Disputes Tribunal of New Zealand

Negligence / Respondent drove vehicle into garage of Applicant’s rental property / Damage to garage was extensive and took 18 weeks to repair / Applicant reduced weekly rent by $50 during repair period / Insurers for both parties covered repair costs but not rent-reduction loss / Applicant claimed $900 / Held: Respondent not liable for rent-related loss / While Respondent caused the damage, consequential loss of rent reduction was too remote / Not reasonably foreseeable that driving into garage would lead to rent reduction / Main dwelling was not been affected / Rent reduction was voluntary decision by Applicant / Claim dismissed.

Insurance / Contract / Applicant purchased travel insurance policy from Respondent / While abroad Applicant got sick and was diagnosed with medical condition / Applicant was advised to undergo surgery / Applicant sought pre-approval from Respondent who declined it as not an emergency and could wait until Applicant returned to New Zealand / Applicant proceeded with surgery at own expense / Applicant claimed $14,493.85 / Held: surgery was medically necessary and fell within policy’s coverage for “reasonable overseas emergency medical treatment” / No requirement in policy that only lifesaving surgery will be approved / Applicant’s symptoms were painful and prolonged so not reasonable for Applicant to suffer through long flight to receive care / Respondent did not appear to have all information when initially assessing necessity but subsequent reports should have alerted them that surgery was the only treatment available / Respondent ordered to pay Applicant $14,493.85 / Claim allowed.  

Building contracts / Applicant engaged by Respondent to provide bricklaying services / Parties entered into a fixed-price labour-only contract that also provided travel costs / Applicant’s quotation included weekly travel costs of $3,108 + GST which included ferry crossings, away-from-home allowances and worker travel time / Respondent removed away-from-home allowance and the job commenced / Applicant claimed $6974.68 in travel costs / Respondent claimed it only owed $478.78 in ferry costs and counterclaimed $30,000 for defective work / Held: onus on Respondent to clarify how her changes would affect total chargeable travel costs / Not a reasonable assumption that deducting worker’s allowance would leave only ferry fare costs / Applicant entitled to charge for worker travel time but not at full charge-out rates / Respondent did not prove that it had instructed Applicant to provide the ‘washed premium white’ finish / Evidence showed inconsistent recollections, no written instruction, an…

Building contracts / Negligence / Applicants’ properties neighboured property which was being developed by Respondents / Before construction, Applicants met with Respondents and believed agreement was reached where Respondents would remove and replace existing block retaining wall / New retaining wall built inside Respondents’ property / Applicants claimed $30,000 in replacement cost of block wall, damages in wall caused by Respondents’ activities / Held: insufficient evidence that binding agreement was reached regarding replacement of wall / Expert evidence did not establish Respondents’ construction caused or worsened cracks in wall / Wall was already old and had pre-existing cracks / Respondent acknowledged liability for concrete spillage / Respondents to pay Applicants $667 for clean-up / Claim allowed in part.

Negligence / Head-on collision occurred between Applicant’s car and Respondent’s tractor as they turned a blind corner / Applicant claimed collision was inevitable as Respondent had not taken all necessary steps to ensure safety of other road users while driving his tractor / Applicant said Respondent had negligently positioned tractor forks / Applicant's vehicle was damaged beyond repair in the collision, determined to have pre-accident value of $1,500 / Held: collision caused because neither party was traveling at a speed that allowed them to stop in half the roadway that was visible to them / Not accepted that Respondent had a higher duty of care to avoid an accident when driving a tractor / Applicant and Respondent both contributed equally to the collision / Respondent ordered to pay Applicant $750, half the damage costs / Claim allowed in part. 

Contract / Applicant booked accommodation through a booking website with Respondent/ Applicant paid $200 deposit and balance of $550 / Respondent had failed to record booking and accommodation was no longer available / Respondent called Applicant offering a refund or alternative comparable accommodation, which the Applicant accepted / After accepting offer, Applicant called Respondent claiming alternate accommodation did not meet their needs and they had booked elsewhere / Alternative accommodation was non-refundable and remained available for the Applicant’s use for the duration of original stay / Applicant sought refund of $750  / Respondent counter-claimed for $826.78 for alternative accommodation / Held: Respondent repudiated original contract but upon accepting offer of alternative accommodation / Applicant affirmed contract on varied terms / Applicant could not cancel contract as Respondent had not breached varied terms /  Applicant and Respondent bound by the terms of varied con…

