Disputes Tribunal of New Zealand

Contract / Property Law Act 2007 / Applicant claimed $5,202.37 in respect of goods it supplied to a company now in liquidation (ABC) / claimed Respondent is liable for that debt pursuant to a personal guarantee / Held: in general a contract does not need to be in writing but an important exception applies under s 27 Property Law Act 2007 in respect of a guarantee / existence of supply contract nor fact that Respondent signed the credit application and purported guarantee document not denied / terms of guarantee document determinative of obligations undertaken and careful consideration of those terms required to establish whether the guarantor is liable / careful reading of terms of purported guarantee shows that Respondent is guaranteeing his own debt to Applicant and not ABC’s debt / unable to read into document an undertaking by Respondent to accept liability for debts of ABC / claim dismissed.

Contract / Applicant contracted with Respondent for 4 pages of advertising in their magazine, the following day Respondent called to rescind the contract / Applicant claimed $3,570.75 being the contract price plus interest against Respondent in her personal capacity / Held: more likely than not that Respondent was signing the contract as an agent for ABC Ltd and that Applicant had implied knowledge of this through the knowledge of their staff member / general rule about agency  is where agent does not disclose that it is signing for another party then an intention that they are the contracting party shall more readily be inferred / claim dismissed.

Contract / Contractual Remedies Act 1979 / Applicant purchased car from Respondent for $4,400 in a private sale / transmission failed and quote for repairs was between $3,000 and $3,500 / Consumer Guarantees Act 1993 and Fair Trading Act 1976 do not apply to private sales, so Applicant required to establish a misrepresentation under the CRA / Held: a reasonable person reading the advertisement would have considered the car to be in excellent condition, so a misrepresentation existed / the Applicant relied on the statement and therefore the misrepresentation induced the purchase / the Applicant would be unable to receive a refund on the purchase price under the CRA and was limited to damages / if the full $3000--$3,500 was to be awarded there would be significant betterment to the Applicants, as they would receive a significantly more valuable car / found that the existing transmission was two thirds used, so the loss was about $1,000 / Respondent to pay Applicant total of $1,200.

Contract / Applicant received telecommunication services from Respondent and signed new contract for a further 24 months / cancelled contract before 24 months had expired and Respondent applied cancellation charges / Applicant claimed service had been poor, they were not getting market leading rates and charges applied are excessive / Held: Applicant has invalidly cancelled contract / total lack of evidence pointing towards any attempt by Applicant to bring Respondent’s attention to any problems / cancellation rates were made available to Applicant as part of contract terms and conditions, rates applied not harsh, do not amount to penalties and are fair reflection of cost of cancelling a commercial contract / no basis to set cancellation costs aside / claim dismissed.

Contract / breach of contract / sale of goods / First Respondent contracted with Applicant for the supply of confectionary products / Second Respondent provided Applicant with a personal guarantee of payment / Applicant sent product and invoices to First Respondent but never received payment / Respondents claim the products were not acceptable due to the expiration dates / issue of whether Respondents breached the contract / Held: Respondents breached the contract / Respondents did not provide evidence that they raised concerns about expiration dates to the Applicant / Respondents did not reject the product within a reasonable time / Respondents are to pay Applicant $7,008.25.

Negligence / Animal Law Reform Act 1989 / Respondent’s cattle which wandered on highway hit Applicant’s truck / cattle pushed through unsecured boundary gate / truck damaged in collision / issue is whether Respondent took reasonable care to ensure cattle did not stray / held that Respondent failed to take reasonable care as gate was not secured / argument that truck driver contributed to collision is rejected / Respondent ordered to pay $7,523.01 towards repair costs.

