Disputes Tribunal of New Zealand

Contract / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Applicant was informed vehicle was blowing blue smoke on next day / Post-purchase inspection suggested car had mechanical problems / Applicant alleged Respondent must have known of vehicle problems and did not disclose them / Applicant claimed $3350.00 purchase price and sought to return vehicle / Held: a misrepresentation requires the Respondent to have made incorrect statement about vehicle’s condition which induced the Applicant to purchase it / Neither party had a copy of the original advertisement / Silence in private sales, or not disclosing, not a misrepresentation / Respondent told Applicant he had no mechanical knowledge / No evidence the Respondent made statements amounting to misrepresentation / Applicant purchased after viewing vehicle and taking it for a test drive, without a formal pre-purchase assessment of the vehicle / No misrepresentation that induced Applicant to purchase …

Negligence / Respondent was performing construction work on a neighbouring property to the Applicant’s property / Applicant claimed that the Respondent dropped nails onto his driveway and that it was a nail from the site that became embedded into his vehicle causing a flat tyre / Applicant claimed $1033.85 for a replacement tyre / Respondent claimed the Applicant failed to prove the nail was from their construction site / Held: more likely than not that the flat tyre was caused by the nail from the neighbouring construction site / Failure to take preventive action was negligent / Negligence causing the flat tyre was not too remote / Same time of nail used on the site was discovered in the flat tyre / Respondent did not dispute the cost to repair the tyre / Respondent ordered to pay $1033.85 to the Applicant / Claim allowed.

Contract / Sale of goods / Contract and Commercial Law Act 2017 / Applicant purchased cabin for $25,000 and paid $12,500 deposit / Applicant cancelled after council refused consent / Applicant claimed refund of deposit and costs / Respondent counterclaims $18,000 for outstanding purchase price under contract and associated costs / Held: Binding contract existed and terms were $25,000 for cabin, with $12,500 deposit and payment of balance on delivery plus interest 10% pa / Contract formed when deposit paid as invoice evidenced terms / No requirement for written contract for sale of chattels / Cancellation not accepted and frustration did not apply as performance of contract by Applicant remained possible / Breach occurred when Applicant failed to complete purchase / Respondent entitled to balance of price interest and reasonable transport costs / Other claimed losses such as lost rent, disconnection costs and defamation are outside jurisdiction or not foreseeable / Respondent awarded $1…

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased flatpack cabin from Respondent / Applicant complained about significant water ingress into the cabin / Applicant claimed for full refund plus $1,000 compensation for stress caused and costs for making claim / Held: cabin leaked significantly and did not meet the guarantee of acceptable quality / Applicant informed Respondent and this placed duty on Respondent to repair or replace the cabin, or refund purchase price / No evidence established that Respondent attempted to contact Applicant / Applicant entitled to cancel contract and receive refund / No compensation awarded for claims of stress and cost reimbursement / Respondent ordered to pay Applicant $8,199 / Respondent ordered to retrieve cabin from Applicant's property / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged by Respondent to perform geotechnical testing for tiny home extension / Drilling technique used by Applicant caused unexpected aquifer breach and water seepage on Applicant’s property and neighbouring orchard / Applicant took urgent remedial action at Respondent’s request including engaging earthworks contractor / Respondent agreed to pay invoice upon completion of reinstatement works including pipe removal site resowing and hedge replacement / Applicant completed all requested works but Respondent refused to pay / Held: Respondent acted with reasonable skill and care in drilling and remediation / Aquifer breach was unforeseeable and drilling depth was within industry standards / Respondent breached agreement to pay upon completion / Respondent ordered to pay Applicant $29,759.27 / Claim allowed.

Negligence / Respondent failed to stop at stop sign and collided with Applicant’s vehicle and trailer / Applicant claimed compensation for trailer damage and associated losses / Applicant believed trailer should have been valued at $18975 by Respondent’s insurer / Held: Respondent liable for reasonably foreseeable loss / Referee accepted Applicant had made improvements to trailer but rejected claim for cost of new trailer as it would place Applicant in better position than before accident / Valuer assessed trailer at $5,000 based on photos but acknowledged upgrades could add $2,000–$3,000 / Referee determined fair value at $8,000 inclusive of GST / Appellant already received $5000 leaving $3,000 outstanding / Referee added $460 as Respondent’s insurer agreed they would pay for wood pellets, trailer hire and storage / Respondent ordered to pay Applicant $3,460.00 / Claim allowed in part.

Tort / Negligence / Applicant's vehicle collided with Respondent's vehicle which was part way through a righthand turn / Respondent denies liability on the basis that Applicant was driving too fast / Applicant's vehicle was written off / Applicant claimed $4,757.13 / Held: Respondent failed to take reasonable care because he turned right across Applicant's lane without giving way / Respondent failed to see Applicant / Applicant exceeded speed limit at time of collision / Respondent's liability is at 90% / Applicant's insurer not estopped from pursuing claim against Respondent / Claimed costs are reasonable / Respondent ordered to pay Applicant's insurer $4,281.42 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant paid $22,722 for Respondent's dental services / Applicant disputed amount charged for second crown / Applicant unhappy with yellowing of veneers which she said look like smokers teeth / Applicant claimed $27,965 for costs to replace all veneers, difference for price paid for second crown, application fee and emotional stress / Held: Applicant failed to establish Respondent did not exercise reasonable care and skill or that final outcome produced was not reasonably fit for purpose / Applicant well informed of options and expected results / Faint colouration in Applicant's teeth not within construct of ceramic veneers but resulting from natural tooth colour underneath veneer / No breach of contract or statutory guarantees / Respondent failed to give agreed discount for both crowns / Applicant not entitled to claim costs relating to veneers, application fee and emotional stress / Respondent ordered to pay Applicant $200 / Claim dismissed…

Contract / Insurance / Applicants made an insurance claim to Respondent for damage resulting from cyclone / Respondent approved $18,846.21 / Applicant claimed $29,999 to repair 6m of the 20m retaining wall / Held: parties are only bound to comply with terms of agreement under contract law / Respondent only required to pay sum required to repair retaining wall to the condition it was in immediately before the loss / Claim dismissed.

Contract law / Applicants and Respondent entered a flat lease agreement / Respondent left flat after advising work circumstances had changed and stopped paying rent / Applicants remained jointly and severally liable under lease for full rent so had to cover Respondent’s rent share / New tenant not secured until three months after Respondent moved out / Applicants claimed $3667.42 as amount of rent they had covered for Respondent / Respondent accepted liability for rent but argued obligation to pay ceased when barred from returning to flat by Applicants / Held: Respondent breached agreement and remained liable until replacement tenant found / Respondent gave assurances he would rent arrears but made no payments after moving out / Applicants had valid reasons to refuse Respondent’s return including safety concerns / Replacement tenant found through Applicants’ efforts / Amount of rent arrears confirmed by property manager and accepted by Respondent / Respondent ordered to pay Applicants …

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.