Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Costs - Accident Compensation Act 2001. Costs claim in relation to a successful appeal decision. No basis on which to award costs or disbursements. Outcome: appeal dismissed.

Liability and penalty / first charge of misleading clients and avoiding communication on botched conveyancing matter / second charge of avoiding resolution of LINZ queries about three e-dealing certifications / third charge of failing to be frank to Law Society when declaring he was fit and proper by disclosing only one fine but not others / Lawyers and Conveyancers Act 2006, section 4(a) / Conduct and Client Care Rules 2008, rule 2 / rule 3 / rule 10 / rule 11 / HELD / conduct occurred while providing regulated services / first two charges proved as misconduct / third charge proved as unsatisfactory conduct / previous complaints upheld show practitioner’s practise as unreliable, insufficiently concerned about clients, unresponsive and unhelpful / lacks essential attributes of honesty, trustworthiness and integrity / not fit and proper / Tribunal ordered practitioner be struck off and pay $2,327.60 compensation / practitioner to pay Standards Committee’s and Tribunal’s costs  

Contract / Applicants purchased house from Respondents / Respondents carried out pre-purchase inspection / Applicants removed carpet and found floor boards were wet / Water damage caused by long-standing failure of waterproof membrane to tiled shower tray / Applicants' claim Respondents breached terms of the sale and purchase agreement and failed to carry out inspection services with reasonable care and skill / Applicants seek repair costs / Held: no basis on which to hold Respondents liable for repair costs / Not sufficiently proven Respondents missed vital indicators / Claim dismissed.

[2022] NZEmpC 97 Bowen v Bank of New Zealand (Interlocutory Judgment of Judge J C Holden, 2 June 2022) APPLICATION FOR SECURITY FOR COSTS – reason to believe respondent would not be able to pay costs if unsuccessful – interests of justice favour ordering security for costs – application granted – APPLICATION FOR STAY – not appropriate to order stay pending payment of a previous costs award – application declined.

Penalty / practitioner admitted one charge of misconduct / registered easement without obtaining authority and instructions from all owners, falsely certified such authority and fobbed off LINZ for two years until Registrar-General revoked right to sign and certify electronic instruments via Landonline / did not advise clients or law firms / HELD / moderately serious misconduct / honesty and candour are hallmarks of legal professional conduct / actions undermine profession’s reputation for probity / false certification not part of a pattern of behaviour / thoroughly ashamed and regretful / unlikely to err in this way again / tendency to avoid responsibility and withhold information is a risk feature / one prior more minor adverse disciplinary finding / minimising behaviour means Tribunal cannot accept practitioner appreciates gravity of offending / Tribunal ordered censure, five months’ suspension / practitioner to pay Standards Committee’s and Tribunal’s costs

Penalty / practitioner admitted one charge of unsatisfactory conduct / signed solicitor’s certificate when working as consultant, and sent engagement letters that failed to include information on name of firm acting, practitioner’s position in the practice, and exclusions of practice’s indemnity insurance / HELD / investigation against practitioner was over-zealous, offensive and inappropriate at times / practitioner committed minor infractions of rules / no harm came or was likely to come / practitioner should be restored to position practitioner would have been in had the matter been dealt with appropriately / censure or significant contribution to costs not proportionate responses / Tribunal ordered practitioner to pay $1,000 fine / practitioner to pay small contribution to Standards Committee’s costs ($1,000) / permanent name suppression granted

Multiple parties / seeking determination on question of law s 53(1) / whether Tribunal has jurisdiction under s 45(1) of its Act to determine issues as to costs under an agreement between the parties / HELD / Tribunal was set up to determine disputes about insurance claims / overriding purpose of the Act is to provide fair, speedy and flexible services for resoling insurance disputes / s 46 provides that Tribunal may make any order a court of competent jurisdiction could make in relation to the general law of NZ / s 47 discretionary power of Tribunal to award costs / Contractual claims for as incurred legal and expert costs are prima facie enforceable contractual obligations / the Tribunal has jurisdiction to decide issues of contractual cost claims and is not limited by s 47 / Tribunal can answer question of law as a pre-hearing determination

26.05.2022 | Judge M P Armstrong | Section 19, Te Ture Whenua Māori Act 1991 | Costs

Contract / Applicant entered into an agreement to purchase a property including chattels from the Respondent / Applicants agent raised issues following pre-settlement inspection regarding missing furniture, cleanliness and furniture swapped with inferior quality items / No agreement was reached prior to settlement / Applicants claim $20,390.00 for replacement and removal of furniture, cleaning and travel costs, and loss of rental income / Held: The Respondents breached the agreement by not leaving two side tables at the property and failing to remove stickers and decorative mirrors / The respondents did not breach of the vendor warranties for chattel / Applicants are not entitled to compensation for loss of rental income / Respondents to pay Applicants $600.00 / claim: upheld.

Penalty / misconduct for practising outside terms of practising certificate by providing pro bono regulated services to the public, and unsatisfactory conduct for failing to provide client service information and act independently / failed to advise NZLS of his involvement in litigation when corresponding about status of practising certificate / Lawyers and Conveyancers Act 2006, section 9 / HELD / aggravating features include failure to disclose involvement in litigation, absolute duty of candour required and NZLS was misled / strong mitigating feature includes over 50-year career without previous blemish, services to community, and acted not for personal gain but desire to help his neighbours / more serious than comparable cases due to experience and on-notice of the issue / Tribunal ordered censure, $7,500 fine / practitioner to pay 75 per cent of Standards Committee’s and Tribunal’s costs

Late filing of review application and costs – ss 135 and 148, claim regarding Code of Claimants’ Rights – s 140(3), deemed decisions – s 146, Accident Compensation Act 2001. Appeal of three review decisions. Whether Corporation correctly declined to accept the late filing of the applicant’s review application; if so, whether there is jurisdiction to consider the decision suspending entitlements; and whether the decision to award no costs was correct. Whether a Reviewer correctly held that there was no jurisdiction to entertain a review about a revoked decision, as it had been superseded by a later decision, and then awarded limited costs. Whether a Reviewer correctly dismissed the claim that there were two deemed decisions in the appellant’s favour. Outcome: appeals dismissed and review decisions upheld except in relation to the matter of costs and expenses of the 9 November 2020 decision.

Costs claim. Appeal against decision not to reward costs. Outcome: appeal dismissed.

Complaint / Committee found unsatisfactory conduct / employment dispute / complaint opposing lawyer had acted for the complainant regarding an employment dispute / complainant had concerns about the legal fees he incurred / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 9.4 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 215 / HELD / complaint opposing lawyer should have given an indication of unbilled time / complainant should have been informed that the retainer had expanded beyond initial contemplation / complainant deprived of proper opportunity to consider his options / fee charged was not fair / Committee’s decision confirmed / lawyer ordered to pay costs in the sum of $1,200 / section 211(1)(a)