Disputes Tribunal of New Zealand

Consumer law / Contract / Applicant engaged Respondent to replace car thermostat, to address overheating, paid $300 / Car still overheating next day / Some months later, Applicant took car to different mechanic, who advised thermostat did not look to have been recently replaced, replaced thermostat for Applicant for $230 / Applicant claimed $1000 from Respondent, being $300 for refund and $700 for stress, alleging Respondent did not complete work charged for / Held: evidence supported conclusion that Respondent carried out repair for Applicant / Need for further repair work was not result of Respondent’s work on vehicle / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to fix water heater and clear blocked drain / Respondent assessed water heater as not worth fixing, gave $3,622 quote for replacement / Respondent invoiced $299 for work / Applicant engaged different plumbing company, who reset water heater for $155 / Applicant refused to pay Respondent’s invoice, accepted liability only for $144 being Respondent’s invoice less amount paid to second plumber, sought declaration to this effect / Respondent counter-claimed $842.86 for original invoice, gas fitting assessment, time spent defending claim, and interest / Held: Not proven that Respondent’s assessment of water heater was wrong or service provided fell short of consumer guarantees / Applicant therefore liable for full amount of Respondent’s invoice / Respondent’s additional claimed costs not made out / Applicant ordered to pay Respondent $299 / Claim dismissed, counter-claimed allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased e-bike manufactured by Respondent for $8,403.00 / Bike’s battery failed after three years / Respondent supplied replacement battery for discounted price of $1,070.00 / Applicant claimed refund of replacement battery cost / Held: battery’s failure was due to manufacturing defect, not misuse by Applicant / Battery did not meet guarantee of acceptable quality / Applicant entitled to compensation for loss of value and inconvenience, but not full cost of replacement battery / Respondent ordered to pay Applicant $500 / Claim allowed.

Contract / Applicant entered into property management agreement with Respondent  / Applicant claimed Respondent breached agreement by moving items out of apartment that were later destroyed by flood damage / Applicant claimed $2,467.00 from Respondent to replace items / Held: Respondent did not breach agreement by removing Applicant’s furniture from apartment to enable it to be rented / Applicant breached agreement by failing to purchase insurance for property / Respondent not responsible for loss of furniture / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Respondent engaged Applicant to install pool / Pool set in the ground at a higher level than what Respondent expected and as per contract / Respondents asked Applicant to pay further $8,131.69 for remedial work / Applicant claimed outstanding balance owing for pool installation and interest / Respondent counter-claimed balance owing for remedial work around pool and on the lawn / Held: height of pool discussed with Respondent / Finished pool height was 170mm above the patio / Contract complete and final payment must be paid by Respondent / Applicant obliged to remediate damage to lawn / Applicant not entitled to charge interest / Respondent ordered to pay Applicant $8,072.69 / Claim allowed in part.

Contract / Misrepresentation / Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Applicant purchased racing engine from Respondent for $25,000 / Applicant later discovered engine had serious technical issues / Applicant claimed $30,000, being refund plus costs associated with testing engine / Held: engine sold in private sale, not through Respondent’s company / As engine not sold in trade, CGA did not apply / Applicant failed to prove Respondent misrepresented condition of engine, inducing Applicant to enter agreement / Claim dismissed.

Contract / Agency / Applicant contracted by Respondent to design and price kitchen for customer / Kitchen joinery manufactured and supplied / Five invoices were rendered / Applicant claimed three unpaid invoices totaling $15,472.81 / Held: Respondent transacting as an agent of customer rather than its own behalf / Applicant’s contract was with homeowner / Claim needs to be bought against customer / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased spa pool from Respondent / Pump was replaced after failure, replacement pump also failed / Applicant sought to reject pool, claimed $5,999.00 refund / Held: Applicant failed to prove pool was not of acceptable quality or fit for purpose / Source of pool failure could not be determined on evidence provided, possibility of user error rather than manufacturing defect / Claim dismissed.

Negligence / Respondent collided with Applicant’s car / Applicant and insurer claimed Respondent was liable as they negligently pulled into turn-only lane without ensuring manoeuvre could be carried out safely / Respondent claimed they had right of way and Applicant was speeding / Held: Respondent was liable for collision as Applicant had right of way / Respondent failed to prove Applicant was speeding or driving unreasonably / Respondent to pay Applicant’s insurer $10,507.46 for damage / Applicant’s insurer to refund Applicant $400 insurance excess / Claim allowed.

Contract / Consumer Guarantees Act 1993 (CGA) / Respondent undertook gas fitting and plumbing work at Applicant's premises / Applicant alleged work done by Respondent not done with reasonable care and skill and resulting in products not fit for purpose / Applicant alleged Respondent breached terms of contract causing its loss / Applicant claimed $1,999 / Held: Applicant not a consumer under the CGA / CGA does not apply / Applicant failed to prove it is more likely than not that the Respondent failed to provide services in a reasonable and tradesperson-like manner / Lack of evidence from Applicant / Claim dismissed.

Contract / Applicant provided building services to Respondent / Quote was based on plans, which showed area of 90 square metres / Respondent made progress payments, but withheld final 20% / Respondent stated build area only 70 square metres, sought reduction of invoiced amount / Applicant claimed for outstanding invoice, agreed to offer credit of $6480 plus GST for some incomplete work / Held: Respondent failed to provide evidence that area shown in plan incorrect / No basis on which to reduce amount invoiced for reduced area / Credit offered by Applicant fair and reasonable / Respondent ordered to pay Applicant $28,527.68 / Claim allowed.  

Contract / Misrepresentation / Property / Applicant purchased house from Respondent / Applicant discovered Respondent made false statement / Textured walls contained asbestos / Applicant claimed $21,485.93 to remove remaining wallboards with asbestos / Held: Respondent misrepresented property to Applicant / Applicant induced to purchase house because of misrepresentation / Applicant entitled to damages / Respondent ordered to pay Applicant $21,494.93 / Claim allowed.

Contract / Applicant entered agreement to build custom vanity for Respondent / After installation, vanity top drawer would not close / Applicant fixed and reinstalled drawer, invoiced Respondent for additional work / Respondent disputed charge as additional work due to Applicant’s error / Applicant claimed $624.08 for unpaid invoice / Held: Applicant made error in constructing drawer / Change to drawer was not variation to contract, therefore Respondent not liable to pay for it / Claim dismissed.