Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Sanctions / adviser failed to provide invoices on two occasions when fees were payable / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl22 / adviser has been licensed for almost 14 years, first appearance before Tribunal / accepts Tribunal’s decision / wrongdoing towards lower end of the spectrum / adviser cautioned / neither censure nor monetary penalty justified

Consumer law / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicants paid $65 for bottomless brunch at Respondent’s restaurant / Applicants informed after ordering their first round of food that additional food would incur extra charges / Terms and conditions did not specify whether bottomless brunch was limited to drinks / Applicants claimed Respondent breached consumer law / Applicants claimed food portions were too small and drinks did not contain sufficient alcohol / Applicants claimed $1,999.00 toward an apology, costs in preparing for hearing and purchasing food and drink in another restaurant / Held: Applicants did not receive full bargain they thought they had purchased / Applicants suffered loss of being able to order additional food at no extra charge and should get a partial refund / No evidence Respondent made false or misleading statements about the amount of alcohol in drinks / No proof about amount of food served / No receipts presented regarding costs for fo…

[2023] NZEmpC 28 Oliver v Biggs (Judgment of Judge B A Corkill, 28 February 2023) APPLICATION FOR COMPLIANCE ORDER – previous Costs awards have not been paid – no explanation made for ignoring Court orders – fine of $3,000 imposed – compliance orders made.

[2023] NZEmpC 20 Henry v South Waikato Achievement Trust (Judgment of Judge K G Smith, 22 February 2023) SUSPENSION – DISMISSAL – REMEDIES – decision to suspend not justified – employee not informed of real reason for suspension – decision to dismiss not justified – dismissal investigation flawed – compensation for lost wages – compensation for humiliation and injury to feelings – special damages awarded for legal fees incurred during dispute.

Negligence / Dog Control Act 1996/ Parties were neighbours / Respondents’ dog was found in Applicant’s garden / Applicant’s cat suffered injuries that required the cat to be euthanised / Whether Respondents liable for any damage caused by their dog / If yes, whether the Applicant was entitled to amount sought of $4,999,00 / Held: accepted that Respondent’s dog caused damage to the Applicant’s cat / Respondents liable for the damage caused by their dog / Respondents liable for vet bills not covered by insurance, $747.55 / Respondents also liable for cost of having the cat cremated and for the ashes box as it was not covered by insurance, $250 / Respondents also liable for Applicant’s travel costs, $17.60 / Respondents ordered to pay Applicant $1,015.15 / Claim granted in part.

Penalty / negligence for acting during conflict of interests / HELD / practitioner fell short of obligations due to handling of possible undue influence, failing to recognise conflict of interests, and correcting error in enduring power of attorney without recognising he was not independent / Tribunal accepts practitioner was actively protecting vulnerable client and was careful in obtaining medical evidence to show client had decisional capacity / conduct a relatively serious example of negligence / prior finding of unsatisfactory conduct an aggravating feature, but Tribunal noted it involved actions of staff member for which practitioner took responsibility / practitioner ought to have declined to act given vulnerability of client / mitigating features of long career and retirement, no public protection required / Tribunal ordered censure and $8,000 fine / practitioner to pay discounted Standards Committee costs ($45,000) and full Tribunal’s costs

Adviser failed to set out a full description of the services to be provided & the fees for those services in a written agreement / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl19e, cl19f, cl20a, cl22 / Immigration New Zealand (Calder) v Cleland [2019] NZIACDT 25 / HELD / adviser provided immigration advice and employment recruitment services to complainant in parallel without separation / in the absence of separation, the adviser’s professional obligations extend to the recruitment services / breach of cl19e and cl19f for failing to include description of recruitment services and associated fee information in written agreement / invoice provided did not contain a full description of recruitment services, but would not warrant disciplinary action / complainant’s narrative that recruitment services were not provided is rejected as false / complaint fee not fair and reasonable dismissed as no evidence provided of a reasonable fee

Contract / Applicant purchased used boat engine from Respondent / Applicant contacted Respondent / Applicant inspected the engine / Applicant and Respondent agreed on a purchase price of $8,000 / Applicant collected engine from Respondent / Applicant took engine to a motor company where company advised that the engine needed to be rebuilt / Applicant claims $8500 as refund and inspection for the motor company / Held: Transaction between parties was private / Respondent did not misrepresent the engine / Contract was not unconditional / Claim dismissed.

Negligence / Dog Control Act 1963 / Applicant was walking her dogs at the beach / Respondent was walking her dog down the beach / Respondent’s dog bit Applicants dogs / Applicant claims $,2576.22 vet fees, $65.30 for medical treatment and filling fee / Held: Respondent’s dog attacked Applicant's dog / Respondent liable to pay for vert costs and travel expenses / Respondent ordered to pay Applicant $2,676.22 / Claim allowed in part.

Diligence and due care / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl19f, cl20a, cl20b / HELD / adviser failed to exercise diligence and due care by not sufficiently knowing forecasted revenue figure in business plan & incorrectly asserting he had a written confirmation of the wrong figure from INZ or that INZ had not referred to the correct figure previously / not professional or respectful in blaming complainant and INZ for his wrong advice / Tribunal does not accept adviser was dishonest, rather he lacked due care / adviser admitted failure to provide an estimate of time in written agreement when required by cl19f / fees charged not reasonable and time spent getting up to speed resolving the revenue discrepancy cannot be justified / complaint partially upheld    

Contract / Respondent purchased horse from Applicant for $6,000 / $500 was to be paid after delivery of horse / Respondent retained final payment on basis of an error made in advised height of horse / Whether misrepresentation was made about height of horse / Whether height information encouraged purchase / Whether loss equalled or exceeded $500 / Held: Applicant inadvertently misrepresented height of horse / Height information encouraged purchase / Misrepresentation absolved Respondent from paying final $500 / Applicant retained bulk of purchase price / Reasonable that neither should owe the other any further sum / Applicant should provide breed material to enable transfer of horse’s certificate / Claim dismissed.

Fencing Act 1978 / Applicants served a fencing notice to Respondents / Applicants seek an order for proposed fence to be built at their own expense / Respondents reject any fence and counterclaim $656 for lawyer's fees incurred / Held: Applicants cannot insist for boundary fence to be built without consent of Respondents as Respondents are also owners / Applicants not liable to pay Respondents' lawyer fees / Claim dismissed / Counterclaim dismissed.

Costs on Review; Vocational Independence; Eligibility for Backdated Weekly Compensation, s 148, s 107, s 100, Accident Compensation Act 2001. Appeal against decision on when backdated weekly compensation should be paid to. Whether appellant is vocationally independent. Decision that appellant was vocationally independent was only reasonable conclusion ACC could have reached based on all evidence considered. Outcome: appeal dismissed.