Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / Contracts and Commercial Law Act 2017 / Fair Trading Act 1986 / Respondents engaged Applicants to design holiday home for $25,000 plus GST / Applicant delivered sketch design in three stages which Respondents were dissatisfied with and refused to pay / Applicant claimed $28,959.25 for unpaid fees and legal costs / Held: Respondents jointly and severally liable to pay $33,977.31 / Contractual fee due was $25,000 plus GST / Applicant completed work with reasonable care and skill and no misrepresentation or repudiation occurred / No issue with designs Applicant prepared beyond differing from client’s expectations but Respondents did not allow Applicant opportunity to revise design / Interest awarded of $39,77.31 / Limited legal costs awarded due to Tribunal jurisdiction cap / Respondents ordered to pay $33,977.31 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Fair Trading Act 1986 (FTA) / Applicant booked flights with Respondent but accidentally booked opposite direction of intended travel / Applicant asked Respondent for refund or flight change / Respondent said fare type did not allow refund or free changes but Applicant could pay $1604 to change flights / Part of amount charged included $320 contact handling centre fee / Applicant claimed refund of $1064 additional flight change fees /  Held: Applicant made mistake but should have taken reasonable care to book flights in right direction / No remedy under CGA when consumer mistakenly purchases good or service / Not unfair under s 26A FTA for airline to impose charges for flexibility of fare types or flight changes / Respondent accepted they should not have imposed contact centre handling fee / Respondent to refund $320 contact centre handling fee to Applicant / Claim accepted in part.

Contract law / Contract and Commercial Law Act 2017 (CCLA) / Applicants purchased racehorse from Respondent for $22,500, intending to use the horse for equestrian events / Shortly after purchase, horse exhibited behavioural issues / Veterinary investigations shows horse had congenital condition known as Kissing Spine / Applicants claimed refund of $22,500 plus $4,890.13 in associated costs / Held: Respondent made an innocent misrepresentation by stating the horse was suitable for eventing, which induced Applicants into contract / Horse not suitable for eventing / Although respondent unaware of the congenital condition, the misrepresentation entitled the Applicants to compensation / Under CCLA the Applicants could not cancel the contract but were entitled to compensation for their losses / Respondent ordered to pay Applicants $27,390 / Claim allowed.

Contract / Applicants contracted Respondent to photograph their wedding / Contract provided for album, online gallery, video highlight, physical prints / Applicants received online gallery containing duplicate photos from only part of wedding / Applicants did not receive video or other physical items in contract / Applicants claimed $3800 as refund / Held: Respondent breached contract by failing to provide agreed albums, prints, video highlight and other items outlined in contract / Respondent also breached term relating to online gallery as photos did not accurately represent entirety of day / Applicants entitled to be put back into position they would have been in if contract was performed / Respondent to provide Applicants all unedited photos and video footage and pay $1500 refund / Claim allowed.  

Contract law / Property / Respondent signed commission agreement appointing Applicant as sole agent to sell business / Applicant introduced Respondent to potential buyer who decided to not proceed with sale / Respondent cancelled listing of business months later / Respondent’s business sold four years later to company formed by the earlier potential buyer / Applicant claimed $30,000 commission from Respondent / Held: Respondent not liable to pay commission to Applicant as Applicant’s introduction was not effective cause of Respondent’s business sale / Purchaser not introduced by agent during agreement period and sale occurred over three years after agreement ended / Contact between agent and buyer after introduction was general and not causative of sale / Sale initiated independently by conversation between Applicant and employee of buyer’s company / Claim dismissed.  

Consumer law / Acceptable quality / Consumer Guarantees Act 1986 / Applicant purchased  mattress online for $549 plus $109 delivery / Applicant claimed $658 refund as mattress sagged on both sides after 3 months causing back pain and provided photos showing sagging / Respondent argued sagging due to expected foam compression, and said there was no defect as mattress low-priced, firmness subjective / Held: mattress not proven defective or below acceptable quality / Applicant’s photos unconvincing and price paid relevant to expectation of good’s performance / Applicant did not disclose mattress’ specific purpose or back condition to Respondent / Claim dismissed.

Contract / Respondent was franchisee of Applicant’s business system / Second Respondent was Applicant’s guarantor / Applicant’s earnings has not met expectations / Respondent terminated contract with Applicant for abandonment, non-payment of franchise fees and disparagement / Applicant claims to be refunded for the franchise fees paid / Respondent counter claims for unpaid invoices / Held: Tribunal has jurisdiction to hear matters regarding misrepresentation / Respondent’s did not misrepresent Applicant with business model / Applicant breached contract by failing to pay invoices  / Respondent’s counterclaim is allowed / Applicant to pay Respondent $30,000.

