Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Penalty / negligence for issuing seven inaccurate invoices / HELD / offending at moderate level of seriousness / conduct took place over long period of time and involved multiple errors / inaccuracies were not trivial / practitioner showed lack of responsibility or lack of insight, but did self-report to Law Society / one prior adverse finding of unsatisfactory conduct a weak aggravating factor / mitigating factors / references / community work / conduct not undertaken for personal gain / cooperated with disciplinary process / references given considerable weight as they provide insight into practitioner’s altruism, which endorses public confidence in profession / public protection not a factor as practitioner is retired and his conduct caused no harm / Tribunal ordered censure and $8,000 fine / practitioner to pay contribution towards Standards Committee’s costs ($12,500) and full Tribunal’s costs / permanent name suppression granted

Liability / misconduct / licensee charged under s73a or s73ciii for requesting prospective purchaser to lie about reason for withdrawing offer / Real Estate Agents Act 2008, s72, s73, s91, s105, s109, s110 / Professional Rules 2012, r6.3 / HELD / purchaser’s affidavit inconsistent with oral evidence that it was his “impression” the licensee asked him to change withdrawal reason, thus did not establish on balance of probabilities that licensee made the request / Tribunal accepted licensee’s evidence that his message was to point out effect of withdrawal to vendors / misconduct charges require stronger evidence / licensee’s intention for message cannot be proven / licensee’s message consistent with request for purchaser to get second opinion due to discrepancy in repair cost estimates by vendors and building inspector / however, licensee found guilty of unsatisfactory conduct under s72a as purchaser was left with the impression to change withdrawal reason / penalty decision to follow

Contract / Applicant had vehicle repaired by Respondent / During repair Respondent loaned applicant courtesy vehicle / Terms of loan for courtesy car agreement include a $750 insurance excess and for hirer to be accountable for any panel or paint damage up to this amount / Respondent claimed Applicant damaged vehicle during hire / Respondent seeks payment of insurance excess plus collection costs / Applicant denied damaging vehicle and any liability to respondent / Held: Respondent hasn’t proven any loss under the contract / No evidence of damage / Disputed debt should not be placed in hands of debt collector / Claim allowed and counterclaim dismissed.

Penalty / misconduct for using client’s money as own despite client not receiving independent advice / negligence for failing to structure professional relationship and embarking on risky litigation strategy / HELD / conduct occurred 18 months after practitioner persuaded Law Society he had reformed / misconduct comprising 17 failures and finding of negligence which had potentially serious consequences for client takes conduct to most serious end of misconduct / aggravating features / prior convictions involving dishonesty and breach of trust / failure to disclose bankruptcies when applying for certificate of character / lying to Tribunal / lack of insight or accountability / disciplinary history / length of time of conduct / mitigating feature of pro bono and community work / not capable of rehabilitation / Tribunal ordered practitioner be struck off and pay compensation ($25,000) to client / practitioner to pay Standards Committee’s and Tribunal’s costs

Consumer Guarantees Act 1993 / Applicant purchased and paid for installation of car stereo unit from Respondent / Car stereo subsequently stopped working / Applicant claims $995.00 in damages from Respondent / Held: Respondent failed to failure to exercise reasonable care and skill in installing car stereo / Car stereo not fit for purpose or acceptable quality / Respondent failed to remedy the fault within a reasonable time / Applicant is entitled to a refund of the full price of the unit ($565.00), the installation cost ($280.00) and value of missing hard drive ($150.00) / Applicant to pay Respondent total sum of $995.00 / Claim granted.

Liability and penalty / failed to ensure client gave accurate information about business ownership despite circumstances which should have alerted him to further enquiry / client’s business sold without authority of other owner of business / Conduct and Client Care Rules 2008, rule 11.4 / HELD / failure had serious consequences but was an honest mistake / not disgraceful or dishonourable or reckless breach of rules / not negligent / culpability reduced by the fact that the business’ land was in client’s sole name / practitioner was away when financing statement naming other business owner was revealed immediately before settlement / deprived him of opportunity of reinvestigation / unsatisfactory conduct proved (section 12(a)) / mitigating feature of clean record / Tribunal ordered practitioner to pay $5,000 fine and compensation ($3,000) to other business owner / practitioner to pay contribution to Standards Committee’s costs ($15,000) and full Tribunal’s costs

