Disputes Tribunal of New Zealand

Fraud / Applicant invoiced Respondent $35,092.26 for the excavation work / Respondent received email from Applicant advising their bank account details had updated / Respondent paid $26,665.63 into Applicant’s new account / Parties subsequently discovered funds had been paid into a fraudulent account / Money was never recovered / Applicant claimed $30,000 / Held: the fraudulent email came from Applicant’s system / As a responsible business, Applicant obliged to ensure its financial systems are robust and its computers protected from unauthorised access / Applicant must bear loss that resulted / Respondent not negligent in its reliance on genuineness of email despite its casual tone and the inaccurate bank address / Respondent’s lateness in paying invoice did not cause or enable fraud to occur / Respondent to pay remaining balance of $3,334.37 / Claim allowed in part.

Contract / Applicants bought a motorhome / Motorhome was advertised with a 2 year mechanical warrantee / Applicant made multiple attempts to inquire about warrantee details, but was not provided with any /  Respondent claims he has possibly maintained motorhome insurance that the Applicants may be interested in / Held: Promise made in the advertisement are representations about what Applicants purchased / Motorhome came with a 2 year mechanical warrantee / Motorhome has not suffered a mechanical issue / As mechanical issue has not occurred the Respondent has not refused to honour the warrantee / Dismissal of claim does not bar any further proceedings if mechanical issue occurs / Claim dismissed. 

Contract / Loan / Credit Contracts and Consumer Finance Act 2003 (CCCFA) / Applicant claimed that a second loan of $15,000 was provided to Respondent for the purchase of a second race car / There was no written loan document between the Applicant and Respondent / Respondent denied the existence of a second loan and only acknowledged an initial loan of $27,000 for purchase of his first race car / Administrative work was carried out predominantly by the cousin of the Applicant’s sole director / The director’s cousin was not reachable to provide evidence / Proof of loan was evidenced by email exchanges and a payment of $15,000 to a third-party vendor / Held: A second loan of $15,000 existed/ The loan was not a consumer credit contract for the purpose of the CCCFA as the Applicant was not in the business of providing credit  / Respondent ordered to repay loan sum of $15,000 to the Applicant / Claim allowed. 

Contract / Shared care agreement / Applicant purchased dog but could not continue to house and care for it / Entered a shared care agreement with Respondent / Breakdown of parties relationship and shared care arrangements / No terms for termination of agreement were established by parties / Applicant claimed return of possession or in the alternative an award of costs associated with purchase price, grooming and legal fees / Held: terms of the shared arrangement were not sufficiently clear, particularly relating to termination / Respondent to retain possession and ownership of the dog / Respondent had been primary carer of the dog for almost three years / Would be unjust for the Respondent to be forced to give up the dog / No basis for a costs award / Claim dismissed. 

Contract / Property / Applicants purchased a property from the Respondent / Applicants undertook pre-settlement inspections / After settlement the Applicant noticed the carpet smelled / Applicant was advised by carpet companies the smell was from urine / Respondent acknowledged that she had dogs on the property / Parties disputed the state of the carpet / Applicant stated the odour was so unbearable they cannot live in the house / Held: at settlement there was a problem with the carpet / Animal urine caused the carpet to have an unpleasant odour / Principle of caveat emptor applied / Incumbent on the Applicant to satisfy themselves about the state of the carpet / No implied misrepresentation as to the state of the carpet / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant took a mobile phone to Respondent for repairs and battery replacement, paying $340 for the service / After the repair, the phone had new issues / Applicant returned to Respondent but the problems were not resolved / Phone eventually stopped working, requiring Applicant to purchase a new phone / Applicant claimed $1,500 for unsatisfactory repair, consequential damage and lost income / Held: Respondent failed to carry out repairs with reasonable care and skill / Respondent ordered to pay applicant $590 within 28 days / Claim allowed in part.

Contract law / Applicant had a contract with respondents to provide services at events / Subsequently, respondent began a competitive procurement process for the services / Applicant participated, but was unsuccessful with a new supplier to take over / Applicant claimed the 60-day notice period for termination under the contract was not observed / Applicant sought compensation for lost income for a certain time period / Held: 60-day notice period applied only to termination during the contract term, not to expiry at the end date / Claim dismissed.