Contract / Relationship Property / Applicant and Respondent entered s 21 Separation and Relationship Property Agreement / Applicant claimed $7,149.82 for council rates for two properties that passed into her sole ownership under the Agreement / Held: part of rates claim was for period during Applicant’s ownership / Properties were relationship property, therefore Applicant would have been responsible for half of arrears amount in any event / On analysis of rates invoices, only $1,557.00 was potentially owing based on Applicant’s claim / S 21 Agreement was clear and unequivocal in its intent that there was to be no apportionment of council rates / Claim dismissed

Tort / Negligence / Applicant went to collect his dog from Respondent / While parked, Applicant claimed Respondent’s sheep damaged car / Respondent denied responsibility / Applicant, through insurer, claimed $931.60 in repair costs / Held: Respondent liable for damage / Risk of sheep causing damage foreseeable / Respondent had owned sheep previously that caused damage to another client’s car / Applicant did not contribute to the damage / Applicant parked in Respondent’s dedicated carpark / There was no signage to warn clients of potential risks / Eye witness and car video supported probability that the sheep caused the damage / Respondent to pay Applicant $931.60 / Claim allowed.

Tort / Trespass / Applicant lived in unit title development / His car was towed from private road by Respondent / Applicant paid $419.50 for its release / Applicant claimed tow unauthorised and sought $1,999 in refund and general damages / Held: Respondent committed tort of trespass to goods / Respondent wrongfully interfered with Applicant’s car and had no affirmative defence / Unclear whether tow had been properly authorised as Body Corporate denied responsibility /  Unclear whether car could be towed for parking on the side of private road / No signage to say parking was not permitted / Applicant did not cause obstruction / Towing fee recoverable but other damages not proven / Respondent to pay Applicant $419.50 / Claim allowed.

Misrepresentation / Fair Trading Act 1988 ‘FTA’ / Applicants engaged Respondent for warrant of fitness for vehicle they had purchased / Applicants state that Respondent shouldn’t have issued warrant as vehicle had structural damage and LVV certificate / Applicant’s claim $13, 073.89 in repairs / Held: Respondent did not engage in conduct likely to mislead Applicant as structural faults were hidden / Pre-inspection report made plain that vehicle did not have required LVV certifications / Claim dismissed. 

Consumer law / Insurance / Consumer Guarantees Act 1993 / Fair Trading Act 1986  / Applicant purchased 12-year-old vehicle from Respondent for $11,500 / Purchase price included a two-year mechanical breakdown insurance policy / Two year later, battery failed / Insurer advised Applicant that he was not covered by policy as he failed to comply with requirements / Applicant claimed Respondent misrepresented insurance cover and sought  $4,000 / Held: vehicle was of acceptable quality given its age, mileage and price / Battery failure occurred two years after purchase, beyond the period which guarantees could reasonably be expected to apply / Respondent not liable for insurance policy because insurer had sent Applicant the policy terms shortly after purchase / A reasonable consumer would have read the policy conditions / Any inaccurate description of policy by Respondent did not amount to breach / Claim dismissed.  

Towing / Applicant parked in area where he believed allowed 90 minutes of free parking / Markings and signage were unclear or obscured / Carpark was for gym customers only / Applicant’s vehicle was towed / Applicant claimed refund of $432.08 towing fee / Held: despite unclear markings and signage, wider parking area was clearly and extensively marked as allocated parking for specific businesses / Applicant not a customer of gym so tow justified / Claim dismissed.  

Tort law / Private Nuisance / Applicants and Respondents were neighbours / Respondents trimmed macadamia tree on Applicants’ property without permission / Applicants claimed $5,000 in loss of privacy and compensation / Held: Respondent caused disproportionate damage by trimming tree on Applicant’s property / Respondents can see directly into Applicant’s bedroom, tree has suffered damage and aesthetic of Applicants’ property damaged / Applicant’s claim for tinting bedroom windows was reasonable / Claim for loss of nut production dismissed due to lack of evidence of commercial activity / Arborists costs for tidy-up and two future trims was reasonable / Respondents to pay Applicants $2,282.50 / Claim allowed in part.