Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased property in part reliance on report carried out by Respondent / After purchase, a hot water cylinder was discovered inside kitchen cupboard that had been leaking and caused water-damage / Water cylinder was not included in Respondent's report / Applicant sought costs to have damaged kitchen cupboard rebuilt / Held: Respondent did not complete the inspection with due care and skill resulting in report that was not fit for purpose / Respondent ordered to pay Applicants $4,000 / Claim allowed.  

Contract / Respondent engaged Applicant’s cleaning services / Applicant’s terms of service provided that two days’ notice was required for cancellations to avoid cancellation fee, and fee would typically be around 50% of estimated service cost / Respondent twice cancelled cleaning services on the day they were scheduled / Applicant invoiced Respondent $648.60 for two cancellation fees / Respondent disputed fees stating they were too high / Applicant claimed $648.60 for cancellation fees / Held: cancellation fee of 50% of estimated job value was genuine pre-estimate of losses from cancellation without required notice / Respondent’s cancellation fee calculated based on estimate that job would take 12 hours / Evidence indicated job value was significantly less than value Applicant calculated / More accurate estimate of job value was for six hours of cleaning time / Respondent ordered to pay Applicant $324.30 / Claim allowed in part.

Contract / Tenancy / Applicant was head tenant in a property / Applicant advertised a room for rent for $300 a week / Applicant expressed interested in the room and asked if it was acceptable if her toddler was to stay on occasion / Applicant agreed on the basis that $340 per week would be charged for extra power and water for having the child stay / Applicant and Respondent signed a contract that the weekly rent rate was $340 / Respondent gave notice months later and left few days later / Agreement required two weeks written notice / Applicant claimed $685.71 comprising $485.71 for unpaid rent and $160 for miscellaneous costs / Held: Applicant’s claim for weekly rent of $340 was too harsh as the room was advertised at $300 a week / Respondent’s child never stayed so no cause for extra $40 a week / Applicant did not suffer any loss / Respondent had overpaid rent / Claim dismissed.

Contract / Applicant purchased bricks from Respondent by sample / Respondent delivered the wrong colour of bricks / Bricks were wet on arrival so issue was not identified until after bricks had been laid by Applicant / Parties agreed Respondent would pay half cost to paint bricks / Following receipt of invoice for painting costs Respondent failed to pay / Applicant sought payment of paint costs from Respondent / Held: Respondent failed contractual obligation to provide bricks in accordance with sample provided and thus liable for cost of remedy / Applicant contributed to losses by failing to carry out reasonable checks / Respondent ordered to pay $1725.00, half paint costs as agreed / Claim allowed in part.

Trespass / Towing / Respondent towed Applicant's vehicle and charged release fee of $420 / Applicant admitted some liability but sought partial refund for excessive amount charged / Respondent did not provide evidence to support amount charged being actual costs incurred / Held: Applicant admitted infringing property owner's rights / Respondent entitled to tow vehicle and charge a reasonable fee / Amount charged by Respondent found to be excessive in absence of evidence supporting amount charged / Respondent ordered to refund Applicant $170 to reflect reasonable towing fee of $250 / Claim allowed.

Consumer law / Misrepresentation / Fair Trading Act 1986 / Applicant purchased a truck that recently received Certificate of Fitness (CoF) issued by Respondent / After transporting truck home, Applicant discovered rust in body of truck / Vehicle Condition Assessment confirmed the rust / Applicant made complaint to NZTA and CoF was revoked / Applicant alleged misrepresentation and claimed $9,190 / Held: Respondent’s issuing of CoF amounted to false or misleading representation / Rust on truck’s body would have been present at time of inspection and should have been identified by Respondent / Applicant entitled to reasonable cost of repairs / Applicant not entitled to additional costs as not closely connected to Respondent’s actions and partially attributed to Applicant’s action not to view truck before auction / Respondent to pay Applicant $7,797 / Claim allowed in part.

