Disputes Tribunal of New Zealand

Contract / Applicant completed electrical work for Respondents / Respondents delayed in paying invoice and were charged a late payment penalty and interest / Respondent refused to pay further mediation and debt collection costs / Applicant claimed unpaid invoices / Held: dispute had been settled through mediation conference held between parties / Applicant cannot seek further amounts from Respondents / Respondents legitimately paid agreed settlement amount in full and final settlement / Claim dismissed.

Fencing law / Fencing Act 1978 / Parties are neighbours and had obtained interim Fencing Act order for building a boundary fence / Decision finalises the interim order with some amendments where necessary / The parties sought an updated quote from builder to allow variations to fence not included in interim order / Order sets out matters relating to how fence is to be constructed, payment of costs, and the timeline for when parties should complete acts they have been ordered to / Order records discussion at hearing of issues with as-built plans affecting plumbing to assist parties to continue with as-built plans and make corrections to plan where necessary / Order records 2nd Applicant's agreement to use best endeavors to investigate matters relating to plumbing in as-built plans and to lodge corrected plans with local council as soon as practicable.

Contract / Misrepresentation / Respondent purchased Applicant's café fit-out and stock / Disputes arose regarding conditions of premises, electrical work, arrears owed by Applicant, and equipment lease under fixed term contract / Applicant declined Respondent's request to terminate contract / Respondent sold café to another company and did not pay remaining invoice / Applicant claimed outstanding contract price payment plus amount payable for lease contract / Held: Applicant did not fail to disclose information / Respondent failed to prove misrepresentation / No breach of contract / No damages available to Respondent / Respondent breached contract by failing to pay outstanding balance / Respondent not liable to pay remainder of four-year fixed term leased equipment / Second Respondent ordered to pay Applicants $10,000 / Respondent's counter-claim dismissed / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicant engaged Respondent for landscaping services including a patio area with ramp and steps and a retaining wall / Concrete steps on patio were not polished after it was agreed they could be renovated rather than replaced / Retaining wall was smaller than agreed and was not filled in properly / Quote had included new steps and a retaining wall / Applicant claimed for Respondent to complete agreed work or pay $16040 compensation / Held: work was not completed as agreed and not completed with reasonable care and skill / Reasonable that Applicant expected steps to look close to new and retaining wall was much smaller than what area needed / Path constructed by Respondent has poor finish and was uneven in places / Even though work done at lower price than mark, what Respondent delivered it was  worth less than what Applicant paid / Amount claimed by Applicant unreasonable / Applicant entitled to partial refund / Res…

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 …

Conversion / Impounding Act 1955 / Applicant's cows broke through wooden rails and escaped from paddock / Three cows were mistakenly placed on Respondent's land / Respondent failed to locate owners of cows and sent cows to be slaughtered / Applicant invoiced Respondent for compensation covering the value of cows and loss of one year's production of milk solids / Respondent paid in part / Applicant claimed for full repayment / Held: no certainty as to agreement regarding amount to be paid by Respondent / Respondent liable for loss of cows as he failed to check cow's ear tags to identify owner / Contributory negligence not available for an intentional wrong such as conversion / Applicant not entitled to any award for loss of milk solids production / Claim dismissed.

Contract / Building / Consumer Guarantees Act 1993 / Building Act 2004 / Applicants engaged Respondent to build a home with expected completion of 273 days / Actual completion took 798 days / Applicants said delays caused financial loss including accommodation, mortgage interest and storage costs / Applicants claimed breach of contract and statutory guarantees / Respondent said delays due to ‘force majeure’ including material and labour shortages and weather / Held: Respondent did not breach contract and delays reasonable / Contract expressly excluded warranties for start and completion dates / Delays caused by industry-wide shortages of materials and labour and poor weather, so outside Respondent’s control / Delay was reasonable given COVID-19 impacts / Respondent’s minor errors in ordering did not amount to breach of reasonable care and skill / Errors expected in complex projects and did not materially affect overall timeline / Work completed to high standard and accepted by Applican…

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 /…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant purchased a dog from the Respondent dog breeders for $3,000.00 / Dog had a medical condition / Dog undertook surgery to correct condition / Applicant sought compensation based on purchase price and vet costs incurred / Held: dog sold by the Respondents had a significant medical problem arising from an anatomic defect / Problem was present at the time of sale / Dog was not of acceptable quality / Applicant entitled to reject the dog in the circumstances / However, the Applicant wished to keep the dog but be reimbursed for her cost of purchase /  Noted that the dog’s condition was an unfortunate accident of fate not caused by neglect / Respondents ordered to pay $3,000.00 / Claim allowed in part.