Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2020] NZEmpC 69 A Labour Inspector v Jeet Holdings Ltd (Costs Judgment of Judge B A Corkill, 21 May 2020) COSTS – The Labour Inspector unsuccessfully opposed an application to vary a freezing order – defendants did not incur costs – no award of costs for defendants – third party did incur costs – Labour Inspector’s actions were reasonable – interests of justice dictate no award of costs.

[2020] NZEmpC 67 Maddigan v Director-General of Conservation (Judgment of Chief Judge C Inglis, 19 May 2020) COSTS – employee was self-represented and not a lawyer – costs cannot be awarded – APPLICATION FOR FURTHER SUBSTANTIVE REMEDIES – substantive orders cannot be sought after case is closed – parties referred to mediation.

Complaint / Committee found unsatisfactory conduct / registration of easements, lodging caveat / complaint lawyer registered and certified instruments without Authority and Instruction consent / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.5 / Property Transactions and E-Dealing Practice Guidelines / Land Transfer Act 1952, section 164A / HELD / breach of rule 2.5 / lawyer certified they had authority to register instruments without such authority / penalty / censure, fine of $6000, direction to provide decision to Registrar-General of Land, costs confirmed / Committee’s decision confirmed / section 211(1)(a)

[2020] NZEmpC 60 Noble v Ballooning Canterbury.com Ltd (Interlocutory Judgment of Judge B A Corkill, 7 May 2020) APPLICATION FOR DECLARATION OF WITHDRAWAL – client will not respond to counsel communications – client unable to be reached – application for substituted service – counsel did not attempt all options to reach client – application for joinder of third parties for costs – whether counsel should be liable for costs – failure to record client’s address was imprudent but not a very serious breach of rules of procedure – joinder not warranted.

[2020] NZEmpC 59 Johnson v Chief of the NZ Defence Force (Costs Judgment of Judge B A Corkill, 6 May 2020) COSTS – GUIDELINE SCALE – orthodox approach applied - uplift for lack of GST registration.

Review / Committee found unsatisfactory conduct / civil proceedings / complaint lawyer was incompetent as to ensuring full discovery from defendant, and lied to the court when seeking to be removed as counsel of record / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / Lawyers and Conveyancers Act 2006, section 12(a) / HELD / failure to take steps to require discovery better characterised as a lack of diligence in terms of section 12(a), than a lack of competence in terms of rule 3 / lawyer entitled to put their view to the court regarding withdrawing as counsel of record / penalty / fine of $2000, costs confirmed / no costs order for review / Committee’s decision modified to reflect lack of diligence rather than lack of competence / Committee’s decision otherwise confirmed / section 211(1)(a)

Application for costs ruling. Costs order of $8250 made.

Complaint / Committee declined to take further action on complaint / fee complaint / complaint fees were excessive, unfair and unreasonable, and that time was not accurately recorded / also, lawyers did not provide information about fees / whether estimate exceeded / Lawyers and Conveyancers Act 2006, section 132(2) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.4 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / HELD / various invoices complained about / section 132(2) / complainant is not a person chargeable with a bill of costs for a number of invoices / regulation 29 / ten invoices presented near end retainer / a number are under $2,000 / files are unrelated, no reason to aggregate / lawyer gave initial fee indication, which was exceeded / basis of estimate changed as retainer unfolded, common sense that estimate could not be relied on anymore / lawyer should have up…

Contract / Respondent engaged Applicants to assess and report on damaged foundations of their house as part of joint site visit for insurance proceedings / Applicants claim $9,550.75 for work and interest / Applicant claims did not have contract with Respondents and counterclaims for $2,490.90 alleging Applicants did not complete work with reasonable care and skill / Held: Applicant has contract with Respondent / Genuine error in company name does not relieve obligation to pay / Held: comments included in report inappropriate and compensation owed to Respondent / Held: all work completed and travel costs incurred by Applicants were required to complete contract brief / Held: Applicants entitled to cancel contract / Respondent repudiated contract when expressed intention to perform obligations in substantially different way to that agreed / Held: Applicants entitled to claim interest and amount claimed reasonable / Outcome: Respondent to pay $8,637.50 to Applicants

[2020] NZEmpC 48 Sawyer v The Vice-Chancellor of Victoria University of Wellington (Costs Judgments of Judge K G Smith, 21 April 2020) COSTS – GUIDELINE SCALE – change in daily rate for part of proceedings.

[2020] NZEmpC 45 Williams v Rural Livestock Ltd (Stay Judgment of Judge K G Smith, 16 April 2020) APPLICATION FOR STAY – plaintiff has pending criminal  charges – delay caused by COVID-19 – stay granted.

[2020] NZEmpC 38 Goleman Wellington Cleaning Ltd v Nicolle (Costs Judgment of Judge K G Smith, 6 April 2020) COSTS – substantive proceedings withdrawn – costs guideline scale – uplift made because of GST status – uplift made because of rejection of settlement offer.