Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Conversion / Negligence / Courier company delivered a package for the Applicant to her neighbour, the Respondent / Applicant was out of town for a few weeks at the time of delivery / Package required signature for delivery / Documents from the courier company indicated the Applicant’s initials were entered on to the delivery document / When the Applicant returned she made multiple unsuccessful attempts to make contact with the Respondent regarding the package / Matter escalated to the point that a police officer became involved / Evidence from the police officer indicated that the Respondent’s partner received the package and the Respondent placed it at the front of his property / Applicant claimed in conversion for the value of the lost goods, being $424.00 / Is it established that the Respondent had possession of the Applicant’s package at some point / Was the Respondent liable in negligence for converting the goods / What remedy was available to the Applicant / Held: on the balance …

Review / Committee found unsatisfactory conduct / estates and relationship property / complaint lawyer incorrectly advised about a settlement offer and advice was disclosed without consent to other side / lawyer sought to reverse remaining orders of $3,000 fine and requirement for further training / HELD / conduct unsatisfactory / no basis to interfere with order to pay client’s costs / fine appropriate as conduct fell short of competence public is entitled to expect of a reasonably competent lawyer / further training unnecessary / problems with conduct not directly related to estate administration issues / lengthy career / LCRO confident complaints process gave lawyer pause to reflect on issues / Committee had not yet decided on name publication / Committee to be informed of review / parties can seek review of publication decision without filing formal review application or paying filing fee / Committee’s decision on training reversed / Committee’s decision otherwise confirmed / secti…

[2021] NZEmpC 224 AlKazaz v Enterprise IT Ltd (Costs Judgment of Judge J C Holden, 14 December 2021) COSTS – guideline scale applied.

Contract / Consumer Guarantees Act 1993 / Applicant bought two house plants from the Respondent / Plants did not survive / Applicant claimed a refund of  purchase price/ Applicant argued plants were neither of acceptable quality nor fit for purpose / Whether Applicant proved on the balance of probabilities that the plants he purchased were defective when he purchased them from the Respondent / Held: necessary prove is lacking / Not possible to say that plants would have died because they were not of acceptable quality or were unfit for purpose / Claim dismissed.

[2021] NZEmpC 223 UXK v Talent Propeller Ltd (Costs Judgment of Judge B A Corkill, 13 December 2021) COSTS – challenge was mostly successful but judicial review was unsuccessful – costs awarded.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased washing machine from First Respondent / Washing machine broke down within short period / Applicant approached First Respondent who put them in contact with Second Respondent / Second Respondent took away washing machine and refunded some of purchase price / Refund delayed for some time / Applicant was without a washing machine and had to make numerous trips to laundrette / During Covid-19 restrictions Applicant was unable to access laundrette / Applicant went to First Respondent numerous times for resolution / Applicant claimed breach of guarantee of acceptable quality under CGA / Applicant claimed damages for refund or replacement, consequential financial losses and consequential losses in form of emotional harm / Applicant claimed $30,000 to be paid equally by the Respondents / Held: breach of guarantee of acceptable quality / First Respondent to pay Applicant $119.00 refund / Emotional harm damages cannot be claimed…

Costs application by licensee / Committee withdrew charges against licensee close to substantive hearing / Real Estate Agents Act 2008, s 110A / survey of applicable principles for costs in READT / tribunals have broader costs discretion than courts / no rule that costs follow the event, but may be appropriate in some cases / requires something more than success / relevant that Committee is exercising a public function / licensee’s defence was that it is normal practice for agents to take client lists when leaving an agency, despite contractual obligations / expert evidence supported this defence / Committee lacked diligence in investigating defence before tribunal processes invoked and charges laid / appropriate case for costs to follow the event / quantum is a contribution towards reasonable actual costs / parties accept High Court costs scale is useful to assess reasonable costs / costs of $14,340 awarded to licensee  DP

Penalty / misconduct / duty of candour / failure to disclose relevant information to High Court in without notice application / whether suspension necessary / HELD / one-off reckless breach / no deliberate omission / no aggravating features / no prior disciplinary history / unable to cope with growth of sole practice / merged with large law firm to manage capacity, disclosed investigation, acknowledged failings and has support and supervision / Tribunal considered no risk of practitioner repeating conduct / high level of remorse, insight and responsibility for actions / practitioner incurred significant cost in disciplinary proceedings / notable community involvement and pro bono contributions / practitioner sought to use experience to educate young women about learning from mistakes / suspension not necessary / Tribunal ordered censure and $15,000 fine / practitioner to pay Standards Committee’s and Tribunal’s costs / interim suppression order of practitioner’s name discharged

Costs decision. Outcome: appellant's non-lawyer advocate awarded costs on a 1B basis, with a 50 per cent deduction.

Costs decision. Outcome: appellant ordered to pay costs of $1,910.

[2021] NZEmpC 198 Head v Chief Executive of the Inland Revenue Department (Costs Judgment of the full Court, 17 November 2021) COSTS – applications for costs by first and second defendants – first defendant sought two-thirds of actual and reasonable costs – second defendant sought guideline scale – HELD – complex proceeding – several interlocutory judgments – guideline scale did not recognise sufficiently the significant attendances – degree of importance associated with the proceeding but not a test case – two-thirds of actual and reasonable costs awarded to first defendant with deductions to recognise access to justice, matter of importance, overlap – scale costs awarded to second defendant with deduction to recognise overlap – applications granted.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased electric scooter from Respondent on TradeMe / Advertisement detailed scooter as included 60v motor / Once purchase was complete, Applicant found scooter held a 52v motor / Applicant claims $1650.00 for refund of purchase price and cost of installing 60v motor / Whether Respondent misrepresented scooter / Whether misrepresentation induced Respondent to purchase scooter / Held: Respondent advertised scooter under an innocent misstatement / Applicant induced to enter into contract by misrepresentation / Claim allowed, Respondent ordered to pay $495.00.