Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Penalty decision - Orders of censure, suspension and training. Charges laid under a 91 of the Act, charges under s 73(b) and 73(a) upheld. Refer to [2019] NZREADT 1 for full findings.  

Sanctions decision / negligence / adviser failed to assess eligibility of graduate work visa application / adviser now bankrupt / licence surrendered / Immigration Advisers Licensing Act 2007, s50, s51 / no basis for application & competent adviser would not have advised client to pursue it / adviser not responsible for application’s failure / adviser censured & ordered to pay $5,835 in refund of fees & expenses at $30 weekly.

Contract for services / Consumer Guarantees Act 1993 / Applicant contracted to test and maintain fire and sprinkler systems at apartments owned by Respondent to a standard required by local Council / service contract provided for monthly inspections in addition to callouts / callouts attracted extra fees / two false alarms triggered by insect larvae and webs inside the detectors / Applicant claiming for payment of the two false alarm callouts / Respondent argues Applicant failed contractual duties to maintain alarm system / Held: Applicant failed to provide its services with reasonable care and in manner fit for purpose / Applicant knew that insects were an issue with false alarms but did not advise the Respondent of this or how to avoid this issue / further, response time to second false alarm excessive / claim dismissed

Complaint / two complaints / Committee declined to take further action on first complaint / Committee found unsatisfactory conduct on second complaint / administration of estate / first complaint, fees charged / second complaint, lawyers failed to follow instructions / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9.1 / HELD / fees fair and reasonable / Committee’s decision confirmed / delays due to complaints process / Committee’s decision reversed / section 211(1)(a)

Excessive fees / failure to record meetings and discussions / residence application / adviser charged $15,000 standard fee / adviser prepared application which required analysis of financial information / complainant signed application & paid second instalment of fees / complainant changed his mind & requested withdrawal of application & full refund of fees / complainant terminated agreement / adviser offered a partial refund / Code of Conduct 2014, cl20, cl24, cl26 / Immigration Advisers Licensing Act 2007, s442 / adviser should have recorded material discussions in writing / fee at higher end of scale but not unfair or unreasonable / urgency relevant factor in setting fee / adviser carried out substantial work at time agreement was terminated / work largely completed & only some documents outstanding / refund fair / adviser under no obligation to refund more than small part of fee / complaint upheld.

[2019] NZEmpC 30 Nicholson v Ford (Costs Judgment of Chief Judge C Inglis, 22 March 2019) COSTS – costs guideline scale – whether plaintiff won by reducing penalties rather than eliminating them – novel issues arose – plaintiff breached good faith – costs not intended to punish.

[2019] NZEmpC 25 TUV v Chief Executive of the New Zealand Defence Force (Interlocutory Judgment of Chief Judge C Inglis, 12 March 2019) APPLICATION FOR STAY OF DETERMINING COSTS – Court of Appeal has granted leave to appeal – plaintiff was partly successful – settings costs would not be straightforward – stay granted.

Review / Committee found unsatisfactory conduct / ACC claim / lawyer was acting under legal aid / fee complaint / Real Estate Agents Act 2008, section 123 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.2 / rule 9.5 / whether client agreed to pay higher fees / duty to inform client of whether lawyer is prepared to work on legal aid / HELD / lawyer had a duty of care to vulnerable client / client did not agree to pay for work / fees not fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / lawyer acted in employment dispute and criminal charges / fee complaint / 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 9 / AO v ZH LCRO 301/2011 (12 March 2014) / whether estimate provided / HELD / estimate did not cover subsequent fees / fees fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / employment dispute / complaint lawyer did not release funds as required / fee complaint / 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 9 / AO v ZH LCRO 301/2011 (12 March 2014) / whether estimate provided / HELD / lawyer holding funds due to undertaking / lawyer must release funds as required by undertaking / no conduct issues arise / estimate did not cover subsequent fees / fees fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

[2019] NZEmpC 18 Watts & Hughes Construction Ltd v De Buyzer (Interlocutory Judgment of Judge B A Corkill, 27 February 2019) APPLICATION FOR EXTENSION OF TIME FOR PAYMENT INTO COURT – STRIKEOUT APPLICATION – payment to court not made through inadvertent error – paid late - wasted costs and disbursements paid to defendant – strikeout application for only part of the challenge – principles of strikeout and of abuse of process considered – application declined.

Sanctions decision / failure to perform services with due care, diligence and professionalism / client’s work visa declined so client in New Zealand unlawfully / application for exception to immigration instructions under s61 / adviser recommended making formal complaint to INZ & appealing deportation on humanitarian grounds but both declined / adviser then advised client to lodge a request for student visa / Tribunal found adviser’s approach misguided & devoid of merit / strategy costly & compromised client’s prospects of success / Immigration Advisers Licensing Act 2007, s50, s51 / breach not an isolated error of judgement / adviser lacked sufficient knowledge & skill / financial penalty not necessary in public interest / fees paid & cost of appeal wasted / no compensation recoverable as living expenses & costs of another adviser did not flow from unprofessional advice / adviser ordered to complete training & refund fees of $2,900.