Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Replacement decision on costs relating to a New Zealand Superannuation decision. Outcome: costs award amount corrected.

Sanctions / diligence and due care / adviser failed to reply to PPI letter, provide timely updates, or inform complainant their application was declined / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl26b / HELD / isolated occasion of wrongdoing that had serious consequences, as complainant’s residence application was declined / adviser acknowledged mistake and apologised, improved business practices and hired additional help & fully refunded fees that were paid to prior business owner ($10,000) / adviser cautioned / ordered to pay $1,000 financial penalty / compensation of $2,000 awarded for distress, considering the full refund and the financial penalty ordered

Contract/ Enforceability / Vexatious claim / Applicant parked their vehicle in car park owned by the respondent / Applicant was unable to get a ticket to authorise their parking / Applicant stayed in their car for 54 minutes / Applicant was issued with a parking ticket of $65.00, “plus further administration costs” / Applicant claimed there was no contract / Applicant claimed that the penalty was unenforceable / Respondent claimed that the claims of the applicant were vexatious or frivolous / Held: there was a contract between the applicant and the respondent as the applicant knew that there were conditions for parking in this location / Held: The penalty of the $65.00 “plus further administration costs” is enforceable to protect the respondents reasonable interests / Held: the applicant’s claim is not vexatious or frivolous as they genuinely believed they were being treated unfairly / Applicant to pay respondent a total of $127.50 / Claim dismissed

Contract / Consumer Guarantees Act 1993 (CGA) / Respondent advertised car via online platform / Applicant viewed and test drove car at car yard which was Respondent’s place of work / Respondent sold car to Applicant / head gasket blown after three days of use by Applicant / Applicant claims goods were not of “acceptable quality” or fit for purpose under s 7 of the CGA / Respondent claims car was sold privately and not subject to the CGA / Held: car was sold in trade and is covered by the CGA / Respondent to pay Applicant $2,500.00, being purchase price of car / car is to be made available for Respondent to collect / Claim allowed.

Negligence / Land Transport (Road User) Rule 2004 / Applicant was riding her scooter in a cycle lane when she came to an intersection / Respondent made a turn in front of her in his car / Applicant skidded and came off her scooter / Applicant claimed to be reimbursed for the costs she incurred /  Whether the Respondent breached his duty of care by crossing a cycle lane without ensuring the way was clear / Whether the Applicant was entitled to compensation / Held: evidence indicated that the Applicant came off her scooter without colliding with the Respondent’s car / Respondent did not breach his duty of care to drive with reasonable care /  Applicant did not provide any corroborating evidence of costs she incurred even if a breach of duty had been established / Claim dismissed.

[2022] NZEmpC 161 Tranzurban Hutt Valley Ltd v New Zealand Tramways & Public Passenger Transport Employees Union Wellington Inc (Costs Judgment of Judge B A Corkill, 31 August 2022) COSTS – GUIDELINE SCALE – costs awarded.

Contract / Sale and purchase of property / Applicant bought a house from Respondent and his mother / Applicant claimed there was cracking in in flooring of the house caused by earthquakes / Applicant claimed Respondents falsely claimed that earthquake repairs were undertaken when they had not / Held: misrepresentation established / Applicant entitled to what he has lost by reason of the misrepresentation / Applicant not entitled to settlement sum that Respondents received from EQC / Respondents ordered to pay Applicant repair costs of $3,504 / Claim granted in part.

Sanctions / diligence and due care / adviser was late seeking an NZQA assessment / no service contract for work visa / no written confirmation given of termination of services or oral advice / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl18a, cl26c, cl28a / HELD / second appearance before Tribunal / adviser censured & directed to undertake further training due to deficient systems and understanding of professional obligations / ordered to pay $1,500 financial penalty / claim for refund of fees ($3,553) upheld, including the $445 NZQA fee which was paid late and without checking whether the client still wished to proceed / compensation claim not upheld as not particularised or evidenced 

Date of decision: 22 August 2022. Human Rights Act 1993.  

Contract / Director of Respondent companies booked a property belonging to the Applicant for two nights / Applicant later discovered that the First Respondent used the Applicant’s property for photoshoots for the Second Respondent /  Applicant notified the Second Respondent that it had breached the booking rules as they require permission from the owner to be obtained for photoshoots / Applicant requested $3000.00 or removal of all footage filmed at the Applicant’s property / Director of the Respondent companies offered $500 on a goodwill basis /  Applicant claimed $1100, based on the difference between $1784 paid for the accommodation and commercial rate for use of the property / Held: First Respondent was not party to any contract with the Applicant / No contractual basis upon which the Applicant can charged the Second Respondent for either damages or an additional fee / No breach of contract by the Second Respondent / No term or condition in the contract relating to commercial use o…

Contract / Property Law Act 2007 / Applicant leased property to Respondent / Applicant states it suffered rent arrears and reinstatement cost loss / Respondent states it could not access the premises as a result COVID-19 lockdowns / Respondent notes that damage to the premises was not entirely caused by them / Respondent states not all damage was done by them, that they could not repair the premises as they could not relet the premise, and that they were not given opportunity to repair the damage / Applicant claims the amount of $21,605.52 for the cost of rent arrears and reinstatement costs / Held: Respondent would pay a portion of rent taking into consideration COVID-19 lockdowns and Applicant not satisfying that there was an agreement to extend the lease / Respondent to pay Applicant for reinstatement costs of power and water / Claim partially approved, Respondent to pay $21,605.52 to the Applicant.

Review / Committee declined to take further action / relationship property proceedings / complaint lawyer took steps to recover outstanding fees by complainant / lawyer failed to follow instructions to challenge property valuation / lawyer inadequately represented complainant / no terms of engagement given to complainant / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / HELD / section 209 / Committee directed to reconsider interim distribution issue / Committee to reconsider whether fee charged was fair and reasonable / lawyer guilty of unsatisfactory conduct for failing to provide complainant information on the principal aspects of client service / other Committee findings confirmed / section 211(1)(a)

[2022] NZEmpC 144 Vulcan Steel Ltd v Manufacturing & Construction Workers Union (Costs Judgment of Judge B A Corkill for the full Court, 16 August 2022) COSTS – union was successful and costs should not lie where they fall – relatively minor issues do not merit a reduction in costs – guideline scale applied.