Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Resource consent / Applicant, Respondent and third party hold resource consent for proposed driveway / Applicant claims cost of surveying, plumbing, and engineering design work for proposed driveway / Respondent denies liability for these sums on basis she has repeatedly informed Applicant she did not wish to proceed with construction of driveway / Held: signing resource consent application form and paying costs of application did not amount to entering contract to build shared driveway / expenses incurred by Applicant were incurred in situation where there was no reasonable expectation for Respondent to contribute / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to auction her painting / Applicant believed painting was an original / Respondent believed it was a copy / Reserve price of $100.00 was set / Applicant observed the auction online / Respondent appeared to be shaking his head at one of the bidders / Painting sold for $250.00 / Applicant believed Respondent told the buyer not to bid as it was not an original / Applicant believed the painting should have fetched $2000.00 / Applicant claimed $1750.00 from Respondent / Whether Respondent failed to provide service with reasonable skill and care / Whether Respondent engaged in misleading or deceptive conduct / Held: Applicant agreed to the reserve price / Respondent confirmed with the bidder that the painting had not been authenticated / Respondent acted with reasonable skill and care / No evidence of misleading or deceptive conduct by the Respondent / Applicant not proved any wrongdoing by the Respondent / Claim dismisse…

Contract / Respondent contracted Applicant plumber and gasfitter company to disconnect and install new steam and water pipes / job took longer than expected because sole director of Applicant company scheduled for surgery and had to send inexperienced staff instead / Applicant invoiced Respondent $8,438.48 / Respondent claims Applicant provided verbal estimate of $5,000 / Held: estimate given is not a fixed price, however it should not vary significantly unless there are unforeseen issues that arise / Applicant did not complete job at estimated price and did not discuss any extras with Respondents / Claim partially approved, Respondent to pay Applicant $5,750.00.

Contract / Respondent was walking her dog down a street opposite the Applicant’s property / Applicant came out of her house with a larger dog than Respondent’s / Applicant leaned into her car to clear some items / Applicant heard someone shouting and saw Respondent’s dog lying on the footpath / Later the Applicant received a phone call from the Respondent saying her dog was at the vet and needed a MRI scan costing $5,000 / Respondent refused to pay for the dog's treatment / Applicant paid for the MRI / MRI revealed there was no sign of a dog bite and that condition could have been caused by other factors / Respondent paid for additional vet bills when informed the dog would otherwise be put down / Applicant claimed $6,000 for cost of vet bill / Held: parties came to an agreement to share vet costs before coming to the Tribunal / Agreement should not be disturbed / Claim dismissed.

Claim for costs - Accident Compensation Act 2001. Question of amount of costs award to Appellant. Outcome: Appellant awarded costs and agreed disbursements $2438.40. 

Penalty / misconduct involving conflicts of interest / unsatisfactory conduct in dealing with trust account defaults / whether conduct should be marked by modest suspension / whether censure and contribution to costs sufficient / HELD / moderately serious misconduct / two occasions of conflict of interest / practitioner previously benefited from reduced suspension for previous offending / Tribunal refused to credit voluntary cessation from practice as “involuntary suspension” / prior disciplinary findings not aggravating factor, but pattern of disregard for professional standards can be observed / suspension appropriate / however, Standard Committee should not have pursued misconduct charge for minor defaults / Tribunal ordered three-month suspension / practitioner to pay 75 per cent of Standards Committee’s costs ($20,000) and Tribunal’s full costs

Appeal / complaint licensee did not disclose specific leak, conspired to have appellant vacate property to hide the leak, falsely alleged the appellant delayed listing and settlement, and overcharged for marketing / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.2, r10.7 / HELD / no breach of r10.7 or r6.2 / Committee addressed defects generally, did not specifically address specific leak / nevertheless, property marketed and sold on “as is, where is” basis, and evidence shows licensee disclosed specific leak to potential purchasers / not required to investigate gravity or source of leak / advice that vacant premises would achieve best sale price appropriate, no bad faith motive / no evidence of overcharging, or that licensee blamed appellant for delaying listing or settlement / licensees must be honest to owners about disbursements / appeal dismissed

Contract / Applicant ordered a kit online from the Respondent for $1079.00 / Respondent advised that the product would need to ordered from the supplier / Later Respondent advised kit was no longer available and refunded the Applicant / Applicant claimed $2000.00 for cost of kit and to acquire the kit components individually at a higher cost / What was the agreement between the parties / Whether the agreement had been breached / If so, what was the remedy / Held: contract was conditional on the availability of the kit, as indicated by terms and conditions on the Respondent’s website / Respondent made all reasonable efforts to procure the kit / Kit was no longer available from the supplier / Condition of availability was not met / Contract for sale came to an end / Applicant was refunded purchase price / No loss suffered from Applicant / Claim dismissed.

Liability / two charges of misconduct / practitioner mocked LCRO’s order to apologise / tardy estate distribution / funds left on interest-bearing deposit for years after earlier prompt by disciplinary system / Conduct and Client Care Rules 2008, rule 2.3 / rule 2.10 / rule 3 / rule 10 / rule 12 / HELD / apology not compliant with order / practitioner pretended to perform an apology / no acknowledgement of wrongdoing / purposely drafted apology letter to mock order, insult LCRO, convey no remorse and designed to withhold vindication to complainant / conduct disgraceful or dishonourable / practitioner held special responsibility and power as sole executor / seven-year delay in distributing final sum, even after prompt from earlier complaint, unacceptable / both misconduct charges proved / permanent name suppression for complainants and clients / parties to file penalty submissions

Contract / Contract and Commercial Law Act 2017 / Respondent was a chain store that made hot cakes / Respondent placed an order with Applicant to supply cake boxes / Initial production was supplied to Respondent / Respondent notified Applicant of issues with quality of the boxes / Applicant continued production of boxes / Respondent assured they would pay the remaining amount but did not contact Applicant / Applicant claimed $3380.00 for outstanding balance / Held: boxes were property of the Respondent as soon as contract was formed / Full contract price payable to Applicant / Respondent ordered to pay $3380.00 / Claim granted.

Complaint / Committee declined to take further action / property matter / lawyer sent a letter of engagement via post to complainant / complainant alleges she didn’t receive the letter of engagement / complaint about the amount of fees / time records provided by lawyer missing information / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.4 / HELD / not every breach of the rules necessarily results in an adverse finding against a lawyer / LCRO invites lawyer to consider voluntary reduction of fee as a gesture of goodwill / Committee’s decision confirmed / section 211(1)(a)

[2022] NZEmpC 158 Els v Entelar Ltd (Costs Judgment of Judge B A Corkill, 29 August 2022) COSTS – GUIDELINE SCALE – proceedings were withdrawn – costs awarded.