Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased candles online from Respondent / Applicant stated candles were smudged and flattened near the bottom and not of the quality she expected / Applicant sought to return the candles and receive compensation of $127.00 / Respondent stood by the quality of the candles saying they were produced in beeswax and were formed within a mold / Respondent said she offered to exchange the candles but the offer was not accepted / Held: candles were of acceptable quality and fit for purpose / Clear to any buyer that that the candles were not hand-carved / No breach of guarantee / No right to refund / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant quoted the price of staircase to Respondent who accepted / On delivery,  Respondent was unhappy with the quality and returned staircase / Applicants remediated staircase but Respondent denied liability for payment / Applicants sought payment of invoice for staircase and related costs / Held: staircase was of acceptable quality / Some of the Respondents concerns not specified under the initial contract and other concerns lacked evidentiary support / Applicant remediated staircase to address concerns and met standard for stair design and construction / Respondent was liable for cost of invoice / Respondent ordered to pay Applicant $2,087.25 / Claim allowed. 

Consumer law / Consumer Guarantees Act 1993 / Applicants visited Respondent’s showroom to select hardwood flooring / Applicants were given sample to take home which were similar to showroom display / Back of sample contained warnings about natural colour and grain variation / Applicants ordered flooring but boards darker than sample and showroom display / Respondent refused to remedy as flooring not defective / Applicants claimed refund of $2,208 purchase price and hearing fee / Held: flooring supplied not of acceptable quality to reasonable consumer / Reasonable consumer would not expect flooring so substantially different from all samples shown / Respondent had not adequately advised the Applicants the extent of potential variation / Flooring did not comply with description in terms of identification / Applicants gave Respondent opportunity to remedy but that was declined / Hearing fee not recoverable / Respondent to pay the Applicants $2,208 / Claim allowed.    

Consumer Law / Property / Consumer Guarantees Act 1993 / Applicant engaged Respondent to carry out a pre-purchase property inspection / Respondent raised no major concerns and stated roof was of average condition / Relying on report, Applicant purchased property / Four months later water leaked through kitchen light fitting / Applicant claimed $10,287.32 for roof replacement and $528 in refund for inspection report / Held: Respondent failed to provide services with reasonable care and skill by not identifying the poor condition of roof in their report / Previous repair job poorly completed and evidence of leak could be seen on photos in Respondent’s report / Lack of accurate information about evidence of prior leaks and faults with roof / Failure to correctly identify condition of roof was substantial and could not be remedied / However, Applicant did not provide sufficient evidence to prove they suffered a reasonably foreseeable loss / Respondent to pay Applicant $528 / Claim allowed …

Contract / Contract and Commercial Law Act 2017 / Applicant entered Distribution Agreement with Respondent granting rights to distribute food and dairy products / Applicant experienced loss of leased refrigerated truck a month later and emailed intention to terminate agreement / Respondent invoked clause requiring $5000 plus GST for cancellation without three months written notice and withheld commission from Applicant / Applicant claimed payment of February commission $4459.89 plus GST / Held: clause was an enforceable penalty clause / Penalty amount was not out of proportion and was reasonable pre-estimate of loss given increased costs to perform distribution during 3 month notice period / No frustration of contract through force majeure / Loss of leased truck was foreseeable and performance was not impossible / Also,   later personal events occurred after cancellation / Claim dismissed.

Tribunal jurisdiction / Applicant arranged to have the Respondent as their flatmate / Respondent resides overseas and is not a citizen or resident of New Zealand / Respondent paid $1,180 to Applicant for bond and one weeks rent / Respondent did not move in and stopped responding / Applicant sought $786.03 for unpaid rent, readvertisement fee, and filing fee /  Held: Claim struck out for want of jurisdiction / Rules for service outside of New Zealand at District Court would require more than email service on a Respondent / Disputes tribunal being lesser court is not able to affect a claim against an overseas Respondent in a manner that even the District Court cannot /  Claim dismissed.

