Disputes Tribunal of New Zealand

Contract / Section 35 of the Contract and Commercial Law Act 2017 / Applicants purchased vehicle from Respondent / Applicants asked if any defects or issues / Respondent replied there were none / Applicants had vehicle serviced and discovered leaking head gasket / Applicants claimed respondent misrepresented condition of vehicle / Applicants claimed $2,500.00 for cost of repair / Held: Respondent misrepresented state of vehicle / Held: Respondent to pay $2,000.00 to Applicant because only one quote provided and risk of betterment / claim upheld

Contract / Contract and Commercial Law Act 2017 / Applicant paid $2000 deposit for car / Respondent sold car to another purchaser / Respondent refused to refund deposit to Applicant / Held: an implied term of the contract that the deposit was refundable / No evidence that deposit was intended as either liquidated damages or as a penalty / Respondent not entitled to cancel contract / Breach of s 33 of the Contract and Commercial Law Act 2017 / Respondent entitled to recover the entire deposit of $2000

Contract / Sale and Purchase / Tipper Trailer / Second Respondent did not make agreed payments / Trailer released on good faith / No payments received / Fourth Respondent asked for invoice to be transferred to his new company / Invoice reissued / Applicant remained registered owner / Trailer written off in an accident / Part of purchase price paid by insurance company / Applicant claims balance of purchase price / Third Respondent found to be liable for balance of purchase price plus interest

Contract / The Building Act 2004 / Consumers Guarantees Act 1993 / Applicant purchased house from Second Respondent / Respondent Director of Second Respondent / House built and warranty issued by Third Respondent / Applicant claims for defective painting and defective sewer pump / What were terms of contract / Whether the CGA applies to the build / Whether sewer pump fit for purpose / Whether reasonable care and skill exercised in painting and was it fit for purpose / Whether failure to transfer warranty on time / Whether Respondent personally liable / Whether defects covered by warranty / Whether Appellant entitled to relief / Held: both the Builder under the Project Management contract and the developer are liable for any breach of implied statutory warranty under the Building Act concerning any failure to exercise reasonable care and skill in providing painting service / Held: sewer pump is a good under the CGA / Must be of acceptable quality and fit for purpose under ss 6 and 8 CGA…

Conversion / Animal Welfare Act 1999 / Damages / Applicant’s cat went missing / Cat was found, passed on to Respondent, and adopted by a new family from Respondent / Respondent approached adoptive family to return cat, they refused / Applicant seeks an order for return of cat / Held: Respondent liable to Applicant for conversion of cat / Section 141 of the AWA does not apply to Respondent as they do not qualify as an approved organisation under the Act / Respondent did not take reasonable steps to find owner / Third party has possession of cat / Applicant did not wish to pursue third person, did not want damages and did not want another cat / Claim dismissed

Consumer Guarantees Act 1993 (CGA) / Guarantee goods of acceptable quality / Applicant purchased boat from Respondent / Applicant experienced issues with boat emailing Respondent describing the problem and claiming a refund under the CGA as he had lost confidence in saftey of boat / Respondent inspected boat and found nothing wrong with factory workmanship, advised manufacturer would supply replacement boat / Applicant claims refund of purchase price of boat plus freight costs and compensation for loss of use of boat / Held: problem with boat more likely than not a manufacturing issue / Held: problem does not render boat unsafe, not a substantial failue that renders boat unfit for purpose / Claim dismissed

Consumer Guarantees Act 1993 / Applicant had Respondent lay concrete for him but was unhappy with result / Respondent undertook repairs including grinding back contract and applying tinted sealer to surface / Applicant is still unhappy with work and claims $19,658.15 from Respondent which is the cost that has been quoted to remove and re-lay the concrete / Held: concrete work not undertaken with reasonable care and skill, not acceptable and fit for purpose under CGA / Held: appropriate remedy is a full refund of the amount paid for the work / Claim allowed / Respondent ordered to pay $7,463.69 to Applicant

