Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Penalty / misconduct / assisted a person to avoid GST, failed to account for GST, miscoded accounts / business dealing unconnected with legal services / whether suspension from practise necessary to mark seriousness, denounce conduct and signal standards of integrity required of lawyers in all business dealings / HELD / conduct not most serious, involves private business arrangements / aggravating features include long delay in failing to pay GST and previous unsatisfactory conduct finding / mitigating feature include full payment of GST and penalties, no harm to clients and outsourced accounting responsibilities / positive references go beyond usual references, include senior criminal jury work in South Auckland, and mentoring young Māori and Pacifica lawyers / practitioner fit and proper, preventing him from doing so would risk serious loss to clients and employees /  Tribunal ordered censure, $10,000 fine / practitioner to pay Standard’s Committee’s and Tribunal’s costs 

Contract / Companies Act 1993 / Applicant company placed in liquidation and through its liquidator brings a claim against Respondent for $17,1756.50 / Whether Respondent indebted to Applicant / Whether Respondent entitled to set off for costs of GPS rental contract and sign writing / Whether Respondent indebted to Applicant for unapproved invoices / Whether Respondent commencing or continuing legal proceedings against Applicant by claiming a set-off in breach of the Companies Act / Held: Respondent indebted to Applicant / Held: Respondent entitled to off-set sum owed to Applicant for sign writing / Held: Respondent entitled to off-set outstanding costs of GPS rental / Held: Respondent do not owe Applicant for unapproved invoices / Held: Respondent established a set-off and not a counter-claim / Claim dismissed

Contract / Consumer Guarantees Act 1993 / Applicant purchased a laptop from the Respondent for $2,119.00 / After four years, Applicant began to have issues with the laptop screen display / Respondent advised it would cost the Applicant $1,239.70 to repair the issue / Applicant claimed the laptop was not of acceptable quality and was not fit for purpose / Applicant sought a refund of the purchase price of $2,119.00 / Whether the laptop was of reasonable quality / Whether the laptop was fit for purpose / If not, what remedy was available to the Applicant / Held: evidence suggested laptop was of acceptable quality and was fit for purpose / Reasonable for a laptop to require repairs after four years / No remedy available to the Applicant / Claim dismissed.

Review / Committee found unsatisfactory conduct / own-motion investigation following confidential report that on two occasions, lawyer inappropriately touched employees without consent / NZLS applied to review culpability determination / whether conduct should have been referred to LCDT / whether LCRO should lay charges / HELD / conduct occurred after work-related social event / constitutes conduct connected with regulated services / culpability inquiry should not generally consider external factors such as lawyer’s personal circumstances or matters unconnected with alleged breach / Committee incorrectly allowed unrelated mitigation issues to affect assessment of culpability / these factors more appropriately considered in penalty / Committee’s examination of whether force was used in incidents is incomplete / use of force requires careful and critical assessment / Committee directed to reconsider culpability for conduct without considering unrelated mitigation issues / section 209

Contract / Contract and Commercial Law Act 2017 / Applicant accepted fixed price quote from Respondent for renovation job / Respondent requested additional $5,250 due to cost miscalculation / Applicant refused to pay / Respondent ceased work for a period / Applicant claimed work order, declaration that she was not required to pay the extra amount, and $7,150.00 for losses suffered from unjustified delay / Respondent counterclaimed for additional cost / Held: Respondent did not have the right to impose extra charge of $5,250 / Counterclaim dismissed / Respondent recommenced work which was almost completed by hearing date / Applicant’s calculation of damages too high / Respondent ordered to pay Applicant $3,500 in damages / Claim allowed in part.

Insurance / Applicants submitted a claim for stolen BMW with Respondent / Respondent interviewed Appellants and noted incorrect and inconsistent statements / Respondent subsequently declined the claim and cancelled three other insurance policies / Applicants claim $14,70700  in damages to cover the agreed insured value of the car, modifications and legal costs / Applicants seeks to also have the cancellation of their insurance policies reversed / Held: The Applicants suffered the loss claimed / The Respondent was not entitled to decline Applicants claim or cancel the policies / Respondents must pay Applicants $10,13700, including a contribution towards legal costs/ Respondent agrees to reverse its decision to decline the claim and cancel policies / Respondent also agrees to allow Applicants to cancel since they have since moved to another insurer / claim: upheld.

Date of Decision: 20 December 2021. Privacy Act 2020.

Contract / Applicants bought run-down caravan from Respondent / Applicants not satisfied with condition of caravan / Applicants want to return caravan and claims refund of payment / Respondent claims there was no verbal agreement to return the caravan and refund / Respondent claims payment for storage fees / Held: contract was formed through verbal agreement / Applicants not liable to pay storage fees as there was no discussion or agreement to pay / Respondent to pay Applicant $1,800 on or before 28 January 2022 / Claim granted.

Consumer law / Fair Trading Act 1986 / Applicant brought several airline tickets from Respondent / Tickets were subject to condition that they were non-refundable if Applicant cancelled / Applicant unable to use some of the flights / Applicant sought a credit for their price from Respondent / Applicant also sought an order that Respondent credit him with price of any future flight tickets purchased in the event he may be unable to take those flights / Held: Applicant’s ticket purchases cannot reasonably be taken to be subject to an implied term that he could receive a credit for cancelled flights regardless of dates the flights were due to depart / Respondent’s policy announcements were not misleading or deceptive / Applicant not established any ground to be allowed credits for flights that he did not take, or those that he might take in the future / Claim dismissed.

[2021] NZEmpC 225 FDE v UWV (Consent Costs Judgment of Chief Judge Christina Inglis, 14 December 2021) COSTS - consent.

Contract / Property / Parties own houses that have cross-leased titles on land / Respondent wished to perform substantial renovations / Memorandum of lease required Respondent to obtain consent of Applicants / Consent provided on condition that Respondent reduced fence height by 0.1m / During renovations, Respondent’s contractors moved letterboxes and later reinstated them 1.5 to 2m away from original position / Applicants seek compensation to reinstate letterboxes / Respondent counterclaims compensation for loss of enjoyment of land, for an order that she be allowed to rebuild her fence to its original height, and legal costs incurred / Held: Applicants have not proven that they are entitled to have the letterboxes reinstated to their original position / Respondent entitled to reimbursement of surveyor fees incurred in defending claim / Applicants to pay Respondent $1,782.50 / Claim dismissed.

Contract / Applicants arranged to purchase a puppy for $1000 from Respondent / Advertisement stated deposit was non-refundable / Applicants paid $600 deposit / Applicants decided not to purchase the puppy / Respondent resold the puppy for $1000 / Applicants claimed refund of deposit / Whether Applicants were entitled to a refund of deposit / Held: agreed sale terminated once accepted by Applicants that the puppy would be resold / Applicants aware that the Respondent would resell the puppy to mitigate losses / Reality was Applicants would not complete the purchase and Respondent would refund at least part of the purchase price / Sixty percent of the purchase price exceeds what would normally be regarded as a payment intended to be forfeited if the buyer defaulted / Respondent ordered to refund half of the deposit to the Applicants, $300 / Claim granted in part.

Sale and purchase of land / Applicant agreed to sell property to Respondent / Title not issued by deadline / Agreement extended several times before settlement / Purchasers later resold property / Applicant sought contribution for sealing costs for access road and survey costs / Held: no express or implied responsibility in the original agreement to allow claim to succeed / No inferred acceptance from text exchange / Risk not to secure agreement in writing and left to prove acceptance on appearances / Insufficient evidence to show acceptance of proposal / Claim dismissed.