Contract / Applicant parked in a car park managed by Respondent / Applicant charged a fee for breaching parking conditions / Signage clearly outlined terms for use of car park / Applicant claimed fee was unreasonable / Applicant sought a refund of the fine paid and associated filing costs / Held: Applicant breached a binding contract that was entered into by both parties on agreed terms when parking for 133 minutes in a 60-minute carparking site / Breach fee was not excessive / Applicant liable for breach fee and not entitled to a refund / Claim dismissed.

Contract / Employment / Respondent enrolled his son at the Applicant school / Respondent signed the enrolment form but did not sign the separate attendance dues agreement / Respondent's son attended the school for four years / Respondent made minimal payments / Respondent claimed he was not contractually obligated to pay the remaining dues due to lack of a signed agreement and uncertainty around the dues amount / Applicant claimed $6,502.94 in unpaid attendance dues / Held: Respondent had entered into a binding contract by signing the enrolment form, which included a clause agreeing to pay attendance dues / Respondent ordered to pay $6,502.94 / Claim allowed.

Insurance / Disputes Tribunal Act 1988 (DTA) / Applicant hired vehicle and purchased insurance from Respondent / Applicant drove vehicle into signpost and damaged underside of engine / Respondent claimed policy did not cover engine damage as it came under underbody damage policy exclusion / Applicant disputed this and claimed declaration of non-liability for $4,999 / Held: more likely than not engine damage caused by Applicant / Evidence of oil leakage and large crack to underside of vehicle after collision / Frontal impact not significant enough to cause damage to underbody / Engine damage was underneath body of vehicle so falls within the underbody exclusion / Under DTA if claim for declaration of non-liability in respect of liquidated demand dismissed, Tribunal may make order for Applicant to repay Respondent / Applicant to pay Respondent $5,641.73 for underbody repair costs and other costs related to car hire / Claim dismissed.

Contract / Consumer law / Applicant purchased washing machine from Respondent for $2 / Respondent claimed collection by 10am condition of sale / Applicant did not collect by deadline so Respondent gave machine to third party / Applicant claimed $4,999 for value of machine / Held: no evidence collection deadline was condition of sale / Deadline not communicated to Applicant before or after sale / Respondent breached contract by disposing machine without providing Applicant reasonable opportunity for collection / Insufficient evidence washing machine had higher valuation than purchase price / Respondent to pay Applicant $2 / Claim allowed in part.

Contract Law / Consumer Guarantees Act 1993 / Applicant and family booked flights with two separate airlines  / First set of tickets from Respondent with international stopovers and second set of tickets with another airline / Respondent initially refused to check them in because Applicant’s passport expired in less than six months / They missed connecting flights and Applicant had to book alternative flights / Applicant claimed Respondent wrongly denied them boarding and sought $30,000 / Held: Respondent acted correctly by denying Applicant to board but incorrectly by not boarding his family / Applicant’s flights with Respondent ended at country which required passports to be valid for minimum six months / Applicant did not meet legal conditions for entry so Respondent not liable for his costs / Respondent failed to act with reasonable skill and care by not boarding family / No issues with family's passports so should have so should have boarded them / Respondent liable to pay replace…

Contract / Applicant engaged Respondent to complete fencing on property / Applicant disputed labour charges included offsite work (preparation and travel time) / No written agreement only verbal with no witness / Applicant paid full amount less offsite labour / Applicant claimed non-liability for offsite labour comprised of $885 and debt collection fees of $708.17 / Held: Respondent’s recollection where labour charges included preparation and travel preferred / It was a reasonable and acceptable business practise for job that spread over several days / Applicant liable to pay offsite labour charges / Tribunal found not a term of contract that debt collection costs could be charged on overdue accounts / Even if agreed sending debt to collection was inappropriate due to presence of dispute / Applicant not liable for debt collection costs / Applicant to pay Respondent $885 / Claim allowed in part.