Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Fair Trading Act / Misrepresentation / Applicants purchased vehicle from Respondent advertised as “great ute” and with new WOF / Vehicle failed WOF check after purchase / Applicants claim condition of vehicle inconsistent with the description and it should not have been issued a WOF / Applicants claim costs of $5,577.31 for WOF check, inspection, repairs and legals costs / Whether Second Respondent engaged in misleading conduct or made misleading representation / Whether Respondent breached term of agreement to supply vehicle with new WOF / Whether Respondent misrepresented condition of vehicle / Whether Applicants entitled to all or part of costs claimed / Held: Applicants did not prove Second Respondent should not have issued WOF / Claim against Second Respondent dismissed / Held: Respondent breached express term of agreement relating to obtaining a WOF / Held: no proven misrepresentation / Claim against Respondent allowed / Respondent ordered to pay $500.00 to Applicants

Review / Committee found unsatisfactory conduct / civil proceedings / review of penalty determination / complaint lawyer did not advise client of hourly rate increase, cost of phone calls, and added 2015 work to a 2018 invoice, and did not return deposit after client terminated retainer / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.6 / rule 9.6 / HELD / lawyer cannot demonstrate client advised of hourly rate increase / delay in issuing invoice caused no harm / no evidence fees relate to work not done / shortcomings relatively minor in context / $4,000 fine and censure orders accepted as disproportionate, even in context of prior disciplinary history / Committee’s decision modified by reversing censure order, and reducing fine to $1,000 / section 211(1)(a)

Review / Committee found unsatisfactory conduct / immigration applications / complaint lawyer failed to provide clear, not misleading information about fees and services / charged fees that were not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 1.6 / rule 3.4 / rule 9 / rule 9.1 / HELD / Committee only provided reasons for one of four tranches of fees in fee complaint / first tranche fair and reasonable but fees agreement conflated disbursements into fee component, charging GST on disbursements exempt from GST / whether second tranche properly chargeable / fee agreement inconsistent with lawyer’s understanding, client not liable / authority to charge fourth tranche not provided in writing as required by rule 3.4, but fair and reasonable / Committee’s findings reversed in part regarding fee complaint, and modified to reduce fine to $3,500 / Committee’s decision otherwise confirmed / section 211(1)(a) 

Towing / Respondent towed applicant's car from private parking area / Applicant paid $380 to retrieve car from respondent’s yard / Applicant seeks to recover amount paid as he parked outside business hours / Applicant questioned whether respondent authorised to tow car / Applicant argued $380 was excessive and there were no towing signs / Whether respondent was entitled to tow applicant’s car / If so, was cost justified / Held: parking area was private property subject to the rules of the owners / Instructions of owners permitted respondent to tow in stipulated times / Respondent provided evidence of authority to tow from parking area / Cost charged by applicant in line with other towing costs / Numerous towing signs at parking area / Claim dismissed.

Charges laid under s 91 Real Estates Agents Act 2008. Breach of r. 6.4 of the Rules by withholding information that should in fairness be provided to a customer or client. Defendant found guilty of misconduct under s 73(b) of the Act. No penalty determined in this decision.

Contract / Negligence / Applicant suffered damage to car driving on road maintained by Respondent / Applicant claimed Respondent breached contract / Applicant claimed cost of replacing wheel / Held: claim cannot be founded on contract as road user charges do not arise from voluntary exchange of promises / Held: claim more cogent as negligence claim / Held: its is not proven vehicle damaged by alleged road / Held: Respondent met legal duty of care / claim dismissed

Charges laid under s 91 of the Real Estate Agents Act 2008. Outcome: Agency found guilty of misconduct under s 73(c)(i) of the Act and unsatisfactory conduct under s 72(b) of the Act. Second defendant found guilty of misconduct under s 73(c)(i) of the Act in relation to two failures to comply. Agency censured and fined $5,000. Second defendant censured, licence suspended for 18 months from date of decision, ordered to complete Unit Standards 23136, 23141 and 23149, and fined $5,000. Agency and second defendant collectively finded $10,214 by way of contribution towards Committee's costs.

Complaint / Committee found it lacked jurisdiction / complaint lawyer’s fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 29 / HELD / jurisdiction to assess fee complaint requires “special circumstances” as fee does not exceed $2,000 / no special circumstances found on review / terms of engagement permitted the involvement of more than one lawyer / no evidence hourly rate abnormally or uncommonly high / fee indicative of work completed / application for review discloses no reasonable course of action / application for review struck out / section 205(1)(a) 

Committee referred conduct complaint to Disciplinary Tribunal / allegation of misconduct regarding trust funds / Orlov v New Zealand Law Society [2013] NZCA 230 / Zhao v Legal Complaints Review Officer [2016] NZHC 2622 / HELD / Committees not required to provide reasons for prosecutorial decisions / no threshold test for prosecutorial decisions / lawyer has not yet been served with charges / as a matter of fairness, providing a copy of charges should occur within a short space of time of issuing notice of determination / notice of hearing adequately notified lawyer of Committee’s misconduct concern / lawyer’s request to have matter referred back to Committee so they can obtain relevant documents declined / time to obtain documents was upon receiving Committee’s notice of hearing / Committee’s decision confirmed / section 211(1)(a) 

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased washing machine from Respondent / washing machine failed when the tip of a drawstring on a pair of shorts was torn off and damaged inner plastic drum / Did washing machine meet guarantees of acceptable quality pursuant to CGA / Did Respondent comply with obligations pursuant to CGA / Is Applicant entitled to refund and damages for consequential losses / Held: washing machine does not comply with CGA guarantees of acceptable quality / no evidence Applicant misused washing machine / washing machines should be able to cope with common type of clothing / Held: Respondent failed to comply with CGA obligations / Respondent failed to address Applicant’s complaint sufficiently or timely / Respondent responded late and blamed Applicant for failure / Held: Respondent to pay Applicant $1,715.00 being refund of purchase price plus consequential damages / Held: Respondent to collect washing machine or pay Applicant additional $250.…

Costs decision. Costs awarded on a 1B basis, with a 25% reduction as appellant represented by a non-legal advocate and a further 45% reduction as appeal only partially successful. Outcome: appellant awared $1,807.45.

Penalty / trust account administrator stole $2,570 from firm / admitted wrongdoing and fully cooperated with employer and Law Society / whether order prohibiting employment by a lawyer or incorporated law firm should be imposed / Lawyers and Conveyancers Act 2006, section 240 / section 242(1)(h)(ii) / HELD / Tribunal made order prohibiting employment by a lawyer or incorporated law firm / granted permanent name suppression and prohibited publication of administrator’s name / thefts unlike usual behaviour / little likelihood of repeating this action / Tribunal did not regard administrator as someone about whom the public needed to be warned / hearing was public and those who need to know will be advised of identity / permanent suppression of material recording personal stressors / administrator has behaved in exemplary manner to bring matter to conclusion and has brought on herself severe and ongoing consequences / accordingly no costs ordered against administrator