Disputes Tribunal of New Zealand

Transport law / Negligence / Applicant attempted a right hand turn across a busy road into a shop / As applicant turned, Respondent appeared on a bicycle from a narrow gap between parked cars in a bus lane and stationary traffic / Respondent collided with applicant and another car, sustaining a fractured wrist and concussion / Applicant sought a determination of liability / Respondent and insurer counterclaimed $4,392 for damage to Respondent’s belongings / Held: Respondent made an unsafe passing movement and caused the collision / Applicant did not contribute to the accident and could not have reasonably anticipated Respondent’s approach / Counterclaim dismissed.

Contract / Consumer Guarantees Act 1993 / Building Act 2004 / Fair Trading Act 1986 / Applicant entered into a contract with First Respondent to construct garage-sleepout / Contract not completed and eventually cancelled / In a previous claim, Applicant was ordered by Tribunal to pay Respondent for amount owing under contract / Applicant claimed $30,000 damages / Held: any claim against Respondent under consumer legislation relating to contract for construction of garage-sleepout had been previously considered by Tribunal / Previous claim was dismissed and the District Court appeal had also been dismissed / Tribunal does not have jurisdiction to hear claims under the Crimes Act 1961 / No evidence that Second Respondent had any dealings with Applicant in his personal capacity / Claim against Third Respondent was withdrawn / Claim dismissed.

Contract / Applicant and Respondent were friends / Parties agreed that the Applicant would train Respondent for a body building competition / Applicant said Respondent agreed to be sponsored athlete and receive discounted rates in exchange for promoting Applicant as her trainer and allowing use of her photos / Respondent accepted she was sponsored athlete receiving reduced rate, but felt she had not been adequately informed about her obligations / Applicant invoiced Respondent of $735.00, of which $635.00 was paid / Applicant claimed $1,025.00, and associated Tribunal fees, as non-discounted rate for her services because she had no promotional benefit from arrangement / Held: contract existed between parties / Parties intended to create a legal relationship rather than simply an arrangement between friends / Respondent breached contract by not allowing her photos to be used for promotional purposes / Applicant did not receive benefit of promotional photos exchanged for discounted rates…

Tort law / Negligence / First respondent collided with applicant’s garage door / Door was repaired at total cost of $1,840, with $500 paid by the applicants as insurance excess and the remainder covered by their insurer / The applicant filed a claim to recover the excess and the insurer joined the claim to recover its own loss of $1,008 / First respondent admitted liability but questioned repair costs / Held: First respondent liable for damage caused by collision / Repair costs deemed reasonable, depreciation factored in by insurer / First respondent ordered to pay insurers $1,508.80, claim allowed in part.

Contract / Negligence / Fencing  / Fencing Act 1978 / Applicant and Respondents were neighbours who engaged a tree contractor to fell trees using Applicant’s driveway as accessway / Contractor damaged boundary fence and left debris / Applicant claimed Respondents agreed to reinstate 60 m of fencing and were liable for contractor’s negligence / Applicant claimed $25,731.25 for debris clearance and 120 m of fencing / Held: Respondents liable for breach of agreement to reinstate 60 m of fencing but not liable for contractor’s negligence nor strict liability in nuisance or under Fencing Act / Referee found enforceable agreements for 10 m and further 50 m of fencing / Respondents failed to reinstate fences as agreed / No evidence Respondents controlled contractor or breached primary duty or that work was inherently dangerous and policy considerations weighed against imposing liability on Respondents for contractor’s negligence / Respondents ordered to pay Applicant $4,600 for breached agree…

Contract / Building Act 2004 (BA) / Applicant purchased newbuild from Respondent / Dispute over remedial work arose / Fault with kitchen tap caused water damage to flooring / Respondent delayed in repairing leaking shower hose / Applicant had items stolen allegedly due to improper security design and lighting / Applicant claims $23,992 for kitchen repairs, anxiety and stress, keys, replacement shower house, value of stolen items, plus work order to further secure property / Respondent counterclaimed $3815.56 / Held: Respondent breached contract by failing to remedy leaking kitchen tap in reasonable time and failing to provide Applicant with keys and Applicant breached contract by failing to pay balance of purchase price on settlement date / 16 day delay in arranging plumber for kitchen issues was unreasonable and Respondent liable for damaged flooring as consequential loss of leaking tap / Respondent not liable for shower hose as Respondent attempted to remedy issue / Compensation for …

