Disputes Tribunal of New Zealand

Contract / Building Act 2004 / Applicants contracted for the supply and installation of a gazebo at their new home under construction / Final agreed price was $38,842.40 but the contract was not written in a form compliant with residential building work requirements / Applicants paid a $15,000.00 deposit / Terms of the contract excluded any cost for a PS1 / Respondent stated one was not needed due to the gazebo's size/ However, the gazebo had been incorporated into the design for which the Council had issued consent so a PS1 was required / Respondent then sent invoice for PS1 of $2070.00 which the Applicants reluctantly paid / Gazebo was installed and multiple faults were identified immediately / Applicants had to get the manufacturer to remedy the faults and complete construction, as the Respondent would not do it / Applicants claimed refund of $2070 plus costs incurred to remedy the construction defects and complete the construction of the gazebo / Held: Respondent was not entitled t…

Tort / Damages / Insurance / Applicant and Respondent involved in rear end collision / Respondent does not dispute that she failed to stop in time behind Applicant's vehicle but disputes liability for quantum claimed / Applicant claimed $2,620.75 based on estimate cost of repairing the rear damage only / Held: there was some degree of pre-existing damage at the rear of Applicant's vehicle prior to contact with Respondent's vehicle / Vehicle was not repaired therefore losses converted proportionally to actual losses / Respondent ordered to pay Applicant $731.02 / Claim allowed in part.

Tort / Negligence / Applicant and Respondent's employee involved in vehicle accident / Applicant claimed $10,188.99 for damage to personal property / Held: Applicant should not have entered intersection if he would have to stop in it / Applicant drove in an area he was not permitted to drive in and created a situation where any prudent driver could not reasonably expect a vehicle to emerge from / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant bought vehicle and sought Respondent's help to inspect it pre-purchase / Applicant found out after purchase that the vehicle had head gasket issues / Applicant said a tee-kay test should have been carried out, which would have picked up on the head gasket issue / Applicant claimed $10,896.15 which was the estimated cost to repair vehicle / Held: Tribunal not satisfied that Respondent breached the CGA / Tee-kay test not an essential component of checking an engine / Checks done by Respondent were reasonable / Applicant not entitled to compensation / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased house intending to undertake extensive renovations / Respondent engaged by Applicant to carry out pre-build inspection to establish scope and pricing for renovations / Fire extensively damaged property and contract could not proceed / Applicant claimed $7,142.80 balance of deposit paid / Held: frustrated contract provisions of CCLA apply / All money paid under contract is recoverable and Tribunal may allow Respondent to retain whole or any part of deposit if it considers it just to do so having regard to all circumstances / Respondent ordered to pay Applicant $7,142.80 / Claim allowed.

Property / Fencing Act 1978 / Applicant and Respondent owned adjoining properties / Applicant served Respondent a fencing notice / Applicant claimed $6,814.35 cost of erecting fence along boundary between properties / Held: Respondent's reason of not being able to afford the fencing not a valid objection to it being built / Occupiers of adjoining lands not divided by adequate fence liable to equally contribute to fencing cost / Respondent ordered to pay Applicant $6,814.35 / 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.  

Consumer law / Contract / Consumer Guarantees Act 1993 (CGA) / Fair Trading Act 1986 (FTA) / Applicant booked rental property through First Respondent / Applicant left property due to unacceptable conditions and found accommodation elsewhere / Applicant claimed $1,054.30 full refund / Held: contract was between Applicant and Second Respondent / Booking was made under the non-refundable rate for a stay in 5 days' time / Standard of property and lack of exclusive occupation fell below the standard a reasonable consumer would expect from an accommodation provider / Second Respondent breached CGA / Advertisement misled Applicant into believing that property was suitable for him and his family when it was not / Second Respondent breached the FTA / Breach was of substantial character / Applicant entitled to cancel contract and obtain refund / Second Respondent ordered to pay Applicant $1,053 / Claim allowed.  

Nuisance / Applicant and Respondent own cross-leased properties / Parties dispute whether the garden found alongside property boundary was already there when Respondent purchased property / Applicant claimed Respondent was liable for half of damages caused by the garden to Applicant's garage wall / Held: Applicant failed to prove Respondent was responsible for the relative height of driveway to floor level of garage / Porous material of cladding was a significant factor / Nuisance law not designed to resolve every conflict between neighbours / Tribunal has no jurisdiction to other laws such as planning law and council bylaws / No actionable nuisance / Claim dismissed.

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 / 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 / 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.