Disputes Tribunal of New Zealand

Contract / Contract and Commercial Law Act 2017 / Applicant paid $6.90 for Respondent to deliver rented eftpos machine back to its owner / Parcel tracking number showed delivery was delayed / Two months later parcel had not arrived / Applicant charged $1,380.00 by eftpos supplier for not returning machine / Respondent told Applicant parcel was lost / Respondent said too late for Applicant to claim for not delivering parcel / Applicant filed compensation claim but Respondent declined to pay compensation / Applicant sought damages of $1,500.00 for lost eftpos machine and fees / Held: more likely than not that Respondent lost parcel / Applicant provided evidence of $1,380.00 charge for failing to return eftpos machine / Evidence showed Applicant suffered loss because Respondent lost parcel / Applicant filed compensation claim in reasonable time / Respondent to pay Applicant $1,380.00 damages / No right for refund of fees / Claim allowed in part.

Contract / Carriage of goods / Applicants purchased tractor and engaged Respondent to deliver it / Tractor failed to start on delivery and later required new starter motor / Applicants alleged Respondent’s driver caused damage by repeatedly attempting to start tractor / Applicants claimed for cost of new stater motor and for related costs incurred while tractor was fixed / Held: onus of proof to show Respondents had caused damage to tractor was not discharged by Applicants  / Tractor had worked when driven onto truck for delivery / Insufficient evidence to prove driver caused damage or acted without reasonable care during or immediately after delivery / Claim dismissed.

Contract / Applicant and Respondent were friends / Parties agreed that the Applicant would train Respondent for a body building competition / Applicant said Respondent agreed to be sponsored athlete and receive discounted rates in exchange for promoting Applicant as her trainer and allowing use of her photos / Respondent accepted she was sponsored athlete receiving reduced rate, but felt she had not been adequately informed about her obligations / Applicant invoiced Respondent of $735.00, of which $635.00 was paid / Applicant claimed $1,025.00, and associated Tribunal fees, as non-discounted rate for her services because she had no promotional benefit from arrangement / Held: contract existed between parties / Parties intended to create a legal relationship rather than simply an arrangement between friends / Respondent breached contract by not allowing her photos to be used for promotional purposes / Applicant did not receive benefit of promotional photos exchanged for discounted rates…

Negligence / Applicant and the Respondent had a collision /  Applicant was executing a u-turn the time of the accident, and the Respondent was reversing to correct her position in a park on the opposite side of the road / Applicant and her insurer claimed the Respondent was reversing unnecessarily fast / Held: insufficient evidence to establish that the Respondent failed to take reasonable care when reversing / Not reasonable to expect a person who was reversing to look out for someone approaching from the other side of the road and was doing a U-turn / Applicant and her insurer failed to show on the balance of probabilities that the accident was caused by the Respondent / Claim dismissed.

Contract / Fair Trading Act 1986 (“FTA’) / Applicant entered into sales and purchase agreement / Both parties agree that vendor’s guarantee was added to contract / Parties disagree on the guarantee means / Applicant claims right to costs if roof not in good working order / Respondent claims  Applicant bought ‘as is where is’ property’ /  Respondent claims Applicant was aware of existing roof defects and that it cost $19,000 to repair / Applicant claims $27,000 for roof repairs / Held: Breach in vendor guarantee / Vendor would be liable to pay damages in claim, however, Applicant has not named vendor in this claim / Applicant entitled to damages personally from Respondent / Respondent to pay Applicant original contract price of $20,000.

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…

Consumer law / Applicant engaged Respondent to lay new underlay and carpet in two bedrooms and lounge area of her property / Applicant separately purchased the underlay and carpet from a wholesaler / Respondent was largely left alone at the property while he undertook this work / Afterwards, Applicant noted the Respondent installed new underlay in one of the bedrooms, but in the bedroom which had suffered water damage he left original underlay and placed the new carpet over it /  Applicant made several attempts to contact Respondent to remedy his work / Ultimately, Applicant paid for new carpet layer to correctly lay the carpet, $812.01 / Held: evidence indicated Respondent failed to carry out carpet laying work he was engaged for with reasonable care and skill / Respondent also failed to remedy his work when offered the opportunity / Applicant entitled to cost of having the carpet correctly laid / Respondent ordered to pay $812.01 / Claim allowed.

