Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 (FTA) / Applicant held credit card issued by Respondent / Applicant mistakenly paid $3,692.92 to foreign government agency and requested refund / No payment appeared in his account but he was informed that the agency had processed refund / Acquirer reference number was provided to him to assist tracking / Applicant paid $3,692.92 into credit card account to prevent it going into debt / Applicant contacted Respondent multiple times but Respondent incorrectly claimed money had already been paid into account / Applicant claimed $8,000 for financial loss and stress / Held: Respondent breached guarantee of reasonable skill and care by not investigating Applicant’s issue adequately / Respondent breached FTA by not honouring its advertisement to provide timely assistance to customers / Respondent’s failure prevented Applicant from recovering the refund, causing loss / Claim for compensation for stress and time spent did not m…

Contract law / Contract and Commercial Law 1997 / Applicant and Respondent were neighbours who discussed possible exchange of services / Applicant claimed there was verbal agreement for the Applicant to provide architectural services and Respondent to provide tiling work / Applicant undertook measurements and presented proposed drawings / Respondent said he would consider proposal / Applicant later issued invoice for work done which Respondent refused to pay / Applicants claimed $1,748 / Held: no contract existed between Applicant and Respondent / Essential terms were uncertain / No agreed consideration / Respondent had not authorised Applicant to proceed with work / No agreement that payment would be financial rather than via service exchange / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased toilets produced by Second Respondents from First Respondent's store / Toilets often require two flushes which wasted Applicants' tank water / Applicants claimed $2118.90 as refund plus $500 for plumber to replace toilets / Held: toilets were not of acceptable quality / Applicants entitled to refund as Respondents failed to remedy failure in reasonable time / Reasonable consumer would not consider toilets would require multiple flushes to be fit for purpose / No evidence pipes or installation had caused issue / Cost of plumber to install replacements was reasonably foreseeable cost arising from failure / First Respondent rather than Second Respondent liable to make payment to Applicant as supplier / First Respondent ordered to pay Applicants $2118.90 and Applicants to return toilets / Claim allowed.

Employment / Contract / Applicant worked as salesperson for Second Respondent / Salespeople would receive commission on all sales whether they were listing or selling salesperson / Applicant resigned and last day at work was that day / Four sales were unconditional before Applicant's last day and Applicant had not been paid commission on those sales / Applicant claimed $7500 for unpaid commission and legal fees / Held: Applicant entitled to be paid 70% of outstanding commission amounts / Salesperson Agreement silent on entitlement to commission on unconditional sales from prior to salesperson's termination date / Ambiguous contractual terms were interpreted against contract's writer, the Respondent / Applicant not entitled to full outstanding commission on merits and justice of case as did not give three days' notice required of her / Second Respondent ordered to pay $4, 206.42 (minus (Schedular tax) / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant bought mower from Respondent for $499 that was advertised with free shipping / Respondent later said pick up only / Applicant arranged friend to collect mower but friend collected wrong mower / Respondent insisted Applicant must return wrong mower and pay for correct mower to be sent / Applicant claimed refund and costs / Held: Respondent failed to comply with guarantee as to delivery and failure was of substantial character / Applicant did not have correct mower and Respondent would only provide correct mower if Applicant paid to return incorrect mower / Applicant entitled to reject goods and related transport costs / Respondent ordered to pay Applicant $599 and Respondent to retrieve incorrect mower at own expense / Claim allowed.

Consumer law /  Consumer Guarantees Act 1993 / Applicants hired a portable cabin from Respondent / Applicants alleged cabin not of acceptable quality / Cabin was not clean, had faulty heat pump and lacked adequate insulation / Respondent failed to resolve issue or allow early termination without penalty / Applicants claimed $3,053.15 (50% refund of hire charges and bond) and declaration of non-liability for last invoice / Held: cabin not of acceptable quality / Cabin was not clean, heat pump was faulty and insulation was inadequate for purposes advertised / Removal of cabin not done with reasonable skill and care / Respondent to pay Applicants $3,053.15 / Applicants not liable to pay remaining invoice / Claim allowed.

Property / Applicant purchased house from Respondents / After settlement Applicant lit fire and noticed smoke coming out of fireplace / Inspector advised fireplace had large crack and was unsafe to use / Respondent denied liability stating crack could have occurred after settlement / Applicant claimed $6,200 cost of replacing fireplace / Held: fireplace was not in reasonable working condition at settlement / Breach of vendor warranty under the sale and purchase agreement as fireplace likely cracked at time of purchase / Applicant not entitled to full replacement cost as it would have placed her in better position than if fireplace was in working condition / Fireplace was about 16 years old and likely two-thirds through its expected lifespan / Respondent ordered to pay Application $2,000 / Claim allowed in part.  

