Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Respondents were the former property manager for Applicants / Applicants are unhappy with services provided in two tenancies / Applicants claim $4870 from respondent for various cleaning fees, repair and replacement fees, and for rent forgone after termination of second tenancy and 50% refund of management fees / Claim partially allowed for cleaning fees, replacement fees, and for one day’s rent missed when first tenancy ended, Respondent ordered to pay Applicant $169.28 total.

Liability / sexual harassment / six charges of misconduct / practitioner’s conduct broadly categorised as sexual harassment against three junior and two senior staff / was intoxicated while working as a lawyer / no dispute conduct occurred in professional setting / HELD / charges 1 to 3 proven as misconduct / evidence of complainants credible / practitioner lacked awareness of power imbalance between summer clerks or junior staff members and senior member / conduct went beyond merely unwise or unacceptable conduct / was disgraceful and dishonourable / charge 4 dismissed / complainant concedes physical touch while dancing at Christmas party may have been accidental / charge 5 (intoxication while working) dismissed / observation of one person insufficient / no evidence such as evidential breath or blood testing available / no evidence of harm to clients or impaired performance / charge 6 dismissed as duplicate and redundant / parties to file penalty submissions

Sanctions / failed to disclose a conflict of interest in writing and obtain written consent, failed to maintain a client file with copies of all written and oral communications, and failed to make file available to IAA / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl5, cl6, cl26aiii, cl26e / most serious breach was failure to disclose conflict in writing and obtain client’s written consent; mitigated by verbal disclosure of conflict / five previous complaints upheld / poor disciplinary history is a significant aggravating feature / adviser censured / public require protection / adviser prevented from reapplying for licence for maximum two years / ordered to pay $2,000 financial penalty / costs claimed for compensation not caused by upheld breaches, declined

Contract / Applicant parked in private car park owned by Respondent / Applicant failed to pay fee to use car park / Respondent issued Applicant with $65.00 fine /  Applicant failed to pay fine so Respondent issued overdue notice of $85.00 / Applicant paid $14.00 / Applicant claims $300.00 to recover costs of engaging in this process, and as a penalty to the Respondent / Applicant claims no contract formed as contract terms and conditions were not clearly laid out in visible place / Respondent counterclaims $71.00 for unpaid fees / Held : Signage was sufficient for contract terms to be clearly visible / Applicant to pay Respondent $71.00 / Claim dismissed / Counterclaim granted.

Contract / Respondent engaged Applicant for legal services / Applicant gave a cost estimate for work to Respondent / Applicant carried out  work and invoiced a higher price than initially estimated / Respondent refused to pay Applicant more than estimated price / Applicant claimed $1800 plus GST for the legal work conducted / Held: Applicant intended to charge initial price range for work conducted / Terms of engagement did not allow Applicant to charge beyond the estimate given / Respondent ordered to pay Applicant $892.50 for legal work conducted / Claim granted in part.

Liability and penalty / practitioner intentionally breached binding settlement agreement / lacked independence when representing clients / made meritless allegations against lawyers and judicial officers / Lawyers and Conveyancers Act 2006, section 4 / Conduct and Client Care Rules 2008, rule 2.3 / rule 10.1 / rule 13.1 / rule 13.2 / rule 13.8 / HELD / lawyers entitled to represent clients fearlessly but conduct must comply with Act and Rules / interactions between lawyer and judicial system must be courteous for system to function / allegations require evidential foundation / deliberate disregard of non-publication order and unrestrained manner of successive proceedings amount to repeated abuses of process / representation of clients were attempts to relitigate personal issues / not fit and proper / circumstances cumulatively amount to misconduct / Tribunal ordered practitioner be struck off / practitioner to pay Standards Committee’s and Tribunal’s costs

Liability / criminal sentencing proceedings / practitioner falsely stated on invoice the cost of a drug assessment report / when client was assigned a new lawyer, destroyed the report and failed to inform new lawyer or court that report was completed / filed misleading memorandum stating report not complete / Conduct and Client Care Rules 2008, rule 3.1 / rule 5.1 / HELD / practitioner deliberately lied to client / used misleading communication about cost of report for own pecuniary interests when client was vulnerable / deleting report not a proper way to deal with client’s information / could have alerted new lawyer about report / continued to owe legal and fiduciary duties to client until relieved of role by new lawyer / client denied litigation advantage of the report at critical point / filing of memorandum not misleading as it was correct at time of filing / first two charges proven at level of misconduct / third charge dismissed / parties to file penalty submissions

[2022] NZEmpC 191 McDermott v Employment Relations Authority (Costs Judgment of Judge K G Smith, 25 October 2022) COSTS – GUIDELINE SCALE – statements about financial circumstances were not supported by evidence – costs awarded.

Consumer law / Consumers Guarantee Act 1993 (CGA) / Applicant hired a mechanical bull from Respondent / Mechanical bull did not work / Applicant given a partial refund from Respondent / Respondent retained some costs for the delivery of the bull / Applicant claimed $350.00 for outstanding refund / Held: mechanical bull did not provide the service needed on the night / Different reasons why the bull could have failed  / Respondent breached his obligations under the CGA / Failure was of a substantial character / Applicant entitled to a refund for remainder of the amount / Respondent ordered to pay $350.00 / Claim allowed.

[2022] NZEmpC 186 Teddy and Friends Ltd v Page (Costs Judgment of Judge B A Corkill, 17 October 2022) COSTS – GUIDELINE SCALE – unreasonable costs settlement offers made by successful party – costs awarded based on guideline scale – costs awarded on filing costs memorandum.

Consumer Law / Consumer Guarantees Act 1993 (CGA) / Disputes Tribunal Act 1988 / Applicant acquired the services of the Respondent (an arborist) about tree work to be done on property / Applicant claims that the Respondent did not complete work as instructed and without reasonable care and skill / Applicant claims for Respondent to pay the all or any of the costs / Respondent claims for invoice to be paid / Respondent claims for Applicant to pay the legal fees / Held: respondent removed more trees than instructed and without the Applicant's authority or consent / Respondent performed the work with reasonable care and skill under s 28 of the CGA / Respondent breached the contract and is liable to pay compensation for damages / Applicant is liable to pay the incoive under the terms agreed as the quality of workmanship itself do not render costs unpayable / The contract did not include liability for the Respondent to pay legal costs incurred / Section 43 of the Disputes Tribunal prevents …

Tort / Respondent’s bike collided and damaged front wheel of Applicant’s bike /  Applicant claimed $365.00 made up of $230.00 to replace the front wheel of his bike and $135.00 medical costs / Held: Respondent had not taken reasonable care to ride bike in a manner that did not cause harm to other users of the cycleway /  Second Respondent is not vicariously liable for the Respondent / Applicant’s medical costs are covered by Accident Compensation Act / Claim granted, Respondent to pay Applicant $100.00.