Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Applicant claimed Respondents received unauthorised payment of $5,000 after Respondent 1 resigned as director and shareholder / Applicant sought order for return of $5,000 / Respondents claimed they received $5,000 to refund them for money they invested and as token payment towards additional costs and labour / Held: likely money was paid to Respondents as settlement of what Applicant owed them / Claim dismissed.

Contract / Applicant performed earthworks as subcontractor for Respondent / Respondent paid majority of Applicant’s invoice but refused to pay balance / Respondent disputed volume of earthworks claimed and accused Applicant of illegal dumping / Applicant claimed $26,297.50 in remaining charges plus interest / Held: Respondent failed to prove Applicant breached any contractual obligation regarding dumping requirements or records / Applicant produced sufficient evidence that all invoiced work was performed / Respondent liable to pay invoiced total / Delay in payment was result of Applicant’s delay in substantiating total charges / Applicant not entitled to interest / Respondent ordered to pay Applicant $26,297.50 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant bought dog from Respondent / Dog diagnosed with medical condition / Applicant claimed compensation for past, ongoing and expected veterinary costs and reimbursement of $3,000 purchase price / Held: dog sold by Respondent not of acceptable quality / Parties agreed dog was worth $1,000 / Respondent ordered to pay Applicant $2,300, dog's value and reimbursement for vet invoices / Claim allowed in part.

Liability / two charges / took control of first client’s bank accounts and used money as own despite client not receiving independent advice / failed to structure professional relationship and embarked on risky litigation strategy for second client / Conduct and Client Care Rules 2008, rule 3 / rule 3.4 / rule 3.4A / rule 3.5 / rule 3.5A / rule 3.6 / rule 4.2 / rule 4.2.4 / rule 4.4.1 / rule 5.4 / rule 5.4.4 / rule 7.1 / rule 7.6 / rule 9.6 / rule 10 / rule 10.14 / HELD / misled and manipulated first client / mishandled his money / placed client at financial risk / has not accounted properly for transactions / did not seek supervision / did not cooperate with Committee / lied to Tribunal about a material matter / careless as to second client’s needs / gravity of conduct elevated by regarding relationships with clients as friendship / misconduct proved in relation to first client (s 7(1)(a)(i)) / negligence proved in relation to second client (s 241(c)) / parties to file penalty submiss…

04.05.2023 | Section 19, 231, 237, 238, and 338 Te Ture Whenua Māori Act 1993 | Judge A H C Warren | Costs

[2023] NZEmpC 71 Straayer v Employment Relations Authority (Costs Judgment of Judge B A Corkill, 3 May 2023) COSTS – GUIDELINE SCALE – costs awarded to Worksafe – insufficient financial information to reduce costs for financial hardship - litigant in person was partially successful on interlocutory judgment – litigant in person can only claim costs in exceptional cases, which this is not – costs not awarded on interlocutory judgment.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased car from Respondent / Ongoing engine problems began 6 months after purchase / Applicant returned to Respondent numerous times to resolve issues, eventually asked for refund / Respondent did not give refund, offered to replace engine / Applicant claimed refund of purchase price / Held: car was not of acceptable quality or fit for purpose / Applicant entitled to reject car and receive refund / Respondent ordered to pay Applicant $16,500.00 / Claim allowed.

Contract / Applicant contracted by Respondent to provide foundation works for an agreed contract price / Dispute centres around the variation of contract price / Applicant claimed difference between original contract price and amount paid / Respondent counter-claimed and sought refund of overpayment / Held: both parties contributed equally to loss of any ability to charge client for additional supplied but unused and non-returnable steel / Respondent liable to pay 50% of original contract price plus undisputed amounts plus minor variation / Respondent ordered to pay Applicant $13,479.63 / Claim allowed in part.

Liability and penalty / sexual harassment / two indecent assaults / one assault in sexualized context / HELD / assaults occurred during taxi rides home from firm functions, is within ambit of providing legal services / assaults were a breach of trust, opportunistic and made when victims were alone and in an enclosed space / conduct suggests pattern of disrespect for sexual boundaries of employees / all assaults found to be misconduct / not less serious than Gardner-Hopkins and Palmer as it was more invasive and victims were isolated and trapped / conduct repeated on Victim A despite objections / Victim B suffered profound impact / mitigating factors include accepting victims’ evidence, clean record and reputation / Tribunal ordered 20 months’ suspension, censure and compensation ($10,000) to Victim B / practitioner to pay Standards Committee’s and Tribunal’s costs / interim name suppression granted

Applicant engaged Respondent to supply and install new kitchen and laundry / Applicants discovered space for appliances was smaller than measurements on plan / Applicant and Respondent discussed refund but could not agree on appropriate amount / Applicant claimed compensation / Held: 10% of contract price appropriate for damages / Respondent ordered to pay Applicant $1700 / Claim allowed in part.

Sanctions / adviser failed to ensure he had sufficient knowledge of complainant’s business plan sales forecast, failed to provide estimate of time in written agreement, failed to ensure fees charged were fair and reasonable, failed to work in a manner that did not unnecessarily increase fees, blamed complainant and INZ for own wrong advice, falsely claimed INZ gave wrong advice / Immigration Advisers Licensing Act 2007, s3, s50, s50A, s51 / Code of Conduct 2014, cl1, cl19f, cl20a, cl20b / HELD / first appearance before Tribunal / adviser committed significant blunder as regards the business plan sales forecast / adviser’s mistake had significant personal effect on complainant and family, but important to consider that second residence application was successful / adviser accepts wrongdoing, but no apology / adviser censured / ordered to pay $2,000 financial penalty having regard to multiple breaches, acknowledgement, no apology and significant effect on complainant and family

Penalty / practitioner admitted two charges of misconduct / recklessly acted for both parties in a transaction / failed to ensure clients knew meaning of documents to sign / admitted two charges of unsatisfactory conduct / failed to act on client’s request to uplift file / failed to comply with penalty order / HELD / conduct not dishonest or prompted by self-interest / acting within a conflict of duties to clients is serious, but not at highest end of culpability / breach of disciplinary order is serious, but practitioner was confused about whether he filed a review / disciplinary history an aggravating factor / mitigating factors include admitting charges, pro bono and community work and delay in proceedings outside practitioner’s control / censure inappropriate for elderly retired practitioner in poor health / Tribunal ordered 15 months’ suspension / practitioner to pay 60 per cent of Standards Committee’s costs ($16,886.33) and full Tribunal’s costs

[2023] NZEmpC 66 Bowen v Bank of New Zealand (Interlocutory Judgment (No 4) of Judge J C Holden, 28 April 2023) APPLICATION FOR STAY – costs stayed until Court of Appeal process concluded.