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 / 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 .

Negligence / Contributory Negligence Act 1947 / Applicant struck cattle beast owned by Respondent while driving his vehicle / Applicant and Respondent claimed damages / Held: both parties contributed to cause of crash / Respondent had a duty to warn drivers and exercise due care / Applicant failed his duty of care by not slowing significantly to ascertain what was happening ahead / Proportion of liability is 60% for Respondent and 40% for Applicant / Respondent ordered to pay Applicant's insurer $7,657.48 / Claim allowed in part.

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.

Negligence / Respondents' shed blown off in a windstorm / Shed damaged Applicant's power pole / Applicant claimed compensation from Respondent / Respondents denied liability / Held: Respondents' shed struck pole and caused it to break / Applicant provided warnings that it should ensure outdoor items which could be blown about in storms be removed or secured / Respondents liable for damages / Risk of shed being blown in very high wind and causing damage must be regarded as foreseeable / Respondents liable to compensate Applicant for damages / Respondents ordered to pay Applicant $9,450.72 / Claim allowed.

Insurance law / Contract / Applicant owned residential property and appointed a property management company to look after it / Property manager did not notice issues during tenancy / Property damage and theft of items was discovered after tenants vacated / Applicant considered itself indemnified by Respondent under insurance policy which included "deliberate damage" by tenants / Applicant considered property manager's work in arranging repairs were "professional fees" and so covered by policy / Applicant claimed $10,750 for $6050 excess charged by Respondent and also for the "professional fees" / Held: entitlement under insurance policy based on when each event covered by policy occurred not the date damage discovered / Respondent entitled to apply excess to each item of damage arising from different sources or causes / Work done by property manager in organising repairs and representing Applicant not covered by "professional fees" / Claim dismissed.

Contract / Applicant booked Respondent's accommodation / Upon arrival, Applicant discovered accommodation was not a separate accommodation with its own bathroom / Accommodation shared between Applicant and Respondent / Applicant and Respondent's living relationship deteriorated / Applicant left accommodation after being asked by Respondent / Applicant claimed for bond paid, reimbursement of excess rent, hotel accommodation charge and parcel not received / Held: Respondent obliged to reimburse bond and balance of rent paid / "No refund" term set aside as harsh and unconscionable / Respondent terminated accommodation agreement / No order to reimburse hotel expenses and parcel not received / Respondent ordered to pay Applicant $5,709.71 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicants contracted Respondent to grind and resurface their driveway / Applicants claimed resurfaced driveway is cracking, did not have a smooth finish, and edges were not straight / Applicants claimed Respondent liable to pay them $19,000 / Held: driveway overlay not laid with reasonable care and skill by Respondent / Final product of Respondent's work not reasonably fit for purpose / Respondent liable to pay Applicant damages / Respondent ordered to pay Applicant $19,000 / Claim allowed.

Contract / Applicant discussed buying car from Respondent and was shown one he was interested in buying subject to satisfactory test-drive / Applicant test drove vehicle but cancelled deal after not agreeing satisfactory price with Respondent / Respondent refused to refund deposit and Applicant claims $2000 damages to reflect this / Applicant paid deposit believing Respondent would lower price for car and was not told deposit was nonrefundable unless Applicant was unhappy with test drive / Held: Respondent was not required to refund deposit to Applicant / Deposit not generally refundable in a sale of goods as purchaser takes risk of purchaser changing their mind about purchase / Contract for sale became unconditional and binding after Applicant was happy with test drive / Paying deposit confirmed Applicant wished to purchase at listed price and no obligation on Respondent to explain deposit nonrefundable / Deposit was reasonable as less than 5% of purchase price / Applicant had pulled …

Contract / Applicant purchased a property from Respondents / Sale and purchase agreement included special clause about a pre-existing weather tightness issue with deck / Applicant had property viewed by waterproofer, who recommended urgent work, estimated to cost $41,860 / Applicant negotiated $20,930 reduction in purchase price / Remedial work commenced after settlement / Problem was more extensive than originally thought / Remedial works exceeded $80,000 / Applicant claimed Respondents concealed true extent of issue and misled her / Applicant claimed $30,000 compensation for concealed defects and additional remedial costs / Held: sale and purchase of property is on a buyer beware basis / However, vendor cannot misrepresent property by concealing defects / No proof Respondents deliberately concealed defects / Sale and purchase agreement placed responsibility on Applicant to ensure satisfaction with own investigations, stated purchaser would have no claim against the vendor for deck re…

Negligence / Property / Respondent lived as a boarder in the Applicant’s house / Respondent was required to move out after damage by carpet moths was found in his room / Applicant sought recovery of costs associated with the infestation / Held:  evidence indicated that the carpet moth damage was the result of the Respondent’s lack of care / Respondent failed to keep his room in a condition that prevented or limited the moths’ growth / Reasonable boarder would have noticed the carpet damage and the moths and would have brought that to the Applicant’s attention / Evidence indicated that the carpet was beyond repair / Costs cannot be awarded for printing photos for the Applicant’s claim / Respondent ordered to pay $1,597.50 for carpet damage and associated costs / Claim allowed in part.

Contract / Applicant entered into a sponsorship agreement with Respondent / Agreement meant Applicant would pay Respondent $335.42 per month / Total value of the sponsorship was $3,500.00, plus GST / Agreement also included provision for the Applicant to have vouchers for guests / Agreement mentioned “20 guest passes” / Respondent banned Applicant’s director from their club following an incident when the director was intoxicated / Applicant sought a refund of the value of these vouchers, together with 30% of the monthly payment of $335.00 / Held: nothing in the arrangement entitled the Applicant to compensation for the guest passes / As regards the claim for 30% of the monthly payment, that was, for the period from the disciplinary decision to the end of that month / Respondent appeared to have honoured the strictly commercial aspects of the agreement, until its expiry / No basis for any part of the Applicant’s claim / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Respondent operate an online shop specialising in cashmere clothing / Applicant ordered a cashmere sweater from the Respondent for $284.00 / Once received the Applicant enquired whether the sweater was 100 percent cashmere as advertised / Later, Applicant stated that she wanted to return it / Respondent advised that as the item was a sale item it could not be returned / Applicant claimed the sweater was not fit for purpose / Applicant advised there were holes in the sweater, and she wished to return it for a full refund / Respondent refused to give a refund / Respondent suggested the holes were likely caused by incorrect storage or damage / Applicant sought $343.00, being the $248.00 refund price along with $59.00 filing fee / Held: no evidence provided to show the sweater was not 100 percent cashmere, apart from the Applicant’s own experience purchasing cashmere / Unclear whether holes were caused by machine washing or quality of sweater /…