Disputes Tribunal of New Zealand

Tort / negligence / multiple nose-to-tail collision in queue of cars caused damage to Applicant’s vehicle / Applicant claimed costs from sale of damaged vehicle, which are significantly lower than assessed repair costs / Tribunal finds Second Respondent failed to stop in time causing first collision on Applicant’s car / this then caused First Respondent to hit Second Respondent’s car causing second collision / Tribunal held both respondents liable for the claim / First Respondent liable for 40 per cent of claim; second respondent liable for 60 per cent / claim allowed – First Respondent and Second Respondent ordered to pay Applicant’s insurer $3,979.38 and $5,969.07, respectively.

Contract / bailment / Respondent agreed to sell the Applicant’s militaria collection and was to take 20 per cent commission on sales / Respondent had sold only two groups of items when the Respondent’s van was burgled / Applicant claimed for value of lost items, and parties agreed to extend the Tribunal’s monetary jurisdiction to hear the matter / Held: As bailee, the Respondent owed Applicant a duty of care to look after the goods, and has the onus of establishing that he did look after them / Respondent failed to establish he took due care with the Applicant’s goods, and took unnecessary risks by transporting the goods to fairs rather than leaving them in storage / the fact the Applicant took nearly six years to file the claim made it hard for the Respondent to produce evidence to show it had taken due care, therefore loss was shared on the balance of the goods / Respondent to pay Applicant $14,436.00.

Contract / Consumer Guarantees Act 1993 / guarantee as to reasonable care and skill / Applicants parked their car at Respondent’s car park at the airport while they were overseas / on return they were not picked up by Respondent’s free shuttle / Applicants made attempts to contact Respondent and visited its premises but was not able to gain access to their vehicle / Applicants claimed for the cost of taxi and accommodation / Held: Respondent’s service was not carried out with reasonable care and skill / shuttle transfer was an inherent part of the overall service / shuttle service was not available to Applicants and it was reasonable that they booked into hotel after their attempts / claim allowed, Respondent ordered to pay Applicant $305.53.

Tort / Dog Control Act 1996 / Respondents walking dog at same time as Applicants / two dogs embroiled in fight / Applicant had struck Respondent’s dog repeatedly on the head with a rock to get Respondent’s dog to drop their dog from its mouth / Both dogs required medical treatment, however, Applicant’s dog was put to sleep / Applicant’s claim the sum paid for their dog’s medical treatment / Respondents counter-claimed for their dog’s medical treatment and loss of stud fee / On the evidence, it was more likely that Respondent’s dog had been the aggressor / If the Respondent had control of their dog at the beginning of the fight she should have been able to prevent the attack from progressing / Held that the Respondent breached s 52 of the Dog Control Act 1996 by not exercising control over their dog either at the start of, or during, the attack. Applicant is not liable for damage caused to Respondent’s dog and did not breach s 52 / Claim allowed, counter-claim dismissed / Respondent ord…

Contract / breach of warranty / Applicants purchased property from Respondents / Applicants discovered the tiling in the bathroom leaked and had rotted the surfaces / Held: claim was not statute barred as the cause of action arose on the date of settlement, which was just under six years from the date on which the claim was filed / clause 6.2(5)(d) of the Sale and Purchase Agreement was breached as waterproofing had been installed incorrectly / while this clause has been seen to be onerous, and it has been removed from the eighth edition of the ADLS Agreement, the Respondent’s agent used the seventh edition and the clause applies / Respondent liable to pay Applicant $10,063.02, which was 66 per cent of the total cost to reframe and tile the bathroom to reflect betterment.

Negligence / Dog Control Act 1996 / Respondent’s dog, which was not on a leash, bit Applicant’s dog in spontaneous fight / Applicant’s dog injured and treated by vet / issues are whether Respondent’s dog caused damage to Applicant’s dog and if this was on account of negligence / held that damage was caused by Respondent’s dog due to negligence / Respondent ordered to pay $691.50 towards costs of treatment from vet.

