Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Sanctions / dishonest behaviour / deliberately misled INZ and IAA / conflict of interest / numerous breaches of obligations / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl5, cl7a, cl17a, cl17b, cl17c, cl18b, cl19l, cl22, cl31a / adviser did not engage with Tribunal until sanctions stage / found to have notice of proceedings / did not accept more serious findings / explanation that behaviour not dishonest, rejected / three previous disciplinary findings, including dishonesty / adviser censured / has not learned from prior appearances, not worthwhile to order training / prevented from reapplying for licence for maximum two years / prevention is sanction of last resort, consumers protection required / supervision not adequate / ordered to refund $1,000 fees / compensation must arise from misconduct / ordered to compensate $1,000 for stress / compensation for complainant’s labour compiling complaint, declined / ordered to pay $5,000 financial penalty

[2021] NZEmpC 230 Allison v Ceres New Zealand LLC (Costs Judgment of Judge K G Smith, 22 December 2021) COSTS – GUIDELINE SCALE – reduction for financial circumstances not appropriate – Calderbank offer considered – costs awarded.

Contract / Applicants purchased a rental property with a continuing tenancy in place / Property was sold and Respondent (as property manager) was contracted to give the tenant notice to vacate the property / Tenant did not receive notice and did not vacate the property / Applicants were financially penalised and incurred various costs to have the tenant evicted / Applicants claimed Respondent breached its contractual obligations / Applicants claimed $23,355.50 for resulting losses / Held: Respondent's silence to the Applicants' request for updates did not amount to a breach of contract / Respondent made all reasonable steps that a property manager should make in the circumstances / Losses were caused by the tenant's actions / Respondent did not breach its contractual obligations to the Applicants / No damages were payable / Claim dismissed.

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.