Contract / Contract and Commercial Law Act 2007 / Applicant purchased a vehicle from the Respondent for $3,400.00 / Respondent had purchased the vehicle from a friend / A finance company had a security interest registered over the vehicle / Finance company repossessed the vehicle as money was still owing / Respondent claimed he did not know money was owing when he purchased the vehicle / Applicant claiming $4,00.00 from Respondent / Whether the Respondent breached the contract of sale with the Applicant / What remedy was the Applicant entitled to / Held: Implied condition and warranties had been breached / Respondent did not have the right to sell the vehicle to the Applicant whether he knew there was a security interest or not / Applicant did not enjoy quiet possession of the vehicle / Applicant was entitled to damages for the breach of a warranty / Measure of damages was the estimated loss resulting from the breach / Damage was the price the Applicant paid to the Respondent / Applica…

Consumer Guarantees Act / Applicant had pacemaker implanted in China / Experienced health issues during trip to New Zealand / Pacemaker replaced by New Zealand company at no cost / Applicant claimed other medical expenses / Insurance company denied claim for medical cover / Whether Consumer Guarantees Acts applies / Held: Act does not apply as goods supplied outside of NZ / Whether insurance company liable for medical expenses / Held: Insurance company not liable as contract entered into after first medical event / Claim dismissed

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were drivers in a vehicle collision / Collision occurred when Respondent was passing a truck and Applicant exited driveway onto road / Applicant claimed $5,000 from Respondent / Respondent’s insurer counter-claimed $8,317.85 from Applicant / Which party caused the collision / Whether Respondent contributed to the collision / Whether costs claimed reasonable / Held: it is more likely than not that Respondent caused collision / Applicant failed to give way to a vehicle on the roadway when he exited the driveway in breach of legislation / Respondent created situation with risk / Applicant beared greater responsibility and respective liability assessed as 80:20 / Costs accepted and proved reasonable / Applicant liable for 80% of Respondent’s loss / Applicant ordered to pay $4,312.13 to Respondent / Claim and counter-claim allowed

Contract / Applicant worked as associate salesperson to Respondent at real estate agency / Parties had verbal agreement about commission and payments recorded in text / Other remuneration agreement from agency also signed by parties / Applicant claims Respondent did not pay commission and other payments correctly / Held: Property 3 buyer recorded in system as Respondent’s buyer / Commission paid correctly based on agreement / Held: parties agreed that Respondent should not have deducted tax from GST part of commission and this will be paid / Held: Applicant has not proved they shared Property 6, 7 and 9 listings with Respondent / Helping with listing does not make it a joint one and Applicant did not deal with vendors / Applicant helped with more than set out in text agreement / Fair and reasonable to pay Applicant for this work / Held: Property 9 also not joint listing and Applicant paid for other work / Held: Applicant owed payment for work on Properties 10, 11, 12 and 13 / Immateria…

Contract / Applicant’s car was towed from a private parking area / Applicant claimed $320.00 for refund of towing fee stating the signage was unclear/ Applicant also argued the cost of towing was disproportionate / Whether the respondent was entitled to tow the applicant’s car / If so, was the cost justified / Held: applicant failed to prove that the respondent was not permitted to tow his car / Towing fee not unreasonable / cost to tow a car from point to point is significantly less than the cost to provide a service to the landowner / claim dismissed.

Negligence / Duty of Care / Remedy / Applicants hired Respondent to install new heat pump in property / Applicants have not paid outstanding balance for work completed as not satisfied with aspects of job and claim Respondent’s tradesperson broke letterbox / Applicants claim $250 for repair of wall and letterbox / Held: damage to wall not done during installation / Applicants not entitled to remedy in relation to wall / Held: Respondent’s tradesperson owed a duty of care to Applicants to take reasonable care not to damage letterbox / Applicants entitled to remedy in relation to damaged letterbox / Claim allowed in part / Applicants awarded damages of $250.00 / Applicants to pay Respondents outstanding balance less damages