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270 items matching your search terms

  1. FOO Ltd v TL [2017] NZDT 1030 (3 March 2017) [PDF, 74 KB]

    Contract / Respondent supplies pumpkins and cucurbits to supermarkets / Applicant transported pumpkins from Respondent’s farm to distribution centre / on one occasion, Applicant failed to pick up load as truck full / supermarkets cancelled order for that load / Applicant claiming $8,942.40 for non-payment by Respondent for services supplied from February to May 2015 / Applicant relying on exclusion and notification clauses in its standard terms and conditions / Respondent counterclaims for non-liability by way of damages for failure to collect pumpkins / Respondent could not have easily mitigated loss suffered / Held: Applicant’s failure to pick up load breach of contract / Respondent not liable to pay $8,942.40 to Applicant / money owed to Applicant is completely offset by Respondent’s loss from supermarkets cancelling order / claim dismissed

  2. ER v UI Ltd [2017] NZDT 998 (16 February 2017) [PDF, 130 KB]

    Guarantee / Consumer Guarantees Act 1993 / Applicant enrolled in course of study and paid fees to Respondent institution / Applicant withdrew from course 11 days after its commencement / Applicant claimed he could not understand lecturer and lecturer’s teaching style was poor / enrolment form provided for a refund of fees if withdrawal was within 8 days of course commencing or there were exceptional circumstances / Applicant claimed reason for withdrawing was exceptional and Respondent failed its guarantee as to service provided / Applicant claimed refund of fees / Held: no failure of guarantee / inadequate evidence to prove failure / Respondent provided service with reasonable care and skill and service was fit for purpose / circumstances not exceptional / claim dismissed

  3. HD v RWW Ltd [2017] NZDT 1032 (15 February 2017) [PDF, 107 KB]

    Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent which had serious engine issues & was uneconomic to repair / whether vehicle sold privately or ‘in trade’ / whether vehicle of acceptable quality & what, if any, remedies available / Held: Respondent sold several vehicles a year so ‘in trade’ / vehicle not of acceptable quality as not free from defects & reasonable consumer would not regard it as acceptable given price paid & statement it was in ‘mint condition’ / failure substantial so Applicant entitled to full refund as well as any foreseeable losses resulting from failure / Respondent ordered to pay Applicant $4839.88 & Applicant to make vehicle available for pick up within three weeks of amount being received / claim allowed

  4. GP v SKS Ltd [2017] NZDT 1168 (10 February 2017) [PDF, 76 KB]

    Consumer Guarantees Act 1993 / respondent installed security system for applicant / applicant claimed detector not working & monitoring company did not respond / respondent changed alarm settings & engaged another monitoring company / applicant refused to pay for new monitoring service &  sought refund / respondent cancelled agreement & claimed money owing as well as cost of changing monitoring companies / whether security system of acceptable quality / whether monitoring service provided with reasonable skill & care / Held:  service provided by first monitoring company not provided with reasonable skill & care / respondent met obligations & remedied failure promptly / applicant entitled to refund of payments to first monitoring company but not entitled to cancel agreement with respondent / agreement provided for decommissioning fee & balance of term to be paid for cancellation / refund offset against money owing / applicant ordered to pay respondent $1321.58.

  5. EN & ENE v UM & UMU [2017] NZDT 997 (10 Febrary 2017) [PDF, 79 KB]

    Fencing / Fencing Act 1978 / Applicant’s cows crossed over to Respondent’s neighbouring property / Applicant claimed fence in need of repair / Applicant issued fencing notice on Respondent / repairs carried out within days of notice / Applicant claimed half the cost of fence repairs / Held: Respondent not liable to pay for repairs / repairs carried out before notice period was up / fence not destroyed or damaged by sudden accident or other cause / claim dismissed

  6. DX v VC Ltd [2016] NZDT 938 (27 January 2017) [PDF, 140 KB]

    Contract / Consumer Guarantees Act 1993 / Applicant purchased a couch from Respondent / wooden slats of couch broke / Applicant claimed full refund of couch / Held: damage was caused by failure of the wood and construction method and not by inconsistent use of couch by Applicant / couch not of acceptable quality / failure of goods not substantial / Applicant gave Respondent chance of remedy and Respondent refused to do so within reasonable time / Applicant could return the couch despite Respondent’s no return policy / damage caused by hidden defects so Applicant could only have known of faults when wood broke / Applicant not taken unreasonable length of time to ask for refund / claim allowed, Respondent ordered to pay Applicant full refund of $1,596.00 for couch and Applicant to return couch to Respondent at her cost. 

