Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Consumer Guarantees Act 1993 (CGA) / Respondent provided immediate and conventional denture to Applicant / Applicant claims neither denture of acceptable quality or fit for purpose / Applicant claims reimbursement of $2,502.00 / Was immediate denture of acceptable quality? / Was conventional denture of acceptable quality? / If not, is Applicant entitled to reimbursement / Held: immediate denture was of acceptable quality per s 7 CGA / Held: conventional denture not of acceptable quality / Held: Applicant not entitled to refund for immediate denture; entitled to refund of $650.00 for conventional denture plus mileage costs / Respondents ordered to pay Applicant $662.00 / Claim allowed in part.  

[2021] NZEmpC 182 Ututaonga v North Western Farms Ltd (Costs Judgment of Judge J C Holden, 21 October 2021) COSTS – GUIDELINE SCALE – costs increased for irrelevant and inadmissible material.

Property / Contract / Applicants purchased property from Respondents / Applicants claim repair and replacement costs due to respondents breaching agreement that chattels would be in working order and failing to clean and repair downpipe / Held: Respondents breached agreement by failing to provide pool pump and solar heating system in reasonable working order / Claim allowed / Respondents to pay Applicants $10,152.24.

Consumer Guarantees Act 1993 (CGA) / Applicants purchased cooker from Respondent / Applicants’ had issues with cooker, no replacement parts available and have replaced cooker / Applicants’ claim damages of $9,097.87 from Respondent for costs of refund and replacement of cooker / Is cooker not of acceptable quality and/or not fit for purpose? / Is Respondent Manufacturer of Cooker; if so, did Respondent faile to take reasonable action to ensure facilities for repair of cooker and supply parts were available? / Did Respondent engage in conduct misleading or deceptive? / If so, are Applicants entitled to remedy and is remedy claimed proved and reasonable? / Held: cooker not of acceptable quality or reasonably fit for purpose / Evidence shows issue with cooker and no evidence that Applicants’ did not care appropriately for the cooker / Held: Respondent manufacturer of cooker under s 12 of CGA / Held: Respondent in capacity of manufacturer of cooker failed to comply with s 12 of CGA / Appli…

Consumer Guarantees Act 1993 / Respondent completed retro-fit double glazing of Applicant’s home / Applicant experienced various problems with installation which culminated in meeting between the parties / Agreed that Second Respondent would remediate problems with original work and complete additional work / Applicant claimed $11,356.08 from Respondent for refund of quote and payment for original work / Applicant also claimed $3,797.00 from Second Respondent for price of additional work and further claims from both Respondents of $567.77 / Were services provided by Respondent done with reasonable care and skill / If not, was Applicant entitled to refund from Respondent / Were services provided by Second Respondent reasonably fit for purpose / If not, did Applicant or agent contribute to solution installed / If not, was Applicant entitled to refund from Second Respondent / Was Applicant entitled to costs / If so, who should pay the costs / Held: Respondent did not provide services with…

Contract / Applicant contracted with Respondent to supply and fit tyres, rims and lift kit on Respondent’s vehicle / Applicant claims $4,375.00 for balance of unpaid invoice and collection costs / Respondent counter-claims $5,000.00 for illegal work and recovery cost of original rims and tyres / What were terms of contract and did Respondent breach by failure to pay or did Applicant breach by failure to return original equipment / Was work carried out with reasonable care and skill and was outcome fit for purpose / What remedy, if any, available / Held: parties agreed Respondent would pay $9,890.00 and agreement was payment on delivery / Nothing in agreement about collection costs / Agreement included Plaintiff retaining original equipment / Held: no breach of standard of reasonable fitness for purpose or failure to exercise reasonable care and skill / Held: remedy for breach is to place affected party in position would have been in if contract performed / Claim allowed, counter-claim …

Land Transport (Road User) Rules / Car collision / Applicant claimed costs to repair vehicle /  Whether Respondent caused the collision / Whether Applicant contributed to the collision / Whether Respondent's employer vicariously liable / Held: Respondent caused the collision / Respondent drove in 50km/h zone at around 80km/h / Should not have attempted to pass if he could not do so safely / Applicant contributed to collision by speeding up when Respondent began to pass / Respondent has 65% liability and Applicant 35% / Respondent's employer vicariously liable as Respondent was driving to carry out work at a job site / Respondent and Respondent's employer to pay 65% of the claimed $4,732.25 which is $3,075.96 / Claim granted.

Complaint / Committee declined to take further action / estate administration / complaint lawyers, as executors of the estate, failed to promptly invest proceeds from sale of property at appropriate interest rate, lawyers’ fees were excessive, lawyers failed to communicate with trustees over placement of sale funds and sale of property, and lawyers contributed to delay in settling sale of property / Lawyers and Conveyancers Act 2006, section 132 / section 111(1) / section 114 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / lawyers’ decision not to invest sale proceeds in higher-interest account reasonably made and within their discretion / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action / conveyancing transaction / complaint lawyer failed to advise vendor that Body Corporate was required to certify disclosure statement and provided poor service / Unit Titles Act 2010 / Lawyer and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / New Zealand Law Society Property Law Section Guidelines / HELD / Committee took no further action on the basis lawyers had discounted fees, but inquiry must consider whether disciplinary response required / financial loss appropriately addressed in other forums / reasonable to expect lawyer would carefully explain disclosure regime / failure to provide appropriate advice constitutes unsatisfactory conduct in terms of s 12(a) and breach of rule 3 / $2,000 fine ordered / Committee’s decision modified to reflect findings, otherwise confirmed / section 211(1)(a)

Sanctions / dishonest and misleading behaviour / dishonestly advised visa was being processed when it was declined & applied for discretionary relief without instructions / supported applications with false declaration, obtained by mistranslating content / numerous other breaches of professional obligations / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl8c, cl18a, cl22, cl26a, cl26b, cl26e, cl26f, cl28a, cl28b / misconduct involving dishonesty at serious end of spectrum / Tribunal has previously upheld three complaints against adviser / sustained history of serious misconduct / aggravated by contempt for disciplinary process / unfit to be a member of the profession & consumers require protection / adviser censured / prevented from renewing licence for maximum two years / directed to refund $3,246 fees / directed to compensate $10,640.81 for legal fees to regularise status & $5,000 for distress / ordered to pay $7,000 financial penalty

[2021] NZEmpC 158 HR Processing 2008 Ltd (formerly known as OSS Ltd (in liquidation)) (Costs judgment of Judge B A Corkill, 20 September 2021) APPLICATION FOR COSTS – company went into liquidation prior to determining quantum of costs – consent of liquidator not required – application for leave to file out of time not an “originating application” – application granted – guideline scale.

[2021] NZEmpC 154 Jackson v The Aorere College Board of Trustees (Costs Judgment of Chief Judge Christina Inglis, 16 September 2021) COSTS – guideline scale considered – costs awarded.

Consumer Guarantees Act 1993 / Guarantee of acceptable quality / Rejection of goods / Damages / Applicant purchased car from Respondent in January 2019 / Mechanical breakdown insurance was taken out in relation to the car with the Second Respondent / In March 2020 the car’s engine was replaced by the Third Respondent / Applicant states replacement engine has failed and claims refund of purchase price and repair costs / Held: Applicant not entitled to reject car and receive refund from Respondent / Lost right to reject goods as not done within reasonable time per s 20 CGA / Held: Applicant entitled to damages of $1844.12 from Respondent / Car not of acceptable quality per s 18 CGA / Claim allowed in part / Claim against Second and Third Respondents dismissed