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 claimed a hard object in the Respondent’s pork crackle product broke his left molar / Applicant sought $2000 for dental repairs / Respondent argued the cost should be covered by ACC / Respondent claimed foreign object may have been hard bits of pork crackle / Held: a reasonable consumer may expect there to be hard bits in pork crackling / Applicant failed to prove that pork crackling which may include hard bits is not “fit for purpose” / Claim dismissed.

Consumer Law / Contract / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Respondent agreed to make Applicant a dress for her birthday party for $280.00 / Applicant paid $170.00 toward materials / Dress was not completed / Applicant sought a refund of $170.00 paid / Respondent claimed there was no contract as the dress was offered as a gift  / Held: no evidence the Respondent offered to make the dress as a birthday gift / Therefore, there was a contract between the parties / Respondent breached and cancelled the contract when they failed to finish the dress / Applicant is to collect the fabric from Respondent / Financial award not appropriate  / Claim dismissed .

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a water distiller from the Respondent / Applicant noticed rust forming inside the wall of the distiller’s stainless steel boiling chamber / Efforts to clean the rust were unsuccessful / Applicant sought a refund of the purchase price and reimbursement of the Tribunal filing fee / Respondent said the rust the Applicant referred to would have been the result of her inappropriate use of an abrasive agent / Held: the extensive rust referred to by the Applicant was not normal and not such as should be reasonably acceptable to a reasonable consumer / No causal link between the use of an abrasive agent and the rust appearing / Device’s failure to meet the relative, and applicable, guarantee was substantial / Respondent was to provide a full refund of the purchase price of $599.00 / Tribunal had no power to award the Tribunal filing fee / Claim allowed in part.

Contract / Building Act 2004 / Applicants contracted for the supply and installation of a gazebo at their new home under construction / Final agreed price was $38,842.40 but the contract was not written in a form compliant with residential building work requirements / Applicants paid a $15,000.00 deposit / Terms of the contract excluded any cost for a PS1 / Respondent stated one was not needed due to the gazebo's size/ However, the gazebo had been incorporated into the design for which the Council had issued consent so a PS1 was required / Respondent then sent invoice for PS1 of $2070.00 which the Applicants reluctantly paid / Gazebo was installed and multiple faults were identified immediately / Applicants had to get the manufacturer to remedy the faults and complete construction, as the Respondent would not do it / Applicants claimed refund of $2070 plus costs incurred to remedy the construction defects and complete the construction of the gazebo / Held: Respondent was not entitled t…

Fencing / Fencing Act 1978 / Contract and Commercial Law Act 2017 (CCLA) / Applicants issued notice to Respondent for replacement of a shared fence, Respondent denied receiving notice / Applicants claimed $4,067.66 for fence costs / Held: notice validly served via email under CCLA as parties had previously communicated electronically / Respondent received email and failed to issue cross-notice or objection within 21 days so deemed to have accepted proposal under the FA / Notice met the FA requirements including boundary, scope, cost, and consequences / Respondent ordered to pay Applicants $2,900 as half of fence costs / Claim allowed.  

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 (CCLA) / Applicant signed flatmate agreement with Respondent as head tenant and paid $1790 for bond and rent / Respondent gave notice to vacate tenancy before agreement commenced / Applicant cancelled agreement but Respondent refused to return amounts paid / Applicant claimed $1790 / Held: Respondent’s early termination breached implied essential term and Applicant would not have entered agreement if aware of imminent termination / Breach substantially reduced benefit and increased burden of contract on Applicant / Respondent’s offer to transfer lease no defence as it imposed substantially different obligations on Applicant / Tribunal held Applicant’s cancellation justified under s 36 or s 37 CCLA / Respondent ordered to pay Applicant $1260 as balance of amount not returned to Applicant.

Contract / Breach of contract / Applicant parked in shopping car park managed by Respondent for 189 minutes without registering car to obtain 90 minutes free parking / Applicant also did not pay for 99 minutes spent in car park once 90 minutes free parking expired / Respondent sent $65 breach notice for breaching parking conditions / Applicant unsuccessfully attempted Respondent’s appeals process several times / Applicant claimed for order Applicant was not liable to pay $65 breach fee / Held: Applicant breached contract by failing to pay for parking and therefore was trespassing on carpark / Car park had several signs indicating terms and conditions of parking / Applicant free to leave carpark if unhappy with terms and conditions / Breach fee amount was fair and reasonable / Applicant liable to pay $65 breach fee / Claim allowed.

Contract / Applicant listed car for sale and Respondent placed only bid / Respondent refused to complete purchase as bid was accidental or made by someone else / Applicant claimed for order that Respondent pay $7500 as amount Applicant had bid / Held: contract formed when Respondent placed bid that became highest bid / Respondent breached contract by failing to pay agreed amount / Specific performance sought by Applicant not appropriate in circumstances as no reason that normal monetary relief would be inadequate / Costs of re-listing, re-registering and re-insuring car plus opportunity cost reasonable loss related to breach / Respondent ordered to pay Applicant $550.17 / Claim allowed in part.  

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicants purchased racehorse from Respondent / Applicants experienced problems with poor behaviour from racehorse / Applicants asked to return racehorse and claimed full refund plus other costs / Held: Respondent made an innocent misrepresentation by saying racehorse was suitable for eventing / Racehorse had back condition and was not suitable for equestrian eventing / Applicant can claim for compensation / Racehorse cannot be returned / Respondent ordered to pay Applicants $27,390.00 / Claim allowed.

Contract / Respondent was franchisee of Applicant’s business system / Second Respondent was Applicant’s guarantor / Applicant’s earnings has not met expectations / Respondent terminated contract with Applicant for abandonment, non-payment of franchise fees and disparagement / Applicant claims to be refunded for the franchise fees paid / Respondent counter claims for unpaid invoices / Held: Tribunal has jurisdiction to hear matters regarding misrepresentation / Respondent’s did not misrepresent Applicant with business model / Applicant breached contract by failing to pay invoices  / Respondent’s counterclaim is allowed / Applicant to pay Respondent $30,000.

Consumer law / Fair Trading Act 1986 (FTA) / Applicants purchased caravan after no issues identified in warrant of fitness (WOF) inspection by Respondent's company / Caravan renovations revealed rust affecting structural integrity / Applicants alleged Respondent breached FTA and claimed $19,764 for work done to restore caravan to roadworthy condition / Held: Respondent did not breach FTA nor was Respondent negligent in carrying out WOF / Applicants unable to prove corrosion or damage visible on day of WOF such that WOF standard would be breached / Insufficient evidence that WOF could not have been lawfully issued by Respondent / No basis for compensation / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Respondent engaged Applicant to manufacture and install kitchen benchtops / Applicant carried out installation and issued invoice for unpaid balance / Respondent disputed invoice on grounds that she was not satisfied with installation / Applicant claimed payment for unpaid invoice / Held: minor issues identified by Applicant were remediable / Applicant had the right to remedy failure by carrying out repaired work / Applicant not given opportunity to remedy minor issues identified / Applicant failed to exercise reasonable care and skill in communicating with Respondent about the cooktop, fill and waterfall / Final product did not have the look that Respondent wanted to achieve / Respondent entitled to 25% compensation of total price / Respondent ordered to pay remaining invoice less compensation / Respondent ordered to pay Applicant $7,242.84 / Claim allowed in part.