Contract law / Misrepresentation / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased vehicle from First Respondent acting for Second Respondent / Vehicle later found to have external oil leak / Applicants alleged misrepresentation and sought $2400 damages (reduced at hearing from $48000 refund) / Held: No misrepresentation under s 35 CCLA by Respondents / Respondents had not misrepresented condition of the vehicle as mechanic’s evidence showed vehicle was driveable, the leak was external and common for vehicle type / Applicant’s had been told vehicle needed a lot of oil especially on long trips / Consumer Guarantees Act 1993 protections did not apply as this was a private sale / Referee found contract fair and reasonable under s90 CCLA despite Applicant being minor at time / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant engaged Respondent to apply paint protection film to his freshly painted vehicle / Applicant had concerns with quality of paintwork and asked Respondent to remove wrap and repaint vehicle / Applicant claimed $8,705.20 refund / Held: Respondent completed work with reasonable care and skill, and provided a service which was fit for the particular purpose / Respondent's terms and conditions does not exclude liability / it is not possible to contract out of the CGA / Imperfections in Respondent's job were similar to vehicles that had been painted to a high standard / Respondent failed to notify Applicant on the issue regarding front bumper and therefore it cannot be remedied / Respondent ordered to pay Applicant $1,103 / Claim allowed in part.

Contract / Fair Trading Act 1986 (“FTA’) / Applicant entered into sales and purchase agreement / Both parties agree that vendor’s guarantee was added to contract / Parties disagree on the guarantee means / Applicant claims right to costs if roof not in good working order / Respondent claims  Applicant bought ‘as is where is’ property’ /  Respondent claims Applicant was aware of existing roof defects and that it cost $19,000 to repair / Applicant claims $27,000 for roof repairs / Held: Breach in vendor guarantee / Vendor would be liable to pay damages in claim, however, Applicant has not named vendor in this claim / Applicant entitled to damages personally from Respondent / Respondent to pay Applicant original contract price of $20,000.

Contract / Contract and Commercial Law Act 2017 (CLA) / Applicants bought house from Respondents / Applicants became aware of water issues post purchase / Applicants state that Respondents misrepresented condition of property / Applicants claim $30,000 for misrepresentation / Held: Respondents did not misrepresent the condition of property / Documents provided by real estate agent identified issues with property / Applicants needed to make own enquiries about property / Relief not entitled to Applicants / Claim dismissed. 

Consumer law / Fair Trading Act 1986 / Applicant engaged Respondent’s company to carry out building work / Applicant paid invoiced deposit of $15,187.50, and other payments, including $38,904.00 instalment / Building work stalled and was never completed / Respondent’s company went into liquidation / Applicant claimed $30,000.00 from Respondent / Held: Applicant gave evidence that Respondent said he was licensed builder and built several houses / However, it seemed Respondent was not a licensed building practitioner / On consent application, Respondent used building practitioner number of overseas builder / Evidence indicated Respondent misrepresented his licensed builder status / Applicant gave evidence he would not have engaged the company without assurance the Respondent was a licensed builder / Accepted Applicant suffered more than $30,000.00 loss because of misrepresentation / Appropriate remedy was for Respondent to reimburse Applicant for that loss / Respondent ordered to pay $30…

Contract / Consumer Guarantees Act 1993 / Respondent completed fibre installation work at Applicant's house / Applicant claimed conduit blocked a channel near his house and caused water to flow into storeroom and damage cabinetry / Applicant claimed $4,999 / Held: Respondent breached contract and did not carry out services with reasonable care and skill by failing to follow customer's reasonable instructions / Cabling was not properly buried / Insufficient evidence to conclude water ingress was caused by conduit being installed in the channel / Respondent ordered to remedy fibre installation at its own cost / Claim dismissed.