Disputes Tribunal of New Zealand

Contract / Contract and Commercial Law Act 2017 / Applicant entered into franchise agreement with Respondent / Applicant paid territory fee and part of establishment fee with the rest loaned from Respondent / Dispute arose when Applicant claimed Respondent failed to provide guaranteed income and to allocate sufficient work / Respondent disputed that and cancelled contract / Applicant claimed paid fees and costs incurred / Respondent counterclaimed for unpaid royalty fees and balance of establishment loan / Held: parties bound by signed agreement / Applicant only entitled to be paid shortfall at annual anniversary / Applicant only worked six weeks so not yet entitled to shortfall / Respondent’s refusal to provide Applicant with sufficient work breached  contract / Respondent did not have grounds to cancel agreement as no evidence Applicant did not perform allocated work / Applicant only entitled to refund of fees paid and costs incurred / Respondent unable to claim for unpaid payments a…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicants ordered furniture after viewing them at Respondent’s showroom / Upon delivery Applicants noticed furniture branded with manufacturer’s logo and name / Applicants claimed branding not on furniture they viewed and Respondent did not advise branding will be on them / Applicants claimed return of furniture and refund of $2,261 / Held: Respondent breached the CGA as furniture delivered to Applicants did not match sample they saw in showroom / As it was failure of substantial character Applicants entitled to refund / Respondent to pay Applicants $2,261 and uplift furniture at its own cost / Claim allowed.   

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Issues with phone within two months of acquisition / Applicant provided phone to Respondent for assessment / Respondent had phone repaired within a week of receipt / Held: phone was not of acceptable quality / Respondent repaired the phone in a reasonable time / Applicant not entitled to reject the item or have it replaced / Respondent ordered to return the phone to the Applicant/ Claim dismissed.

Contract /Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Respondent engaged Applicant to design structural engineering requirements for extension to home / Applicant provided written agreement with estimated prices to Respondent which later increased due to design changes / Applicant issued two invoices which Respondent disputed as they were only willing to pay for work originally quoted / Applicant claimed payment of invoices plus interest / Held: Respondent changed scope of work which increased structural design work / The initial estimate was not fixed price contract until project requirements were more firmly established / Insufficient evidence Applicant breached contract by failing to provide services within reasonable time / Respondent never raised delay concerns with Applicant / CGA not breached as Applicant never briefed to design most cost effective solution but to incorporate Respondent’s preferences / Applicant did not breach agreement so Respond…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Fair Trading Act 1986 (FTA) / Second Respondent owned a camper van and engaged First Respondent to sell it for a fee of $1,000 / First Respondent advertised the van and Applicant purchased it for $9,500 / Subsequently, the van suffered an engine failure / Mechanic quoted $3,315.76 for repairs / Applicant claimed van was not of acceptable quality and sough to reject the vehicle and receive a refund of $9,500 / Held: First Respondent was “in trade” and the sale was subject to the CGA and FTA / Van was not of acceptable quality / First Respondent was only an agent and never owned the van / Applicant cannot reject van and revest ownership to First Respondent / Applicant entitled to reasonable cost of repairs and diagnosis / First Respondent ordered to pay Applicant $3,405.76 / Claim allowed in part.    

Contract / Fair Trading act 1986 (FTA) / Applicant is a gym member of Respondent's gym / Applicant claimed Respondent breached the FTA and that the lifetime membership purchased by Applicant was legally binding and legitimate / Applicant claimed $995 and declaratory costs / Held: Applicant's lifetime membership is valid / By a narrow margin on the balance of probabilities, Respondent entitled to terminate Applicant's membership / Applicant is still entitled to remedy less termination fee / Respondent ordered to pay Applicant $622.27 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant took a silk top to the Respondent to remove mould spots / If it was likely the cleaning process could further damage the top, Applicant asked that she be contacted first / When the Applicant went to collect the top, the colour and texture had changed / Applicant was not advised that damage was likely / Applicant claimed for compensation to replace the top / Held: Respondent’s failure to discuss the potential of damage to the top was a failure to provide a service with reasonable care and skill / Damage that resulted was a normal possible outcome when attempting to clean mould off a silk garment / Applicant’s garment was four years old, and likely unwearable due to the extent of mould on it / Any monetary value to be attributed to the top itself was questionable / Respondent offered Applicant $100 in compensation / Offered compensation amount was reasonable sum to acknowledge Respondent’s failure to provide that part of the service…

