Disputes Tribunal of New Zealand

Contract / Claim relates to damage caused by Respondent to a vehicle owned by Applicant / Cheque was received and was not returned by the Respondent in the applicable timeframe  / Dispute arose as to the reasonable and necessary cost of repair / Held: Agreement was reached in December 2019 and no longer open to Applicant to claim further on this dispute / Claim dismissed

Negligence / Respondent approached Applicant about removing plants on the boundary of their properties / No fence to delineate boundary / Applicant had no objections to proposed work as claimed work was all on Respondent’s side / Respondent’s contractors removed a mature tree from Respondent’s property / Respondent claimed $1500.00 for the tree / Held: Respondent gave inadequate instructions and supervision to her contractors that amounted to negligence / Respondent liable to pay $665.00 for new tree and compensation / Claim granted.

Contract / Agreement to purchase a puppy / Applicant paid $500.00 deposit to Respondent / Respondent withdrew offer for puppy / Respondent claimed deposit was non-refundable / Applicant claimed $5,000.00 for deposit and costs associated with travelling to visit the puppy and finding another / No breach of contract / Respondent cannot rely on contractual terms of a contract she has cancelled / Respondent was able to recover any losses by selling puppy to another person / Respondent must return deposit to Applicant / Other costs or losses not recoverable / Claim allowed in part / Respondent to pay Applicant $500.00.

Cross-lease / Applicant and Respondent are neighbours in a cross-lease property made up of one building divided into two flats / Terms of the cross-lease require each unit to pay half the cost of repairs and maintenance of the building, includingthe roof / Applicant considers Respondent has not kept up responsibilities under terms of cross-lease / Applicant claims Respondent’s roof needs to be repaired and repainted, exterior walls of flat repainted to original colour and shared fence to be painted / Held: terms of cross-lease require roof to be repaired and repainted / Held: requirement of “high standard” in terms of cross-lease do not apply to fence, no obligation on Respondent to contribute to painting it / Respondent entitled to paint exterior walls of their flat / Respondent ordered to repair roof and arrange painting with Applicant / Respondent to also repaint small shared external wall area.

Duty of care / Animal Law Reform Act 1989 / Dog Control Act 1996 / Respondent's dogs attacked and killed six of Applicant's sheep / Applicant claims value of the lost sheep and treatment costs associated with injuries / Held: as owner Respondent has a duty of care to ensure dogs are under proper control and do not roam / Respondent has breached this duty of care by not ensuring their dogs remained chained up when unattended / Successful claim.

Consumer law / Consumer Guarantees Act 1993 / Applicant took car to Respondent to have rust around windscreen of his vehicle repaired / Some months later Applicant was advised windscreen needed repairing again / Applicant claimed $1,787.20 for second rust repair costs as well as lost earnings / Whether rust repair was carried out with reasonable care and skill / Whether Applicant was entitled to remedies / Held: evidence indicated repair was carried out with reasonable care and skill / claim dismissed.

Property / Fencing Act 1978 / Applicant contacted his Respondent neighbour about building a fence between their properties / Notice included details about the fence and an indication that the Respondents would be liable for a contribution to the fencing costs of $945.56 / Respondent replied to Applicant that he thought the existing fence was adequate / Parties failed to reach an agreement / Applicant stated he was concerned his animals would escape on to the Respondent’s property / Applicant commenced work on fence / Fence was completed and the Applicant attempted to recover fence costs from the Respondent / Whether the respondent was liable for a contribution to the fence costs / If so, whether the Applicant was entitled to claim $945.59 / Held: on the balance of probabilities, fence was not adequate / However, differences between the Applicant and the Respondent were not resolved when the Applicant chose to replace the fence / Fence did not require immediate work /  Respondent was no...

Contract / Contract and Commercial Law Act 2017 / Applicant sent a computer using a courier service / Respondent said the postal service was under a contract with another party / Following collection and before the item arrived at intended destination a redirection request was made / Computer never arrived at first destination or redirected address / Applicant unable to collect computer from depot due to Covid 19 restrictions /  Computer sent to redirected address but never arrived / Respondent said no ability to locate computer due to nature of contract with other party / Applicant claimed never given an option to pay for posting once the parcel was located at the depot or told there was anything irregular with tracking of the package / Applicant claimed $635.00 for costs of computer plus filing fee / No contract between parties and no liability at law from Respondent to Applicant for loss of computer / Applicant took a risk sending the parcel / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant's house damaged by fire / Negative asbestos test received / Respondent agreed to demolish house / Respondent ordered separate absestos test and commenced work before results returned / Asbestos test came back positive / Respondent invoiced Applicant for work with higher costs due to asbestos being found / Applicant claims not liable for additional costs because Respondent completed work before receiving results or asking for original test results / Applicant claims breach of Health & Safety at Work (Asbestos) Regulations 2016 and Approved Code of Practice: Management and Removal of Asbestos, November 2016 / Respondent claims Applicant misled them / Held: Applicant did not mislead Respondent about absestos test / All statements made were true / Held: even if statements were misleading, inducement not established / statute requires identification to be undertaken by competent person and Applicant not one / Outcome: claim allowed...

Contract / breach of contract / Applicant had a licence to occupy a site for a cart / Applicant made enquiries to Respondent to move cart to a second site / Applicant was told by Respondent the business could move to the new site / Respondent paused the move of the business formally sought expressions of interest / Applicant did not submit expression of interest as felt site was already allocated to her business / licence to occupy site was issued to another person based on expression of interest / Applicant claimed $15,000 (now $30,000 from Respondent for loss of income / Respondent claimed no contract had been formed with Applicant / if a contract had been formed Respondent disputes amount of claim due to term of licensing period, no expression of interest by Applicant, and accuracy of financial forecast submitted by Applicant / Held: contract formed between Applicant and Respondent / Held: Respondent repudiated contract, Applicant entitled to cancel contract and seek relief / Claim ...

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.