Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 / Duty of reasonable care and skill / Respondent installed heat pump system at home of Applicant / External heat pump unit fell and caused damage to unit and Applicant’s house / Applicant contacted Respondent to inspect unit but Respondent failed to attend property / Applicant involved insurance company and the heat pump unit was replaced / Applicant’s insurance company claims costs for replacement of unit and Applicant’s excess / Applicant claims further losses relating to guarantee of acceptable qualify of the condensation pump / Held: Respondent failure to securely attach heat pump was a failure of the guarantee of reasonable care and skill / Respondent liable to pay cost of total losses as a result of the external heat pump unit falling / Claim allowed / Respondent to pay Applicant’s insurance company $5,661.64 / Held: no further loss to Applicant for any failure of guarantee of acceptable quality for the condensation pump / Claim dismissed

Consumer law / s 13(a) of the Fair Trading Act 1986 / s 28 of the Consumer Information Standard (Used Vehicle) Regulations 2008 / Applicant purchased vehicle from Respondent / Respondent provided Applicant with a Consumer Information Notice at point of sale / notice incorrectly stated that the vehicle had not been imported as a damaged vehicle / Applicant claims $29,980.00 for cost of vehicle and sign writing / Held: Respondent made false representations regarding history of the vehicle / Respondent did not comply with Consumer Information Standard regulations / No defence under s 44(5) of the Fair Trading Act as Respondent knew, or should have known, that it did not comply with the consumer information standard / Claim allowed / Respondent ordered to pay Applicant $29,980.00 / Applicant ordered to make vehicle available for collection by Respondent.

Contract / Consumer Guarantees Act 1993 / Variation of contract / Reasonable price / Respondent engaged Applicant to provide landscaping services at his home / Applicant provided Respondent a written scope of works priced as a “provisional estimate” / A variation order was issued to reflect a change in materials for a path from concrete to stone / During project disputes arose over quality of work and amounts being invoiced / Applicant claims unpaid invoices of $18,306.22 / Respondent counter-claims $30,000 representing sums over-paid and remedial costs / Held: no meeting of the minds with respect to the variation of the total price for the stone path / Applicant’s variation order was not clear or consistent with other comparable pricing for paving with the same product / Respondent claims “remedial” work not carried out by Applicant but was charged in provisional estimate / Held: reduction for remedial work in the overall claim per terms of “reasonable price” under s 31 of the CGA / C...

Consumer law / Fair Trading Act 1986 / Applicant purchased a refurbished phone for $699.99 from Respondent / Applicant’s daughter dropped the phone into a pool / Afterwards problems with the phone / Applicant returned phone to Respondent for repairs / Respondent refused to repair phone without charging / Applicant alleged phone was marketed as being waterproof but was not / Applicant claimed original cost of the phone / Whether Respondent engaged in misleading and deceptive conduct / If so, whether amount claimed was reasonable / Held: Respondent’s website did not state that refurbished phones are not as durable nor that the warranty did not cover water damage / Respondent engaged in misleading and deceptive conduct / Test was how long a reasonable person would expect a refurbished phone to last / Expectation that EK’s phone would last another 26 months / Calculated that Applicant’s phone had 72 percent of its life left / Claim allowed in part / Respondent ordered to pay Applicant $503...

Contract / Tenancy law / Respondent leased a commercial premise from Applicant / during Level 4 COVID-19 lockdown, Respondent had limited access to the premise, however Respondent’s employees were able to do some work from home / Applicant claims $7,363.70 for balance of rental, penalty interest and legal costs / Held: Arbitration clause in lease does not limit Disputes Tribunal’s ability to hear claim / Respondent’s employees could work from home so a 20% reduction of rent during the Level 4 lockdown was fair / Recovery of legal costs prevented by cl 6.1 of ADLS lease / Claim allowed / Respondent order to pay Applicant $2,129.43

