Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Applicants engaged respondent to carry out pre-purchase house inspection / Applicants moved in and noticed audible drips and leaks in house / Applicants obtained quote from roofing company and got another inspection / Respondent says at time he inspected it was structurally sound, no sign of rust or leaking, no water damage on trusses / Applicants seek cost of new roof and associated costs / Held: not established that were visible signs on the exterior of roof / 9 month gap poses evidential issue / Existence of rotten beam in roof space should have been pointed out to applicants but uncertain whether applicants would have taken any further action / Respondent not liable for costs associated with purlin replacement / No remedy available / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant enrolled in a course with the Respondent / Applicant claims a refund of course fees paid, $7,821.20, as the course had a significant overlap in content with his previously completed diploma / Respondent told Applicant the course content was going to be “vastly different” to his previously completed diploma / Held: Applicant raised his concerns of the content overlap with the Respondent before the contractual refund period had expired / Respondent has breached its obligation of reasonable care and skill under the CGA by describing the paper as “vastly different” to the diploma / Respondent is entitled to 90% of the sum claimed / Claim partially granted.

Contract / Applicant purchased property from Respondent / Subsequently, heat pump found to have a faulty indoor board / Part no longer available / Applicant claimed Respondent breached sale and purchase agreement / Applicant claimed $3,408.00, cost of getting new heat pump installed and filing fee costs / Respondent claimed heat pump was in reasonable working order on settlement date / Held: more likely than not the heat pump was not in reasonable working order / Applicant in breach of sale and purchase agreement / Heat pump was 15 years old  / Respondent order to pay Applicant $150 in compensation / Filing fee not awarded as not provided for in contract / Claim allowed in part.

Contract / Applicant parked in Respondent’s carpark, exceeded time limit by 22 minutes / Respondent charged Applicant $80 fine, then added further charges of $120 for late payment and $50 for debt collection / Applicant disputed liability for fines / Held: Applicant breached contract with Respondent by exceeding time limit / $80 fine was enforceable, not disproportionate / Late payment fees were disproportionate, therefore unenforceable / Total sum invoiced and sent to debt collection higher than could be charged, therefore debt collection fees also not recoverable / Claim allowed in part.

Police complaint upheld – disqualifying convictions – active charges – ss62,74

Contract / Applicant agreed to buy Respondent’s boat / Applicant paid $13,500 deposit and took possession / Applicant unable to pay rest of purchase price within agreed time / Parties agreed to end contract / Applicant returned boat / Written agreement did not specify whether deposit was refundable, or what would happen if sale was not completed / Applicant claimed refund of deposit / Respondent counterclaimed $30,000 for damage and rent, but withdrew counterclaim at hearing / Held: evidence evenly balanced, but Applicant did not successfully establish that parties agreed deposit would be refundable / Not unconscionable for Respondent to retain deposit / Claim and counterclaim dismissed.

Revocation of cover - Causation - s 65 Accident Compensation Act 2001. Appeal against decision revoking cover. Appeal against decision declining entitlements. Appeal against costs decision. Accident overlooked or ignored by employer. Evidence indicated Appellant suffered an accident resulting in hip and thigh injury. Cover restored so entitlements, including backdated entitlements should follow. Appellant entitled to costs. Outcome: appeal granted for revoked cover.

Sanctions / adviser failed to request client file from INZ / failed to provide client with opportunity to review s61 requests prior to lodgment / failed to provide written agreement for second s61 request / Immigration Advisers Licensing Act 2007, s3, s50, s50A, s51 / Code of Conduct 2014, cl1, cl18a / HELD / third appearance before Tribunal / fourth complaint recently upheld / adviser’s failings not an isolated incident but misconduct occurred before Tribunal’s prior decisions / adviser’s disciplinary history shows a pattern of misconduct that continued over a prolonged period / protecting and properly informing a client involves ensuring there is a written contract and the client is aware of what is happening / medical evidence gives context but not a justification for wrongdoing during relevant period / adviser’s misconduct is not of itself serious / acknowledges professional failings / adviser censured / ordered to pay $2,000 financial penalty / ordered to refund fees of $2,200.

Contract / Applicant owns interest in claim against Respondent / Respondent was director of a company that had contract to use telephone services / The company was removed from Companies Register / Telephone services were provided for a further three months / Applicant claims costs of services for that three month period against Respondent as they consider her to be personally liable / Held: respondent did not contract in her own name for telephone services, nor was she a guarantor / Contracting party was therefore a company / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased fishing drone from Respondent that included product care replacement option and promotional gift cards / Fishing drone did not function and could not be repaired or replaced / Applicant claimed $5,100 / Held: Applicant entitled to refund of purchase price including product care / Applicant not obligated to return value of gift cards / Respondent ordered to pay Applicant $5,100 / Claim allowed.

Penalty / two charges of misconduct / falsely stated cost of client’s drug assessment report / deleted electronic copy of report and failed to inform client or client’s new lawyer of report / Lawyers and Conveyancers Act 2006, section 3 / HELD / admitted lie about drug report bill only at the hearing / lie was deliberate / combination of behaviours which fundamentally breached fiduciary relationship and trust brings strike-off into play / Tribunal noted practitioner’s years of service as lawyer and to community, and numerous references which had considerable impact on penalty orders / aggravating features include vulnerability of client and resultant imbalance of power / mitigating features include client not having paid the bill yet, years of good service and generally good reputation / Tribunal ordered censure, 12 months’ suspension, supervision upon return to practice, and therapy / practitioner to pay Standards Committee’s and Tribunal’s costs

[2023] NZEmpC 74 Nelmac Ltd v Reunited Employees Assoc Inc (Judgment of Judge K G Smith, 16 May 2023) FIXING COLLECTIVE AGREEMENT – CHALLENGE – no breach of good faith by employer – union breached good faith by raising pay claim late and refusing to deal with recognised bargaining agent – Authority was correct to fix collective agreement as a consequence of the breach of good faith – JURISDICTION – Court could not have fixed collective agreement – COSTS – decision was not of public interest such that costs should lie where they fall – daily tariff awarded.

Liability / licensee charged under s73 and s72 for communications with tenants as selling agent regarding consent for viewings / Evidence Act 2006, s50 / Real Estate Agents Act 2008, s4, s72, s73, s91, s109 / Residential Tenancies Act 1986, s48 / Professional Rules 2012, r5.2, r6.3, r9.1 / admissibility / Tenancy Tribunal and District Court decisions admissible / misconduct charges not proven / does not meet threshold for disgraceful conduct, not proven wilful or reckless breach of r6.3, or seriously incompetent or seriously negligent real estate work / unsatisfactory conduct found / breach of s72a, s72b (for breach of r5.2, r6.3) & s72d / licensee was acting as a real estate agent during conduct / harassed and threatened tenants / demonstrated unsound knowledge of Residential Tenancies Act 1986 / charges partially upheld / penalty decision to follow