Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Review / Committee declined to take further action / civil proceedings / complaint lawyers did not competently advise on litigation risk or adequately monitor merits of continuing claim, bullied complainant in recovering fee, terminated retainer without good cause / fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.2 / rule 4.2.2 / rule 4.2.3 / rule 10 / HELD / fee recovery did not constitute bullying / complainant advised of risks / competently monitored merits of continuing claim, negligence allegation must be pursued in civil jurisdiction / lawyers indicated retainer would be terminated for non-payment of fees, but continued trial preparation / retainer terminated relatively close to trial / Committee directed to reconsider retainer termination / section 209 / Committee may consider if trial preparation fees fairly charged after considering termination / Committee’s decision otherwise confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / estate administration and litigation / complaint fees charged to estate not fair and reasonable, lawyer acted in conflict of interest and was not competent / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / HELD / lawyer alleged costs assessor breached natural justice / lawyer did not return assessor’s call / has not engaged in previous disciplinary proceedings / Committee may inquire into invoices issued after fee complaint made / professional estate administration conduct by lawyer captured by Act / difficulty in reconciling files / Committee’s decision modified so lawyer’s management of physical files breaches s 12(b), not rule 3 / costs assessor’s report recommended global fee reduction / some fees assessed as fair and reasonable, should not be reduced / Committee’s decision modified to reduce, cancel and refund excessive fees only / $2,000 fine and $500 costs not interfered with / otherw…

[2021] NZEmpC 43 Alkazaz v Enterprise IT Ltd (Interlocutory Judgment (No 8) of Chief Judge Christina Inglis, 31 March 2021) APPLICATION TO STRIKE OUT COUNSEL FOR DEFENDANT –  no basis for strike out – application declined - APPLICATION TO STRIKE OUT APPLICATION FOR STRIKE OUT – application was denied rather than struck out - APPLICATION FOR FURTHER SECURITY FOR COSTS – proceedings becoming increasingly complex – further security ordered.

Penalty / practitioner admitted unsatisfactory conduct for failing to provide file to Standards Committee when requested and continuing to do so for 18 months / suspension or fine / Lawyers and Conveyancers Act 2006, section 3 / HELD / censure and fine may not be enough to motivate practitioner to comply with the Committee’s demands / practitioner had history of adverse disciplinary findings, indicating “a practice with several aspects of laxity” / practitioner’s actions and prior history raised suspension as a fair prospect / Tribunal ordered finding of unsatisfactory conduct, $8,000 fine, and censure / practitioner to pay Standards Committee’s and Tribunal’s costs / client granted permanent name suppression

Hearing on three issues after case stated to High Court / first, uplift from the policy cap to the market value cap / policy cap is an overall cap on claims within one policy period, not per earthquake event / market value cap operates as an overall cap, not per earthquake event / insurer not permitted to now raise evidential issues as to scope of works, costs, and depreciation / insurer had sufficient time to commission own evidence in rebuttal / evidence before Tribunal sufficient to dispose issue / second, insurer’s entitlement to EQC payment credits when policy does not respond to that event due to policy cap / insured not permitted to be more than fully indemnified / retaining EQC payment would enable insured to recover in excess of maximum sum payable / third, liability for costs incurred by insured displacing insurer’s denial of liability / insured did not seek approval prior to engaging experts / policy required prior authorisation / insured unable to recover costs under policy…

Contract / Applicants entered share milking contract with Respondents as trustees of ABC trust / Respondents terminated contract / Final milk contract payment made to trustees in place of Applicants / Applicants claimed $16,456.38 plus GST and interest in relation to final milk contract payment and filing fee / Held: contract stipulates that on termination Applicants receive Contract Payment for any unpaid milk contract payment without deduction or withholding any amount and Trustees have no right to set off in relation to payment / Applicants entitled to Contractor Payment which Respondents withheld / Trustees acted in breach of contract by not paying final Contractor Payment to the Applicants / Trustees not entitled to deduct costs claimed from the final Contractor Payment / Claim allowed / Respondents ordered to pay $17,336.99 to the Applicants

[2021] NZEmpC 32 Lorigan v Infinity Automotive Ltd (Interlocutory Judgment of Judge B A Corkill, 19 March 2021) APPLICATION FOR SANCTIONS – employee has failed to comply with costs orders against him – challenges by employee dismissed as sanction – COSTS – uplift not appropriate because employee unrepresented – APPLICATION FOR STAY – proceedings stayed until costs paid.

Contract / Applicant had motel management contract with Respondent under which they were paid weekly management fee / Applicants claim sum from Respondent for breaching contract by deducting an amount from management fee for 22 weeks during 2020 COVID-19 lockdown period / Applicant also claims legal costs / Held: Applicant’s waived their contractual right to receive full management fee  / Respondent has not breached agreement / Applicant’s did not suffer any loss / Claim dismissed

[2021] NZEmpC 25 Smiths City (Southern) Ltd (in receivership) v Claxton (Judgment of Judge K G Smith, 12 March 2021) APPLICATION FOR STAY – restraints of trade were assigned to related company – assignment was lawful because of close connection between companies – plaintiff did not disclose litigation funding – not an abuse of process – application dismissed -  APPLICATION FOR SECURITY FOR COSTS – deed of guarantee and indemnity provided.

Contract / Breach of contract / Applicant arranged to sell all of its paintings  through the Respondent / Applicants arranged for unsold paintings to be uplifted from Respondent’s premises to a gallery / Applicants claimed one of the paintings went missing / Applicants claimed for original price of the painting / Whether the painting was delivered to the Respondent / Whether there was a contract that the painting would be insured by the Respondent on its premises / Whether the Respondent has breached its responsibility as a bailee to take reasonable care of the painting / Whether Applicants were entitled to compensation for the painting / Held: applicants did not prove it was more likely than not that the painting was delivered to the Respondent / Honest belief something was done not the same thing as whether it was actually done / Claim dismissed

Appeal / fabrication of agency agreement / failure to follow appellants’ instructions as to marketing of property / Real Estate Agents Act 2008, s 111 / Held / breach of ss 126(1) and 132 of Act as to providing copy of agency agreement / breach of Professional Rules 2012 rr 9.7 and 10.6 / failing to recommend appellants’ seek legal advice / breach of rr 6.4 and 9.4 / misleading customers as to appellants’ price expectations of property / breach of r 9.1 / failure to act in accordance with appellants’ instructions to marketing of property / Agent engaged in unsatisfactory conduct pursuant to s 72(a) and (b) of Act

Contract / Quasi-contract / Applicant acted for Respondent seeking improved compensation from EQC for damage to Respondent’s property / Respondent obtained further compensation of $120,000 from EQC / Applicant claimed $3,200 as legal costs / Applicant claimed it was implied term of contract with Respondent that Respondent would pay legal costs / Held: Legal costs not implied term of contract between parties / Applicant does not have a contractual right to the $3,200 claimed based on express statements to Respondent that litigation costs would be met by Applicant / Tribunal examined whether it would be unjust for Respondent to retain benefit of compensation at Respondent’s expense / Applicant claimed legal costs were included in compensation but were unable to provide express explanation or breakdown of compensation from EQC showing costs included in compensation /  Held: Applicant not entitled to amount sought in absence of express explanation or breakdown from EQC regarding costs / Cl…