Fencing Act 1978 / Applicant approached Respondent regarding replacement of fence between properties / Respondent proposed replacement of parts of fence / Parties could not come to an agreement / Applicant sent quote from fencing contractor on 1 February 2020 / Applicant sent formal fencing notice on 21 February 2020 / Respondent replied wanting to undertake repairs at own costs / Applicant claims half share of fencing quotation / Held: existing fencing not adequate / Quotation provided by Applicant reasonable for length and type of fence / Claim allowed / Respondent ordered to pay Applicant $1449.00

Contract / Contract and Commercial Law Act 2017 / Applicant formed company to provide finance for new companies / Applicant occasionally lent own money to company and was typically repaid by the Respondent / Applicant resigned and discovered he was owed payment of $7,025.29 from Respondent / Applicant submitted claim for repayment of the sum / Respondent claims that Applicant signed a confirmation on his resignation that the Respondent does not owe him any money and he has no other claims against Respondent / Held: resignation letter binding contract / Claim dismissed.

Consumer Guarantees Act 1983 / Applicant purchased racehorse from Respondent via an online auction / Horse was found to be lame after delivery to Applicant and took time to recover / Although Applicant took a chance purchasing an older racehorse he could reasonably expect that the horse would have feet in rideable condition / Extent of issues with the horse must have related to a pre-existing condition at the time of sale / Applicant claimed refund costs plus remedial costs or, alternatively, remedial costs plus training fees to bring horse back into work / Held: Consumer Guarantees Act 1983 applies to sales by auction / The horse recovered and is of acceptable quality / The applicant was not in trade and the Respondent could not contract out of the Consumer Guarantees Act 1983 therefore it covers the state of lameness on arrival of the horse / Claim allowed / Respondent ordered to pay applicant $742.00.

Contract / Applicant engaged Second Respondent to provide platform for streaming services / Problems with platform / Applicant claimed for service costs and costs for getting platform operational / Second Respondent counterclaimed for outstanding service charges / Second Respondent contended that the platform was operational and instructions not followed correctly / Whether there was a breach of contract / Whether remedies were available / Held: issues related to slow internet connection and instructions incorrectly followed / No breach of contract by Second Respondent / Applicant breached contract by not making payments / Claim dismissed / Counter-claim granted / Applicant to pay Second Respondent $5,459.63 for outstanding invoices.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicants purchased a used car from the Respondents for $1800.00 / Respondents made misleading statements about condition of car in Facebook ad / Car could not obtain Warrant of Fitness without significant structural work / Estimated wreck value of car is $350.00 / Applicants claim a refund of the purchase price of the car / Respondents claim the car was sold “as is where is” / Held: Respondents misrepresented the car / Contract and Commercial Law Act 2017 provides some protection for purchasers of goods in private sales / Applicants have suffered a loss / Claim allowed, Respondents ordered to pay Applicants $1450.00.

Easements / Property Law Act 2007 / Applicant and Respondent shared a driveway / Applicant said driveway required urgent maintenance and sought half the cost from the Respondent / Respondent disputed work was required / Both parties engaged lawyers / Respondent counterclaimed for his lawyer’s fees / Whether Tribunal had jurisdiction to hear the claim / Held: under the Act the District Court had jurisdiction to hear and determine disputes concerning easements / Tribunal had no jurisdiction to hear and determine Applicant’s claim / Respondent’s costs claim struck out / Claims struck out.

Quasi-contract / Applicant paid the sum of $3,580.00 to a friend for him to hold on her behalf / Account to which money was transferred was joint account with Respondent / Respondent claimed she thought money was wage subsidy payment and transferred it to her account / Respondent subsequently returned $1,900.00 to friend and used remainder of money to pay off credit card / Applicant seeks payment of the balance of $1,680.00 / Tribunal has jurisdiction in quasi-contract despite nocontractual obligation between parties or no physical damage to property / Quasi-contract arises when one party said to be unjustly enriched at the expense of another and is required as if there was a contract to make restitution to injured party / Held: Respondent liable to return money / Held: when Respondent transferred funds to her account she knew they belonged to Applicant therefore Respondent cannot claim funds received and used in good faith / Claim allowed / Respondent ordered to pay Applicant $1,680.0...