Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Respondent contacted the Applicant regarding purchase of quail eggs and quails / Email communication ensued between the parties regarding quail purchase / Proposal to send eggs was sent by Applicant which the Respondent did not respond to / Applicant claimed $70 from Respondent for eggs and freight costs / Whether there was a contract between the parties / Whether the Applicant was entitled to payment for the eggs and freight costs / Held: no contract was formed / Acceptance of an offer had to be communicated to the offeror for it to be effective / Respondent expressed a willingness to proceed with negotiations / Not enough to amount to a concluded contract / Claim dismissed.

Date of decision: 24 November 2022. Privacy Act 2020.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased caravan from Respondent / Applicant contracted with Respondent to deliver caravan / Delivery costs was $4,000.00 / Caravan had insect infestation / Applicant attempted to clean up infestation / Respondent assisted with insect cleaning / Applicant asked for refund / Respondent agreed conditional upon Applicant returning caravan / Cost of return was $6,000.00 / Applicant claimed supplied goods not up to standard / Applicant sought delivery costs and return total $10,000.00 / Held: Respondent supplied goods that were not up to standard / Respondent ordered to pay Applicant $10,000.00 / Applicant to return caravan to Respondent / Claim granted.

Negligence / Respondent kicked in panels on Applicant’s car / Respondent also filled Applicant's petrol vehicle up with diesel / Applicant claimed compensation for the costs of repairing the petrol tank and panels / Applicant's car subsequently stolen / Held: Applicant's car was stolen and there is therefore no hope of it ever being repaired / It would be artificial to award Applicant compensation for repairs which will never be done / Claim dismissed.

Penalty / misconduct / first licensee guilty (s73b) for sending draft agreement to another licensee without deleting previous signatures and not ensuring new signatures were obtained / second licensee guilty (s73b) for failing to check whether he had consent to insert signatures / Real Estate Agents Act 2008, s3, s91, s110 / Professional Rules 2012, r5.1, r6.1, r6.3 / HELD / first licensee / two prior adverse disciplinary findings relevant / admitted wrongdoing early and co-operated / conduct at moderate to higher level / while not deliberate or dishonest, same outcome / first licensee censured / ordered to pay $10,000 financial penalty / second licensee / no prior disciplinary history / voluntary suspension of licence relevant / denied involvement for significant period before admitting wrongdoing / similar seriousness to first licensee / second licensee censured / ordered to pay $4,000 financial penalty / 50 per cent costs ($2,839), split evenly

Contract / Applicants contracted the Respondent to cater their wedding / Applicants paid a thirty percent deposit on quoted price of $3325 / Wedding postponed due to Covid restrictions / Respondent agreed to change wedding date / Applicants unsuccessfully attempted to contact the Respondent regarding the catering closer to the date / Eventually Respondent advised that he had retired due to Covid difficulties / Applicants advised Respondent that they wished to cancel the contract and obtain a refund / Whether the Applicants were entitled to a refund / Held: amount paid by the Applicants was more than a reasonable deposit / Applicants not advised of any specific cancellation terms and conditions / Applicants experienced difficulties communicating with the Respondent / Respondent ordered to pay $997.50 / Claim granted.

[2022] NZEmpC 204 The Chief of New Zealand Defence Force v Darnley (Costs Judgment of Judge Kathryn Beck, 16 November 2022) COSTS - GUIDELINE SCALE - partial success by each party - costs considered separately for each substantive issue - costs awarded.

Contract / Respondents were the former property manager for Applicants / Applicants are unhappy with services provided in two tenancies / Applicants claim $4870 from respondent for various cleaning fees, repair and replacement fees, and for rent forgone after termination of second tenancy and 50% refund of management fees / Claim partially allowed for cleaning fees, replacement fees, and for one day’s rent missed when first tenancy ended, Respondent ordered to pay Applicant $169.28 total.

Liability / sexual harassment / six charges of misconduct / practitioner’s conduct broadly categorised as sexual harassment against three junior and two senior staff / was intoxicated while working as a lawyer / no dispute conduct occurred in professional setting / HELD / charges 1 to 3 proven as misconduct / evidence of complainants credible / practitioner lacked awareness of power imbalance between summer clerks or junior staff members and senior member / conduct went beyond merely unwise or unacceptable conduct / was disgraceful and dishonourable / charge 4 dismissed / complainant concedes physical touch while dancing at Christmas party may have been accidental / charge 5 (intoxication while working) dismissed / observation of one person insufficient / no evidence such as evidential breath or blood testing available / no evidence of harm to clients or impaired performance / charge 6 dismissed as duplicate and redundant / parties to file penalty submissions

Sanctions / failed to disclose a conflict of interest in writing and obtain written consent, failed to maintain a client file with copies of all written and oral communications, and failed to make file available to IAA / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl5, cl6, cl26aiii, cl26e / most serious breach was failure to disclose conflict in writing and obtain client’s written consent; mitigated by verbal disclosure of conflict / five previous complaints upheld / poor disciplinary history is a significant aggravating feature / adviser censured / public require protection / adviser prevented from reapplying for licence for maximum two years / ordered to pay $2,000 financial penalty / costs claimed for compensation not caused by upheld breaches, declined

Contract / Applicant parked in private car park owned by Respondent / Applicant failed to pay fee to use car park / Respondent issued Applicant with $65.00 fine /  Applicant failed to pay fine so Respondent issued overdue notice of $85.00 / Applicant paid $14.00 / Applicant claims $300.00 to recover costs of engaging in this process, and as a penalty to the Respondent / Applicant claims no contract formed as contract terms and conditions were not clearly laid out in visible place / Respondent counterclaims $71.00 for unpaid fees / Held : Signage was sufficient for contract terms to be clearly visible / Applicant to pay Respondent $71.00 / Claim dismissed / Counterclaim granted.

Contract / Respondent engaged Applicant for legal services / Applicant gave a cost estimate for work to Respondent / Applicant carried out  work and invoiced a higher price than initially estimated / Respondent refused to pay Applicant more than estimated price / Applicant claimed $1800 plus GST for the legal work conducted / Held: Applicant intended to charge initial price range for work conducted / Terms of engagement did not allow Applicant to charge beyond the estimate given / Respondent ordered to pay Applicant $892.50 for legal work conducted / Claim granted in part.

Liability and penalty / practitioner intentionally breached binding settlement agreement / lacked independence when representing clients / made meritless allegations against lawyers and judicial officers / Lawyers and Conveyancers Act 2006, section 4 / Conduct and Client Care Rules 2008, rule 2.3 / rule 10.1 / rule 13.1 / rule 13.2 / rule 13.8 / HELD / lawyers entitled to represent clients fearlessly but conduct must comply with Act and Rules / interactions between lawyer and judicial system must be courteous for system to function / allegations require evidential foundation / deliberate disregard of non-publication order and unrestrained manner of successive proceedings amount to repeated abuses of process / representation of clients were attempts to relitigate personal issues / not fit and proper / circumstances cumulatively amount to misconduct / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs