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  1. AAJ and AAK v ZZR [2012] NZDT 2 (28 September 2012) [PDF, 99 KB]

    Fair Trading Act 1986 / Respondent recommended investment plan to Applicants who signed a Management Agreement / Agreement involved Applicants mortgaging their home, borrowing money, receiving money, fees and investment of the balance with an investment company / Applicants gave loan to KL from the investment company who ultimately defaulted on the loan / Applicants claimed that Respondent’s conduct in advising them of investment plan was misleading / Held: investment scheme booklet failed to state the dependence upon re-investment of annual tax refunds / Respondent’s conduct in returning tax refunds to Applicants was misleading / investment plan was not suitable for Applicants / AMP Finance NZ Ltd v Heaven (1997) 8 TCLR 144 / s 11 Fair Trading Act 1986 / claim not statute-barred / s 43(5) Fair Trading Act 1986 / Respondent, as director, should be personally liable / Gloken Holdings Limited v The CDE Company Limited (HC Hamilton CP28/95, 24 June 1997) / claim allowed, Respondent ordere...

  2. ABJ Ltd & ABK v ZYT Ltd [2012] NZDT 66 (21 August 2012) [PDF, 81 KB]

    Contract / lack of consideration / Director of Respondent offered to provide free accounting services to Applicants for two years during sale negotiations of a gym business / offer was confirmed in email after which Applicants arranged to transfer files from previous accountant / dispute arose over retention of an amount of purchase price from sale / Respondent advised Second Applicant that agreement to provide accounting services was cancelled / Applicants claimed two years’ accounting fees / Tribunal finds that there was agreement between parties to provide accounting services free for two years / this was not part of the Sale and Purchase Agreement / this was not legally binding as there was no consideration thus not enforceable / Applicants not contractually entitled to any compensation / offer was in the nature of a gratuitous offer / claim dismissed.

  3. AAC v ZZX [2012] NZDT 33 (17 August 2012) [PDF, 64 KB]

    Tort / Dog Control Act 1996 / Applicant’s dog was being walked without leash and was attacked by the Respondent’s dog / Respondent was charged under s 57(2) of the Dog Control Act, discharged without conviction and ordered to pay reparations of $1,500 / Applicant sought further $2,500 for the cost of further treatment to dog / owner of dog liable in damages for damage done by the dog without it being necessary to prove the dog had a tendency to bite, or that damage due to negligence of owner: s 63, DCA / defence under s 63 if the damage was also caused by the person claiming / Contributory Negligence Act 1947 also applicable / s 11(3) of Disputes Tribunals Act provides that no claim in respect of any damage or injury to any property where an offender has been sentenced under s 32 of the Sentencing Act 2002; however this does not apply in a claim to recover damages in excess of the amount ordered under that Act / held that the reparations under the Sentencing Act 2002 did not discharge ...

  4. AAL and AAM v ZZQ in his capacity as Trustee of BG Trust [2012] NZDT 3 (7 August 2012) [PDF, 49 KB]

    Tort / negligence / Animals Law Reform Act 1989 / Applicants’ vehicle driven by First Applicant collided with a bull owned by BG Trust on a state highway / Applicants claimed for the damage to their car / Held: BG trust’s actions were not negligent as they met the standard expected of a reasonably prudent farmer raising bulls / BG trust had taken a number of steps to minimise the likelihood of damage arising / altercation with mob of bulls was unexpected and unavoidable / BG trust could not have done anything further to prevent the escape / claim dismissed.

  5. AEQ v ZVF & ZVE [2012] NZDT 268 (16 July 2012) [PDF, 48 KB]

    Contract / Second Respondent’s brother on her behalf made successfully bid on motor vehicle on Trade Me using First Respondent’s account / Second Respondent could not afford to pay for purchase / Applicant re-advertised vehicle and sold at a lesser price / Applicant claimed the difference in price / Tribunal finds First Respondent is not liable as the contract is between Applicant and Second Respondent as bid was made on her behalf / Second Respondent in breach of contract as she failed to pay purchase price / Applicant entitled to recover difference in price and expenses incurred as damages / claim allowed, Second Respondent ordered to pay Applicant $700.00.

  6. AAV and AAW v ZZG [2012] NZDT 10 (28 June 2012) [PDF, 62 KB]

    Negligence / Animal Law Reform Act 1989 / Respondent’s cattlebeast escaped on the road / collided with Applicant’s car causing extensive damage / car written off / issues are whether respondent failed to take reasonable care if third party had left gate open and whether storage costs while Applicant’s wreck was being sold are established / held that Respondent failed to take reasonable care to ensure stock did not stray on to road – either by leaving gate open himself or allowing third party to do so / storage period of 52 days not foreseeable and is therefore reduced to 14 days / sum awarded reduced accordingly by $218.50 / Respondent ordered to pay $6,901.26 / Respondent to pay the money to Applicant’s insurer.

  7. AFN v ZUI [2012] NZDT 187 (8 June 2012) [PDF, 95 KB]

    Nuisance / Applicant’s drain was damaged by what she believed was the Respondent’s rhododendron tree, and so she engaged a plumber to repair the drain in 2006 / in 2011, more damage in a different spot emerged / Held: Applicant failed to establish on balance of probabilities that the Respondent’s rhododendron tree created a nuisance and damaged her drains / instead, it could have been caused by tree roots in the nearby Council reserve / however, the Applicant established that the 2011 damage was caused by the Respondent’s rhododendron tree roots, that the Respondent did know or ought to have known about the nuisance in 2011, and that the damage caused by the tree roots was reasonably foreseeable / Respondent liable for only 70 per cent of the cost of repairing drain as the drain was old and required work regardless of the damage / Respondent to pay Applicant $653.79.

  8. AEM v ZVK [2012] NZDT 316 (1 June 2012) [PDF, 80 KB]

    Contract / Consumer Guarantees Act 1993 / guarantee as to acceptable quality / Applicant claimed outstanding invoice from Respondent for sale of goods / Respondent counterclaimed for different goods supplied earlier and alleged these were deficient once installed / Applicant denied these were deficient and claimed he was not responsible for installation deficiencies / Held: disputed goods were supplied as ordered, accepted on delivery and installed by a third party contractor / Applicant complied with his side of contract and was not responsible for installation / Applicant entitled to payment for outstanding invoice / claim allowed, Respondent ordered to pay applicant $7,039.83.

  9. AAE v ZZV [2012] NZDT 32 (18 May 2012) [PDF, 66 KB]

    Tort / Towing of vehicle / Applicant parked at a plaza and had dinner there / parking only for customers / remained parked after the plaza closed / returned to car and it had been towed by the Respondent (a towing company) / no signage at entrance and no sign in front or behind the row of parking spaces in which the Applicant parked / Applicant seeks refund of release fee / law of trespass to goods / clamping a person’s car is an act of trespass to that person’s property unless it can be shown that the owner has consent to, or willingly assumed, the risk of the car being clamped / same logic applies to towing / distress damage feasant only applies where a person or object trespasses on to land and causes damage / held that the Respondent committed a trespass against goods when it towed the Applicant / notices were insufficient for purposes of warning the Applicant he may be towed / Respondent not entitled to rely on distress damage feasant as there was no damage / Respondent ordered to...

  10. ABU v ZYI [2012] NZDT 83 (8 May 2012) [PDF, 82 KB]

    Tort / Trespass to land / Applicant and Respondent neighbours / Applicant claims that the Respondent threw dog faeces on her roof / evidence from Applicant’s builder that he’d found dog faeces on the Applicant’s roof / to succeed in a claim of trespass to land, necessary to show that the trespass arose from the actions of a specific person, not just the property / although the faeces most likely did originate from the Respondent’s property, Applicant failed to establish on the balance of probabilities that it was the Respondent, specifically, who threw the dog faeces onto the roof / claim dismissed

  11. AEL Ltd v ZVL [2012] NZDT 310 (17 April 2012) [PDF, 43 KB]

    Contract / Applicant claims $506.93 in respect of plumbing services rendered by Respondent and additional administrative costs / Respondent claims its insurer should make the relevant payment / Respondent did not deny existence of contract or that services were rendered / issue of whether the Respondent’s insurer should pay is an issue between the Respondent and its insurer / Applicant is entitled to payment of services but not additional charges as lack of evidence that Respondent accepted the additional charges / Tribunal filing fee only recoverable in exceptional circumstances which do not apply / Respondent to pay Applicant $312.57.

  12. AEF Ltd v ZVQ [2012] NZDT 325 (16 April 2012) [PDF, 49 KB]

    Contract / Money owing on a debt / Respondent given notice in writing and via email / question of the Respondent’s liability for collection costs and interest after notice / Terms of Hire were clear as to interest on debts / terms did not specify whether the interest accrued on existing overdue amounts / interest not charged prior to notice as this would have been to apply interest retrospectively / a retrospective application of the clause would amount to a harsh exercise of its enforcement powers for the purpose of s 19(e) of the Disputes Tribunals Act / Respondent to pay debt collection fees and a reduced amount of interest from that claimed.

  13. AGF Ltd v ZVQ Council [2012] NZDT 453 (20 March 2012) [PDF, 76 KB]

    Jurisdiction / Disputes Tribunal Act 1988 / Resource Management Act 1991 / Applicant claimed costs against the respondent for the moving of a water supply valve to comply with a resource consent condition / Applicant claims Tribunal has jurisdiction to hear the claim under the Fair Trading Act 1986 / Held: the parties’ relationship was created by the Respondent’s statutory authority under the Resource Management Act / Applicant’s claim is outside Tribunal’s jurisdiction / claim is to be struck out.

  14. ABB Ltd v ZZC [2012] NZDT 31 (24 January 2012) [PDF, 57 KB]

    Jurisdiction / quasi-contract / copyright infringement / Respondent re-published certain photographs on its website taken from Applicant’s website without Applicant’s permission / therefore, Applicant argues that Respondent obtained undue advantage and thereby Applicant entitled to be compensated in quasi-contract / Tribunal finds copyright falls within definition of ‘intellectual property’ under s 11 of the Disputes Tribunals Act 1988 / Tribunal does not have jurisdiction to deal with intellectual property under section 11(5)(c)(iv) / claim struck out for lack of jurisdiction / claim dismissed.

  15. AN v ZM Ltd [2012] NZDT 581 (20 January 2012) [PDF, 16 KB]

    Tort / trespass / distress damage feasant / Applicant parked her car on a site for a small errand elsewhere and found her car clamped by Respondent and was only released after payment of $250 charge / Applicant claimed for refund of the amount charged / Held: wheel clamp was not justified in the circumstances / not been provided with any evidence relating to authority of wheel clamping / even assuming authority existed, signs containing conditions were insufficient and obscured and not reasonably sighted by Applicant / doubt whether charge of $250 reasonable / claim allowed, Respondent ordered to pay Applicant $250.

  16. ADK v ZWP [2011] NZDT 164 (17 November 2011) [PDF, 111 KB]

    Contract / Misleading representation / Fair Trading Act 1986 / Applicant provided “garden quote” by email to Respondent for landscaping and garden work / Applicant then said he forgot to include GST in “garden quote” and increased total cost / work began and included additional work with no discussion as to price of new work / Respondent was told project was on budget but on final day was told it was little over budget / Respondent refused to pay as invoice exceeded agreed amount / Tribunal finds that “garden quote” was an estimate not quote as it lacked specificity / this estimate was GST exclusive as Respondent was put on notice and agreed to continue work / Applicant was entitled to exceed estimates in email but by no greater than 20 per cent / Applicant was entitled to charge no more than reasonable price for the additional work not included in estimate under s 31 Consumer Guarantees Act 1993 / Applicant’s assurance amounted to misleading representation and breached s 13(g) of Fair...

  17. AEU v ZVA and ZUZ [2011] NZDT 311 (20 October 2011) [PDF, 52 KB]

    Contract / breach of contract / agency / Applicant acted as rental property manager in respect of the Respondents’ tenanted property / contract provided Applicant full authority as Respondents’ agent in respect of the property / included taking emergency measures at Respondents’ cost / sewage drain blocked at property / work commissioned by Applicant in consultation with Respondents / Respondents rejected second bill for works and terminated agency contract / Applicant claims $1,188.57 outstanding from second bill / Applicant entitled to be compensated for liabilities incurred on behalf of Respondents / Applicant had full authority to act in response to emergency situation / no evidence Applicant breached contract by failing to exercise due care, skill and competency in providing its services / Applicant consulted with, and received consent from, Respondents about instructing contractors / rent issue / Applicant entitled under agency contract to continue receiving rent from tenants unt...

  18. ABG v ZYW [2011] NZDT 88 (5 September 2011) [PDF, 72 KB]

    Jurisdiction / Disputes Tribunals Act 1988 / Respondent volunteered to give Applicant and a third party her opinion on a rule at their golf club / Applicant was not satisfied with the manner in which Respondent provided opinion / Applicant claimed that the arrangement was contractual and could be heard / Held: there was no contract between the parties / Respondent’s opinion was not provided on the basis of some consideration / it was overly artificial to attempt to create a contract out of a promise / claim does not fall within Tribunal’s jurisdiction / claim struck out.

  19. ABG v ZYW [2011] NZDT 88 (5 September 2011) [PDF, 71 KB]

    Agency / Second Respondent was Applicant’s managing agent which was ordered to pay $1,500.00 as exemplary damages for breach of quiet enjoyment and harassment to tenants in a Tenancy Tribunal order / Second Respondent paid the tenants and deducted this sum from the rent collect for Applicant as landlord / Applicant claimed to recover funds paid by the Second Respondent to tenants / Held: agency contract was between Applicant and Second Respondent / liability only arose because of the fault of Second Respondent for reasons given by Tenancy Tribunal / property management authority contract could not excuse Second Respondent’s liability / indemnity clauses not applicable / agent has an obligation to act lawfully or in compliance with the Residential Tenancies Act / Second Respondent did not act properly, acted unlawfully and breached Act / claim allowed, Second Respondent ordered to pay Applicant $1,500.00.

  20. ADJ v ZWQ [2011] NZDT 167 (16 August 2011) [PDF, 51 KB]

    Contract / Sale of Goods Act 1908 / Applicant purchased chainsaw from Respondent on Trade Me / chainsaw would not start and so returned it for a replacement / Respondent repaired it, further damaging it / Applicant sought to reject chainsaw and obtain refund of purchase price / Applicant bought chainsaw on basis on Respondent’s description on Trade Me and did not have opportunity to inspect it before purchase / chainsaw did not appear to have been damaged in transit / held that chainsaw was not of merchantable quality under s 16(b) Sale of Goods Act 1908 / remedy for breach of a condition is cancellation on contract / Applicant entitled to cancel contract / Respondent ordered to refund the purchase price.

  21. AEC Ltd v ZVS [2011] NZDT 299 (25 July 2011) [PDF, 59 KB]

    Contract / Respondent entered into contract for Applicant to convert New Zealand dollars into Chinese currency / Applicant effected the exchange but Respondent failed to pay / Applicant reversed transaction and suffered loss / Applicant claimed for loss suffered / Held: Applicant was not in breach of previous foreign exchange contract / contract was formed over the telephone at the exchange rate offered and accepted on that day / Applicant was not limited to actual loss but entitled to damages on the basis of rate agreed by Respondent / interest awarded as Respondent kept Applicant out of money for no good reason / claim allowed, Respondent ordered to pay Applicant $1,135.64

  22. ACS v ZXJ [2011] NZDT 142 (12 July 2011) [PDF, 64 KB]

    Contract / certainty of contract / Third Applicant owns property adjoining land which has a forest owned by Respondent / Respondent decided to log its forest and in return for using Third Applicant’s paddock for the harvesting, it would provide digger hours and grant access to hunt to Applicants on Respondent’s block after logging had finished / harvest operation ceased and Respondent advised Second Applicant that access would not be granted / Respondent subsequently finished logging without using Third Applicant’s paddock / Applicants claimed for the value they placed on the hunting rights / Held: lack of finite term of the contract did not prevent it coming into existence, the start date was to be when logging had finished although no end date was discussed / Respondent breached its agreement from refusing access / damages claimed reduced as it was unrealistic to expect hunting access would last indefinitely / claim allowed, Respondent ordered to pay Third Applicant $5,828.00.

  23. ADH v ZWS [2011] NZDT 169 (28 June 2011) [PDF, 95 KB]

    Cancellation of contract / Contractual Remedies Act 1979 / Respondent developed a static website for Applicant’s gardening business / Applicant subsequently requested change and agreed to a dynamic database-driven website / Applicant paid with three cheques but after the first was banked he cancelled the second and third / Applicant claimed refund of the first cheque paid / Held: parties did verbally agree to alter the scope of contract at the new price / if Applicant had not agreed to the more expensive site he would not have written out the cheques / protection under s 31(1) Consumer Guarantees Act 1993 extends only to circumstances where price has not been discussed / parties had agreed on price / website was a database-driven site with reasonable functionality / Applicant’s cancellation of cheques and refusal to proceed amounted to repudiation / Respondent entitled to cancel and claim relief under ss 7(2) and 9(2)(b) Contractual Remedies Act 1979 / but Tribunal unable to award debt...