Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Misrepresentation / Contract and Commercial Law Act 2017 / Consumer Guarantees Act 1993 / Applicant bought a motorsailer boat being sold by Third Respondent on behalf of Second Respondents / Respondent prepared a report on the condition of the boat for the Second Respondents which was also viewed by the Applicant / After purchase the Applicant discovered damage to the timbers on the boat and was advised the deteriorated steering made the boat unseaworthy / Applicant considered the boat was misrepresented and was neither fit for purpose nor of acceptable quality / Applicant claimed compensation of $15,000.00 and contribution towards repair costs / Respondents claimed that the report identified visible faults and was prepared for the Second Respondents not Applicant / Respondents also claimed Applicant signed a contract putting risk of faults on him and the boat was not subject to any warranties / Held: contents of report did not create an actionable misrepresentation under s 35 of the C…

Contract / Consumer Guarantees Act 1993 / Alleged breach of “live foal guarantee” in breeding contract / Contract was ambiguous / Held: “Live foal free return” referred to attempt to get a live foal, not a guarantee of one / Required to provide free returns into the second season / Held: Broodmare not as described / Mare not proved to be pregnant, therefore not of acceptable quality / Applicant awarded $1,805.36 as contribution to the costs associated with purchase.

Contract / Quasi-contract / Mistake / Respondent and his former partner instructed Applicant to act on their behalf in relation to sale of a jointly owned property / Respondent’s share of net sale proceeds was $6,157,23 / Applicant mistakenly transferred Respondent’s sum into his bank account twice / Respondent promptly notified Applicant / Applicant initially denied anything was wrong / Respondent failed to pay back entire overpayment / Applicant contacted collection agency / Respondent disputed debt / Applicant claimed $4,122.23, balance of outstanding amount and costs / Whether Respondent was obliged to return balance of mistaken payment / Whether any other costs or fees were payable / Held: Applicant had a quasi-contractual claim against Respondent for return of money / Evidence suggested Applicant mistakenly made a second payment / Respondent must return extra money / Applicant cannot recover collection costs or service fee / Respondent invested extra money and cost involved in re…

[2019] NZEmpC 146 Alkazaz v Asparona Ltd (Interlocutory Judgment (No 2) of Judge M E Perkins, 16 October 2019) APPLICATION FOR SECURITY FOR COSTS – plaintiff overseas and whereabouts unknown - $15,000 security for costs ordered.

[2019] NZEmpC 138 Eska Co Ltd (formerly known as Eska Ltd) v Beloous (Interlocutory Judgment (No 2) of Judge J C Holden, 8 October 2109) APPLICATION FOR SECURITY FOR COSTS – previous evidence of company’s precarious position – $7000 security for costs awarded - to be paid into the Court.

[2019] NZEmpC 135 Mani v Sharma (Judgment of Judge J C Holden, 4 October 2019) STRIKE OUT – order for security for costs ignored – second plaintiff in liquidation – liquidators request strike-out – no response received – challenge dismissed in entirety.

Sanctions decision / rubber stamping / breach of professional obligations / allowing unlicensed individuals to provide services of licensed adviser / adviser employed by company which contracted partner company to communicate with clients / adviser did not engage with client / client’s communications with unlicensed employees / residence application declined / company delayed sending decline letter / date of decline letter altered / appeal out of time / client claimed compensation for wasted fees / Code of Conduct 2014, cl1, cl2e, cl3c / Immigration Advisers Licensing Act 2007, s50 & s51 / serious misconduct / rubber stamping at upper end of spectrum / adviser admitted misconduct & steps taken to avoid repeat of misconduct / award of compensation declined / client responsible for outcome of application not adviser / loss of opportunity to appeal not material to outcome / adviser censured & ordered to pay penalty of $3,000.

Contract / Contract agreement / Applicant provided contract farming services to Respondents / Contract between the parties was terminated prematurely / Respondents withheld monies payable from Company to Applicant / Respondents claims breach of agreement / Applicants claims for unpaid milk, power and legal fees / Whether Respondents entitled to withhold monies / Whether Applicant entitled to legal fees and amount claimed / Held: Lack of water provided by Respondents being the cause of penalty for the milk grade / No fault of Applicant / Respondents not proven damage to gates, rails and clearlite was cause by negligence of Applicant / Applicant not entitled to legal fees / Claim allowed for unpaid milk and power / Respondent ordered to pay Applicant $8560.22

[2019] NZEmpC 128 Horizon Concepts Ltd v Hayward (Costs Judgment of Judge K G Smith, 17 September 2019) COSTS – GUIDELINE SCALE – inability to pay only relevant for recoverability, not quantum.

Rubber stamping / breach of professional obligations & Immigration Advisers Licensing Act 2007 / failure to engage with client / allowing unlicensed staff to provide immigration services / adviser a contractor for overseas company / agreement with company whereby new clients would be referred to adviser / complainant had no contact with adviser / unlicensed staff met and advised complainant / complainant unsuccessful in obtaining job and sought refund of fees / adviser not aware of complainant until approached for refund / Code of Conduct 2014, cl1, cl2e, cl3c, cl24b, & cl24c / Immigration Advisers Licensing Act 2007, s442 / adviser cannot be responsible for conduct of complainant’s application if he did not know about it / refund not made promptly but complainant never adviser’s client /complaint dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to act for her in an employment dispute / Applicant withdrew from case and Respondent sought payment for services / Applicant defended claim on grounds of "no win - no fee" basis / Contracted provided a penalty fee for termination before conclusion of case / Applicant withdrew against advice / Respondent able to partially recover the fee / Decision not to withdraw after mediation was clouded by the fact of a penalty fee for not proceeding to hearing / Applicant to pay fees incurred after the mediation but before the hearing up to point she withdrew

Sanctions decision / failure to exercise due care / adviser recommended candidate to employer with little welding experience for a position that required welding experience / adviser confused as to distinction between welder and fabricator / candidate’s employment terminated upon discovery he did not have required welding skills / adviser apologised and took full responsibility for error / adviser refunded candidate’s fees and paid for travel costs / Code of Conduct 2014, cl1 / Immigration Advisers Licensing Act 2007, s50 and s51 / adviser failed to exercise due care and should’ve better informed herself of distinction between welder and fabricator / no dishonesty or deception / gravity of misconduct lower end of spectrum / no evidence of cost to employer or candidate / isolated incident / no further action taken.

[2019] NZEmpC 111 Ward v Concrete Structures (NZ) Ltd (Costs Judgment of Chief Judge C Inglis, 27 August 2019) COSTS – DISCONTINUANCE – advocate filed application without instructions – costs guideline scale not applied.