Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

26.05.2022 | Judge M P Armstrong | Section 19, Te Ture Whenua Māori Act 1991 | Costs

Contract / Applicant entered into an agreement to purchase a property including chattels from the Respondent / Applicants agent raised issues following pre-settlement inspection regarding missing furniture, cleanliness and furniture swapped with inferior quality items / No agreement was reached prior to settlement / Applicants claim $20,390.00 for replacement and removal of furniture, cleaning and travel costs, and loss of rental income / Held: The Respondents breached the agreement by not leaving two side tables at the property and failing to remove stickers and decorative mirrors / The respondents did not breach of the vendor warranties for chattel / Applicants are not entitled to compensation for loss of rental income / Respondents to pay Applicants $600.00 / claim: upheld.

Penalty / misconduct for practising outside terms of practising certificate by providing pro bono regulated services to the public, and unsatisfactory conduct for failing to provide client service information and act independently / failed to advise NZLS of his involvement in litigation when corresponding about status of practising certificate / Lawyers and Conveyancers Act 2006, section 9 / HELD / aggravating features include failure to disclose involvement in litigation, absolute duty of candour required and NZLS was misled / strong mitigating feature includes over 50-year career without previous blemish, services to community, and acted not for personal gain but desire to help his neighbours / more serious than comparable cases due to experience and on-notice of the issue / Tribunal ordered censure, $7,500 fine / practitioner to pay 75 per cent of Standards Committee’s and Tribunal’s costs

Late filing of review application and costs – ss 135 and 148, claim regarding Code of Claimants’ Rights – s 140(3), deemed decisions – s 146, Accident Compensation Act 2001. Appeal of three review decisions. Whether Corporation correctly declined to accept the late filing of the applicant’s review application; if so, whether there is jurisdiction to consider the decision suspending entitlements; and whether the decision to award no costs was correct. Whether a Reviewer correctly held that there was no jurisdiction to entertain a review about a revoked decision, as it had been superseded by a later decision, and then awarded limited costs. Whether a Reviewer correctly dismissed the claim that there were two deemed decisions in the appellant’s favour. Outcome: appeals dismissed and review decisions upheld except in relation to the matter of costs and expenses of the 9 November 2020 decision.

Costs claim. Appeal against decision not to reward costs. Outcome: appeal dismissed.

Complaint / Committee found unsatisfactory conduct / employment dispute / complaint opposing lawyer had acted for the complainant regarding an employment dispute / complainant had concerns about the legal fees he incurred / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 9.4 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 215 / HELD / complaint opposing lawyer should have given an indication of unbilled time / complainant should have been informed that the retainer had expanded beyond initial contemplation / complainant deprived of proper opportunity to consider his options / fee charged was not fair / Committee’s decision confirmed / lawyer ordered to pay costs in the sum of $1,200 / section 211(1)(a)  

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased DIY electric gate motor from Respondent for $676 / Motor supplied pre-wired for battery power with installation instructions and manual showing two different power supply options / Applicant connected motor to AC power supply not battery / Gate did not move and motor smoked when checked / Applicant returned motor / Respondent did not find any problems with motor and returned it / Applicant hired electrician who found motor supplied without cable needed to connect to AC instead of battery / Applicant claims replacement motor, refund of $105 shipping fee and payment for $300 electrician fees / Held: motor supplied acceptable quality under CGA / problems were because it was connected to AC power when wired for battery power / Held: Respondent did not make false or misleading representations when advertising motor /  nothing untrue in the advertising / described as DIY product and came with thorough instructions / Claim di…

Claim for costs - Accident Compensation Act 2001. Amount of costs award for Appellant's advocate considered. Advocate costs award and disbursements awarded. Outcome: appeal allowed.

Review / two findings of unsatisfactory conduct / both parties provided submissions as to the appropriate orders to be made / Lawyers and Conveyancers Act 2006, section 12(a) / section 14(a) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / HELD / complaints process is no substitute for a clam in negligence to be pursued through the courts / proper forum for large compensation claim is the courts / legal executive ordered to pay the sum of $2,000 to the complainant / invoice fee to be reduced by $400 plus GST / fee cancelled for the amendment to the agreement / $1,000 fine / legal executive ordered to pay Law Society the sum of $1,600 as contribution towards costs / Committee’s decision otherwise confirmed / section 211(1)(a)

Charges / no case to answer / practitioner charged concerning five elderly clients / Hall v Wellington Standards Committee (No. 2) [2013] NZAR 743 (HC) / Lawyers and Conveyancers Act 2006, section 240A / HELD / necessary for Tribunal to determine whether evidence sufficient to establish charge / basis for misconduct charges not established / no evidential foundation for overcharging / satisfied client competent to give instructions / no jurisdictional impediment to Tribunal hearing remaining unsatisfactory conduct charges / Tribunal may strike out charges that do not justify disciplinary sanction / no disciplinary sanction required / no reasonable basis to find against practitioner on fee complaint / particulars alleging wrong-doing with Powers of Attorney disclose no reasonable cause of action / minor infractions might arise in any busy practice without alarm / all charges dismissed / Standards Committee must pay Tribunal costs / costs between parties reserved

Complaint / Committee decided to take no further action / litigation / complaint opposing lawyer took steps to recover outstanding funds from the complainant / complainant argued that lawyer had no entitlement to fees claimed as he had been conflicted when undertaking work for her / complainant contended that the lawyer should have withdrawn as her counsel when circumstances required him to do so / lawyer argued that his withdrawal from the proceedings was discussed with the complainant and was supported by her / complainant was advised by new solicitor to pay the opposing lawyer’s fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13 / HELD / complainant failed to provide necessary evidence to establish that the lawyer had breached his duties or obligations owed to her or the Court / complainant consistently represented to the lawyer that she would settle his fees on receipt of settlement funds from the proceedings / lawyers are entitled to be paid…

[2022] NZEmpC 69 Alkazaz v Enterprise IT Ltd (Costs Judgment of Chief Judge Christina Inglis, 22 April 2022) COSTS – proportionality points away from use of the guideline scale – costs awarded.