Disputes Tribunal of New Zealand

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.

Contract / Property / Applicant provided quote for home staging services to Respondent via Respondent’s real estate agent / Respondent accepted quote and Applicant sent invoice of $3,133.75 / Invoice later increased by $50 for additional stagings / Respondent subsequently cancelled contract / Applicant claimed cancellation fee and interest / Held: Respondent had binding contract with Applicant / Contract can only be cancelled if there was a material breach that altered benefit of contract / Additional $50 charge not material breach so Respondent not entitled to cancel contract / Contract enabled Applicant to charge cancellation fee and interest / Respondent to pay Applicant $538.58 / Claim allowed.   

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.