Disputes Tribunal of New Zealand

Contract / Towing / Applicant parked car on private property / Respondent had car towed / Parking sign stated Applicant was allowed to park as a resident of suburb / Respondent charged Applicant $385 for vehicle storage, $69 for administration and $50 for vehicle release / Applicant claims refund of $504 / Held: sign allowed Applicant to park / Applicant did not breach conditions license to park offered / Applicant allowed a refund of $504.

Consumer law / Consumer Guarantees Act 1993 / Second Applicant experienced identity fraud / Respondent pursued Second Applicant for outstanding account / Applicant claimed non-liability and other damages / Held: unknown person established account with Respondent in Second Applicant's name / Identity was used for the purpose of obtaining free services from Respondent / Second Applicant is not liable for the account / Not proven that Respondent failed to meet the standard of reasonable care and skill in respect of its account establishment procedures / Applicant is not liable to pay any amount to Respondent / Claim dismissed.

Contract / Construction / Contract and Commercial Law Act 2017 / Applicant awarded sub-contract for electrical work by Respondent for a new build construction / Applicant completed some work outside contract / Respondent requested for further breakdown of variation in contract / Applicant informed contract had been cancelled / Applicant claimed $11,477.12 for lost profit, time spent pricing and claim related costs / Held: oral recollections were the only available evidence / Respondent unable to prove it is more likely than not that Applicant refused to provide further information / Respondent repudiated contract when it informed Applicant work was being awarded to another supplier / No evidence to support costs claimed by Applicant / Applicant awarded 30% of costs claimed / Cost related to tribunals claim not awarded / Respondent ordered to pay Applicant $3,823.30 / Claim allowed in part.

Contract / Applicant installed alarm system at Respondent's bar / Respondent refused to pay Applicant's invoice claiming installation was not authorised / Applicant claimed $262.50 payment for invoice / Held: Applicant were properly engaged by Respondent to investigate why alarm had not been triggered during burglary / Applicant unable to prove it was more likely than not authorised to do extra work to relocate and install a new sensor / Applicant entitled to be paid for investigating the sensor / Respondent ordered to pay Applicant $86.25 / Claim allowed in part.

Tort / Negligence / Applicant engaged First Respondent to paint roof, fascia and garage door of her home / Respondent also supplied and installed a scaffold working platform and edge protection for painters / Applicant noticed dents on roof / Applicant's insurer paid $56,796.22 to remove and replace roof / Applicant claimed $30,000 as contribution towards remedial costs / Held: First and Third Respondent caused damage to roof / Second and Fourth Respondents (insurers) each ordered to pay Applicant $15,000 / Claim allowed.

Negligence / Applicant was driving along the road when his vehicle was damaged by material / Applicant claimed material came off one of the Respondent’s truck that was travelling in the opposite direction / Applicant’s insurer accepted the claim / Applicant said repairs would cost around $9,000.00 / Vehicle was not repaired as the Applicant refused to pay the $750.00 excess / Applicant sought $750.00 from Respondent / Held: Applicant was unable to prove the material came from the Respondent’s truck / Uncertainty about where the Applicant’s car was when it was damaged / Uncertainty about whether the Respondent’s car was in the vicinity of the Applicant’s car when it was damaged / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant bought helmet from Respondent / Applicant used helmet once and it slipped low on his forehead obscuring his vision / Respondent refused to exchange helmet for a smaller size / Applicant claimed refund of price paid / Held: helmet was not defective / Retailers are not obliged to permit return or exchange goods which are merely unsuitable rather than defective / Respondent not at fault that Applicant misjudged helmet size / Applicant not entitled to refund / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993  / Applicant purchased greenstone from the Respondent online / Applicant said greenstone had micro-fractures which were not visible in the listing photos / Applicant sought to return the greenstone with a refund / Held: Respondent found to be in trade / Insufficient evidence to find greenstone did not comply with the guarantee of acceptable quality / Greenstone was fit for the common purpose of carving / Imperfections such as micro-fractures were inherent with natural resources / Greenstone met the guarantee of acceptable quality as it for fit for common purposes / Not established that that the photos in the listing were a misrepresentation / No breach found / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant took vehicles to Respondent for servicing / Applicant claimed Respondent did not complete work to an appropriate standard / Applicant claimed $15,000 in damages / Held: work on exhaust of vehicle 1 has not been completed with reasonable care and skill as exhaust bolts were missing or were loose / Insufficient evidence overall to show all services for vehicle 1 were not of acceptable quality / Insufficient evidence to support finding that Respondent breached CGA regarding work carried out on vehicle 2 / Respondent liable to pay to have missing bolt replaced and other bolts tightened / Respondent ordered to pay Applicant $164.68 / Claim dismissed in most part.

Insurance / Applicant was booked to travel with one airline / Airline cancelled the flight / Applicant was forced to book travel with an alternative airline for an increased cost of $4,913.82 /  Applicant contacted Respondent, the Applicant’s insurer / Respondent initially accepted liability under the insurance contract / Later the Respondent denied liability on the basis that the insurance policy excluded cover for any loss arising from an actual or likely pandemic / Applicant was advised by original airline that his flight was cancelled due to insufficient sales / However, it appeared that the airline advised the Respondent that it cancelled the flight due to pandemic restrictions /  Applicant sought payment of $4,913.82  under travel insurance contract with the Respondent / Held: Applicant provided evidence there were no pandemic restrictions in place in either the city of departure or arrival at the relevant time / Applicant was advised the flight was cancelled due to airline requi…

Negligence /Applicant claimed he was driving when the Respondent’s dog ran onto the road / Applicant claimed he was unable to avoid hitting the dog as it appeared suddenly in front of him / Respondent admitted owing and being in control of the dog at the time / Respondent denied she was negligent as the dog was only off his lead momentary / Respondent claimed she was about to put the dog on the leash when he went onto the road / Respondent claimed the collision occurred as the Applicant was not keeping a proper lookout/ Applicant claimed costs of repair was $5,430.19 / Held: evidence indicated that the Respondent was liable for the damage caused by her dog while it was temporarily outside of her control / However, there was contributory negligence on the part of the Applicant / Incident occurred on a busy road and the Applicant had an obligation to be able to stop if an obstruction appeared on the road / Contribution of 50 percent was allowed / Damage was consistent with description of…

Contract / Contract and Commercial Law Act 2017 / Applicant signed agreement to purchase vehicle from Respondent and paid $5,000 deposit / Applicant did not pay balance owing / Respondent cancelled sale but retained deposit / Applicant claimed $5,000 deposit and $250 costs / Held: contract was unconditional / Deposit confirmed as security for performance of obligation to pay due balance / Agreement silent on when balance was due / Timeframe for payment implied as not to be immediate but not unduly extended, "as soon as reasonably practicable" / Respondent not entitled to cancel for non-payment / Vehicle was not ready for delivery at the time / Just for deposit to be returned to Applicant / Respondent ordered to pay Applicant $5,000 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased leather couches from Respondent / Applicant also purchased extended warranty covering damages to leather / Applicant discovered a tear in the leather that was not visible at time of delivery or when it was moved to the Applicant's new home / Applicant claimed for the couch to be replaced or to be refunded $2,999 / Held: couch was not of acceptable quality as it was already damaged when delivered / Failure was of substantial character as the rip was large and noticeable / Signing delivery was not an acceptance that goods were of acceptable quality / Respondent ordered to pick up damaged couch and deliver a new one or refund amount paid / Claim allowed.