  7. EP v UK LTD & UKU LTD 2016 NZDT 893 (7 December 2016) [PDF, 137 KB]

    Contract / Consumer Guarantees Act 1993 / Applicant delivered vehicle to the first Respondent for repair / first Respondent repaired vehicle and issued invoice to Applicant / Applicant paid part of invoice amount / first Respondent asked second Respondent to look at vehicle due to a further problem / second Respondent gave preliminary diagnosis but received no further instructions from first Respondent / vehicle delivered back to Applicant after some months / Applicant claimed original issue not resolved, vehicle not driveable and had cosmetic issues / Applicant claimed refund of amount paid, declaration of non-liability for balance of amount invoiced and compensation for tow, registration, insurance and repair costs / Held: Applicant did not have a contractual relationship with second Respondent / second Respondent not contractually liable to Applicant / first Respondent did not perform service with reasonable care and skill / first Respondent had Applicant’s car in their possession f...

  8. EO v UL LTD 2016 NZDT 979 (17 November 2016) [PDF, 139 KB]

    Negligence / Respondent’s digger bucket fell onto motorway / Applicant drove car into Respondent’s digger bucket / Applicant’s car damaged / Applicant claimed Respondent’s driver was negligent for not securing his load / Respondent claimed digger bucket had been stolen / Applicant claimed losses resulting from damage to car / Held: digger bucket fell off trailer driven by employee of Respondent / Respondent’s driver failed to adequately secure his load and was negligent / no contributory negligence on Applicant’s part / Respondent vicariously liable for driver’s negligent actions and liable to pay for Applicant’s reasonable losses / claim allowed, Respondent ordered to pay Applicant $5975.

  9. DN v VM [2016] NZDT 971 (19 October 2016) [PDF, 21 KB]

    Contract / Applicant purchased residential property from Respondent at auction / Applicant later found the Bon-Air Vulcan ducted gas heating system would not work / claims $9,731.32 for diagnosis and replacement of system / Held: gas heating system is not a chattel and therefore not covered by vendor warranties in Sale of Real Estate by Auction contract / gas heating system is a fixture that was part of the property sold and there is no requirement to provide fixtures in any particular condition / no basis in law for claim of compensation / claim dismissed

  10. FH Ltd v TS Ltd [2016] NZDT 1037 (26 September 2016) [PDF, 81 KB]

    Misrepresentation / Fair Trading Act 1986 / Applicant purchased forklift from  Respondent / forklift advertised as a demo model with low hours / Applicant claimed battery needed replacing / age of forklift represented as near new when it was a 2004 model / Applicant claimed refund of purchase price / Held: silence can constitute misleading conduct / description gave rise to a duty to clarify forklift was not near new / failure to clarify constituted misleading conduct / forklift’s worth significantly less than price paid / claim allowed / Applicant entitled to cancel contract and get full refund / Respondent ordered to pay $9,200 to applicant and collect forklift at own cost

  11. FF v TU and TUU [2016] NZDT 1035 (21 September 2016) [PDF, 145 KB]

    Consumer Guarantees Act 1993 (CGA) / guarantee of acceptable quality / Applicant purchased a vehicle from a private seller / vehicle originally imported by second Respondent / vehicle used to transport costumes / vehicle’s transmission failed / Applicant claimed cost of repairs to transmission / Held: Vehicle failed to be as durable as a reasonable consumer would have expected / Applicant was a “consumer” under CGA / vehicle ordinarily acquired for personal, domestic or household use or consumption / vehicle not used in an unreasonable manner or to an unreasonable extent / second Respondent as an importer came within the definition of “manufacturer” under CGA / consumer not required to give manufacturer an opportunity to remedy fault unless it is covered by a contractual warranty / cost of repairing transmission reasonably foreseeable / Respondents jointly liable to pay Applicant $3,978.09.

  12. DU & DUD v VF & Ors [2016] 956 (12 September 2016) [PDF, 135 KB]

    Contract / Civil Aviation Act 1990, s.91Z / Applicants booked return flights with Second Respondent and second flight was cancelled / Applicants booked a replacement flight with different airline / Second Respondent refunded fare of $343 / Applicants seek compensation of $1,999.99 for undue stress and extra costs incurred due to the cancellation and necessity to book another flight at a later date / Held: a carrier is liable for damages caused by delay unless delay made necessary by force majeure (unforeseeable circumstances) / mechanical breakdown is a foreseeable event / carrier not liable if they take all necessary steps to avoid damage or it is not possible to take those steps / Respondent delayed decision to cancel flight to a point where passengers would struggled to get alternative flights or accommodation / Respondent only operated one aeroplane and had no replacement / Respondent bears this as a business risk / Terms and Conditions purporting to limit Respondent’s liability ha...

