Disputes Tribunal of New Zealand

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...

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

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

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...

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.

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.

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.

Contract / Credit Contract and Consumer Finance Act 2003 (CCCFA) / sale and purchase of land / Respondents stopped making payments for loan relating to purchase / Applicant claims amount outstanding / HELD: Tribunal found that Applicant is a creditor and that the agreement between the parties is a consumer credit contract under CCCFA / however, as Applicant did not comply with disclosure provisions under CCCFA, it cannot enforce consumer credit agreement / also, Applicant might not be registered as a financial service provider and may not be a member of any approved dispute resolution scheme / claim dismissed

Negligence / car collision / Land Transport (RoadUser) Rule 2004, r 7.2 / Applicant’s insurance company claimed againstRespondent for repairs / HELD: Respondent created hazard and caused the collisionby opening car door / therefore, Tribunal found Respondent was negligent havingbreached duty of care owed to Applicant / repair costs quoted and actualrepairs undertaken consistent with damage / claim allowed, Respondent orderedto pay insurance company $1,708.72

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to hydro-seed lawn for $1,300 / grass was not growing well several weeks later / Applicant claims fence marked during spraying and claims full refund of $1,300 / Held: Applicant failed to establish evidence that Respondent’s service not carried out with reasonable care and skill / Respondent did not make undertakings to provide ongoing lawn maintenance and lawn’s ultimate health depends on its ongoing care and watering / Applicant’s evidence unable to prove claims / claim dismissed

Insurance / negligence / three-car collision / Applicant stopped behind third-party vehicle / Respondent drove into back of Applicant’s vehicle causing Applicant to collide with vehicle in front / Applicant claiming $15,000 for damage to front and back of vehicle / Respondent claimed Applicant had already crashed into rear of front vehicle before Respondent hit from behind / Respondent argues that full frontal damage attributable to first impact / Held: Respondent caused at least $15,000 worth of damage even if two separate impacts were not proven / Respondent to pay $15,000 / claim allowed

Contract / Consumer Guarantees Act 1993 (CGA) / Respondent performed renovation work on Applicant’s bathroom / several problems found with bathroom / Respondent performed remedial work / independent tile and waterproofing consultant advised applicant shower needed to be rebuilt / Applicant claims $1966.83 for remedial costs / Held: Respondent did not perform work with reasonable care and skill / finished product not of acceptable quality / Respondent handyman not tiler but still bound to meet statutory obligations towards customer under CGA / attempted remedies by Respondent unsuccessful / Applicant entitled to have work done by another supplier and recover costs from Respondent / Applicant also entitled to recover costs of independent inspection and report / claim allowed, Respondent ordered to pay Applicant remedial costs of $1966.83.

Contract / Consumer Guarantees Act 1993 (CGA) / guarantee of reasonable care and skill / Applicant brought velvet boots to Respondent for resoling / when returned, Applicant noticed each boot was damaged and notified Respondent / Respondent undertook repair but left boots in worse state / Applicant claims refund for re-soling, at $35, and cost of replacement boots, at $700, plus Tribunal filing fee / Held: Respondent breached CGA guarantee of providing service with reasonable care and skill as damage was caused during course of service provided / Applicant entitled to statutory remedies / s 32(b) and (c), CGA / Applicant entitled to reduction in value of service due to failure below price paid and any reasonably foreseeable consequential losses / reduction in value of service is its entire value of $35 due to serious nature of damage / given extent of damage, only remedy available is replacement of boots / Tribunal filing fee cannot be awarded / claim allowed, Respondent ordered to pay...