Consumer law / Fair Trading Act 1986 / Applicant purchased car from Respondent during a “damaged and end of life vehicle auction”/ Applicant claimed insufficient disclosure as to vehicle's condition / Applicant sought contribution of $6,000 to make car roadworthy / Held: Respondent clearly advertised condition of the vehicle and gave express warnings and terms prior to purchase which were accepted by Applicant upon bidding / Respondent not liable for any repair costs / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant entered Distribution Agreement with Respondent granting rights to distribute food and dairy products / Applicant experienced loss of leased refrigerated truck a month later and emailed intention to terminate agreement / Respondent invoked clause requiring $5000 plus GST for cancellation without three months written notice and withheld commission from Applicant / Applicant claimed payment of February commission $4459.89 plus GST / Held: clause was an enforceable penalty clause / Penalty amount was not out of proportion and was reasonable pre-estimate of loss given increased costs to perform distribution during 3 month notice period / No frustration of contract through force majeure / Loss of leased truck was foreseeable and performance was not impossible / Also,   later personal events occurred after cancellation / Claim dismissed.

Tribunal jurisdiction / Applicant arranged to have the Respondent as their flatmate / Respondent resides overseas and is not a citizen or resident of New Zealand / Respondent paid $1,180 to Applicant for bond and one weeks rent / Respondent did not move in and stopped responding / Applicant sought $786.03 for unpaid rent, readvertisement fee, and filing fee /  Held: Claim struck out for want of jurisdiction / Rules for service outside of New Zealand at District Court would require more than email service on a Respondent / Disputes tribunal being lesser court is not able to affect a claim against an overseas Respondent in a manner that even the District Court cannot /  Claim dismissed.

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 / Parties were co tenants in a fixed term tenancy under flatmate agreement / Respondent alleged safety concerns with other tenants so moved out before lease ended and stopped paying rent / Applicants claimed unpaid rent and costs / Respondent counterclaimed for return of bond / Held: Respondent’s concerns with other tenants did not amount to breach of contract / Respondent remained liable for rent until suitable replacement found / Applicants failed to mitigate own loss by unreasonably declining a replacement tenant / Respondent only liable for rent until suitable replacement was declined by Applicants / Respondent’s bond of $1,000 equalled the four weeks’ rent Respondent owed so Applicants could retain it / Claim allowed in part and counterclaim dismissed.

Consumer Law / Consumer Guarantees Act 1993 / Applicant’s motorhome would not start so he towed it to Respondent / Respondent carried out diagnostics for $400 and advised  $11,047.82 worth of repairs would be required / Applicant took motorhome to another repair shop who completed the repairs as per Respondent’s diagnosis / The $6,949.44 repair did not solve the problem / Issue later identified as electrical fault which was fixed for $147.76 / Applicant claimed $7349.44 / Held: vehicle repair shop entitled to rely on the Respondent’s diagnosis / Respondent’s diagnostic services constituted failure of substantial character / Applicant entitled to compensation for unnecessary work / However, Applicant benefited from new parts so 20% reduction of Respondent’s invoice granted / Respondent to pay Applicant $5,959.55 / Claim allowed in part.

Contract / Property / Applicant purchased land from Respondent to provide access to property / Agreement was for Applicant to grant easement over land to allow Respondent continued access to their land / Respondent failed to sign required documents and no new certificate of title was issued or easement registered / Respondent later sold to third party who informed Applicant they did not have legal right to access their property / Applicant required to reach further agreement with new owners to grant an easement / Applicants claimed $30,000 from Respondents being price to obtain an easement in a previous claim / Applicants claimed further expenses totalling $29,858.00  for additional costs associated with obtaining the easement from the third party /  Held: Applicants have attempted to divide their cause of action into two claims contrary to s 15 of DT Act / Applicants cannot bring such a split claim in an attempt to obtain a figure greater than the $30,000 Disputes Tribunal limit / Cla…