Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Charges under s 91 of the Real Estate Agents Act 2008. Charged with misconduct under s 73(a) of the Real Estate Agents Act 2008, with an alternative charge of misconduct under s 73(c)(iii) of the Act (for a wilful or reckless contravention of r 6.3 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012. Tribunal will not direct that Mr Bright is not permitted to cross-examine the complainant.

Date of Decision: 20 August 2020. Health and Disability Commissioner Act 1994.

Contract / Contract and Commercial Law Act 2017 / Applicant contracted with Respondent to hold their wedding at Respondent’s wedding venue / Applicant paid Respondent a deposit of $1,500.00 and a further $5000.00 / Contract was frustrated by the Level-4 COVID-19 lockdown announcement on 23 March 2020 / Applicant claims a full refund of $6,500.00, Respondent seeks to off-set payments made against overhead expenses of $7054.74 / Held: s 61 of the CCLA provides for the Applicant to be refunded as the starting point / Respondent retains some of the payments as there was an intangible benefit to the Applicants in incurring overhead expense costs / Claim allowed, Respondent ordered to pay $5039.27

Breach of contract / Consumer rights / Consumer Guarantees Act 1983 / Respondent stayed at Applicant’s respite care facility during a period of illness / Applicant invoiced Respondent for a 12 night stay, Respondent paid 6 nights due to perceived deficiencies in care provided / Applicant claims $962.40 for the unpaid balance of 6 nights / Respondent counter-claims requesting non-liability for debt collection costs / Held: Applicant did not breach the Consumer Guarantees Act requirement to provide services with reasonable care and skill / Respondent liable to pay outstanding balance invoiced / Dispute known by Applicant prior to commencement of debt collection process / Debt collection does not proceed where there is a known dispute / Claim allowed, Respondent ordered to pay $962.40 / Counter-claim allowed, Respondent not liable to pay debt collection costs.

[2020] NZEmpC 119 BR & SL Porter Ltd v Higgs (Costs Judgment of Chief Judge C Inglis, 10 August 2020) COSTS – application was straightforward - $1,750 awarded.

[2020] NZEmpC 121 KAG v HST (Interlocutory Judgment of Judge K G Smith, 10 August 2020) APPLICATION FOR STAY – financial impact of COVID-19 lockdown on company cashflow – employee admits she would not be able to repay sum if challenge succeeds – stay granted - APPLICATION FOR EXTENSION OF TIME TO FILE A CHALLENGE – company wants to also challenge costs determination – employee consents – application granted.

Complaint / Committee declined to take further action on complaint / civil proceedings / complaint opposing lawyer improperly pursued statutory demand and fees not fair and reasonable / duties to third parties / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / Companies Act 1993, section 290 / indemnity for fees / HELD / lawyer acted on client instructions / no breach of rule 9 / Committee’s decision confirmed / section 211(1)(a)

Contract / Applicant contract with Respondent to undertake building work / Applicant went into liquidation / Director of Applicant continued building work as sole trader / Director invoiced Respondent for work done pre-dating liquidation / Respondent paid Director for that work / Applicant claims payment should have been made for that work direct to Applicant / Respondent claimed costs of the proceedings / Held: contract was between Applicant and Respondent / Held: payment to Director did not amount to payment to Applicant for amount owed / Applicant entitled to payment but it is reasonable to share responsibility of payment / Claim allowed / Respondent ordered to pay $800.00 to Applicant / Counter claim not allowed / Respondent not entitled to costs

[2020] NZEmpC 114 Ikundabose v McWatt Group Ltd (Judgment of Judge M E Perkins, 31 July 2020) APPLICATION FOR REHEARING – application was made after limitation period – insufficient explanation for the delay – application declined - APPLICATION FOR SECURITY FOR COSTS – not considered because application for rehearing was declined – COSTS – Authority’s costs award confirmed – employee made Court proceedings prolonged and difficult – early offer of settlement was rejected – large costs award would cause hardship – costs guideline scale applied without adjustment – costs also awarded for unsuccessful application for rehearing.

Tort / Trespass to land / Applicant operated a wheel clamping and towing business / Applicant clamped a vehicle owned by Respondent in a private car park / Applicant alleged the clamp was removed and damaged by the Respondent / Whether the Applicant had the authority of the land occupier to operate a clamping business at their location / Whether the Respondent consented to accepting the risk of being clamped and being required to pay a fee to have the clamp removed / Whether the Respondent removed and damaged the clamp / Whether the Respondent entitled to claim debt collection fees / Whether costs claimed were reasonable / Held: Applicant did have the authority of the land owner to operate a clamping business on its behalf / Applicant was entitled to make this claim in its own right / Respondent accepted that park was a private park / Wilful blindness does not excuse Respondent from checking the conditions on parking on private land / Respondent accepted the risk of being clamped or to…

Sanctions decision / negligence / dishonest or misleading conduct / adviser failed to inform complainant he was not eligible for citizenship & accepted money for application without undertaking any work / lack of proper file documentation / Immigration Advisers Licensing Act 2007, s50, s51 / misconduct serious / adviser found to be dishonest & negligent / dishonesty for personal gain / adviser gave no explanation or apology & showed no remorse / adviser censured & prevented from reapplying for licence for 2 years / adviser ordered to pay penalty of $7,000 & refund fees of $5,150.

Date of Decision: 23 July 2020. Privacy Act 1993.

Penalty / practitioner misappropriated funds from clients / accepted four misconduct charges and consented to strike-off order / HELD / strike-off order proper / offending aggravated by clients residing overseas, two elderly clients residing in rest homes, and one client being an estate with charities as beneficiaries / offending mitigated by prior blemish-free disciplinary record / costs decision mitigated by quick admission of wrongdoing and cooperation with disciplinary process / Tribunal ordered practitioner be struck off / practitioner to pay 75 per cent of Standards Committee’s costs and 75 per cent of the Tribunal’s costs / permanent name suppression for practitioner’s clients