Civil / Parking infringement / Applicant parked in a reserved parking area with a $95 infringement fee / Respondent is agent of carpark's owner responsible for enforcing parking conditions / Respondent served initial breach notice of the $95 fee / Applicants upon receipt of first notice requested payment plan for initial infringement fee due to financial constraints and paid fee in three installments / Respondent denied payment plan request and continued to issue subsequent notices on Applicant for late payment, administration and debt collection fees  / Applicant seek a declaration of non-liability for additional collection and administration costs charged by Respondent to the sum of $369.48 / Respondent counterclaim for payment of those costs / Held: Applicants not liable to pay the sum of $369.38 to Respondent / Claim allowed.

Contract / Applicant parked in privately run car park without successfully paying for parking session / Applicant told Respondent of being unable to pay via Respondent’s chatbot and left car parked / Respondent sent Applicant $95 breach notice and additional collection costs for failure to pay breach notice in required time / Applicant claimed declaration of non-liability for breach notice and collection costs / Respondent counterclaimed for $460.99 / Held: Applicant failed to comply with terms and conditions of parking and was liable for breach fee / Additional enforcement and collection costs not enforceable as debt already in dispute when additional fees applied / Applicant ordered to pay $95 to Respondent / Collection costs dismissed / Claim allowed in part.

Consumer law / Fair Trading Act 1986 (FTA) / Consumer Guarantees Act 1993 (CGA) / Disputes Tribunal Act 1988 / Applicant purchased lab-grown diamond ring from Respondent valued at $6,669 / Applicant attempted to sell ring but was only offered $400 / Applicant said Respondent should have explained significantly lower resale value of lab-grown diamonds / Applicant claimed $6,699 refund plus $5,301 compensation / Respondent counterclaimed $400 for vexatious claim / Held: Respondent’s conduct not misleading or deceptive as retailers not required to anticipate questions about resale / Ring of acceptable quality and fit for purpose per CGA / Insufficient evidence ring suffered rapid or extreme loss of value as pawnshop offers did not reflect true market value / Respondent’s refund rejection not failure of reasonable care and skill as supplier can disagree with customer’s dispute / Applicant’s claim not frivolous/vexatious given reasoned arguments within jurisdiction / Claim and counterclaim …

Fraud / Applicant invoiced Respondent $35,092.26 for the excavation work / Respondent received email from Applicant advising their bank account details had updated / Respondent paid $26,665.63 into Applicant’s new account / Parties subsequently discovered funds had been paid into a fraudulent account / Money was never recovered / Applicant claimed $30,000 / Held: the fraudulent email came from Applicant’s system / As a responsible business, Applicant obliged to ensure its financial systems are robust and its computers protected from unauthorised access / Applicant must bear loss that resulted / Respondent not negligent in its reliance on genuineness of email despite its casual tone and the inaccurate bank address / Respondent’s lateness in paying invoice did not cause or enable fraud to occur / Respondent to pay remaining balance of $3,334.37 / Claim allowed in part.

Misrepresentation / Fair Trading Act 1986 / Applicant used Respondent’s platform to book a mover / Movers on platform were described as “trustworthy”, “carefully selected” and “thoroughly vetted” / Applicant paid $1,495 deposit / Movers failed to provide service and disappeared with money / Applicant claimed $1,495 / Held: Respondent’s representation that movers were “trustworthy”, “carefully selected” and “thoroughly vetted” were misleading / Actual vetting of movers were minimal and did not support the strong assurances advertised on platform / While Respondent’s terms and conditions emphasised non-responsibility for service provided, it did not negate misleading effect of its promotional statements / Respondent ordered to pay Applicant $1,495 / Claim allowed.  

Tort / Negligence / Applicant and Respondent were driving through two-lane roundabout when their vehicles collided / Applicant’s insurer claimed Respondent was negligent in not stopping to give way at roundabout / Respondent claimed Applicant incorrectly changed lanes and caused the collision / Applicant claimed costs of $4,550.75 for damage to vehicle / Held: Applicant consistently and credibly described their route as entering the roundabout from southern approach and not northern approach as claimed by Respondent / Applicant followed natural lane marking or road, they did not make impermissible lane change / Respondent had duty to give way to traffic already on roundabout when approaching give way sign, and failed to do so / Point of impact indicated Applicant was already on lane before Respondent entered / Respondent was negligent and liable to pay reasonable costs of repair / Respondent to pay Applicant’s insurer $4,550.75 / Claim allowed.