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged Respondent to wash her roof / Afterwards, Applicant noticed white specks on windows / Respondent came back and tried to clean windows with no success / A month later roof leaked / Applicant and their insurer claimed damages / Held: Applicant unable to prove wash damaged windows and roof / Onus on Applicant to prove claim / Tribunal unable to make decisions based on hearsay without supporting evidence / Insufficient evidence Respondent caused specks / Insurer’s roofer advised leak due to wind lifted tiles / No evidence Respondent lifted tiles up / Claim dismissed.

Contract / Applicant parked vehicle on private property and was charged by Respondent with parking enforcement fees / Applicant paid $95 fee / Applicant claimed non-liability for $415.59 amount sought by Respondent / Held: no contract formed between the parties / No offer was made through Respondent's sign which in effect prohibits parking and terms were uncertain / Driver is trespassing where a private parking space is clearly signposted with a warning about the consequences of unauthorised parking and yet a driver still chooses to park there / $95 reasonable penalty payment / Other charges are not reasonable / Applicant not liable to pay $415.59 to Respondent / Claim allowed.

Banking / Applicant went overseas for surgery and was assured by Respondent she will be able to pay for her medical expenses using bank card / Applicant's bank account blocked while overseas / Applicant claimed $10,000 for compensation / Held: Respondent bound by international banking regulations / Recipient overseas bank declined to accept payment until further information about the transaction was provided by Respondent / Respondent requested information from Applicant but Applicant failed to provide information within deadline / Respondent attempted to contact Applicant multiple times / Applicant forwarded required information and full banking access was restored / Application dismissed.

Contract law / Contract and Commercial Law Act 2017 (CCLA) / Applicant’s daughter engaged Respondent to transport truck / Part way through journey Respondent’s driver noticed stock crate missing / Applicant claimed $2,350 in damages / Held: Applicant and daughter failed to comply with implied warrant / Contract signed between daughter and Respondent but Applicant accepted as agent / Contract of carriage at owner’s risk cannot be inferred as waiver produced after contract signed / Respondent liable for damages / However CCLA has implied terms that Applicant must ensure goods fit to be transported and be packed appropriately / Crate sat solely by its own weight / Neither Applicant nor daughter tied crate down nor advised Respondent to do so / Main cause of crate loss due to inadequate securing / Implied warranty not complied with / Claim dismissed.  

Contract / Misrepresentation / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased puppy from Respondent / Respondent advertised puppy as purebred puppies / Applicant claimed puppy not purebred as DNA tests showed it had 13.7% unresolved DNA and did not meet breed standards / Applicant claimed $2,320 / Held: misrepresentation under CCLA not proven by Applicant / Specialist from DNA testing company advised unresolved DNA represented diversity in purebred breed that is not yet reflected in their reference panel / They would not consider puppy’s result as mixed breed / Dog can be a purebred without meeting breed standards / Respondent made no representation puppy met breed standards / Claim dismissed.

Negligence / Applicant and Respondent were drivers involved in a collision on a rural highway / Police reporting indicated the Respondent was not travelling to the conditions and crossed the centre line / Respondent disputed liability / Applicant claimed $19,000.00, being the value of his vehicle, towing costs and loss of income / Held: Respondent liable in negligence for causing the collision/ Respondent would not have lost control and crossed the centre if she had been driving to the conditions / Compensation for vehicle price, towing, and loss income was reasonable  / Applicant was able to sell the wreck for $700 so that was deducted from the costs sought / Respondent ordered to pay $17,724.08 to Respondent / Claim allowed.