  13. DV v VE [2016] NZDT 970 (22 August 2016) [PDF, 22 KB]

    Negligence / motor vehicle collision / Applicant was riding motor scooter when a vehicle turned right across her path / Applicant claims losses from damage to scooter that was uneconomic to repair / Respondent denies being the driver of the car and knew nothing about the collision before receiving notice of proceedings / Held: on balance of probabilities, Respondent was the driver of the vehicle / Respondent failed to check that all lanes were clear before turning right / Respondent liable for reasonable losses / claim allowed, Respondent to pay Applicant $3,554 in replacement costs.

  14. EQ & EQQ v UJ Ltd & UJU [2016] NZDT 955 (17 August 2016) [PDF, 87 KB]

    Negligence / Applicants purchased house / Respondent painted house before it was sold to the Applicants / paint work deteriorated / Applicants repainted house / Applicants claimed cost of repainting house from Respondent / Held: Respondent did not owe Applicants a duty of care / Building Act 2004 does not cover painting / no physical damage or safety concerns / only original recipient of a service can enforce guarantee under the Consumer Guarantees Act 1993 / insufficient proximity between painter and subsequent homeowners / claim dismissed

  15. FE v TVL [2016] NZDT 966 (3 August 2016) [PDF, 132 KB]

    Consumer Guarantees Act 1993 / guarantee of reasonable skill and care / Applicant engaged Respondent to paint fence / surface bubbling appeared six months after fence was painted / inspection report found paint job was not the cause of bubbling / Applicant did not accept report and claimed cost of remedying the problem / Held: Respondent did not breach guarantee of reasonable skill and care / Respondent did not misapply coatings / Respondent used correct products / likely cause of bubbling was an underlying moisture problem /no evidence to suggest Respondent should have identified moisture problem /  nothing to suggest Respondent caused or contributed to problem / Respondent not liable for cost of remedying problem / claim dismissed.

  16. ET & ETT v UG Ltd & UGG [2016] NZDT 962 (13 July 2016) [PDF, 147 KB]

    Contract / Applicants chartered a boat from Respondent / boat returned to port three days before end of charter period due to bad weather / Respondent offered Applicants a refund / Applicants disputed amount of refund / Respondent’s terms and conditions provided for a 50 per cent refund / Respondent claimed 50 per cent refund only applied to pre-departure cancellations / Applicants interpreted refund to apply when all other conditions met / Applicants claimed refund of 50 per cent of pro-rata fee for unused three days / Held: Applicants entitled to a refund of 50 per cent of the remaining day’s charter fee / Respondent’s terms and conditions ambiguous / wording did not indicate that 50 per cent refund only applied to pre-departure cancellations / doctrine of contra proferentem favoured Applicants’ interpretation / all other conditions met / claim allowed

  17. EH Ltd v US [2016] NZDT 963 (18 July 2016) [PDF, 127 KB]

    Contract / Minor Contract Act 1969 (MCA) / Respondent bid and won a car auction for $2515.00 on Trade Me / Applicant and Trade Me unable to contact Respondent about the purchase / Applicant relisted the car a month later and it sold for $1670.00 / Respondent was a 17-year-old high school student and was in breach of Trade Me’s terms and conditions that users must be 18 years old / Applicant claims damages for the price difference and other costs incurred for second auction / Held: the contract was not part of a considered, negotiated bargain / Respondent did not think she would win the auction as there had been strong competition before she placed her bid / Applicant expected Respondent to be an adult / Respondent failed to communicate her age in a timely manner / placing bids in an online auction is the sort of contract the MCA is designed to protect minors against / contract cannot be enforced / an award of the full amount of damage not appropriate / loss component not included in th...

  18. ED Ltd v UW Ltd [2016] NZDT 922 (1 July 2016) [PDF, 144 KB]

    Contract / Respondent purchased Company B from Company A / Respondent assigned the licence and supply agreement that Company A has with the Applicant / Applicant claimed $15,000.00 for Respondent’s breach of the agreement / Held: Respondent breached cl 8.4 of agreement by not checking whether the Applicant had the items in stock before using another supplier / Applicant breached cl 8.3 of agreement by failing to attempt to supply stock from an alternative supplier when it did not have the item in stock itself / this breach was not a defence to Respondent’s breach of cl 8.4 / meaning of cl 4.7 raised issue of ambiguity / cl 4.7 inserted specifically when Company A purchased business from Company B  so should be treated as having a different meaning than cl 8.4 / Respondent entitled to flexible product sourcing options under cl 4.7 / no evidence showing cl 4.7 not meant to include subsequent buyers of the business / principle of contra proferentum applies so contract is interpreted again...

