications and making a limited award of costs. The continuance of the applications beyond the Corporation’s advice was highly questionable. The lodgement of multiple reviews (on near-identical issues), rather than a single review application, was not reasonable. The Appellant has not established that she is entitled to further costs than those awarded in the decision. Outcome: appeal dismissed.