Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Liability and penalty / misconduct / two licensees charged under s73b and s73c / first licensee marketed property for sale without agency agreement, failed to ensure conjunctional sale agreement was in place, failed to explain he was assisting second licensee, deprived agency of commission, performed real estate work without supervision, misled agency about commission / second licensee worked with first licensee without agreement between agencies / deprived agency of commission / Real Estate Agents Act 2008, s3, s73b, s73c, s93, s110, s110A / Professional Rules 2012, r5.1, r5.2, r6.2, r6.3, r6.4, r9.6 / HELD / both licensees plead guilty / reckless conduct but not dishonest / apologised and expressed remorse / first licensee continually failed to meet professional obligations / donated part of commission to charity / censured / $6,500 fine / second licensee intentionally paid full commission to first licensee / censured / $3,000 fine / 50 per cent costs ($1,552.50), split evenly

[2023] NZEmpC 65 Alkazaz v Cognizant New Zealand Ltd (Costs Judgment of Chief Judge Christina Inglis, 27 April 2023) COSTS – GUIDELINE SCALE – privileged communication cannot be considered – costs awarded.

[2023] NZEmpC 61 FGH v RST (Judgment of Judge B A Corkill, 20 April 2023) APPLICATION FOR STAY OF COSTS ISSUES – application made for leave to appeal – costs stayed until Court of Appeal leave application decision is issued.

Contract / Consumer Guarantees Act 1993 / Respondent engaged to manage Applicant's rental while she worked overseas / Applicant noticed items missing or damaged on return / Applicant claimed $2,550 for compensation / Respondent claimed $629.36 for travel and time / Held: Respondent did not provide service with reasonable care and skill / Applicant entitled to $853.20 in compensation considering items were not new / Applicant ordered to pay Respondent for travel fees and time, $475.59 / Claim granted in part.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased ute from Respondent / Applicant later informed vehicle required repairs due to extensive corrosion / Applicant claimed $20,000 / Held: Respondent misrepresented condition of ute / Misrepresentation induced Applicant to purchase vehicle / Applicant entitled to estimated repair costs / Respondent ordered to pay Applicant $14,472.75 / Claim allowed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a unit in Respondent’s village after watching a video where village was presented as a secure gated community / Applicant claimed village was not a secure gated community / Applicant claimed $30,000.00 for burglar alarm remotes, security cameras, and 20 years of internet connection and phone costs / Held: Applicant was induced to enter contract based on representation that village was secure gate community / Evidence indicated village was not secure gated community / Applicant entitled to $849.00 for security cameras, purchased to rectify misrepresentation / Applicant not entitled to $900.00 for burglar alarm remotes / Applicant not entitled to claim for 20 years of fibre and phone plans and replacement phones, amounting to $28,251.00 / Respondent ordered to pay $849.00 / Claim allowed in part.

Contract / Applicant became member on Respondent's platform by providing incorrect date of birth / Respondent suspended Applicant's account / Applicant claimed for reimbursement of success fees paid while minor / Held: Respondent entitled to be paid for service Applicant used / Respondent entitled to keep success fees paid by a minor / Claim dismissed.

Contract / Applicant provided estimate of $13,763.64 to Respondent for kitchen renovation building work / Respondent paid $20,670.43 / Applicant claimed $10,078.15 for unpaid invoice / Held: no meeting of parties' minds that Respondent’s payment had been made in full satisfaction of claim / Applicant entitled to pursue claim for further payment / Respondent liable to pay only 15% increase on original estimate as Applicant had no tangible evidence on prices / Respondent ordered to pay Applicant $3,130.56 / Claim allowed in part.

Contract / Applicant engaged Respondent to renovate her house / Contract was for estimated costs of $305,211.91, signed in October / By following June, Applicant had paid $305,000 / Applicant cancelled contract because of increased costs / Project was abandoned, not all work was completed / Applicant sought cost of remediation, estimated at $29,933.00 / Respondent counterclaimed $24,890.65 for building work completed before contract was cancelled / Respondent claimed increased costs was due to higher cost of building supplies / Respondent provided evidence of invoices, expenditure and variations / Held: Applicant cannot expect the certainty of a fixed price contract when only estimated costs were agreed / Respondent had completed invoiced work / Applicant liable for the invoiced amount, $24,890.65 / Respondent not liable for any remediated costs / Claim dismissed / Counterclaim granted.

Sanctions / adviser bundled recruitment and immigration services together, and failed to appreciate professional obligations would apply to recruitment services / written agreement did not set out full description of recruitment services or fees / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl19e, cl19f / HELD / first appearance before Tribunal / breaches were an honest mistake, and adviser acknowledges wrongdoing and has learned a lesson / it is important that written agreement covers entire services and specifies the fee / size of the fee ($18,805) is a material factor, but the client was advised of the fee before signing agreement / adviser censured / ordered to pay $500 financial penalty in light of acknowledgement and clean disciplinary record

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased CCTV cameras from Respondent via an online auction / Auction automatically sent Applicant's address which was incorrect / Applicant emailed correct address to Respondent before goods were shipped and Respondent replied / Respondent sent cameras to wrong address / Recipient refused to return cameras / Applicant sought refund of $629.95 and costs / Held: CGA provided a guarantee as to delivery / As Applicant updated his address before cameras were sent, liability for undelivered goods remained with seller / Respondent ordered to refund purchase price of $629.95 / Costs claim dismissed / Claim granted in part.

[2023] NZEmpC 51 Halse v Employment Relations Authority (Judgment of Judge Kathryn Beck, 4 April 2023) APPLICATION FOR STAY – no appeal proceedings have yet been filed – no stay can be granted – application declined –COSTS – GUIDELINE SCALE – costs awarded.

Contract / Contract and Commercial Law Act 2017 / Applicant and his partner booked Respondent’s venue for their wedding / Contracted price was $5,850 / Applicant paid $600 deposit / Respondent advised Applicant month before wedding date that the venue was no longer available / Applicant and partner had to find an alternative venue at short notice/ Applicant claimed compensation of $3,751.00 from Respondent, cost of alternative venue / Held: Respondent repudiated contract / Respondent breach contractual term to provide premises / Applicant entitled to cancel contract and go elsewhere / Applicant entitled to compensation because of cost, time and inconvenience of changing venues / Applicant’s claim not allowed in full as it would be unjust for him to pay nothing for wedding venue and associated costs / Applicant entitled to 50 percent of costs claim / Respondent ordered to pay $1,875.00 to Applicant/ Claim granted in part.