Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased car from Respondent that was represented to be in good working condition / Car would not start after being driven 30 minutes day of sale and likely to require engine rebuild / Applicant claims $6,500.00 from Respondent for cost of rebuild or refund of purchase price / Held: Respondent represented car in good working condition, ran well, had rebuilt engine and had work done / Held: Applicant proved on balance Respondent’s representations were incorrect and amounted to misrepresentation under s 35(1)(a) CCLA / Held: Applicant relied on Respondent's representations and was induced to purchase by misrepresentation / Held: fair and reasonable estimate of Applicant’s loss is $3,943.75 / Claim allowed

Charges laid under s 91 Real Estate Agents Act 2008. Defendant found guilty of misconduct under s 73(c)(i) of the Act. Defendants salesperson's licence cancelled as a result of non-payment of fees.

Date of Decision: 11 June 2021. Privacy Act 2020. Health and Disability Commissioner Act 1994.

11.06.2021 | Deput Chief Judge C.L. Fox, Judge P.J. Savage | Judge S.F. Reeves | Section 58, Te Ture Whenua Māori Act 1993 | Costs

Penalty / practitioner admitted charge laid under s 241(d) / conviction for obstructing the exercise of power under the Overseas Investment Act 2005 / practitioner nominated his company to acquire land his purchaser client did not have Overseas Investment Office (OIO) consent to acquire / also provided false information and a false loan document to OIO / Lawyers and Conveyancers Act 2006, section 241(d) / HELD / dishonesty conviction very serious / prior unsatisfactory conduct finding an aggravating feature / mitigating features include early acceptance of guilt, remorse, contribution to Korean community, and practitioner’s financial circumstances / Tribunal ordered suspension of just under six months / practitioner to pay Tribunal costs

Penalty / admitted misconduct / practitioner-controlled company was nominally owed a debt truly owned by a trust / practitioner agreed to settle debt without trustee approval / paid $70,000 to persons not connected to the trust, taking some of the remainder as fees / Lawyers and Conveyancers Act 2006, section 243(1)(g) / HELD / no uplift in penalty for prior findings of professional negligence and misconduct / Tribunal concerned with practitioner’s practice / practitioner failed to protect the trust’s interests / paid money to other persons / applied money to fees without authority / defended proceedings / mitigating factors included admission of facts and contribution to community / Tribunal ordered censure, 12-month suspension and prohibition on practising on their own account, in partnership or otherwise, until authorised by Tribunal / practitioner to pay Standards Committee’s and Tribunal’s costs / no reason to depart from general rule practitioner must pay costs

Liability / practitioner acted on conveyancing transaction for her mother in conflict of interest / whether practitioner engaged in misleading or deceptive conduct towards her mother / promised to document arrangement and to register a caveat / whether promises dishonestly made / practitioner admitted two other misconduct charges / Lawyers and Conveyancers Act 2006, section 7(1)(a) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 11.1 / HELD / assuring her mother that her interest in the property would be protected, and promising to document the transaction but not doing so, was likely to mislead or deceive / misleading representations comprise a form of recklessness, wilful blindness / s 7(1)(a)(ii) test met / misconduct charge proved

[2021] NZEmpC 74 Kennedy v The Chief Executive of Oranga Tamariki – Ministry for Children (Costs Judgment of Judge J C Holden, 21 May 2021) COSTS – GUIDELINE SCALE – not as complex as most 2B matters – costs awarded with slight reduction.

Process of insurance contract / insurer elected to pay cash equivalent of cost of repairs / applicant claims insurer’s experts did not properly identify earthquake damage and insurer’s repair methodology not reasonable / Ginivan v Southern Response [2018] NZHC 2403 / HELD / applicants entitled to select experts and builders, choose repair methodology, develop scope of works, and enter into building contract for price they consider to be reasonable / insurer entitled to undertake its own assessments, at its expense / if insurer’s cash equivalent of cost of repairs is less than applicant’s own scope, applicants will need to meet the additional cost unless they satisfy insurer or the Tribunal the insurer’s figure is unreasonable / insufficient evidence to determine / all complaints to be addressed together.

Property / Applicants purchased house from Respondents / Afterwards Applicants discovered oven not in working order / Applicants found circular burn on kitchen bench / Applicants claimed to be compensated for both oven and state of kitchen bench / Was it term of agreement that oven in working order and if so, was it in working order on date of settlement / If not, what loss can Applicants prove they have incurred that they are entitled to be compensated for / Was it term of agreement that bench was undamaged / If so, what loss can Applicants prove they have incurred to fix kitchen bench / Held: parties signed written contract for sale and purchase of house / Clause in contract provides that chattels, including oven, were to be in reasonably working order / Applicants entitled to be reinstated to position they would have been in had oven been in working order / Deduction made for age of oven at date of settlement / Oven should be valued at one third of price of new one, $533.11 / Respon…

[2021] NZEmpC 72  FDE v UWV (Interlocutory Judgment of Chief Judge Christina Inglis, 17 May 2021) APPLICATION TO ADJOURN HEARING – counsel is sick and no time to find alternative counsel - prejudice to defendant can be addressed by way of costs – application granted.

Liability and penalty / relationship with a prisoner for whom the practitioner had previously acted as an employee lawyer / practitioner’s employer declined to act for the prisoner, but the practitioner continued contact in dishonest circumstances / whether conduct misconduct / Lawyers and Conveyancers Act 2006, section 7(1)(a) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2 / rule 2.4 / rule 5.7 / rule 11.1 / rule 12 / HELD / conduct occurred while providing regulated services / conduct disgraceful and dishonourable / serious end of misconduct spectrum / breach of relationship of trust and degree of deception involved / mitigating factor that practitioner had only worked as an employee lawyer for three months prior / offending lasted six days / Tribunal ordered 12-month suspension and prohibited to practice on own account until authorised by Tribunal / practitioner to pay half of costs sought by Standards Committee ($7,000) and Tribunal’s costs

Charges laid under s 91 Real Estate Agents Act 2008. Penalty decision. Finding of misconduct under s 73(a) of the Act. Defendants censured and each fined $10, 000.