Disputes Tribunal of New Zealand

Tort law / Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were involved in car accident / Applicant drove straight through intersection / Respondent turned right from side street with give way sign and collided with Applicant / Respondent claimed intersection was blocked and Applicant was speeding / Applicant claimed $3482.55 for damage caused / Held: Respondent failed to give way and entered intersection without ensuring turn could be completed safely / Tribunal found Respondent’s maneuver unreasonable given vehicle size and traffic conditions / Tribunal rejected Respondent’s claims that Applicant was speeding or should have stopped due to insufficient evidence and conflicting accounts / No proof Applicant’s driving contributed to collision / Respondent and insurer ordered to pay Applicant and insurer $3482.55 / Claim accepted.

Contract / Applicant engaged Respondent, a self-employed mechanic, to replace leaking O-ring in excavator pump / Respondent repaired excavator without removing pump from machine / Subsequently, the pump suffered a catastrophic failure when the excavator was put under load / Applicant claimed failure was due to Respondent’s improper reassembly / Applicant claimed $25,563.84 cost of replacing pumps / Held: Respondent breached contract by failing to exercise reasonable care and skill in performing repair / Applicant’s repair costs were reasonable but $4,000 deducted for betterment, as the new pump extended the excavator’s lifespan / Respondent ordered to pay Applicant $21,563.84 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a vehicle from Respondent for $10,000 / Applicant claimed the vehicle experienced technical issues after he bought it and the car was no longer road worthy / Applicant rejected the car and claimed $18,793.22 for the purchase price, consequential losses, and the filing fee / Held: car was not of acceptable quality due to its faults and above all was no longer drivable /  Applicant entitled to a refund as the goods have a failure of substantial character / Respondent ordered to pay $11,748.44 for cost of the car and consequential losses / Disputes Tribunal unable to award the filing fee / Claim granted in part.  

Negligence / Traffic Law / Applicant and Respondent’s vehicles were involved in a collision / Applicant and his insurer claimed that the Respondent caused the collision by failing to give way / Applicant sought damages of $10,829.57 / Held: Respondent had an obligation to give way to Applicant’s car and failed to do so, thereby causing the collision / Applicant’s driving did not cause the collision / Applicant and insurer proved that the amount claimed was reasonable for repair costs / Respondent must pay Applicant’s insurer $10,829.57 / Claim allowed.

Contract / Building Act 2004 / Applicants contracted for the supply and installation of a gazebo at their new home under construction / Final agreed price was $38,842.40 but the contract was not written in a form compliant with residential building work requirements / Applicants paid a $15,000.00 deposit / Terms of the contract excluded any cost for a PS1 / Respondent stated one was not needed due to the gazebo's size/ However, the gazebo had been incorporated into the design for which the Council had issued consent so a PS1 was required / Respondent then sent invoice for PS1 of $2070.00 which the Applicants reluctantly paid / Gazebo was installed and multiple faults were identified immediately / Applicants had to get the manufacturer to remedy the faults and complete construction, as the Respondent would not do it / Applicants claimed refund of $2070 plus costs incurred to remedy the construction defects and complete the construction of the gazebo / Held: Respondent was not entitled t…

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 …

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.

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.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased vehicle from the Respondent for $15,600.00 / Applicant drove the vehicle for 18 months before the vehicle broke down and a major defect was identified / A mechanic investigated and discovered that three of the four connecting rods in the engine had failed / Applicant paid $1,914.80 to have the vehicle towed and investigated / Applicant provided evidence that the Respondent had previously recalled vehicles of this type for "potential machining errors" / Respondent stated that Applicant's VIN number excluded it from the recall / Applicant claims compensation of $18,049.80 from Respondent / Held: Applicant's vehicle was not of acceptable quality / It is probable that the car had a manufacturing defect of the kind that Respondent had identified as a risk and for which it issued its recall notice / Respondent must pay Applicant $12,500.00 for the car that was rendered unusable and uneconomical to repair by reason of the manuf…

Contract / Contract and Commercial Law Act 2017 / Applicants paid $18,000 deposit to Respondents for house relocation / Applicant asked Respondent before entering contract about timing of relocation / Respondent said end of February or start of March / Applicants cancelled contract on 4 March as house not relocated / Applicants claimed $22,578 for refund of deposit plus related fees / Respondents counterclaimed $30,000 for wasted expenditure / Held: Applicants wrongfully repudiated contract / No misrepresentation or breach by Respondents not relocating house by March / Respondent’s timing of relocation was estimate and not term of contract / Clause requiring forfeiture of deposit if purchaser cancels contract was unenforceable as penalty / Tribunal granted partial relief from forfeiture / Respondents ordered to refund Applicants $5,000 / Claim and counterclaim allowed in part.

Fencing / Fencing Act 1978 / Contract and Commercial Law Act 2017 (CCLA) / Applicants issued notice to Respondent for replacement of a shared fence, Respondent denied receiving notice / Applicants claimed $4,067.66 for fence costs / Held: notice validly served via email under CCLA as parties had previously communicated electronically / Respondent received email and failed to issue cross-notice or objection within 21 days so deemed to have accepted proposal under the FA / Notice met the FA requirements including boundary, scope, cost, and consequences / Respondent ordered to pay Applicants $2,900 as half of fence costs / Claim allowed.  

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 (CCLA) / Applicant signed flatmate agreement with Respondent as head tenant and paid $1790 for bond and rent / Respondent gave notice to vacate tenancy before agreement commenced / Applicant cancelled agreement but Respondent refused to return amounts paid / Applicant claimed $1790 / Held: Respondent’s early termination breached implied essential term and Applicant would not have entered agreement if aware of imminent termination / Breach substantially reduced benefit and increased burden of contract on Applicant / Respondent’s offer to transfer lease no defence as it imposed substantially different obligations on Applicant / Tribunal held Applicant’s cancellation justified under s 36 or s 37 CCLA / Respondent ordered to pay Applicant $1260 as balance of amount not returned to Applicant.

Contract / Consumer Guarantees Act 1993 / Applicant agreed to paint Respondent's house for $6,325 / Respondent changed paint colour selection and Applicant charged $1,547.90 extra / Contract required use of scaffolding and Respondent said parts of roof could not be walked on / Respondent paid $2,300 / Applicant claimed $5,572.90 unpaid balance / Respondent counterclaimed $4,999 for various damages and costs / Held: Applicant's claimed balance is payable under contract, subject to findings in Respondent's counterclaim / No sufficient evidence provided by Respondent to the extent of damage to the outdoor table and roof tiles / No tangible evidence to show any quality issues with Applicant's job / Applicant liable to reduce invoice by $500 for roof damages, $200 for table damages, $400 for touch-up work / Respondent ordered to pay Applicant $4,472.90 / Claim allowed in part / Counterclaim allowed in part.