Disputes Tribunal of New Zealand

Contract / Property Law Act 2007 / Applicant paid Respondent $20,000.00 / Applicant sought refund of payment / Respondent claimed money was a deposit on a house Respondent was going to sell to Applicant / Respondent claimed he had to sell house to another party for less because Applicant did not go through with purchase / Respondent counterclaimed $30,000.00 for loss / Held: parties did not have written agreement for sale / Even if there was an enforceable verbal contract, no evidence that a condition of verbal contract was that Applicant’s $20,000.00 was non-revokable or refundable if Applicant decided not to proceed  / Respondent would be unjustly enriched if he were to keep Applicant’s $20,000.00 / Applicant entitled to be paid back $20,000.00 as it was not a gift and not part of an enforceable term of a contract / Respondent not entitled to any other sum representing loss made by not selling to Applicant / Claim allowed / Counterclaim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicant booked Respondents’ accommodation for four nights / Respondents advertised property as being in a “peaceful rural setting” / Due to road noise, Applicant only stayed for three of the four nights / Applicant claimed a refund of $780.00 for four nights’ accommodation / Applicant claimed Respondents’ advertisement was misleading / Applicant also claimed accommodation service provided was unsatisfactory regarding readiness for guests / Held: word “peaceful” in advertisement was misleading / Applicant entitled to a full refund for fourth night and a 30 percent discount for the other three nights / Accommodation had value for Applicant for the days he decided to remain there / Respondents did not provide accommodation service with reasonable care and skill / Applicant’s failure to contact Respondents regarding defects in service resulted in a loss of right to compensation / Respondents ordered to refund $351.50 /…

Contract / Consumer law / Consumer Guarantees Act 1993 / Applicant got tattoos from the First Respondent / Applicant claimed First Respondent used expired tattoo ink and provided poor workmanship in relation to the tattoos / Applicant also claimed First Respondent told him to change his tattoo image / Applicant claimed $12,614.00 for refund, cost of tattoo removal and cost of legal advice and associated time off work / Respondent counterclaimed $4,200.00 for loss of revenue and $1200.00 for a days’ lost work as Applicant cancelled final appointment / Held: Applicant failed to prove that the ink used had expired / Evidence indicated that it was the Applicant’s decision to change the tattoo image / Applicant failed to prove that the First Respondent did not provide his service with reasonable care and skill / Neither party can claim for costs / Claim against Second Respondent struck out / Claim and counterclaim dismissed.

Contract / Consumers Guarantees Act 1993 / Respondent operates business leasing out shipping containers as storage containers / Applicant stored belongings in leased storage container / When decanted Applicant’s belongings were mouldy / Applicant claims refund / Held: services must be fit for its intended purpose / Applicant unable to prove Respondent breached guarantee that container was not fit for purpose / No evidence provided for damage and costs / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased her daughter’s school uniform from the Respondent / Applicant purchased a size 12 skirt but later discovered it did not fit / Applicant returned the skirt to Respondent, swapped it for a size 14 and purchased a second size 14 skirt / Applicant laundered skirts / When school started Applicant found that the skirts were too large / Applicant had one of the skirts altered so that her daughter could wear it to school / Applicant wished to return both skirts / Respondent said it would it accept the skirt that had been laundered but refused to take the altered skirt / Applicant claimed $500.00 for a refund on two skirts and compensation for inconvenience and loss of use / Held: insufficient evidence that skirts were not within a correct size range for a kids size 14 school uniform skirt / No  proven breach of guarantee / No evidence that the skirt was otherwise faulty / Claim dismissed.

Negligence / Contract / Consumer Guarantees Act 1993 / First Applicant hired a generator from Respondent for use at an event at which it was to power equipment he had hired from Second and Third Applicants / Shortly after equipment was connected to generator, several items started to smoke and were extensively damaged / Second and Third Applicants invoiced First Applicant for the damaged equipment / First Applicant sought to hold Respondent liable for the losses, claiming Respondent was negligent in the supply of the generator / Held: supply by Respondent was not carried out with reasonable care and skill and/or was negligent / Incorrect configuration of generator was direct cause of damage to equipment, and damage was reasonably foreseeable / Claimed costs of repairing and/or replacing damaged equipment accepted as invoiced / Respondent ordered to pay $19,811.51 to Second Applicant and $5486.14 to Third Applicant / Claim allowed.

