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.

Contract / Tort / Conversion / Parties bought 4 cows and a bull / Parties intended to co-own bull but Respondent primarily looked after it / Parties agreed one cow to be delivered to First Applicant but Respondent did not deliver cow /  Applicant texted Respondent to offer resolving dispute by Respondent paying Applicant $150 / Three years later Respondent paid $150 to Applicant / Second Applicant had cow which Respondent sold to freezing works / Applicant claims $6150 for value of cow Respondent didn't deliver / Second Applicant claims $942.08 for cow Respondent sold to freezing works / Respondent counterclaims against Applicant $5598.10 / Held: Parties had agreed each would own two cows with cow in dispute owned by Applicant / Respondent took steps to prevent Applicant from collecting cow amounting to conversion irrespective of whether cow is still alive / Applicant entitled to $1000 compensation for cow and $1250 for its calves /  Respondent refused Applicant access to bull in breac…

Negligence / Applicant and Respondent were involved in car accident / Applicant drove straight through intersection / Respondent turned right from side street with give way sign and collided with Applicant / Respondent claimed intersection was blocked and Applicant was speeding / Applicant claimed $3482.55 for damage caused / Held: Respondent failed to give way and entered intersection without ensuring turn could be completed safely / Tribunal found Respondent’s maneuver unreasonable given vehicle size and traffic conditions / Tribunal rejected Respondent’s claims that Applicant was speeding or should have stopped due to insufficient evidence and conflicting accounts / No proof Applicant’s driving contributed to collision / Respondent and insurer ordered to pay Applicant and insurer $3482.55 / Claim allowed.

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 .

Contract law / Applicant owned two rental properties managed by Respondent / Respondent purchased business previous property manager / Respondent deducted fees in accordance with its standard contract / Applicant disputed deductions and believed Respondent had underpaid amount owing / Applicant claimed $1423.99 for underpayment / Held: Respondent’s standard contract did not apply as Applicants had never seen or agreed to it / Despite this, Respondents had paid all rent due under original contract between Applicants and original property managers / Respondent entitled to deduct termination and Tenancy Tribunal fees following tenant’s departure / Respondents overcharged Tribunal fee allowed in contract by $100 / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a water distiller from the Respondent / Applicant noticed rust forming inside the wall of the distiller’s stainless steel boiling chamber / Efforts to clean the rust were unsuccessful / Applicant sought a refund of the purchase price and reimbursement of the Tribunal filing fee / Respondent said the rust the Applicant referred to would have been the result of her inappropriate use of an abrasive agent / Held: the extensive rust referred to by the Applicant was not normal and not such as should be reasonably acceptable to a reasonable consumer / No causal link between the use of an abrasive agent and the rust appearing / Device’s failure to meet the relative, and applicable, guarantee was substantial / Respondent was to provide a full refund of the purchase price of $599.00 / Tribunal had no power to award the Tribunal filing fee / Claim allowed in part.

Contract law / Applicant leased commercial unit to Respondents for period of one year / Respondent gave notice to terminate lease with 4 months remaining on lease / Respondent cited protection order and issues with the way landlord billed for electricity usage as reason for termination / Applicant claimed for outstanding four months rent plus interest / Applicant claimed unjustified termination as cancellation of lease for protection order is only available in residential tenancies / Held: Respondent entitled to terminate lease / Protection order not valid ground for termination / Electricity billing arrangement was undisclosed to Respondent prior to entering lease and was unreasonable / Billing arrangement meant Respondent liable for bills of other tenants without clear mechanism for reimbursement / Ongoing confusion and financial pressure on Respondent interfered with quiet enjoyment and business viability for Respondent entitling them to cancel lease / Claim dismissed.

