Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

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a Reviewer correctly held that there was no jurisdiction to entertain a review about a revoked decision, as it had been superseded by a later decision, and then awarded limited costs.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)  

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased DIY electric gate motor from Respondent for $676 / Motor supplied pre-wired for battery power with installation instructions and manual showing two different power supply options / Applicant connected motor to AC power supply not battery / Gate did not move and motor smoked when checked / Applicant returned motor / Respondent did not find any problems with motor and returned it / Applicant hired electrician who found motor supplied without cable needed to connect to AC instead of battery / Applicant claims replacement motor, refund of $105 shipping fee and payment for $300 electrician fees / Held: motor supplied acceptable quality under CGA / problems were because it was connected to AC power when wired for battery power / Held: Respondent did not make false or misleading representations when advertising motor /  nothing untrue in the advertising / described as DIY product and came with thorough instructions / Claim di…

Claim for costs - Accident Compensation Act 2001. Amount of costs award for Appellant's advocate considered. Advocate costs award and disbursements awarded. Outcome: appeal allowed.

Review / two findings of unsatisfactory conduct / both parties provided submissions as to the appropriate orders to be made / Lawyers and Conveyancers Act 2006, section 12(a) / section 14(a) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / HELD / complaints process is no substitute for a clam in negligence to be pursued through the courts / proper forum for large compensation claim is the courts / legal executive ordered to pay the sum of $2,000 to the complainant / invoice fee to be reduced by $400 plus GST / fee cancelled for the amendment to the agreement / $1,000 fine / legal executive ordered to pay Law Society the sum of $1,600 as contribution towards costs / Committee’s decision otherwise confirmed / section 211(1)(a)

Charges / no case to answer / practitioner charged concerning five elderly clients / Hall v Wellington Standards Committee (No. 2) [2013] NZAR 743 (HC) / Lawyers and Conveyancers Act 2006, section 240A / HELD / necessary for Tribunal to determine whether evidence sufficient to establish charge / basis for misconduct charges not established / no evidential foundation for overcharging / satisfied client competent to give instructions / no jurisdictional impediment to Tribunal hearing remaining unsatisfactory conduct charges / Tribunal may strike out charges that do not justify disciplinary sanction / no disciplinary sanction required / no reasonable basis to find against practitioner on fee complaint / particulars alleging wrong-doing with Powers of Attorney disclose no reasonable cause of action / minor infractions might arise in any busy practice without alarm / all charges dismissed / Standards Committee must pay Tribunal costs / costs between parties reserved

Complaint / Committee decided to take no further action / litigation / complaint opposing lawyer took steps to recover outstanding funds from the complainant / complainant argued that lawyer had no entitlement to fees claimed as he had been conflicted when undertaking work for her / complainant contended that the lawyer should have withdrawn as her counsel when circumstances required him to do so / lawyer argued that his withdrawal from the proceedings was discussed with the complainant and was supported by her / complainant was advised by new solicitor to pay the opposing lawyer’s fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13 / HELD / complainant failed to provide necessary evidence to establish that the lawyer had breached his duties or obligations owed to her or the Court / complainant consistently represented to the lawyer that she would settle his fees on receipt of settlement funds from the proceedings / lawyers are entitled to be paid…

[2022] NZEmpC 69 Alkazaz v Enterprise IT Ltd (Costs Judgment of Chief Judge Christina Inglis, 22 April 2022) COSTS – proportionality points away from use of the guideline scale – costs awarded.

Contract / Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent in May 2021 /Applicant had finance agreement including breakdown insurance / Applicant had issues with vehicle in July 2021 and it broke down in August 2021 / Applicant completed insurance claim form after advising Respondent of issues with vehicle / Delay in getting vehicle inspected due to Covid Level 4 lockdown in September 2021 / Applicant requested full refund in November after further delays / Vehicle transmission fixed but other issues overlooked and carried out in February 2022 / Applicant seeks to reject the vehicle, cancel the contract and obtain amounts paid to date including refund for breakdown payments and costs for period without car / Was vehicle of acceptable quality, if not was any failure of the guarantee a failure of substantial character / What remedy is available to Applicant and does fact repairs completed affect that remedy / What is payable on the claim / Held: vehicle not as …

Costs decision. Costs awarded on a 2B basis. Outcome: Appellant awarded $7,162.50 in costs.

Complaint / Committee declined to take further action / litigation / complaint regarding fees charged not being fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / time records provided accurate account of the work completed on the file / nature of the work undertaken justifies the deployment of a number of lawyers to work on the file / Committee’s decision confirmed / section 211(1)(a)

Negligence / Respondent collided with Applicant’s taxi / Applicant received an insurance payment for the value of his taxi and other costs / Applicant seeks a further order that the Respondent is liable to pay $12,000 in other losses he claims resulted from the collision / Applicant also seeks repayment of the annual insurance premium he paid to make a claim from the second Respondent /  Held: Primary respondent breached duty of care when they collided with the Applicants taxi / Claim allowed / Respondents’ insurer to pay Applicant $4,797.90 / Claim against the second Respondent dismissed.