Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Complaint / Committee declined to take further action on complaint / relationship property / complaint lawyer acted for both parties on conveyancing transaction / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.4 / rule 3.5 / rule 6.1 / rule 7 / rule 7.1 / rule 10.1 / whether lawyer acted for both parties in conflict / whether lawyer obtained instructions and kept client informed / HELD / in context, lawyer acted for both parties with more than negligible risk of being unable to discharge obligations / did not obtain informed consent or promptly disclose all information relevant to sale / acted unilaterally to hold proceeds in trust account / $2,000 fine / $1,600 costs / Committee’s decision reversed / section 211(1)(a)

Civil / Fencing Act 1978 / Applicant removed and replaced boundary fence between their property and Respondent's property / Applicant removed Respondent's flax / Applicant claims half the cost of fence plus cost of removing flax / Held: fence was inadequate before it was replaced / Applicant did not follow notice procedures to entitle them to claim a half share of costs / Applicant entitled to contribution of half of cost of half the fence on basis immediate work was required / Respondent entitled to set off for lost flax / $140 awarded to Applicant for fence, $140 awarded to Respondent for flax / Full set off / Claim dismissed.

[2019] NZEmpC 101 GD (Tauranga) Ltd v Price (Judgment of the full Court, 19 August 2019) HOLIDAY PAY – COMMISSION – average daily pay vs relevant daily pay – whether employer has discretion.

[2019] NZEmpC 96 Boyd v Blanchard (Judgement of Chief Judge Christina Inglis, 9 August 2019) COSTS – Cost following discontinuance awarded.

Breach of professional obligations and Immigration Advisers Licensing Act 2007 / failure to properly document professional relationship / work visa application / adviser knew complainant socially / no written agreement for immigration services / communications not formalised / fees paid but not deposited and invoices not issued / failure to provide fully copy of file/ adviser claimed internet fault / INZ raised character concern / Code of Conduct 2014, cl18a, cl22, cl25c, cl26(a)(i), cl26(e), cl26b, cl26c / Immigration Advisers Licensing Act 2007, s44 / adviser admitted all heads of complaint / adviser failed to treat immigration side of relationship objectively and professionally / important to have written agreement and properly document financial transactions / complaint upheld.

[2019] NZEmpC 88 Randle v The Warehouse Ltd (Judgment of Judge J C Holden, 30 July 2019) COSTS – GUIDELINE SCALE – no response from plaintiff.

Contract / Consumer Guarantees Act 1993 / Applicant brought shed/cabin from Respondent / If cabin is weathertight and if there was mould in the interior / Applicant claims a refund for cabin and consequential losses, including third party installation costs and damage to belongings / Applicant also claims for amount spent on wiring the cabin / Held: the Consumer Guarantees Act 1993 applies / Cabin did not correspond with description provided by Respondent / Fact that cabin was not weather proof and water tight is a failure of substantial character / Applicant entitled to reject cabin, obtain full refund and damages for reasonably foreseeable further losses / Portion of cost spent on wiring allowed / Claim allowed

[2019] NZEmpC 84 Sawyer v The Vice-Chancellor of Victoria University of Wellington (Costs judgement of Judge K G Smith, 19 July 2019) COSTS – guideline scale

Nuisance / Damages / Applicant and Respondent own neighbouring properties / Applicant claimed roots and leaves from trees on property boundary caused damage to property / Applicant claimed $4,352.76 from Respondents for total costs relating to drainage and gutter repair / Held: Applicant cannot recover damages for costs of clearing and replacing gutters / Costs caused by leaves from non-encroaching branches / Respondents have allowed tree roots to encroach on Applicant’s land / Second and Third Respondents ordered to pay Applicant $2,547.26 for drain repair costs / Claim allowed.

Complaint / Committee declined to take further action on complaint / company insolvency / conduct prior to 1 August 2008 / complaint lawyer engaged in misconduct / HELD / no evidence of professional standards issue / costs against lay applicant / reasons for engaging disciplinary process difficult to identify, motivation for complaint stated as compensation / Lawyers and Conveyancers Act 2006, section 210(1) / $900 costs order / Committee’s decision confirmed / section 211(1)(a)

Contract / Applicant entered contract to purchase puppy from Respondent / Parties agreed Applicant could be refunded if puppy did not meet preferences / After puppies born Applicant advised none met preferences and asked for refund of deposit / Respondent refused refund / Applicant claims refund of deposit plus costs / Held: contract allowed Applicant to back out of purchase and receive refund if not happy with puppy on offer for personal reasons as long as done in good faith / Claim allowed / Respondent ordered to pay $585.00 to Applicant / Applicant cannot recover costs or Tribunal filing fee per s 43 of the Disputes Tribunal Act 1988.

Sanctions decision / allowing unlicensed  person to engage with client / no written agreement / inadequate written record of communications / student visa application declined / complainant’s status became unlawful / complainant sought recovery of lawful status and compensation for legal costs / Code of Conduct 2014, cl2e, cl18, cl26a, cl26c / Immigration Advisers Licensing Act 2007, s50 and s51 / obligation to engage personally with client and have written agreement important / violation lower end of spectrum because adviser engaged with client at later stage / adviser had a strong commitment to professional development and offered to pay some compensation / not appropriate to refund all costs as not attributable to adviser’s professional violations / doubtful Tribunal has power to award costs in disciplinary process / adviser censured / adviser directed to complete refresher course and ordered to pay some compensation

Contract / Applicant loaned money to respondent during relationship / Respondent had agreed to repay respondent / Respondent also crashed and damaged applicant’s car / Respondent has not fully paid applicant / Applicant claims the sum of a private loan and collision losses plus towing costs / Held: repayment not enforceable as no intention to create legal relations / No consideration of formalising promises to pay into a binding agreement / Applicant also cannot make negligence claim as she is not the owner of the car / Claim dismissed