Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Applicant supplied and maintained doors to a supermarket / Contract was originally with one company then interest transferred to Respondent / Contract ended and doors were removed by Applicant per contract / Costs for removal of doors in dispute / Applicant claimed Respondent responsible for costs of removal of doors under contract / Respondent claimed no proof of terms regarding removal in contract / Held: contract required Respondent to pay for removal of doors only where contract terminated due to breach by Respondent / Removal costs not recoverable as contract came to end when fixed term ended / Claim dismissed

Review / Committee found unsatisfactory conduct / criminal proceedings / complaint lawyer did not return memory stick and did not give invoice for cash payment of fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4A / rule 14.2 / rule 14.10 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / regulation 10 / Skagen v Wellington Standards Committee [2016] NZHC 1772 / HELD / breach of rule 3.4A / no evidence terms of engagement provided / breach of rule 14.2(e), rule 14.10, and regulations 9 and 10 / no evidence invoices sent / memory stick complaint resolved by Disputes Tribunal / Committee’s decision confirmed but modified to conditionally increase fine / section 211(1)(a)

Penalty / practitioner negligently or incompetently represented client and tried to stop them from pursuing complaint / whether strike off justified / Hart v Auckland Standards Committee 1 [2013] 3 NZLR 103 / Otago Standards Committee v Claver [2019] NZLCDT 8 / HELD / practitioner demonstrated lack of insight / practitioner pursuing client for unpaid fees, refusing to acknowledge the services were not worth a fee / previous disciplinary history an aggravating factor / showed no insight, did not accept responsibility / no mitigating factors / conduct fell short of the accumulation of wrongdoings in Hart / on one file alone, strike-off would be harsh / ordered 30-month suspension, for practitioner to cancel all fees for work undertaken and withdraw claim against client / practitioner to pay Standards Committee’s costs and $7,253 of Tribunal’s costs / client should not have to pay costs for application for rehearing / copy of decision to be sent to Disputes Tribunal and client

[2020] NZEmpC 148 Baker v Hauraki Rail Trail Limited (Judgment of Judge M E Perkins, 17 September 2020) REMEDIES – PENALTIES - non-de novo challenge to Authority determination – Authority’s compensation award was reasonable – Authority was wrong not to grant lost wages – penalty was appropriate – penalty to be paid to employee – costs awarded.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicants purchased a used car from the Respondents for $1800.00 / Respondents made misleading statements about condition of car in Facebook ad / Car could not obtain Warrant of Fitness without significant structural work / Estimated wreck value of car is $350.00 / Applicants claim a refund of the purchase price of the car / Respondents claim the car was sold “as is where is” / Held: Respondents misrepresented the car / Contract and Commercial Law Act 2017 provides some protection for purchasers of goods in private sales / Applicants have suffered a loss / Claim allowed, Respondents ordered to pay Applicants $1450.00.

Penalty / legal executive admitted misconduct for multiple occasions of copying signatures on to documents / whether employees should be held to lower standard than practitioners / Lawyers and Conveyancers Act 2006, section 3 / section 11 / Wellington Standards Committee 1 v Nalder [2015] NZLCDT 5 / Taranaki Standards Committee v Flitcroft [2010] NZLCDT 36 / HELD / legal executive initially denied allegations / subsequent acceptance of responsibility was “late, partial and grudging” / perceived workplace to be toxic and unsupportive, no evidence to that effect / actions taken to cover up documentation failures / Tribunal considered indefinite prohibition for law employment not appropriate / legal executive not in a strong financial position, fine not appropriate / Tribunal imposed 12-month prohibition on employment / ordered censure / no costs order against legal executive, as they were legally aided

[2020] NZEmpC 141 H v RPW (Judgment of Judge M E Perkins, 4 September 2020) APPLICATION FOR LEAVE TO EXTEND TIME TO FILE CHALLENGES – delay was very lengthy – explanation about naivety of advocate did not match the evidence – merits are weak – leave declined – CHALLENGE AGAINST QUANTUM OF PENALTIES AND COSTS – breach of settlement agreement was deliberate – no factors of mitigation – quantum upheld.

Review / Committee declined to take further action on complaint / civil proceedings / complaint lawyers’ fees exceeded estimate and award did not merit expenditure / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.1 / rule 9.4 / HELD / fee quickly exceeded estimate / instructions changed after estimate / Committee did not adequately address whether complainant should have been informed of escalating fees / lawyer named as party in complaint did not render invoice / Committee directed to reconsider which lawyer should be the subject of complaint, whether information on escalating fees was required, and a fair and reasonable fee amount / section 209 / Committee’s decision reversed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / employment proceedings / complaint lawyer’s representation incompetent and fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / LCRO 262/2014 (28 June 2018) / Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 / McGuire v New Zealand Law Society [2017] NZHC 2484 / Vallant Hooker & Partners v Toothill HC Auckland CIV-2009-404-1895, 4 September 2009 / Chean v Luvit Foods International Ltd HC Auckland CIV 2006-404-1047, 7 June 2006 / HELD / complaints process does not closely scrutinise each litigation decision / breach of rule 9 / lawyer should have formed view at outset as to prospects and costs / no evidence lawyer advised costs could exceed any award or of Calderbank offer meaning / fee calculated by reference to time recorded / no measured assessment of whether fee was reasonable / Committee’s decision confirmed / section 211(1)(a)

Contract / Credit Contracts and Consumer Finance Act 2003 (CCCFA) / Applicant made two loans to Respondents / Respondents unable to repay loans / Applicant tried to repossess security but did not / Applicant claims $4,074.14 on first loan and $3,080.74 on second loan / Whether Applicant acted responsibly in making loans, whether all disclosures made correctly, whether fees reasonable, whether Applicant breached legal requirements regarding repossession, what sum is payable, if any / Held: Applicant failed to comply with lender responsibility principles in relation to either Respondent / Held: Applicant failed to comply with requirements for subsequent disclosures / Held: entry onto Respondent premises without correct notices and documentation in breach of CCCFA Part 3A / Held: unpaid balances of both loans offset by damages recoverable by Respondents for breaches by Applicant / Claims dismissed            

[2020] NZEmpC 130 Tolson v Potter (Costs Judgment of Judge J C Holden, 24 August 2020) COSTS – GUIDELINE SCALE – scale costs exceed invoiced costs – Calderbank offer was made – financial hardship considered but outweighed by other factors – full costs awarded.

Contract / Quasi-contract / Respondent engaged to work on property occupied by Applicant / Respondent asked Applicant if it could take water from their property / Applicant consented / Applicant asked Respondent to spray land to get rid of gorse / Respondent agreed / Respondent sent invoice to Applicant of $552 / Applicant said it was under no obligation to pay as spraying was in exchange for water / Applicant sent invoice for use of water / Applicant claimed not required to pay invoice from Respondent and sought declaration of non-liability / Held: no contract was formed / A person cannot accept an offer they do not know about / Unique circumstances and benefit received by Applicant meant an amount should be paid / Some compensation for costs of doing job was reasonable / Requiring a payment of $300 was fair in the circumstances / Applicant ordered to pay $300 to Respondent / claim dismissed.

[2020] NZEmpC 127 123 Casino Ltd T/A 123 Palm Bar & Restaurant & Function Centre v Zuo (Costs Judgment of Judge K G Smith, 19 August 2020) COSTS – GUIDELINE SCALE – change to applicable daily rate accounted for – no adjustment made for representative by advocate instead of lawyer – indemnity not appropriate – GST uplift made – settlement offer accounted for.