Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Fencing Act 1978 / Applicants and Respondents own neighbouring properties / Applicants claimed fence between properties not adequate and served Respondents with a notice under the Fencing Act (the Act) asking Respondents to replace fence and pay cost / Respondents served cross notice under the Act stating fence was adequate and did not need replacing / Respondents stated if it did they should only be liable for 50 percent of cost of replacement / Whether the existing fence adequate in terms of the Act / If not, what were reasonable costs for replacement / Whether Respondents damaged the fence and were liable to pay full replacement cost / Held: fence not adequate in terms of the Act / reasonable costs to replace fence are $7,495.00 / condition of fence cannot said to have been caused by Respondents / per s 9 of the Act, each party liable for 50 percent of cost of replacement / Respondent ordered to pay $3,747.50 to Applicant / claim allowed

[2021] NZEmpC 144 Crossen v Yangs House Ltd (Costs Judgment of Judge K G Smith, 7 September 2021) COSTS – LEGAL AID – unsuccessful party was legally aided – no exceptional circumstances to justify award of costs – costs lie where they fall.

Negligence / appeal against Registrar rejecting complaint / adviser in error in advising that residence application could be made offshore / corrected error before application deadline ended but complainant already departed NZ / adviser failed to satisfactorily apologise / Registrar rejected complaint on basis it disclosed trivial or inconsequential matters / Immigration Advisers Licensing Act 2007, s 442, s451, s54 / Code of Conduct 2014, cl 1 / not accepted error caused loss of the chance of residence / adviser discovered mistake after appellant left NZ but before his planned resignation from employment / appellant could have returned to NZ / Registrar has discretion in deciding to pursue complaints / disciplinary threshold not reached / adviser eventually gave correct advice before it was too late, and refunded fee and other costs / failure to satisfactorily apologise thoughtless rather than deliberate, could not justify formal disciplinary process / appeal rejected.

02.09.2021 | Judge D.H. Stone | Section 18(1)(a) Te Ture Whenua Māori Act 1993 | Judgment as to Costs

Charge laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(a) of the Act. Tribunal records it would have ordered cancellation of licence if that had been open to it to do so. Defendant ordered to pay $1650 as contribution towards Committee's costs.

Complaint / Committee declined to take further action / estate matter / complaint lawyer did not maintain proper standards of professionalism, did not act competently or in a timely manner, and did not respond to requests for information in a timely manner / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / complaint by estate beneficiary / a lawyer instructed by an executor owes the executor client-duties / executor is responsible to court and beneficiaries for proper implementation of will / lawyer’s obligations more limited than executors / executor sought indemnity prior to distribution and lawyer was obliged to follow instructions / matter progressed in a timely manner / fee fair and reasonable / no evidence of instructions to delegate work to legal executive to lower fees / section 211(1)(a)

Application for review of Registrar's determination under s 112 of the Real Estate Agents Act 2008. Application for award of costs against Registrar in respect of hearing in the Tribunal. Outcome: Registrar to pay $15,000 as contribution towards costs.

Review / Committee declined to take further action / subdivision consent and easement / complaint lawyer not competent in advising complainant to take judicial review proceedings, did not raise relevant matters in the proceedings, and did not advise on litigation risk / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7.1 / VM v XZ [2020] NZLCRO 216 / HELD / lawyer advised complainant of litigation risk and discretionary nature of judicial review / indication law was “well-settled” by judge / no evidence lawyer’s arguments lacked merit / representation was meticulous / adverse costs order cannot be considered part of lawyer’s fee in fee complaint / comparison between fees and High Court Rules scale a useful starting point, but not a determinative factor / applicable test for fees is in rule 9 and 9.1 / Committee’s superficial fee analysis must be returned to the Committee for first instance determination / section 209 / Committee…

[2021] NZEmpC 133 Ngawaka v Global Security Solutions Ltd (Interlocutory Judgment of Judge K G Smith, 17 August 2021) APPLICATION FOR SECURITY FOR COSTS – no evidence of potential in ability to pay – costs unlikely to arise as both parties are self-represented – application declined.

[2021] NZEmpC 134 MacLeod v Wellington City Transport Ltd (Judgment of Judge B A Corkill, 17 August 2021) NOTICE OF DISCONTINUANCE – file closed – no issue as to costs.

Contract / Tort / Trespass / Applicant instructed his son to park in a private carpark / Respondent issued Applicant with a letter to pay $95 for the breach and $75 late payment / Applicant advised Respondent he had not received the first breach letter but paid the $95 / Applicant later received notice from a debt collection agency to pay $288.75 / Applicant sought declaration he was not liable to pay any further monies to the Respondent and claimed reimbursement of the filing fee / Whether the Applicant trespassed onto land by parking without authorisation / Whether the Applicant was a party to a contract by parking where he did / Whether the Applicant was entitled to a declaration that he was not liable to pay the breach fees / Held: $95 paid by Applicant for trespassing onto the Respondent’s land was more than sufficient compensation / No contract between the parties / No foundation for the Respondent’s notice seeking late payment or debt collectors’ fees / Applicant was entitled to…

Negligence / Duty of care / Applicant’s car was parked near a hockey stadium / Ball from the turf damaged the applicant’s car / Applicant claimed $1475.00 for damage to his car / Whether the respondents owed a duty of care / What duty was breached / If so, whether the breach caused damage and was foreseeable / What was the reasonable costs of repairing the damage / Held: duty of care for the occupier of the turf to take reasonable care to prevent harm resulting from their activities on the turf/ Applicant was a hockey player and was accustomed to how the turf was used / Applicant failed to discharge onus of proof that there had been a breach of duty of care by the respondents / No breach of duty of care found / claim dismissed.