Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Respondents advised Applicant insurance company that a vehicle belonging to them had been stolen / Vehicle not recovered / Applicant paid out claim of $9570.15, met cost of rental car / Vehicle located at Respondents' property / Applicant claims $11,185.10 for amount paid out under claim, and costs of rental vehicle, towing, investigation / Held: claim for loss of vehicle fraudulent / Claim allowed, Respondents to pay Applicant $11,185.10

18.03.20 | Judge Armstrong | Te Ture Whenua Māori Act 1993, sections 43 and 79 | Rehearing | Easement | Costs

Contract / Contract and Commercial Law Act 2017 / Applicant purchased an advertised Rolex Submariner watch through Respondent / Watch sent to Rolex Australia for service and found to be non-genuine / Respondent purchased the watch from the original seller believing at the time of sale the watch was genuine /  Applicant claims refund of $14, 350.00 for the purchase price of watch from Respondent as had no contract with the original seller / Held: Relief granted under s28 of CCLA and dealt with as a contractual mistake / Held: Applicant entitled to refund / Respondent to pay Applicant sum of $14,350.00 / Watch to be returned by Applicant to Respondent / Costs incurred in the return of the watch to be covered by Applicant

Contract / Disputes Tribunal Act / Applicant purchased property from Respondent’s / Applicant considers work was carried out without obtaining the requisite consent / Applicant claims $3956.00 representing surveying costs and architectural draughting costs / Respondent counter claims for $2,304.50 against the Applicant in respect of legal costs incurred / Held: on balance of probabilities a building consent was obtained for the erection of the original deck / No consent was required for the deck upgrade/repair carried out / Respondent not in breach of warranty under sale and purchase agreement / Legal costs do not fall within the category of costs the Tribunal has jurisdiction to award / Claim dismissed, counter claim dismissed.  

[2020] NZEmpC 20 Kohli v Brahmbhatt (Interlocutory Judgment of Judge J C Holden, 2 March 2020) APPLICATION FOR SECURITY FOR COSTS – evidence that company is operating under a new name to avoid payment – application granted - APPLICATION FOR STAY – evidence that the company cannot afford to pay remedies awarded by Authority – stay awarded with condition that full amount is paid to the Court.

Sanctions decision / providing false & misleading information / adviser ran scam supplying fake job offers to clients from paper companies he controlled / complainant knowingly received fake job offer & granted work visa on that basis / complainant claims refund of fees & compensation for leaving NZ / Immigration Advisers Licensing Act 2007, s50, s51 / adviser’s misconduct most serious warranting severest level of sanctions / adviser main perpetrator of scheme / conduct sustained, deliberate & brought regime into disrepute / adviser driven by greed, admitted no wrongdoing & showed no remorse / fraud not an isolated incident / compensation figures inaccurate, inconsistent & not supported by documentary evidence / complainant willing party to adviser’s fraud & not entitled to compensation / neither adviser nor client should benefit from fraud / adviser censured / adviser prevented from reapplying for licence for 2 years / adviser ordered to pay $10,000 penalty & $4,535 refund of fees.

Sanctions decision / providing false and misleading information to INZ / adviser ran a scam where he supplied clients with fake job offers from paper companies he controlled / Immigration Advisers Licensing Act 2007, s50, s51 / adviser’s misconduct most serious / adviser principal perpetrator of fraudulent scheme / conduct sustained and deliberate & brought regime into disrepute / adviser motivated by greed, admitted no wrongdoing & showed no remorse / fraud not an isolated incident / severest level of sanctions warranted to denounce conduct, deter similar conduct & protect public / adviser censured / adviser prevented from reapplying for licence for 2 years / adviser ordered to pay $10,000 penalty & $5,000 in costs & expenses.

[2020] NZEmpC 13 Elisara v Allianz New Zealand Ltd (Costs Judgment of Judge Chief Judge C Inglis, 26 February 2020) COSTS – costs guideline scale – adjustments made for Calderbank offer – award not reduced for reasons of ability of pay – Authority costs award discussed – whether Authority’s notional daily rate is generally appropriate.

Charges laid under s73(a) of the 2008 Act, or in the alternative, misconduct under s73(b) of the Act. Defendant pled guilty to disgraceful conduct or seriously negligent conduct in the alternative. Tribunal finding of misconduct under s73(b) of the 2008 Act. Conduct occurred under the 1976 Act so can only impose penalty available under the 1976 Act. Defendant fined $750.

Sanctions decision / failure to enter updated client agreement when new visa category instructed / lack of due diligence or care / failure to identify missing provision in client’s employment contract / visa declined / complainant sought refund of fees & compensation for lost income / Immigration Advisers Licensing Act 2007, s50, s51 / obligation to have client agreement important / high degree of carelessness or negligence / adviser’s first appearance before Tribunal / adviser acknowledged & corrected failings / significant compensation claims for general courts to decide / Tribunal can award modest sums / not shown application would have necessarily been successful if not for adviser’s lack of care / inappropriate for adviser to pay later fees or award full sum of compensation / reasonable to award some compensation for lost income as complainant could have obtained work visa earlier / adviser cautioned /adviser ordered to pay $1000 penalty & $7555 for refund of fees & compensation.

[2020] NZEmpC 9 Zhang v Telco Asset Management Ltd (Costs Judgment of Judge B A Corkill, 20 February 2020) COSTS – costs guideline scale – Calderbank offer – rejection of Calderbank offer appropriate because sum awarded was significantly higher than offer – employee only partially successful – 25% of normal costs awarded.

Sanctions decision / negligence / failure to enter into written agreement with client / failure to file residence application in time / invitation expired / Immigration Advisers Licensing Act 2007, s50, s51 / adviser failed to perform fundamental obligations of a professional adviser / adviser’s misconduct aggravated by previous similar findings against him / adviser declined to engage with Authority or Tribunal / adviser bears high degree of responsibility for complainant not obtaining residence / adviser to undertake training & prohibited from renewing licence / adviser censured & ordered to pay $5000 penalty / adviser also ordered to pay $5000 compensation by way of general damages to complainant for application fees, inconvenience, anxiety & stress.

In its decision [2019] NZREADT 46, the Tribunal allowed the appeal and found that the licensees had engaged in unsatisfactory conduct. Tribunal declines to make an order of compensation to the appellant, an order of costs is also declined as no proof of incurred costs provided. Both licensees are censured and Mr Christiansen is ordered to provide an apology addressed to the appellant on a form approved by the Authority.