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 / Parties were co tenants in a fixed term tenancy under flatmate agreement / Respondent alleged safety concerns with other tenants so moved out before lease ended and stopped paying rent / Applicants claimed unpaid rent and costs / Respondent counterclaimed for return of bond / Held: Respondent’s concerns with other tenants did not amount to breach of contract / Respondent remained liable for rent until suitable replacement found / Applicants failed to mitigate own loss by unreasonably declining a replacement tenant / Respondent only liable for rent until suitable replacement was declined by Applicants / Respondent’s bond of $1,000 equalled the four weeks’ rent Respondent owed so Applicants could retain it / Claim allowed in part and counterclaim dismissed.

Consumer Law / Consumer Guarantees Act 1993 / Applicant’s motorhome would not start so he towed it to Respondent / Respondent carried out diagnostics for $400 and advised  $11,047.82 worth of repairs would be required / Applicant took motorhome to another repair shop who completed the repairs as per Respondent’s diagnosis / The $6,949.44 repair did not solve the problem / Issue later identified as electrical fault which was fixed for $147.76 / Applicant claimed $7349.44 / Held: vehicle repair shop entitled to rely on the Respondent’s diagnosis / Respondent’s diagnostic services constituted failure of substantial character / Applicant entitled to compensation for unnecessary work / However, Applicant benefited from new parts so 20% reduction of Respondent’s invoice granted / Respondent to pay Applicant $5,959.55 / Claim allowed in part.

Contract / Property / Applicant purchased land from Respondent to provide access to property / Agreement was for Applicant to grant easement over land to allow Respondent continued access to their land / Respondent failed to sign required documents and no new certificate of title was issued or easement registered / Respondent later sold to third party who informed Applicant they did not have legal right to access their property / Applicant required to reach further agreement with new owners to grant an easement / Applicants claimed $30,000 from Respondents being price to obtain an easement in a previous claim / Applicants claimed further expenses totalling $29,858.00  for additional costs associated with obtaining the easement from the third party /  Held: Applicants have attempted to divide their cause of action into two claims contrary to s 15 of DT Act / Applicants cannot bring such a split claim in an attempt to obtain a figure greater than the $30,000 Disputes Tribunal limit / Cla…

Consumer law / Applicant purchased vehicle from Respondent advertised as having 17” tyres / Applicant later discovered spare tyre was 16” / Applicant claimed $610.22 to upgrade tyre / Held: advertisement did not exclude spare tyre / Reasonable consumer would expect spare to match other tyres / Manufacturer specification required same size type tyres to be used / Respondent ordered to pay Applicant $610.22 and to collect 16” tyre within three weeks after payment / Claim allowed.

Negligence / Applicant’s car collided with Second Respondent’s forklift / Second Respondent was employed by First Respondent / Second Respondent reversed forklift onto wrong side of road near intersection / Applicant left with limited time to brake and car collided with forklift / Respondents’ denied liability / Applicant claimed $2,734.63 in repair costs / Held: Second Respondent failed to take reasonable care and was negligent / Second Respondent also contributed to collision / Failed to take reasonable care by not paying attention to the road and not giving way at intersection / Contributory negligence assessed at 65% for Applicant and 35% for Respondents / First Respondent to pay Applicant $957.12 / Claim allowed in part.

Contract / Respondents and Applicant farm neighbouring properties / Respondent swapped use of digger for various farm assistance from Applicant / Applicant claimed $14,033.87 for the value of grazing cattle / Dispute over whether value of digger use was greater than, equal too, or less than the value of assistance provided by Applicant / Held: Applicant did not have contractual right to fee sought / Applicant can claim quasi-contract for restitutionary compensation for value provided in the exchange / Values of services exchanged assessed in light of equitable consideration not market value / Applicant provided grazing services and animal health products to value of approximately $5,904.00 and $1,250.00 respectively / Respondent provided digger use to a value of $1,600.00 to be subtracted from the value owed to the Applicant / Respondent ordered to pay Applicant $5,554.000 / Claim allowed in part. 

Negligence / Applicant’s vehicle was stationary at traffic lights when Respondent’s vehicle collided with it / Applicant claimed Respondent reversed into his vehicle while Respondent claimed Applicant drove into his vehicle / Applicant claimed $1,346.54 in damages / Held: on balance of probabilities more likely that Respondent either reversed or allowed his car to roll back into Applicant’s vehicle / Respondent failed to take reasonable care while driving and was negligent / Applicant’s repair costs reasonable / Respondent ordered to pay Applicant $1,346.54 / Claim allowed.