Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Consumer Guarantees Act 1993 / Applicant bought spa pool from Respondent / Spa pool leaking / Applicant wants to return spa pool to Respondent / Applicant claims full refund $12,000 and additional $1,000 for consequential costs relating to leak / Held: spa pool not of acceptable quality and defect not remedied within reasonable time / Respondent ordered to refund $12,000 to Applicant and collect spa pool at Respondent's expense / Consequential costs of $1,000 not granted as no evidence provided / Claim allowed.

[2023] NZEmpC 4 Young v Port of Tauranga Ltd (Costs Judgment of Judge J C Holden, 26 January 2023) COSTS- GUIDELINE SCALE – costs awarded.

Contract / Credit Contracts and Consumer Finance Act 2003 (CCCF) / Applicant entered into a secured credit agreement with Respondent for the purchase of a car / Applicant defaulted and believes the loan was oppressive (as defined by s118 CCCF) and in breach of s9(c) CCCF / Applicant is a solo mother on the benefit / Applicant claims Respondent failed to do appropriate credit checks / Respondent should have realised Applicant was not in a position to repay such a loan / Respondent counter claims $14,342.40 being the amount owing plus interest (which at the time of filing was not yet charged) / Held: Respondent carried out necessary credit checks / Applicant was unable to prove that the loan was oppressive and the extra charges were unreasonable / Applicant must pay Respondent $14,145.16 (being the account balance presented as evidence) / Claim dismissed / Counterclaim partially granted.

Towing / Applicant’s car was towed from a carparking building / Applicant had purchased a subscription to park in any unreserved bay in the carparking building / Applicant charged $420.00 for towing charges / Applicant claimed signage was confusing which led him to park in the wrong place / Applicant also claimed tow charge was unreasonable / Whether Respondent had the right to tow Applicant’s car / Whether costs were reasonable / Held: signage was unclear and it created confusion about where the Applicant could park / Respondent provided signage to the carparking building / Respondent had the ability to ensure signage was not confusing for carpark users / Respondent had no right to tow the Applicant’s car / Respondent ordered to pay $420.00 / Claim granted.

Penalty / misconduct / licensee guilty (s73(c)(iii)) for recklessly contravening r6.3 by consensually hugging client, together with a peck on the cheek & their cheeks touching, and accidentally brushing of their lips / Real Estate Agents Act 2008, s3, s93, s110 / Professional Rules 2012, r6.3 / HELD / incident was consensual and not sexual / licensee was found to have overstepped professional boundaries / conduct was serious albeit a momentary lapse only / conduct at low-moderate to moderate level / licensee censured / ordered to pay $4,000 financial penalty / 20 per cent costs ($7,109)

Penalty / practitioner admitted three charges of misconduct / altered emails to appear they were sent on earlier date / second charge redacted / misled the Committee / HELD / seriousness of misconduct warrants suspension / conduct strikes at heart of professional obligations due to dishonesty, allowing personal life to impinge on performance and providing misleading information to professional body / emails were altered on six occasions, showing repeated and premeditated deception / mitigating factors include early guilty plea, apology, remorse, regular attendance before psychologist, and voluntary cancellation of practising certificate / principle of deterrence to be at forefront in deciding penalty for charges of this kind / medical evidence shows personal interests outweighs public interest in knowing practitioner’s identity / Tribunal ordered six months’ suspension / practitioner to pay Standards Committee’s and Tribunal’s costs / permanent name suppression granted

Sanctions / adviser lacked due care and diligence in submitting a hopelessly flawed EOI and residence application / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1 / HELD / first appearance before Tribunal / adviser cautioned / moderate misconduct / ordered to pay $1,000 financial penalty given early acknowledgment of error and offer of full refund / adviser acknowledges full refund (including INZ application fees) of $6,450 appropriate / compensation claim for time spent organising application not upheld as not particularised or evidenced / compensation not awarded as a matter of course, and no evidence submitted establishing abnormal stress

Penalty / misconduct for abusing position as lawyer to visit a defendant of criminal proceedings in court custody without consent from his lawyer / conduct fell within personal and not professional category / HELD / conduct was transitory and out of character / deliberate abuse of privilege as lawyer a serious departure from standards expected of lawyers / clear misuse of privilege and power / mitigating features / cooperation / accepted wrongdoing / regret, remorse and apology / reflecting on conduct with peers / clean record / contribution to profession / character references / deterrence in this case required no more than formal censure and contribution to costs / is proportionate to level of misconduct / costs principles discussed / Tribunal ordered censure / practitioner to pay reduced Standards Committee’s costs ($14,500) and 70 per cent Tribunal’s costs

Property / Applicant rented a room in Respondent’s house / After Applicant left the property the Respondent held onto $400 bond / Applicant sought return of the bond and costs, $600 / Respondent sought $5,420, $4,560 for broken tiles and $120 for cleaning costs / Held: parties did not sign a flatmate agreement before the arrangement started / Applicant had paid all rent up to the point of departure / Applicant had no other recoverable costs / Not possible to prove Respondent’s claim for broken tiles / Cleaning cost of $25 awarded for small amount of dirt under bed / Applicant entitled to receive $375 back, his bond less $25 cleaning cost/ Applicant’s claim granted in part and majority of counterclaim dismissed.  

Issue practising certificate / Law Society refused to issue certificate to practise as barrister sole without supervision / practitioner appealed / Lawyers and Conveyancers Act 2006, section 3 / section 30 / section 31 / section 39 / section 41 / Practice Rules Regulations 2008, reg 3 / reg 12 / HELD / practitioner’s sole practice in 2014 was not viable / little experience gained / proposed business plan does not address previous failure resulting in complaint upheld in 2011 / no basis for confidence that plan will work / slow payment of fine and costs from 2011 complaint infers practitioner unable to manage affairs and not realistic in business matters / Law Society courses and successful tenancy dispute not sufficient experience / lawyers generally expected to obtain meaningful amount of practical experience before engaging in sole practice unsupervised / insufficient experience for solo practice / nothing to suggest he can do better than in 2014 / appeal dismissed

Damaged house / parties disagree on repair methodology / D seeks a rebuild, IAG seeks repair / 10 % contingency / whether IAG’s proposed repair strategy meet the Policy standard / IAG’s engineering proposal meets policy standard / IAG to pay amount needed to repair premises to Policy standard, within 5 working days of completed contract to repair / Any costs associated with damage by rats is damage consequential on earthquake damage and the investigation of extent of the damage by IAG / insulation that needs replacing due to rat contamination to be paid for by IAG under the Policy as rectification of earthquake damage / Any insulation to be replaced because has been wet, as opposed to contaminated by rats, is to be replaced within the 10% contingency allowance / IAG to reimburse cost of expert reports within 10 working days of decision / costs have risen 16% since the hearing 19 months ago and been taken that into account in making orders for costs for a Policy compliant repair.

Review / Committee found unsatisfactory conduct / litigation matter / lawyer had sworn two affidavits in proceedings which were inaccurate / lawyer agreed relevant pages of affidavit was inaccurate / lawyer denied acting for complainant in any professional capacity in the 2016 affidavit / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 2 / r 13.1 / HELD / not every breach of conduct rule will result in a finding of unsatisfactory conduct / lawyers are obligated to uphold the rule of law in whatever capacity they are conducting themselves / lawyer had to make sure to the best of his ability that evidence he submitted was truthful and accurate / conduct not a minor or technical breach of rules / breach of r 2 confirmed for 2016 affidavit / breach of 2017 affidavit reversed / lawyer ordered to pay costs / Committee’s finding modified / section 211(1)(a)