  19. DL Ltd v VO [2016] NZDT 952 (17 June 2016) [PDF, 88 KB]

    Contract / Credit Contracts and Consumer Finance Act 2003 / Credit (Repossession) Act 1997 (C(R)A) / Respondent took out loan from Applicant of $8598 to purchase motor vehicle / loan secured against motor vehicle / Respondent was to pay $108.53 under consumer credit agreement / Respondent stopped making payments / Applicant repossessed and sold vehicle / Applicant claims $6,936.70 for shortfall following vehicle sale / Held: consumer credit agreement valid, can be enforced and was breached by Respondent / Applicant used all reasonable efforts to obtain best price for vehicle as required under C(R)A / claim allowed, Respondent ordered to pay Applicant $6,649.20

  20. DZ v VA, VAV Ltd & VAVU Ltd [2016] NZDT 921 (9 June 2016) [PDF, 86 KB]

    Contract / Consumer Guarantees Act 1993 (CGA) / Applicant arranged flights through the second and third Respondents / third Respondent disallowed Applicant to travel / second Respondent deducted cancellation fees and refunded balance to Applicant / Applicant claimed refund of fees deducted by second Respondent / Held: third Respondent did not provide its services to Applicant with reasonable skill and care / Applicant entitled to cancel contract with third Respondent because failure could not be remedied / third Respondent liable to pay Applicant damages in compensation / Applicant suffered consequential loss from third Respondent’s breach of the CGA which was the amount charged for second Respondent’s cancellation fees / claim allowed, third Respondent ordered to pay Applicant $1,550.

  21. DW v VD [2016] NZDT 914 (11 May 2016) [PDF, 154 KB]

    Contract / Contractual Remedies Act 1979 / Applicant purchased a boat from Respondent without inspecting it or performing a sea test / boat had running issues and underwent repairs / Applicant claimed $15,000 on basis of misrepresentation of boat condition and fittings / Held: winch condition of boat misrepresented in advertisement by Respondent / condition of bilge pump misrepresented in advertisement / age of GPS fish finder misrepresented / no other misrepresentations found / caveat emptor, buyer beware principle applies / statements made after contract are not representations / Applicant’s claim brought six years after discovery of problems / Applicant only succeed in parts of claim that amount to misrepresentation / claim allowed, Respondent ordered to pay Applicant $2866.55.

  22. EG & EGE v UT & UTU [2016] NZDT 949 (21 April 2016) [PDF, 81 KB]

    Contract / Applicants purchased a property from Respondents / greywater was found to be discharging onto Applicants’ property / an investigation revealed septic system began overflowing when blocking plate removed from pipes / Applicants carried out extensive remedial and replacement work / Applicants claimed $15,000.00 from Respondents for their non-disclosure of the issue / Held: Respondent had no issues with the septic system since mid-1970s so had nothing to disclose when asked / no evidence to prove any problem occurred prior to the one the Applicant’s experienced / no other basis for claim / claim dismissed.

  23. DK v VP Ltd & VPV [2016] NZDT 944 (6 April 2016) [PDF, 86 KB]

    Contract / Consumer Guarantees Act 1993 (CGA), ss 32 and 43 / Applicant left car at Respondent’s airport parking facility / employee damaged car while moving it / damage repaired at a cost of $2,275.16 by Applicant’s insurer / Applicant and Applicant’s insurer claim for that amount / Held: Applicant meets definition of consumer under CGA / Respondent’s terms and conditions do not exclude liability as employee was driving the car and Respondent cannot contract out of CGA, under s 43 / driving is an integral part of Respondent’s service and crashing the car is a failure of reasonable care and skill except in extraordinary circumstances / evidence not able to establish any extraordinary circumstances / Applicants entitled to remedy under s 32, CGA / claim allowed, Respondent ordered to pay Applicant $2,275.16

  24. DY & DYD v VB [2016] NZDT 941 (1 April 2016) [PDF, 128 KB]

    Application for rehearing out of time / parties had 28 days after original hearing to file rehearing application / Tribunal received Respondent’s application six weeks out of time / Held: reason for delay alone would not prevent rehearing / Respondent had enough notice to produce evidence before original hearing / would be an unreasonable burden on Applicants to overturn original decision after full hearing / insufficient preparation for hearing not grounds to have matter reopened / leave to apply for rehearing out of time declined.