Disputes Tribunal of New Zealand

Contract / accord and satisfaction / Respondent provided accounting services to Applicant, another company and a trust / Applicant emailed Respondent asking whether it would charge less to which Respondent replied that it would charge maximum of $4,500.00 / sum of invoices then came to $4,500.00 plus GST / Applicant made payments totalling $5,000.00 / Respondent apportioned payments in a way that left a balance due for Applicant / Applicant claimed non-liability and refund of the GST paid / Held: if a sum of money is not stated to be GST inclusive or exclusive, the sum is deemed to be GST inclusive / principle of contra preferentum applies thus quoted maximum price of $4,500.00 was GST inclusive / payments were made without dispute and properly apportioned by Respondent / Applicant not liable to pay disputed account of $175.00 but unable to recover the $500.00 / claim allowed (in part), Applicant not liable to pay Respondent $175.00.

Contract / Consumer Guarantees Act 1993 / oral agreement between parties as to construction of driveway / Applicant formed the driveway and third party contractor sealed it / part of the driveway was not sealed on advice by Applicant, as the driveway would otherwise slump / dispute arose as to the cost of completing the formation of this section so that it could be sealed / Applicant claimed $463.63 as the alleged outstanding balance of the quoted price / held that Respondents had not made full and final payment and Applicant was entitled to outstanding monies / no accord and agreement in respect to earlier payment constituting full and final settlement / allegation of breach of s 28 of the CGA (guarantee that service will be provided with reasonable care and skill) not upheld / no breach of s 29 of the CGA (guarantee that the product of a service provided shall be fit for its purpose / Applicant’s claim upheld and Respondents to pay $463.63.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicants purchased furniture sold by Respondent company / Applicants did not receive full furniture setting / Applicants claim that contract be cancelled as well as a refund of the purchase price / Held: not reasonable for owner to assume customers were aware that furniture pieces could be sold separately without specifically discussing it or marking it clearly on the price tag / owner of company failed to ensure that customers’ intentions were clear and that he would be able to provide them with the exact product ordered / Respondent breached guarantee under s 10 CGA (goods supplied by reference to a sample or demonstration model must correspond with sample or demonstration model) / Respondent failed to remedy defect with the sale and purchase of the furniture within a reasonable period of time / therefore, Applicants entitled to cancel the contract and obtain a full refund of the purchase price / strike out / respondent company is the…

Tort / Negligence / Respondent drove through give way sign / Respondent claims his brakes failed and that the Applicant was driving too fast / held that Respondent was negligent because he failed to give way / no evidence brakes failed / held that Applicant was not speeding and no contributory negligence on their part / repair costs and towing costs claimed deemed reasonable / Respondent to pay $4084.71 to the Applicant’s insurer for the costs of repairs and towing the car.

Negligence / Animal Law Reform Act 1989 / Respondent’s cows escaped on the road / Applicant’s son collided with one of the cows and wrote off the car / issue as to whether the gates were “inadequate” for the purpose of restraining stock, especially in the context of cows in a state of calving / held that the gate was inadequate and the Respondent had a duty to provide extra support to it / crash was caused by the cows escaping onto the road / Applicant awarded $3,680.05 for pre-accident value of the car, plus storage and related costs/ Respondent to pay the money to Applicant’s insurer.

Credit contract / Credit Contracts and Consumer Finance Act 2003 / Applicant claimed Respondent failed to disclose all fees that would have to be paid over life of home loan / claimed breach of s 17 of CCCFA / claimed the fees and charges were oppressive under s 120 of CCCFA / sought refund of $11,209.38 / Held: no breach of s 17 / Respondent’s contract included provision for changes to be made to fees / Applicant received notice of changes / oppressive is more than just unfair or unreasonable / no evidence that new fees were exceptional or inconsistent with normal market practice / fees were validly charged / Applicant only entitled to refund of expired insurance fee $748.00 as Applicant had maintained insurance throughout term.

