Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

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.

[2021] NZEmpC 56 Reid v Ngati Rangi Trust (Costs Judgment of Judge J C Holden, 28 April 2021) COSTS - consent.

Contract / Consumer Guarantees Act 1993 / Guarantee of services completed within a reasonable time and reasonable price / Guarantee of services carried out with reasonable care and skill / Respondent hired Applicant to carry out landscaping works around their pool / Agreement was varied to include additional work / Respondents were unhappy with time and cost to carry out the work / Respondents ended agreement and did not pay full sum invoiced by Applicant / Applicant claims $25,533.74 in relation to unpaid invoices / Respondents counterclaim $8,000 in relation to the service carried out and costs of reinstatement / Held: guarantees under ss 30 and 31 of the CGA relating to services completed in a reasonable time and at a reasonable cost do not apply / Contract determined end date for work and cost estimate for work / Held: service not carried out with reasonable care and skill per guarantee in s 28 of the CGA / Failure to property document project in writing or pictures relating to des…

Negligence / Respondent poured concrete outside Applicant’s commercial car yard / concrete splashed on Applicant’s cars damaging paint / Respondent paid $562.50 towards paint repair / Applicant claims Respondent was negligent in pouring concrete / Applicant claims they were not contributorily negligent by not protecting cars on property / Applicant claims $9,420.00 for cost of repairing paintwork on car, depreciation on car and Tribunal filing fee / Held: Respondent negligent in pouring concrete / Respondent did not take steps to limit potential for concrete to splash into neighbouring properties / Held: Applicant was not contributorily negligent / Applicant’s cars were on property / Respondent did not give adequate warning of potential concrete splashing / Held: Respondent to pay Applicant $1,687.50 / Respondent only liable for cost of paint repair / Applicant could have avoided depreciation / Tribunal does not have jurisdiction to award costs / Respondent already paid $562.50 of $2,2…

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a jetski from Respondent / Applicant did not test run jetski prior to purchase / Applicant took jetski out on the water after sale and found it was faulty / Applicant advised fault would have existed at point of sale / Applicant advised fault due to lack of regular servicing / Applicant sought refund of $6,000.00 purchase price / Whether misrepresentation made in sale of jetski / Whether Applicant was entitled to sum claimed / Held: Respondent provided limited representations relating to the condition of the jetski / Respondent disclosed lack of use and servicing of the jetski / No misrepresentation made in the sale / No entitlement for damages for faulty jetski / Claim dismissed

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a car from Respondent / Car advertised as reliable and running well / Car overheated from day of sale / Applicant advised engine would need to be replaced / Applicant sought a refund of the $10,000.00 purchase price from Respondent / Whether misrepresentation made in sale of vehicle / Whether Applicant was entitled to sum claimed / Held: Overheating problem arose day of purchase / More likely than not there was latent defect in the car / Statements that car was reliable, mechanically sound and went well were untrue statements / Did not matter that statements were made on behalf of a party to a contract / An innocent misrepresentation is still a misrepresentation / Costs not proven / Damages are limited to cost of replacement engine / Respondent ordered to pay $7,100.00 to Applicant by specified date / Claim allowed.