Disputes Tribunal of New Zealand

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.

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

Negligence / car collision / Applicant and Respondent had a side-on collision as Respondent changed lanes to the left, then came back to the right, colliding with Applicant’s vehicle / Held: Respondent fully moved into left lane as damage to Applicant’s car extends the entire left side which is not possible to occur if both vehicles are partially occupying same lane / Respondent liable in negligence for damage to Applicant’s car as did not ensure it was safe to change lanes back to the right / Applicant did not contribute to the impact / claim allowed, Respondent ordered to pay Applicant $4,606.35 for repair and rental car costs

Contract / sale and purchase of business / while restaurant equipment included on chattels list, equipment required to run restaurant not included / Applicant’s claim reduced to maximum amount claimable in Tribunal for one year’s hire of equipment not provided / Respondent counterclaimed for unpaid balance of stock-in-trade / Held: Respondent breached contract by failing to include all assets used to run business / while Applicant required to check and approve equipment, Applicant did not fail to perform due diligence / Applicant’s claim not challenged, Respondent’s counterclaim payable / claim and counter-claim allowed, Respondent to pay Applicant $12,522.69

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to replace existing grout in shower / nickel shower drain was scratched and first grout failed / Respondent removed and replaced it / second scratch made / Respondent denied fault for scratch / Applicant claimed $6000 for full replacement of shower drain and regrouting, and claimed remedial work was inadequate / Held: both scratches caused by Respondent / scratches constitute a failure of reasonable care and skill / insufficient evidence to show remedial work was not of acceptable quality / it is appropriate for another supplier to replace the shower drain / another grouting job will also be required / claim allowed, Respondent ordered to pay Applicant $600.00.

Contract / Applicant wanted to purchase a car from Respondent to convert to taxi / parties made written and verbal agreements that Respondents would fix some issues with the car and Applicant would purchase it for $21,000 / Respondents would repay $1,000 deposit if car could not be converted / Applicant asked more questions about car after agreement made, was not satisfied with answers and sent an email to cancel order / Applicant claims for refund of deposit / Held: conditional contract was formed when deposit was paid and handwritten document was signed / Applicant was only entitled to cancel contract if conditions recorded on written agreement were not met / Applicant breached contract by invalid cancellation / deposit only refundable if contract terms not met / Respondent entitled to retain deposit / claim dismissed.

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...

Negligence / car collision / Land Transport (RoadUser) Rule 2004, r 5.9 / Applicant and Respondent not insured / Applicantclaimed costs for his car that was written off and transport costs / HELD:Respondent failed to stop his vehicle / therefore, Tribunal found Respondentwas negligent having breached duty of care owed to Applicant / claim allowed,Respondent ordered to pay Applicant $2,350 being the pre-accident value of carfixed by Tribunal / no evidence produced as to transport costs

Contract / misrepresentation / Contractual Remedies Act 1979, section 6 / Applicant purchased horse for granddaughter after seeing advertisement on Trade Me / private sale / granddaughter inspected horse and rode on him on three occasions over a two-month period / Applicant claimed that Respondent did not inform her of horse’s complications, behavioural problems and that horse is unsafe / Held: onus on Applicant to establish horse was misrepresented, that Applicant induced to enter contract based on misrepresentation and that Applicant suffered damage as a result / no persuasive evidence that Respondent misrepresented horse / claim dismissed

Contract / sale and purchase of property / Contractual Remedies Act 1979, s 6 / Fair Trading Act 1986 (FTA), ss 43 and 9 / applicant bought respondent’s property that was listed with second respondent / applicant unhappy about water that lies on driveway and footpath after heavy rain / claims $6,000 from respondents / Held: evidence does not prove property was misrepresented by respondents / second respondent did not engage in conduct that was misleading or deceptive or was likely to mislead or deceive required under FTA / claim dismissed

Contract / negligence / Applicant sought half the cost for arborist and tree work undertaken / Respondent counterclaimed for damage to his property from tree work and rent when contractors used his property as a workplace and car park / HELD: Respondent obtained resource consent to cut down tree years earlier / Applicant engaged arborist before consulting with Respondent / therefore Respondent only liable to pay half the cost of tree felling / claim partially allowed, Applicant ordered to pay Respondent $1,322.50 for tree work / Respondent did not prove on balance of probabilities that Applicant caused damage, nor can he charge rent without agreement between the parties / counterclaim dismissed

Negligence / Respondent reversed his truck into the Applicant’s Toyota Hilux causing damage to the vehicle / Applicant and Applicant’s insurer claimed $3,337.99 for repair costs / Held: Respondent failed to keep a proper look out when reversing his truck and failed to give way to the driver of the Hilux / Respondent’s visibility was significantly obstructed and took no extra steps to check for oncoming traffic / Respondent did not take reasonable care in operating his truck / costs claimed are reasonable / claim allowed, Respondent ordered to pay Applicant’s insurer $3,286.13.