Contract / breach of contract / Applicant and First Respondent make an agreement as to the development of a wheelchair / Applicant claimed the cost of the work it had done under the agreement / First Respondent claimed the Applicant had spent too much time on a particular aspect of the design, meaning it was inevitable there would be a budget blowout, and therefore it was in breach of a term in the agreement that related to communication of potential budget blowout / Referee rejected the inevitability of the budget blowout and therefore Applicant was not in breach / Applicant claimed the design costs increased because the Respondent change its mind as to what was required / Referee accepted these were not small changes / Held: First Respondent found to have breached contract and required to pay all outstanding invoices, totalling $13,365.31 / Second Respondent who worked for First Respondent found not personally liable, as all invoices were made out to the First Respondent and no perso…

Tort / damages / Respondent while reversing her car down shared driveway collided with Applicant’s parked car / Applicant’s insurer claimed its repair costs / Held: the repair costs claimed were consistent with description of collision and reasonable as panel beater’s quote was approved by independent assessor / claim allowed, Respondent ordered to pay Applicant’s insurer $1,993.76.

Consumer Guarantees Act 1993 / contract / reasonable care and skill in the supply of services / First Respondent engaged the services of the Applicant to apply a peel and stick sealant to the floor of her property / First Respondent was to supply all materials / First Respondent applied the primer to the floor but it did not dry in time / Applicant supplied two rolls of the sealant in order for it to be applied in one day / issue of whether First Respondent is liable to pay Applicant for the supply of the two rolls / First Respondent argued that the rolls supplied by Applicant were of poor quality / Held: First Respondent was responsible for the supply of all materials / no evidence that the rolls supplied were of poor quality / First Respondent is to pay $1,984.71 to the Applicant / Second Respondent is not liable.

Limitation / negligence / Limitation Act 2010 / Building Act 2004 / damage caused to Applicant’s home due to significant moisture build-up in ceiling cavity / First Respondent did not leave large enough gap in ceiling to allow moisture to escape / Second Respondent put in a moisture extraction system that did not work properly / remedial work has cost approximately $35,000 / while the construction of home, including work undertaken by respondents, was completed in June 2002, damage was discovered after 1 January 2011 / discoverability and “late knowledge” / therefore Limitation Act 2010 applies / Limitation Act prevents any claim being made six years after cause of action has accrued / Tribunal finds Applicant’s claim is not statute-barred as Applicant discovered damage three years before claim filed / notwithstanding, s 393 of the Building Act provides that no claim can be made 10 years after respondents’ acts or omissions that may have caused the damage / Building Act ‘long-stop’ pro…

Tort / negligence / Respondent suffered a “blackout” while driving home caused by an epileptic seizure / he lost control of the vehicle and hit Applicant’s parked car / Applicant and his insurer claimed for the cost to repair / Respondent claimed a declaration that he was not liable / Held: Respondent breached duty of care / prudent person in his position would not have driven / Respondent knew he had a reoccurrence of childhood epilepsy, had regular seizures and these would affect his ability to control a vehicle / not disputed that damage was caused by the epileptic seizure / award limited to original assessment / cost reasonable for the nature of damage described / claim allowed, Respondent ordered to pay Applicant’s insurer $3,130.40.

Tort / negligence / vicarious liability / Respondent’s truck collided with self-closing door of a storage facility owned by the Applicant / Respondent was delivering goods belonging to its customer / Applicant claimed for temporary and full repairs to the door / driver should have seen the door closing / he took a risk in exiting out of the building in such a manner that meant he had less time than usual to exit it / sensors on the door would not have prevented the collision / Held: that the driver drove negligently when exiting the facility / carriage of goods contract between Respondent and its customer excluded liability for trucks directed onto property / Applicant not a party to that contract and exclusion clause was not brought to Applicant’s attention / therefore exclusion clause does not apply to Applicant / driver was an agent for the Respondent and carrying out the Respondent’s business at the time / therefore Respondent vicariously liable for driver’s negligence / costs clai…

Contract / Declaration of non-liability / Applicant purchased a roller blind from a third party which has a confusingly similar name to Respondent / problems with roller blind were fixed under warranty by third party / after another problem, Applicant mistakenly called Respondent, which attended the issue and issued invoice / Applicant sought declaration of non-liability under s 10(1)(b) Disputes Tribunals Act 1988 / Held: the Applicant was obliged to pay invoice / she entered into agreement with Respondent, which was entitled to payment / Contractual Mistakes Act 1977 not applicable / no misrepresentation under Contractual Remedies Act 1979 or misleading conduct under Fair Trading Act 1986 / Respondent entitled to charge reasonable fee even where price not discussed in advance under s 31 of Consumer Guarantees Act 1993 / however, late payment fee not part of agreement / claim dismissed and Applicant ordered to pay Respondent $80.00.