Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Fencing / Fencing Act 1978 / Applicant owns a lot adjacent to the Respondent’s / Applicant emailed a fencing notice to the Respondent proposing a fence to be erected between the two properties / Applicant did not receive a response so built a fence and invoiced the Respondent for half of the cost / The respondent states notice was not correctly served to the legal owner of the land / Applicant claims $661.25 for the erection of the fence and Applicant’s legal costs / Held: Applicant did not serve the fencing notice to the Respondent / Claim dismissed.

Sanctions / dishonest behaviour / numerous breaches of obligations over multiple applications / false representations about application status and completed work while doing nothing / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl9, cl18a, cl26a, cl29a / HELD / high end of misconduct / in addition to deceit, 16 breaches of obligations / fourth upheld complaint against adviser with a pattern of deceitful conduct / did not engage with disciplinary process in a meaningful way / grave consequences for complainant / adviser censured / prevented from reapplying for maximum period of 2 years / ordered to pay $8,000 financial penalty / compensation of $27,145 ordered ($20,955 for wasted polytechnic fees, $1,150 for first s61 request after wrongdoing uncovered, and $5,000 emotional distress)  / costs for legal fees on complaint not awardable / fees for further immigration applications did not arise from adviser’s wrongdoing, disallowed

Liability and penalty / divorce proceedings / practitioner arranged sale and buy-back of her relationship property / misled Family Court by not disclosing her beneficial interest in the property, after declaring she had no interest in it other than as tenant / misconduct or conduct unbecoming of a barrister / Law Practitioners Act 1982, section 112(1)(a) / section 112(1)(b) / Lawyers and Conveyancers Act 2006, section 7(1)(a) / HELD / Tribunal found conduct unbecoming of a barrister / misleading a court by omitting information considered serious / mitigating factor that practitioner had personal and psychological factors surrounding conduct / acknowledged wrongdoing / conduct historic / acted in personal capacity / conduct at less serious level of spectrum / Tribunal ordered $5,000 fine / practitioner to pay $5,000 of Standards Committee’s costs and 50 per cent of Tribunal’s costs

Decisions on appeal - s 161(3) and Costs Accident Compensation Act 2001. The Appellant did not provide a response to Minute by the due date and time. Outcome: appeal dismissed.

Preliminary issue / whether Limitation Act 2010 applies to claim under Consumer Guarantees Act 1993 in respect of insurance contract / Consumer Guarantees Act 1993, s 20(2), s 28, s 32 / Limitation Act 2010, s 11, s 12, s 14 / HELD / insurer cannot be required to remedy defects under s 32(a)(i) of the CGA as claim not brought within a reasonable time, but plaintiff has not lost the right to recover reasonable costs of having the failure remedied by another under s 32(a)(ii)(A) / that money claim is subject to the Limitation Act 2010 / directions for next steps issued

[2022] NZEmpC 126 Henderson Travels Ltd v Kaur (Interlocutory Judgment (No 2) of Judge K G Smith, 15 July 2022) APPLICATIONS FOR SECURITY FOR COSTS – application cannot be made by a plaintiff – employee impecuniosity caused by allegedly unjustifiable dismissal - security for costs would not be just against the employee in the circumstances – company has financial support – insufficient evidence that it would be unable to pay future costs award – applications dismissed.

[2022] NZEmpC 122 Reunited Employees Assoc Inc v Nelmac Ltd (Interlocutory Judgment of Judge K G Smith, 8 July 2022) APPLICATION FOR SECURITY FOR COSTS – respondent is unlikely to be able to satisfy a future costs order if challenge unsuccessful – ordering security for costs may have effect of ending litigation – such an order would not be in interests of justice – application dismissed.

[2022] NZEmpC 120 Smiths City (Southern) Ltd (in receivership) v Claxton (Costs Judgment of Judge K G Smith, 6 July 2022) COSTS – GUIDELINE SCALE – appropriate costs category is 2B – Calderbank offer justifies uplift – costs awarded for Authority proceedings – costs awarded on costs.

Liability / practitioner lodged notice of claim against property for vendor client in direct conflict with vendor’s sister who was one of the purchasers and also a client of practitioner’s firm / property sold at reserve price then on-sold by purchasers for profit / practitioner prepared amended enduring power of attorney for vendor certifying self as independent / misconduct, negligence or unsatisfactory conduct / Conduct and Client Care Rules 2008, rule 3 / rule 5 / rule 5.1 / rule 5.2 / rule 5.3 / rule 6.1 / HELD / web of conflict of interests discernible / client not asked to get independent advice or sent away as required / practitioner did not heed warning of undue influence of client by sister / ought to have ensured vendor fully understood sister’s intentions / not properly independent when power of attorney amended / intended to protect client but failed to appreciate red flags and risks to her / negligence proved (section 241(c)) / parties to file penalty submissions

[2022] NZEmpC 112 Shaw v Bay of Plenty District Health Board (Costs Judgment of Judge K G Smith, 28 June 2022) COSTS – GUIDELINE SCALE – respondent has limited means – uplift warranted for amended pleadings requiring further attendances – costs awarded with uplift.

Penalty / two counts of misconduct by each practitioner / terminated retainer four weeks before settlement conference / had client sign deed acknowledging debt without independent legal advice or explanation about effect / unsatisfactory conduct by first practitioner for failing to advise about eligibility for legal aid and litigation risk / Lawyers and Conveyancers Act 2006, section 156(1)(d) / HELD / misconduct serious but not dishonest or malicious / aggravating features include disciplinary history, belated action to discharge mortgage, lack of insight by first practitioner / mitigating features include lengthy career and writing off outstanding fees / client suffered significant stress, anxiety and humiliation (emotional harm) / compensation principles discussed / Tribunal ordered censure, $10,000 and $7,000 fine respectively, and $5,000 compensation each / practitioners to jointly pay contribution to Standards Committee’s costs ($30,000) and full Tribunal’s costs

[2022] NZEmpC 108 Saipe v Bethell (Costs Judgment of Judge J C Holden, 21 June 2022) COSTS - GUIDELINE SCALE - calculation overstated costs - financial circumstances considered.

Complaint / Committee found unsatisfactory conduct / review of penalty decision / failure to keep will safe / complainant could not access late husband’s KiwiSaver / complainant was obliged to apply for probate for a copy of the will / delay in being able to meet ongoing costs caused loss of dignity and distress / Lawyers and Conveyancers Act 2006, section 152(2)(b)(i) / section 156(1)(b) / McGuire v Manawatu Standards Committee [2016] NZHC 1052 / HELD / lawyer censured / compensation of $10,000 to the complainant / Committee imposed $2,000 fine / costs of $1,500 to the Law Society / LCRO ordered lawyer to pay sum of $450 by way of costs of the review / Committee’s decision confirmed / section 211(1)(a)