Negligence / Land Transport Act 1998 / Applicant claimed he was about to exit a roundabout at an intersection when the Respondent entered the intersection colliding with his vehicle / Respondent admitted the collision occurred but denied liability claiming she did not see the Applicant, probably because he did not have his headlights on / Applicant claimed the cost of repair of $2,303.57 / Held: collision occurred at dawn at a well-lit roundabout / Even if the Applicant did not have his lights on, the Respondent should have been able to see him / Damage was consistent with the description of the collision / Cost claimed for the repairs was reasonable / Respondent ordered to pay $2,303.57 to the Applicant’s insurer / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 (CCLA) / Fair Trading Act 1986 (FTA) / Hybrid van purchased by Applicant from Respondent for $28,855.75 including an insurance policy / Applicant noticed issues including uneven brake disc causing shaking, battery failure,  leaking sunroof, large areas of paint peeling, shock absorber and engine mount issues / Applicant claimed refund of $28,855.75 and return of van / Held: CGA did not apply due to Applicant using van for business purposes and written agreement to contract out / Mechanical issues attributed to fair wear and tear given age and mileage / Applicant provided no invoices showing he had taken van to recommended service centre / Inspection report did not confirm engine mount had been replaced / Paint damage possibly due to lack of care / Mechanical insurance covered battery replacement but not insurance was not used by Applicant / Failure to mitigate loss by not claiming under insurance /…

Procedure / Adjournment of hearing / Applicant had not received documents required / Respondent replaced with person who completed work / Held: adjournment to allow Applicant to consider documents and new Respondent to file counterclaim / Hearing adjourned.  

Contract / Applicant provided the Respondent with a custom made sign / Respondent paid $1,000.00 towards the $1,810.10 invoice for the sign, leaving $810.00 outstanding / Applicant claimed $2,595.43 in total for outstanding invoice amount of $810.10, $1,459.64 administrative fees, and $325.69 interest / Held: Respondent breached the contract by not paying the agreed price / Applicant had a legitimate interest to be compensated for its reasonable costs / Interest rate was high but reasonable to cover cost of borrowing and time spent chasing the debt /  Penalty clause was unenforceable / Not reasonable to make charges that significantly exceed the value of the debt itself / Applicant always received compensation for its administration time chasing the debt / Respondent ordered to pay $1,135.79, outstanding invoice amount and charged interest / Claim allowed in part.

Contract / Building Act 2004 (BA) / Applicant purchased newbuild from Respondent / Dispute over remedial work arose / Fault with kitchen tap caused water damage to flooring / Respondent delayed in repairing leaking shower hose / Applicant had items stolen allegedly due to improper security design and lighting / Applicant claims $23,992 for kitchen repairs, anxiety and stress, keys, replacement shower house, value of stolen items, plus work order to further secure property / Respondent counterclaimed $3815.56 / Held: Respondent breached contract by failing to remedy leaking kitchen tap in reasonable time and failing to provide Applicant with keys and Applicant breached contract by failing to pay balance of purchase price on settlement date / 16 day delay in arranging plumber for kitchen issues was unreasonable and Respondent liable for damaged flooring as consequential loss of leaking tap / Respondent not liable for shower hose as Respondent attempted to remedy issue / Compensation for …

Consumer law / Fair Trading Act 1986 / Applicant engaged Respondent’s company to carry out building work / Applicant paid invoiced deposit of $15,187.50, and other payments, including $38,904.00 instalment / Building work stalled and was never completed / Respondent’s company went into liquidation / Applicant claimed $30,000.00 from Respondent / Held: Applicant gave evidence that Respondent said he was licensed builder and built several houses / However, it seemed Respondent was not a licensed building practitioner / On consent application, Respondent used building practitioner number of overseas builder / Evidence indicated Respondent misrepresented his licensed builder status / Applicant gave evidence he would not have engaged the company without assurance the Respondent was a licensed builder / Accepted Applicant suffered more than $30,000.00 loss because of misrepresentation / Appropriate remedy was for Respondent to reimburse Applicant for that loss / Respondent ordered to pay $30…