Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Land Transport (Road User) Rules / Car collision / Applicant claimed costs to repair vehicle /  Whether Respondent caused the collision / Whether Applicant contributed to the collision / Whether Respondent's employer vicariously liable / Held: Respondent caused the collision / Respondent drove in 50km/h zone at around 80km/h / Should not have attempted to pass if he could not do so safely / Applicant contributed to collision by speeding up when Respondent began to pass / Respondent has 65% liability and Applicant 35% / Respondent's employer vicariously liable as Respondent was driving to carry out work at a job site / Respondent and Respondent's employer to pay 65% of the claimed $4,732.25 which is $3,075.96 / Claim granted.

Complaint / Committee declined to take further action / estate administration / complaint lawyers, as executors of the estate, failed to promptly invest proceeds from sale of property at appropriate interest rate, lawyers’ fees were excessive, lawyers failed to communicate with trustees over placement of sale funds and sale of property, and lawyers contributed to delay in settling sale of property / Lawyers and Conveyancers Act 2006, section 132 / section 111(1) / section 114 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / lawyers’ decision not to invest sale proceeds in higher-interest account reasonably made and within their discretion / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action / conveyancing transaction / complaint lawyer failed to advise vendor that Body Corporate was required to certify disclosure statement and provided poor service / Unit Titles Act 2010 / Lawyer and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / New Zealand Law Society Property Law Section Guidelines / HELD / Committee took no further action on the basis lawyers had discounted fees, but inquiry must consider whether disciplinary response required / financial loss appropriately addressed in other forums / reasonable to expect lawyer would carefully explain disclosure regime / failure to provide appropriate advice constitutes unsatisfactory conduct in terms of s 12(a) and breach of rule 3 / $2,000 fine ordered / Committee’s decision modified to reflect findings, otherwise confirmed / section 211(1)(a)

Sanctions / dishonest and misleading behaviour / dishonestly advised visa was being processed when it was declined & applied for discretionary relief without instructions / supported applications with false declaration, obtained by mistranslating content / numerous other breaches of professional obligations / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl8c, cl18a, cl22, cl26a, cl26b, cl26e, cl26f, cl28a, cl28b / misconduct involving dishonesty at serious end of spectrum / Tribunal has previously upheld three complaints against adviser / sustained history of serious misconduct / aggravated by contempt for disciplinary process / unfit to be a member of the profession & consumers require protection / adviser censured / prevented from renewing licence for maximum two years / directed to refund $3,246 fees / directed to compensate $10,640.81 for legal fees to regularise status & $5,000 for distress / ordered to pay $7,000 financial penalty

[2021] NZEmpC 158 HR Processing 2008 Ltd (formerly known as OSS Ltd (in liquidation)) (Costs judgment of Judge B A Corkill, 20 September 2021) APPLICATION FOR COSTS – company went into liquidation prior to determining quantum of costs – consent of liquidator not required – application for leave to file out of time not an “originating application” – application granted – guideline scale.

[2021] NZEmpC 154 Jackson v The Aorere College Board of Trustees (Costs Judgment of Chief Judge Christina Inglis, 16 September 2021) COSTS – guideline scale considered – costs awarded.

Consumer Guarantees Act 1993 / Guarantee of acceptable quality / Rejection of goods / Damages / Applicant purchased car from Respondent in January 2019 / Mechanical breakdown insurance was taken out in relation to the car with the Second Respondent / In March 2020 the car’s engine was replaced by the Third Respondent / Applicant states replacement engine has failed and claims refund of purchase price and repair costs / Held: Applicant not entitled to reject car and receive refund from Respondent / Lost right to reject goods as not done within reasonable time per s 20 CGA / Held: Applicant entitled to damages of $1844.12 from Respondent / Car not of acceptable quality per s 18 CGA / Claim allowed in part / Claim against Second and Third Respondents dismissed

Fencing Act 1978 / Applicants and Respondents own neighbouring properties / Applicants claimed fence between properties not adequate and served Respondents with a notice under the Fencing Act (the Act) asking Respondents to replace fence and pay cost / Respondents served cross notice under the Act stating fence was adequate and did not need replacing / Respondents stated if it did they should only be liable for 50 percent of cost of replacement / Whether the existing fence adequate in terms of the Act / If not, what were reasonable costs for replacement / Whether Respondents damaged the fence and were liable to pay full replacement cost / Held: fence not adequate in terms of the Act / reasonable costs to replace fence are $7,495.00 / condition of fence cannot said to have been caused by Respondents / per s 9 of the Act, each party liable for 50 percent of cost of replacement / Respondent ordered to pay $3,747.50 to Applicant / claim allowed

[2021] NZEmpC 144 Crossen v Yangs House Ltd (Costs Judgment of Judge K G Smith, 7 September 2021) COSTS – LEGAL AID – unsuccessful party was legally aided – no exceptional circumstances to justify award of costs – costs lie where they fall.

Negligence / appeal against Registrar rejecting complaint / adviser in error in advising that residence application could be made offshore / corrected error before application deadline ended but complainant already departed NZ / adviser failed to satisfactorily apologise / Registrar rejected complaint on basis it disclosed trivial or inconsequential matters / Immigration Advisers Licensing Act 2007, s 442, s451, s54 / Code of Conduct 2014, cl 1 / not accepted error caused loss of the chance of residence / adviser discovered mistake after appellant left NZ but before his planned resignation from employment / appellant could have returned to NZ / Registrar has discretion in deciding to pursue complaints / disciplinary threshold not reached / adviser eventually gave correct advice before it was too late, and refunded fee and other costs / failure to satisfactorily apologise thoughtless rather than deliberate, could not justify formal disciplinary process / appeal rejected.

02.09.2021 | Judge D.H. Stone | Section 18(1)(a) Te Ture Whenua Māori Act 1993 | Judgment as to Costs

Charge laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(a) of the Act. Tribunal records it would have ordered cancellation of licence if that had been open to it to do so. Defendant ordered to pay $1650 as contribution towards Committee's costs.

Complaint / Committee declined to take further action / estate matter / complaint lawyer did not maintain proper standards of professionalism, did not act competently or in a timely manner, and did not respond to requests for information in a timely manner / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / complaint by estate beneficiary / a lawyer instructed by an executor owes the executor client-duties / executor is responsible to court and beneficiaries for proper implementation of will / lawyer’s obligations more limited than executors / executor sought indemnity prior to distribution and lawyer was obliged to follow instructions / matter progressed in a timely manner / fee fair and reasonable / no evidence of instructions to delegate work to legal executive to lower fees / section 211(1)(a)