Disputes Tribunal of New Zealand

Contract / Tort / Conversion / Parties bought 4 cows and a bull / Parties intended to co-own bull but Respondent primarily looked after it / Parties agreed one cow to be delivered to First Applicant but Respondent did not deliver cow /  Applicant texted Respondent to offer resolving dispute by Respondent paying Applicant $150 / Three years later Respondent paid $150 to Applicant / Second Applicant had cow which Respondent sold to freezing works / Applicant claims $6150 for value of cow Respondent didn't deliver / Second Applicant claims $942.08 for cow Respondent sold to freezing works / Respondent counterclaims against Applicant $5598.10 / Held: Parties had agreed each would own two cows with cow in dispute owned by Applicant / Respondent took steps to prevent Applicant from collecting cow amounting to conversion irrespective of whether cow is still alive / Applicant entitled to $1000 compensation for cow and $1250 for its calves /  Respondent refused Applicant access to bull in breac…

Negligence / 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 allowed.

Consumer Law / Contract / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Respondent agreed to make Applicant a dress for her birthday party for $280.00 / Applicant paid $170.00 toward materials / Dress was not completed / Applicant sought a refund of $170.00 paid / Respondent claimed there was no contract as the dress was offered as a gift  / Held: no evidence the Respondent offered to make the dress as a birthday gift / Therefore, there was a contract between the parties / Respondent breached and cancelled the contract when they failed to finish the dress / Applicant is to collect the fabric from Respondent / Financial award not appropriate  / Claim dismissed .

Contract law / Applicant owned two rental properties managed by Respondent / Respondent purchased business previous property manager / Respondent deducted fees in accordance with its standard contract / Applicant disputed deductions and believed Respondent had underpaid amount owing / Applicant claimed $1423.99 for underpayment / Held: Respondent’s standard contract did not apply as Applicants had never seen or agreed to it / Despite this, Respondents had paid all rent due under original contract between Applicants and original property managers / Respondent entitled to deduct termination and Tenancy Tribunal fees following tenant’s departure / Respondents overcharged Tribunal fee allowed in contract by $100 / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a water distiller from the Respondent / Applicant noticed rust forming inside the wall of the distiller’s stainless steel boiling chamber / Efforts to clean the rust were unsuccessful / Applicant sought a refund of the purchase price and reimbursement of the Tribunal filing fee / Respondent said the rust the Applicant referred to would have been the result of her inappropriate use of an abrasive agent / Held: the extensive rust referred to by the Applicant was not normal and not such as should be reasonably acceptable to a reasonable consumer / No causal link between the use of an abrasive agent and the rust appearing / Device’s failure to meet the relative, and applicable, guarantee was substantial / Respondent was to provide a full refund of the purchase price of $599.00 / Tribunal had no power to award the Tribunal filing fee / Claim allowed in part.

Negligence / Duty of care / Applicant and Respondent involved in car accident / Applicant was reversing, while Respondent was entering the carpark when their vehicles became in contact / Respondent's insurer advised Applicant was liable for repair costs / Applicant claimed declaration of non-liability for $1,250 repair costs / Held: Applicant failed to take proper care while reversing as he did not appear to see Respondent while reversing / Applicant failed duty of care while reversing / While some minor damage may have been caused by Applicant, Tribunal not satisfied on balance of probabilities which damages were attributable to Applicant / Respondent not entitled to counter-claim / Declaration of non-liability can only be awarded on claims founded on contract or quasi-contract / As Respondent was unsuccessful on counter-claim, Applicant did not have to pay the amount / Claim and counterclaim dismissed.

Negligence / Applicant parked her car on the street / When the Applicant came back to her vehicle, there was new damage to her car / Respondent was standing by the Applicant’s car, having just parked in the park next to her / Applicant said he told her he had scraped her car while parking and they exchanged details / Applicant submitted a claim to her insurer afterwards / Applicant and her insurer claimed $2,364.34 from Respondent for repairs to the vehicle /  Respondent denied liability on the basis that it was not him who caused the damage to the Applicant’s car / Respondent said there was no evidence that he had caused the damage, that he had never accepted liability and that Applicant’s insurer was just trying to extract money out of him / Held: more likely than not that the Respondent caused the damage to the Applicant’s car / Reasonable to infer that the Respondent accepted liability at the time / Claimed repairs costs of $2,364.34 were reasonable / Respondent ordered to pay $2,3…

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…

Tort / Damages / Insurance / Applicant and Respondent involved in rear end collision / Respondent does not dispute that she failed to stop in time behind Applicant's vehicle but disputes liability for quantum claimed / Applicant claimed $2,620.75 based on estimate cost of repairing the rear damage only / Held: there was some degree of pre-existing damage at the rear of Applicant's vehicle prior to contact with Respondent's vehicle / Vehicle was not repaired therefore losses converted proportionally to actual losses / Respondent ordered to pay Applicant $731.02 / Claim allowed in part.

Tort / Negligence / Applicant and Respondent's employee involved in vehicle accident / Applicant claimed $10,188.99 for damage to personal property / Held: Applicant should not have entered intersection if he would have to stop in it / Applicant drove in an area he was not permitted to drive in and created a situation where any prudent driver could not reasonably expect a vehicle to emerge from / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant bought vehicle and sought Respondent's help to inspect it pre-purchase / Applicant found out after purchase that the vehicle had head gasket issues / Applicant said a tee-kay test should have been carried out, which would have picked up on the head gasket issue / Applicant claimed $10,896.15 which was the estimated cost to repair vehicle / Held: Tribunal not satisfied that Respondent breached the CGA / Tee-kay test not an essential component of checking an engine / Checks done by Respondent were reasonable / Applicant not entitled to compensation / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased house intending to undertake extensive renovations / Respondent engaged by Applicant to carry out pre-build inspection to establish scope and pricing for renovations / Fire extensively damaged property and contract could not proceed / Applicant claimed $7,142.80 balance of deposit paid / Held: frustrated contract provisions of CCLA apply / All money paid under contract is recoverable and Tribunal may allow Respondent to retain whole or any part of deposit if it considers it just to do so having regard to all circumstances / Respondent ordered to pay Applicant $7,142.80 / Claim allowed.

Property / Fencing Act 1978 / Applicant and Respondent owned adjoining properties / Applicant served Respondent a fencing notice / Applicant claimed $6,814.35 cost of erecting fence along boundary between properties / Held: Respondent's reason of not being able to afford the fencing not a valid objection to it being built / Occupiers of adjoining lands not divided by adequate fence liable to equally contribute to fencing cost / Respondent ordered to pay Applicant $6,814.35 / Claim allowed.