Consumer law / Fair Trading Act 1986 (FTA) / Applicants purchased caravan after no issues identified in warrant of fitness (WOF) inspection by Respondent's company / Caravan renovations revealed rust affecting structural integrity / Applicants alleged Respondent breached FTA and claimed $19,764 for work done to restore caravan to roadworthy condition / Held: Respondent did not breach FTA nor was Respondent negligent in carrying out WOF / Applicants unable to prove corrosion or damage visible on day of WOF such that WOF standard would be breached / Insufficient evidence that WOF could not have been lawfully issued by Respondent / No basis for compensation / Claim dismissed.

Contract law / Applicants sold property to Respondents / Parties agreed to licence for Applicants to occupy for one day post-settlement and $3000 performance bond to be held / Respondents held bond beyond return date because Applicants failed to provide keys, working heater and tidy garden / Respondents also said Applicants had trespassed on property / Applicants claimed $3000 as return of bond / Respondents counterclaimed $12062.62 / Held: Applicants breached contract by failing to provide a working bathroom heater at settlement / Respondents entitled to $1119.64 for heater installation / Respondents could not prove trespass occurred / No breach regarding garden or vacant possession / Respondents not entitled to compensation for time off work or travel for Tribunal hearing / Respondents ordered to pay Applicants $1880.64 / Applicants ordered to pay Respondents $1119.64 / Claims accepted in part / Counterclaim accepted in part.

Consumer law / Consumer Guarantees Act 1993 / Respondent engaged Applicant to manufacture and install kitchen benchtops / Applicant carried out installation and issued invoice for unpaid balance / Respondent disputed invoice on grounds that she was not satisfied with installation / Applicant claimed payment for unpaid invoice / Held: minor issues identified by Applicant were remediable / Applicant had the right to remedy failure by carrying out repaired work / Applicant not given opportunity to remedy minor issues identified / Applicant failed to exercise reasonable care and skill in communicating with Respondent about the cooktop, fill and waterfall / Final product did not have the look that Respondent wanted to achieve / Respondent entitled to 25% compensation of total price / Respondent ordered to pay remaining invoice less compensation / Respondent ordered to pay Applicant $7,242.84 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Disputes Tribunal Act 1988 / Interest on Money Claims Act 2016 (IMCA) / Applicants purchased engineered oak floorboards from Respondents for $30879.56 / Applicants collected and stored floorboards for one year then had them varnished by a third party and installed by Respondent / Floorboards showed rippling and varnish issues / Applicants claimed $30,000 for replacement / Respondent counterclaimed $10,021.73 for unpaid invoice and interest / Applicants said floorboards not of acceptable quality and varnish not applied with reasonable care / Held: Floorboards were of acceptable quality but varnish had minor issues / ‘Telegraphing’ caused by moisture ingress likely occurred during storage by Applicants not prior to purchase / Storage container conditions and timing of damage supported finding water ingress occurred during Applicant’s storage / Varnish sheen was incorrect but insufficient evidence of inadequate thickness / Respondent offered t…

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased computer components from Respondent / Applicant discovered a small amount of damage on the motherboard but proceeded to install it only to discover that it could not contact the processor chip / Applicant then contacted Respondent who declined to replace the motherboard as it had been installed and so it could not rule out that the damage had been caused by installation, rather than being present on delivery / Applicant claimed $299.00, being the price he paid for the motherboard / Held: was more likely than not that the Applicant received the motherboard in a damaged state / Failure was of substantial character / Applicant entitled to receive a full refund of the purchase price of $299.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Applicant purchased ute from Respondent on basis it had new tyres, differential and WOF / Ute needed replacement clutch and rear differential and a turbo repair within months of purchase / Applicant claimed $15647 for repair costs / Held: Ute not of acceptable quality under CGA as reasonable consumer would not expect faults to key vehicle components to occur so shortly after purchase / CGA applies as ute was commonly used for personal use and parties had not contracted out of CGA in writing / Faults in culmination created failure of substantial character / Vehicle would have reduction in value below price paid but for repairs Applicant organised / Repair costs are fair and reasonable reflection of reduced value / Applicant entitled under s 18(3)(b) CGA to compensation of reduction in value / Respondent to pay Applicant $9385.17 / Claim accepted.