Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / Credit Contracts and Consumer Finance Act 2003 / Applicant applied for credit instore a Second Respondent branches to purchase a computer / Applicant alleged income from fictitious spouse on application form was added by Second Respondent / Applicant said she did not understand type of financial product she had / Applicant claimed $1,000 from Second Respondent and $29,000 in damages from First Respondent / Held: Second Respondent not liable to pay compensation for incorrect mention of partner on application / More likely than not that Applicant received initial disclosure despite not recalling it / First Respondent breached obligations to Applicant by delay in closing account / Second Respondent did not act reasonably in ethical manner when responding to Applicant's struggle in meeting obligations under credit agreement / Respondent ordered to pay Applicant $1,600 / Claim allowed in part.

Tort law / Respondent installed pipes using a vibration type rig on building site 90m from Applicant’s property / Applicant’s house had cosmetic cracking on walls and ceiling / Applicant alleged damage caused by Respondent’s pile driving / Applicant claimed $14188.40 for repairs, engineering report, accommodation during repairs and furniture removal costs / Held: damage was not caused by Respondent’s activity / Cracks were cosmetic and consistent with the natural movement of timber framed houses / Applicant’s house had previously withstood major earthquakes without damage / Pile driving forces significantly lower than seismic forces / No other neighbours reported damage / Claim dismissed.

Negligence / Collision between a vehicle driven by the Applicant and one driven by the Respondent on the motorway / Collision occurred when Respondent pulled over to turn right across the motorway resulting in the Applicant colliding with his vehicle / Applicant filed a claim with their insurance company / Applicant’s insurer claimed $14,930.25 from Respondent on the basis that the car was so badly damaged it could not be repaired / Held: Respondent failed to take reasonable care to ensure the road was clear before turning / Applicant had the right of way and the Respondent failed to give way to her / Costs claimed by the Applicant’s insurer were reasonable / Respondent ordered to pay $14,930.25 to the Applicant’s insurer / Claim allowed.

Contract / Property / Fair Trading Act 1986 (FTA) / Consumer Guarantees Act 1993 (CGA) / Applicant purchased property from Respondents / Heavy rain caused flooding in backyard and water ingress into house / Applicant claimed $30,000 against vendors, real estate agents and building inspector for breach of warranty, misrepresentation, misleading conduct and failure to exercise reasonable care and skill / Held: vendors breached warranty as stormwater system had broken pipe so not in reasonable working order / Real estate agents not liable under FTA / No breach of CGA by inspector / Vendors not liable for installing new drainage system as vendors’ warranty limited to system being in reasonable working order, not a guarantee of adequacy / Insufficient evidence vendors knew of issues before leaks linked to upstairs bathroom which was replaced / Vendors reasonably believed issue resolved so no misrepresentation / Vendors ordered to pay Applicant $3,570.12 / Other claims dismissed.

Contract / Applicant was elected a member of a community board / Emails were sent to the Applicant’s private email account as part of the role / Applicant emailed Respondent requesting a stop to the forwarded emails / Applicant then sent a further email indicating that if the forwarding of emails did not stop, he would invoice the Respondent $10.00 per week / Applicant stated that if the emails did not stop by a particular date, he would assume the Respondent accepted charges / Respondent responded that it would investigate the forwarding of emails, but that it did not agree to the charges / Applicant resigned from  community board / Applicant claimed $320 for invoice costs and late payment fee / Held: no contract in existence about payment of the invoiced amounts / No agreement was reached between the parties, and there was no acceptance of the Applicant’s offer /  Applicant suffered no loss from the Respondent’s actions nor did he incur any additional expenses / Claim dismissed.

Consumer law / Applicant booked two rooms in a hotel owned and operated by the Respondent / Applicant and immediate family occupied one room, and his in-laws the other / Hotel deducted hotel payment and an addition $200 from the Applicant’s credit card because of fish cooking smells caused by his in-laws / Applicant considered Respondent was not entitled to make the $200 deduction / Held: accepted there was a strong smell of fish in the Applicant’s in-laws room that annoyed the neighbouring occupants / No clear indication given to hotel guests about how food should be handled in their rooms / No evidence established for the Applicant to be responsible for the activities of his in-laws / Respondent was not entitled to deduct $200 from the Applicant’s credit card / Respondent ordered to pay Applicant $200 / Claim allowed.