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased a puppy from Respondent for $1,300.00 / Shortly afterwards puppy showed health issues / Puppy was diagnosed with congenital hypodipsia / Puppy’s prognosis was poor / Estimated vet bills were several thousands of dollars / Puppy was euthanised / Applicants sought compensation / Held: puppy was not of acceptable quality / Decision to euthanise puppy was understandable and humane / Applicants entitled to compensation / Respondent ordered to pay $2,000.00, purchase price and vet bills / Claim allowed.

Negligence / Applicant’s vehicle damaged after hitting large pothole on road maintained by Respondents / Applicant reported pothole to Respondents / Applicant claimed $1,000.00 for damage and associated costs / Held: Respondents did not breach duty of care owed to Applicant / Respondents were unaware of pothole and repaired immediately after being notified / Applicant not entitled to compensation / Claim dismissed.

Appeal from Reviewer - jurisdiction s 149(1), claim for social rehabilitation s 81, whether causal link between symptoms and injuries ss 20,25,26, costs on review s 148(2) Accident Compensation Act 2001. Decision had declined to provide social rehabilitation assessment and transport assistance. Decision had dismissed allegation that Corporation had failed to issue decision in timely manner in response to request for individual rehabilitation plan. Also appealing review costs awarded. Found that Corporation did not have obligation to appellant to undertake further assessments. No causal link between symptoms and covered injuries. Appellant did not have ongoing entitlement to rehabilitation. Reviewer had appropriately exercised discretion in relation to award of review costs. Decision of reviewer upheld. Outcome: appeal dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicants and Respondents were flatmates in fixed term tenancy / Respondents moved out 3 months before fixed term expired / Applicants had to cover rent until lease ended / Applicants claimed Respondents breached flatmate agreement, / Applicants sought damages for rent and end of lease costs / Applicant also claimed stress caused failure of exam, sought additional $2750 for cost of repeating course / Held: agreement existed between parties / Respondents breached agreement by not paying rent after moving out / Applicants tried to mitigate loss by seeking replacement flatmates, but were unsuccessful / Respondents required to pay for rent and end of lease costs / Applicant’s loss from failed exam was unforeseeable and too remote from breach to be claimable / Respondents ordered to pay $3263.25 and $2087, respectively / Claim allowed in part.

Contract / Applicant bought vehicle from Respondent / Vehicle broke down and Applicant advised vehicle would need engine rebuild / Respondent agreed to pay $3000 towards repairs in three instalments / Respondent only paid $1000 / Applicant claimed remaining $2000 / Held: Applicant and Respondent have an enforceable contract where Respondent agreed to pay $3000 towards costs of repairs / Respondent in breach of contract by not paying the remaining $2000 / Respondent ordered to pay Applicant $2000 / Claim allowed.

Sanctions / adviser overlooked aspect of INZ letter and provided erroneous advice, failed to read decline letter and did not provide adequate advice / failed to promptly forward decline letter after discovering it / failed to explain Code of Conduct or complaints procedure when entering service agreement / did not amend or provide new agreement for s 61 request / failed to confirm material discussions in writing / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl17a, cl17b, cl17c, cl18a, cl26c / HELD / first appearance before Tribunal / adviser’s misconduct caused significant stress and loss / modest damages for stress awarded in appropriate cases / high legal fees not recoverable as reasonable compensation / adviser cautioned / ordered to pay $1,000 financial penalty having regard to clean record, acknowledgement, apology and compensation / compensation of $4,893 awarded for stress, adviser’s compensation offer, s 61 fee and reasonable legal fees

Contract / Applicant won auction for gym equipment / Applicant paid Respondent $1,150.00 purchase price / Applicant had difficulty collecting equipment and relisted equipment for auction / Applicant advised Respondent that new auction winner would collect equipment / Respondent refused and relisted equipment for auction / Applicant refunded new auction winner / Applicant claimed refund of purchase price / Held: Respondent breached contract by refusing to hand over equipment / Respondent to refund Applicant $1,150.00 purchase price / Claim granted.