Evidence / burden of proof / Applicants resided at Respondent’s home as boarders / when agreement came to an end, Applicants moved out and claimed return of their bond / Held: parties had no evidence to support their claims other than recollections / there were no written documents, rent records, receipts and payments were made in cash / Applicants had not met burden of proving that the bond was paid / claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased computer from Respondent / computer failed 4 times within 8 weeks / Respondent admits responsibility for one failure, but submits other failures caused by Applicant / Applicant seeks to cancel contract and receive refund of $610.00, including $52.17 for data transfer / Respondent willing to repair computer at no cost, but not to provide refund / while CGA states supplier must be given opportunity to repair goods, the test is reasonableness / 4 failures in 8 weeks renders computer’s failures of a substantial character / Applicant entitled under CGA to reject goods, request refund / entitled to refund of data transfer as of no value without computer / Respondent’s evidence that Applicant’s use caused failures generally, unclear / Respondent liable in terms of its contract and under CGA to refund Applicant / claim allowed, Respondent ordered to pay Applicant $610.00.

Negligence / Apportioning of damage / Applicant reversed out of car park and was struck by a trailer being towed by the Respondent, who had entered the car park through the “exit” and was passing behind the Applicant as she reversed / Applicant did not see Respondent as she was looking in the direction from which it would be expected cars would come / Held: the Respondent failed to exercise reasonable care when entering the car park through the “exit” / however, the Applicant also had a duty to ensure the way was clear before reversing, and failed to fulfil his duty / the Respondent was primarily responsible for the collision as he was performing an unusual manoeuvre / contribution set at 70 per cent for Respondent and 30 per cent for Applicant / Respondent to pay Applicant $999.75.

Consumer Guarantees Act 1993 / reasonable care and skill in the supply of services / Applicant engaged Respondent to repair his car’s cam belt / when Applicant received the car back, there were problems and the car was taken back to the Respondent numerous times / Respondent found that it was a radiator problem, which was then replaced / issues persisted so Applicant took car to third party repair shop / it was found oil was leaking due to the cam seals and that a lip on the sealing surface of the cam gear was missed / issue of whether the services provided by the Respondent were below the standard of reasonable care and skill / Held: there is no evidence to suggest that the Respondent failed to use reasonable care and skill in providing services to the Applicant / the Applicant’s claim for compensation is dismissed.

Contract / Carriage of Goods Act 1979 / Applicant engaged Respondent to move household goods, including motorcycle / when unpacked, motorcycle’s fairing, right-hand mirror and both back blinkers damaged / Applicant claims damage caused by Respondent’s packers forcing motorcycle into truck / claims $1,393.35 to repair damage / Carriage of Goods Act 1979 provides for four categories of contracts / categories outline extent of carrier’s responsibility for damage to goods / category of contract “at owner’s risk” in this case / Respondent only liable if it intentionally caused damage / truck driver who moved Applicant’s goods acted as Respondent’s witness / said motorcycle packed carefully, not forced into truck / damage discovered when truck unloaded, cause unknown / no independent evidence that Respondent forced motorcycle into truck or intentionally damaged it in another way / more likely that damage to motorcycle caused accidentally, not intentionally / therefore, Respondent not liable …

Jurisdiction / Companies Act 1993 / Applicant company claimed for a payment due for services provided pursuant to a building contract / Respondent counter-claimed for deficiencies in the service requiring remedial work / Applicant company is in voluntary liquidation / Held: Tribunal has no jurisdiction to hear proceedings without liquidator’s consent / Companies Act 1993 provides that when a company is in liquidation, no legal proceeding can be commenced or continued unless the liquidator agrees or the High Court orders otherwise / claim dismissed.

Contract / Construction Contracts Act 2003 / Applicant supplied and fixed sealant to the joints in Respondent’s building / Respondent paid 75 per cent of invoice but refused to pay remainder as it found the sealant in one joint was not deep enough and believed it was not applied to the correct depth in other parts of the building / Applicant remedied problem by applying more sealant to that joint / Applicant claimed outstanding sum plus interest and costs / Held: there is no evidence that parties intended payment to be subject to the Construction Contracts Act 2003 / Applicant breached contract as it was an implied term that the sealant would be applied to the correct depth and fixed this / onus was on Respondent, not Applicant, to show that other joints in the building were similarly affected or that the work was not carried out properly but did not provide evidence to show this / Respondent had no good reason to withhold payment / costs and interest not awarded / claim allowed (in pa…