Contract / Tikanga / Applicant was engaged to act as a celebrant at the Respondents' wedding / Applicant advertised his services as “koha weddings”, meaning client could pay any donation rather than a fixed fee / Applicant also required a $50 non-refundable deposit to confirm bookings / Applicant claimed he only received the $50 deposit and no additional koha payment / Applicant claimed $550 for unpaid services and punitive fees / Held: contract existed, comprising a $50 deposit and an expected koha payment / Reasonable koha payment was $100, in addition to $50 deposit / Punitive fees were dismissed / Tribunal not permitted to award damages intended to punish / $11.83 interest awarded for payment delay / Respondents ordered to pay Applicant $111.83 / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Applicant was informed vehicle was blowing blue smoke on next day / Post-purchase inspection suggested car had mechanical problems / Applicant alleged Respondent must have known of vehicle problems and did not disclose them / Applicant claimed $3350.00 purchase price and sought to return vehicle / Held: a misrepresentation requires the Respondent to have made incorrect statement about vehicle’s condition which induced the Applicant to purchase it / Neither party had a copy of the original advertisement / Silence in private sales, or not disclosing, not a misrepresentation / Respondent told Applicant he had no mechanical knowledge / No evidence the Respondent made statements amounting to misrepresentation / Applicant purchased after viewing vehicle and taking it for a test drive, without a formal pre-purchase assessment of the vehicle / No misrepresentation that induced Applicant to purchase …

Negligence / Respondent was performing construction work on a neighbouring property to the Applicant’s property / Applicant claimed that the Respondent dropped nails onto his driveway and that it was a nail from the site that became embedded into his vehicle causing a flat tyre / Applicant claimed $1033.85 for a replacement tyre / Respondent claimed the Applicant failed to prove the nail was from their construction site / Held: more likely than not that the flat tyre was caused by the nail from the neighbouring construction site / Failure to take preventive action was negligent / Negligence causing the flat tyre was not too remote / Same time of nail used on the site was discovered in the flat tyre / Respondent did not dispute the cost to repair the tyre / Respondent ordered to pay $1033.85 to the Applicant / Claim allowed.

Contract / Sale of goods / Contract and Commercial Law Act 2017 / Applicant purchased cabin for $25,000 and paid $12,500 deposit / Applicant cancelled after council refused consent / Applicant claimed refund of deposit and costs / Respondent counterclaims $18,000 for outstanding purchase price under contract and associated costs / Held: Binding contract existed and terms were $25,000 for cabin, with $12,500 deposit and payment of balance on delivery plus interest 10% pa / Contract formed when deposit paid as invoice evidenced terms / No requirement for written contract for sale of chattels / Cancellation not accepted and frustration did not apply as performance of contract by Applicant remained possible / Breach occurred when Applicant failed to complete purchase / Respondent entitled to balance of price interest and reasonable transport costs / Other claimed losses such as lost rent, disconnection costs and defamation are outside jurisdiction or not foreseeable / Respondent awarded $1…

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased flatpack cabin from Respondent / Applicant complained about significant water ingress into the cabin / Applicant claimed for full refund plus $1,000 compensation for stress caused and costs for making claim / Held: cabin leaked significantly and did not meet the guarantee of acceptable quality / Applicant informed Respondent and this placed duty on Respondent to repair or replace the cabin, or refund purchase price / No evidence established that Respondent attempted to contact Applicant / Applicant entitled to cancel contract and receive refund / No compensation awarded for claims of stress and cost reimbursement / Respondent ordered to pay Applicant $8,199 / Respondent ordered to retrieve cabin from Applicant's property / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged by Respondent to perform geotechnical testing for tiny home extension / Drilling technique used by Applicant caused unexpected aquifer breach and water seepage on Applicant’s property and neighbouring orchard / Applicant took urgent remedial action at Respondent’s request including engaging earthworks contractor / Respondent agreed to pay invoice upon completion of reinstatement works including pipe removal site resowing and hedge replacement / Applicant completed all requested works but Respondent refused to pay / Held: Respondent acted with reasonable skill and care in drilling and remediation / Aquifer breach was unforeseeable and drilling depth was within industry standards / Respondent breached agreement to pay upon completion / Respondent ordered to pay Applicant $29,759.27 / Claim allowed.