Contract law / Applicant registered for an event ran by Respondent / Applicant paid deposit / Respondent acknowledged deposit and informed final payment of $3,000 still needed to be paid / Respondent subsequently sent email about payment deadline and refund policy / Applicant made final payment / Before the event, Applicant emailed about transferring her registration due to illness / Respondent referred Applicant to their non-refundable and non-transferrable policy / Applicant withdrew from the race and was refunded $1,000 / Applicant now claims a refund of the remaining $2,000 / Held:  more likely than not that the non-refundable and non-transferable policy was made known on the third party website / Claim dismissed.

Contract / Building Act 2004 / Applicant entered agreement to purchase a new-build property / After moving in, Applicant raised several issues with the developer, including scratching and damage to much of the joinery in the house / Damage to joinery was not remedied / Applicant now claimed $23,138.00 from the Respondent building contractor for full re-coating of all the joinery in the property / Held: photographs demonstrated problem with joinery was widespread / Respondent failed to provide evidence the defects were not present at completion of the build or at settlement and therefore had an external cause independent of the building work / Building work was not carried out in a proper and competent manner, nor with reasonable care and skill / Damaged joinery was a building defect per the Building Act / Applicant notified the building defect within 12 months of building completion / Issue was not remedied within reasonable time / Applicant entitled to damages / Respondent ordered to …

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Respondents sold campervan to Applicant for $12,000.00 / Applicant later found various problems with the van / Applicant claimed $8,157.00 for repairs / Held: message from Respondent saying there were “no rust/leaks” was not a misrepresentation entitling Applicant to compensation / Rust was visible, and Applicant had seen the van so had knowledge of its true state / Statement regarding no leaks referred to body of the van not the state of the engine / Message from Applicant saying he could pick van up “as long as no issue” was not a misrepresentation by Respondent / Photos of van showing only part of it were not a misrepresentation / Fact that no service had been undertaken since 2021 was not a misrepresentation / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a sofa for $550.00 from Respondent / After sofa was delivered, Applicant noticed there was a gap between the sofa cushions / Applicant asked Respondent to replace the sofa or rectify the problem / Respondent considered the gap was natural rather than defective / Applicant sought a refund of $550.00 / Held: unable to establish that the sofa failed to match the display model in quality / Reasonable consumer would not find the gap to be a defect, or to be unacceptable in appearance / Gap was a natural result of the design of the sofa / Although the Applicant considered the sofa was ugly that was a matter of personal preference rather than an aesthetic flaw / Claim dismissed.

Misrepresentation / Consumer Guarantees Act 1993 / Applicant bought a new caravan from First Respondents / Caravan had a heater as a chattel / Respondent told Applicant the heater was adequate / Applicant claimed for losses because the heater could not sufficiently heat the caravan / Held: Applicants failed to prove that the heater was misrepresented nor that it was not fit for purpose / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased heat pump unit manufactured by Respondent / Applicant quickly experienced issues with unit / Different installation company assessed unit and found it was installed incorrectly /  Applicant claimed for cost of remedial work from both respondents / Liquidator for Second Respondent did not consent to proceedings continuing against Second Respondent so Applicant continued claim against Respondent only / Held: failure of unit was result of installation work carried out by a person other the manufacturer / Respondents not liable for failed installation that caused issues / Claim dismissed. 

Contract / Respondent engaged Applicant to carry out landscaping / Applicant carried out work from 2022, receiving instructions and payments from the Respondent / Two years later, dispute arose between the parties /  Applicant offered three options / Respondent chose one of those options, which included termination of the agreement and a payment of $26,636.92 / Respondent requested Applicant signed an acknowledgement document before payment was made / Applicant signed document and added a payment date / Respondent then stated it did not consider that any further payments were owing / Applicant claimed $26,636.92 / Held: parties reached a binding agreement / Respondent confirmed it would take the option to terminate the Applicant’s agreement in return for payment of $23.162.54 / Agreement was a clear acceptance of one of the offers / Once the offer was accepted the Applicant was not entitled to unilaterally add a fixed date for payment, or to declare the acknowledgement document would b…