Negligence / Collision between a vehicle driven by the Applicant and one driven by the Respondent on the motorway / Collision occurred when Respondent pulled over to turn right across the motorway resulting in the Applicant colliding with his vehicle / Applicant filed a claim with their insurance company / Applicant’s insurer claimed $14,930.25 from Respondent on the basis that the car was so badly damaged it could not be repaired / Held: Respondent failed to take reasonable care to ensure the road was clear before turning / Applicant had the right of way and the Respondent failed to give way to her / Costs claimed by the Applicant’s insurer were reasonable / Respondent ordered to pay $14,930.25 to the Applicant’s insurer / Claim allowed.

Contract / Applicant was elected a member of a community board / Emails were sent to the Applicant’s private email account as part of the role / Applicant emailed Respondent requesting a stop to the forwarded emails / Applicant then sent a further email indicating that if the forwarding of emails did not stop, he would invoice the Respondent $10.00 per week / Applicant stated that if the emails did not stop by a particular date, he would assume the Respondent accepted charges / Respondent responded that it would investigate the forwarding of emails, but that it did not agree to the charges / Applicant resigned from  community board / Applicant claimed $320 for invoice costs and late payment fee / Held: no contract in existence about payment of the invoiced amounts / No agreement was reached between the parties, and there was no acceptance of the Applicant’s offer /  Applicant suffered no loss from the Respondent’s actions nor did he incur any additional expenses / Claim dismissed.

Consumer law / Applicant booked two rooms in a hotel owned and operated by the Respondent / Applicant and immediate family occupied one room, and his in-laws the other / Hotel deducted hotel payment and an addition $200 from the Applicant’s credit card because of fish cooking smells caused by his in-laws / Applicant considered Respondent was not entitled to make the $200 deduction / Held: accepted there was a strong smell of fish in the Applicant’s in-laws room that annoyed the neighbouring occupants / No clear indication given to hotel guests about how food should be handled in their rooms / No evidence established for the Applicant to be responsible for the activities of his in-laws / Respondent was not entitled to deduct $200 from the Applicant’s credit card / Respondent ordered to pay Applicant $200 / Claim allowed.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Applicant was informed vehicle was blowing blue smoke on next day / Post-purchase inspection suggested car had mechanical problems / Applicant alleged Respondent must have known of vehicle problems and did not disclose them / Applicant claimed $3350.00 purchase price and sought to return vehicle / Held: a misrepresentation requires the Respondent to have made incorrect statement about vehicle’s condition which induced the Applicant to purchase it / Neither party had a copy of the original advertisement / Silence in private sales, or not disclosing, not a misrepresentation / Respondent told Applicant he had no mechanical knowledge / No evidence the Respondent made statements amounting to misrepresentation / Applicant purchased after viewing vehicle and taking it for a test drive, without a formal pre-purchase assessment of the vehicle / No misrepresentation that induced Applicant to purchase …

Tort law / Applicant said Respondent stole and damaged his car and took other property including cash and a passport / Applicant claimed compensation for his car, damage to third party’s car, new locks, replacement keys, stolen cash and passport / Held: Applicant entitled to cost of damage to vehicle and towing, and money taken by Respondent / Respondent ordered to pay Applicant $10,522.00 / Applicant owned car despite registered to third party / Referee found Respondent admitted taking cash and awarded $1,700.00 based on bank withdrawal records / Referee found car damaged beyond economic repair and awarded $8,500.00 based on market value less wreck value / Tow cost of $322.00 awarded as consequential loss / Tribunal lacked jurisdiction to award damage for third party’s property or future losses / Claims for locks and keys dismissed as unrelated to Respondent / Claim for passport dismissed due to insufficient evidence / Claim accepted in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged by Respondent to perform geotechnical testing for tiny home extension / Drilling technique used by Applicant caused unexpected aquifer breach and water seepage on Applicant’s property and neighbouring orchard / Applicant took urgent remedial action at Respondent’s request including engaging earthworks contractor / Respondent agreed to pay invoice upon completion of reinstatement works including pipe removal site resowing and hedge replacement / Applicant completed all requested works but Respondent refused to pay / Held: Respondent acted with reasonable skill and care in drilling and remediation / Aquifer breach was unforeseeable and drilling depth was within industry standards / Respondent breached agreement to pay upon completion / Respondent ordered to pay Applicant $29,759.27 / Claim allowed.