Disputes Tribunal of New Zealand

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.

Consumer law / Applicant engaged Respondent to lay new underlay and carpet in two bedrooms and lounge area of her property / Applicant separately purchased the underlay and carpet from a wholesaler / Respondent was largely left alone at the property while he undertook this work / Afterwards, Applicant noted the Respondent installed new underlay in one of the bedrooms, but in the bedroom which had suffered water damage he left original underlay and placed the new carpet over it /  Applicant made several attempts to contact Respondent to remedy his work / Ultimately, Applicant paid for new carpet layer to correctly lay the carpet, $812.01 / Held: evidence indicated Respondent failed to carry out carpet laying work he was engaged for with reasonable care and skill / Respondent also failed to remedy his work when offered the opportunity / Applicant entitled to cost of having the carpet correctly laid / Respondent ordered to pay $812.01 / Claim allowed.

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.