Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Liability / misconduct in managing parents’ estates and affairs / conduct unconnected with the provision of regulated services / breaches of fiduciary duties (including profiting), failure to maintain adequate records, failure to account / whether fit and proper person or suited to practice as a lawyer / HELD / practitioner owed fiduciary duties administering estates and affairs / reckless in handling father’s estate, caused losses to estate / has never produced mother’s will / made unsecured loans to herself and sister, who were both financial risks / brother received no share of father’s estate / previous misconduct finding for not complying with s 147 notice / has not produced records to demonstrate distributions / under a duty to account / failed to have proper regard to siblings’ interests / failed to recognise extent she imperiled mother’s position and hampered brother’s ability to obtain residuary share / s 7(1)(b)(ii) test met / charges proven

Contract / Respondent purchased car from Applicant / Respondent returned car to Applicant due to defects / Applicant refunded Respondent purchase price of car / Applicant claims car returned in damaged condition / Applicant claims $25,367.74 as refund of amount paid to respondent, or $17,593.75 for cost of repair / Held: damage more likely than not occured after purchase / Held: Respondent was not aware of damage when returning car / claim dismissed.

[2022] NZEmpC 28 Smiths City (Southern) Ltd (in rec) v Milne (Judgment of Judge K G Smith, 21 February 2022) CONSENT – costs settled by consent.

Contract / Transport / Consumer Guarantees Act 1993 (CGA) /  Applicant travelled on long distance bus service / Applicant unhappy on grounds that service was late, poor driving, and lack of air-conditioning / Applicant claimed refund of $66 ticket price / Whether Respondent carried out services with reasonable care and skill / What sum, if any, Respondent must pay to Applicant / Held: bus delay outside Respondent's control / Applicant did not suffer loss due to 10 minute delay / Insufficient evidence that Respondent’s driver failed to exercise reasonable care and skill / Reasonable to expect air conditioning to be working on a long trip / Air conditioning issue a failure under s 28 of the CGA / Applicant chose to remain on bus rather than cancelling contract due to lack of air conditioning / Applicant still received value from trip since main purpose was to get to his intended destination / If a consumer purchased a ticket knowing the air conditioning was not working they might expect …

[2022] NZEmpC 26 Tupe v The Board of Trustees of Te Manawa O Tuhoe Trust (Interlocutory Judgment of Judge Kathryn Beck, 16 February 2022) APPLICATION FOR SECURITY FOR COSTS – claim does not obviously lack merit – no evidence of impecuniosity – no evidence of a pattern of litigious behaviour – application declined.

Appeal against Registrar rejecting complaint / complaint adviser failed to inform INZ that client had lost his job, breached confidentiality by sharing information with employer, and mistakenly informed client INZ would issue the family visitor visas / Registrar rejected complaint on basis it disclosed only a trivial or inconsequential matter / Immigration Advisers Licensing Act 2007, s442, s451, s54 / Code of Conduct 2014, cl18a, cl26aii / not accepted INZ not informed that client lost employment / client informed INZ without reference to adviser / when client communicates directly with INZ, less clear who is responsible for any failure to inform / no evidence of breach of confidentiality or that adviser lied to client concerning visitor visa / public hospital charges arising out of failing to have a visa not the responsibility of adviser / absence of written agreement is a breach of cl18a, Registrar appropriately issued a reminder / appeal rejected  DP

[2022] NZEmpC 19 Kang v Saena Company Ltd (Interlocutory Judgment of Chief Judge Inglis, 10 February 2022) APPLICATION FOR LEAVE TO FILE AMENDED PLEADINGS – applicant should be allowed to increase quantum of remedies sought – application granted – APPLICATION TO EXCLUDE EVIDENCE – evidence to be included but taken into account when considering costs – ADMISSIBILITY OF EVIDENCE – part of evidence contains reference to mediation – offending paragraphs to be struck out.

Contract / Contract and Commercial Law Act 2017 / Applicant enrolled her child to attend afterschool care run by the Respondent for the first two terms of 2021 / In July 2021, Applicant prepaid $1,088 for the third term / Due to Covid-19 some classes were not delivered while others were moved online / Applicant sought a refund for the classes that were not delivered / Respondent asked Applicant to sign form on back of enrolment form before it would process request for refund / Applicant refused to sign the form, which contained terms regarding accepting a credit / Respondent maintained Applicant was only entitled to a credit rather than a refund / Applicant claimed a refund of $779.80 based on the Respondent’s original calculation of the credit due / Were the unsigned terms on the back of the enrolment form part of the contract / Whether the contract was frustrated / What sum, if any, should be refunded / Held: evidence indicated that the terms on the back of the enrolment form were no…

Appeal / vendor sold property to another purchaser / complaint licensee dealt unfairly with an unsuccessful offeror, leading to unfair sale process and wasted due diligence costs / did not advise of another higher offer, and did not engage in multi-offer process / also alleged licensee failed to disclose subsidence issue to successful purchaser / Committee took no further action / Real Estate Agents Act 2008, s 109A, s 111 / Professional Rules 2012, rr 5.1, 6.2, 6.4, 10.7, 10.8 / HELD / strike-out grounds not met / reasonable to recommend due diligence / licensee not aware of other bidder at times relevant to allegations / successful purchaser dealt directly with vendor / licensee raised multi-offer process but vendor declined / licensee disclosed subsidence issue to purchaser when sending draft sale and purchase agreement / no evidence purchasers not told of subsidence issue by vendor / purchasers declined to speak to investigator / Committee’s decision confirmed

Tort / Detinue / Applicant booked Polaris Ranger into Respondents’ workshop / Respondent refused to return the ranger until Applicant paid outstanding invoice for a different Polaris / The vehicle was returned, after Applicant filed an initial Disputes Tribunal claim / Applicant seeks damages to cover the cost of hiring an alternative vehicle while Polaris was detained / Held: It was unlawful for Respondent to withhold the Polaris / The first and third Respondent must pay the Applicant $1,100.00 for hiring costs / The claim against the second respondent is dismissed. Claim: partially upheld.

Costs. Whether costs fall under category 1A or category 2B. Outcome: the Court found it is a category 1 proceeding.

Liability / charged with practising outside terms of practising certificate by providing pro bono regulated services to the public, and failing to provide client service information and act independently / represented his wife and eight others in litigation before courts / Lawyers and Conveyancers Act 2006, section 9 / section 69 / section 94 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 3.5 / rule 5 / rule 5.6 / HELD / misconduct found per s 9 / practitioner employed, not entitled to practice on own account / putting issue of wife to one side, other parties clearly constituted “the public” / clients exposed to significant adverse costs award including an uplift for practitioner’s conduct / breaches of rr 3.4, 3.5 and 5 are unsatisfactory conduct per ss 12(a) or 12(b)(ii) / charges under s 7(1)(a)(iii) a duplication of s 9 charges / misconduct and unsatisfactory conduct proved