Contract / Sale of Goods Act 1908 / Applicants bought second-hand washing machine from Respondent on Trade Me / one month later the machine stopped working / Respondent declined to replace or repair machine / Applicants claimed compensation / Held: Respondent had met his contractual obligations / washing machine was fit for purpose at the time and able to be used for normal purposes under s 16 Sale of Goods Act 1908 / Applicants took risk by buying a second-hand machine / claim dismissed.

Contract / insurance policy / Applicant obtained travel insurance from Respondent for a trip / policy provided cover for loss, damage or theft of baggage or personal items resulting from an unexpected incident / Applicant’s wife’s handbag was stolen by two men riding a motorcycle / Applicant made a claim which was declined by Respondent / he then complained to the Insurance & Savings Ombudsman which declined to uphold his complaint / Applicant claimed for the value of the stolen items / Held: Applicant was not entitled to recover under the policy / he failed to provide the police report requested to substantiate his claim as a condition of the policy / Respondent was entitled to reject claim / Applicant provided false information in support of insurance claim / policy void if false information given / inconsistencies went beyond the weight and value of the gold biscuit and included how the alleged theft occurred / claim dismissed.

Jurisdiction / Applicant claimed $320 being the amount of a dividend distributed to Respondent landlords by a trust in respect of electricity used and paid for under his residential tenancy agreement / claimed he is entitled to that amount on the basis of a collateral oral agreement / Held: difficult to believe BH would decline to accept filing of the claim on the ground that no bond had been received and have great concerns about this if it has / because claim relates to dispute between landlord and tenant and relates to a tenancy, the Tenancy Tribunal is the appropriate tribunal to hear the claim / claim struck out.

Consumer Guarantees Act 1993 / contract / Respondent was to lay kitchen tiles / Applicants dissatisfied with work  /  Respondent refused to carry out remedial work  / Held: tiles laid in an uneven manner  /  Respondent’s workmanship not carried out with reasonable skill and care  / Applicants had not paid Respondent for work so only entitled to cost of extra work required over and above price agreed with Respondent  / not entitled to costs associated with hearing of the claim  / not entitled to cost of tool to cut gib-board as tool would be available for other uses around home or workshop / Applicants awarded $750.68.

Tort / trespass / nuisance / Respondents’ cattle trespassed on Applicant’s land / damage caused to Applicant’s plants / Applicant claimed for condition of fence and cost of replacement plants / cost of replanting alone exceeded Tribunal’s jurisdiction of $15,000 / based on witness evidence, held that the claim was not brought within six years from the date of the trespass or nuisance / nor was the claim brought within three years from the date the damage was discovered / “reasonable discoverability” test / Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC) / Trustees Executors Ltd v Murray [2008] NZCCLR 11 (SC) / claim is statute-barred under Limitation Act 1950, s 59 / limitation defences apply in the Tribunal / Disputes Tribunals Act 1988, s 10(5) / claim dismissed.

Fencing Act 1978 / parties own neighbouring properties / Applicants wished to replace fence between properties and served notice setting out proposal / Respondents responded with cross-notice saying they did not agree with proposal but Applicants replaced fence anyway / Applicants claimed contribution to the cost of the replacement fence / Held: Respondents were not liable to contribute to the cost of work done as s 10(4)(c) Fencing Act 1978 provides that a neighbour is not liable to contribute to the cost of any work done before the dispute is resolved / Applicants proceeded to replace fence notwithstanding disagreement / work was done before the dispute was resolved by agreement or the Court / claim dismissed.

Tort / negligence / Land Transport (Road User) Rule 2004 / Applicant (on far left lane) and First Respondent (between far left and middle lanes) were travelling on motorway in peak hour traffic / Respondent indicated right and began to move right but moved back left after seeing Applicant’s motorcycle / however, Applicant in the meantime committed to evasive action which resulted in the motorcycle being dropped to the ground / motorcycle to be written off / Applicant claimed for the pre-accident value of the motorcycle less amount obtained for the wreck / Held: there was no negligence on the part of First Respondent / not proven that Respondent left his lane / no breach of rule 2.3(2)(b) Land Transport (Road User) Rule 2004 / claim dismissed.