Disputes Tribunal of New Zealand

Consumer law / Fair Trading Act 1986 / Applicant purchased a refurbished phone for $699.99 from Respondent / Applicant’s daughter dropped the phone into a pool / Afterwards problems with the phone / Applicant returned phone to Respondent for repairs / Respondent refused to repair phone without charging / Applicant alleged phone was marketed as being waterproof but was not / Applicant claimed original cost of the phone / Whether Respondent engaged in misleading and deceptive conduct / If so, whether amount claimed was reasonable / Held: Respondent’s website did not state that refurbished phones are not as durable nor that the warranty did not cover water damage / Respondent engaged in misleading and deceptive conduct / Test was how long a reasonable person would expect a refurbished phone to last / Expectation that EK’s phone would last another 26 months / Calculated that Applicant’s phone had 72 percent of its life left / Claim allowed in part / Respondent ordered to pay Applicant $503…

Jurisdiction / applicant purchased trailer to build tiny house / trailer registered in applicant’s name & statement that ownership transferred on payment / seller went into liquidation & trailer & partially built house included in sale of business / whether Tribunal has jurisdiction or whether claim should be transferred to District Court (DC) / whether applicant had title to trailer / whether respondent liquidator liable for conversion / Companies Act 1993, s284 / Contract and Commercial Law Act 2017 / Held: claim based on property ownership not debt so Tribunal has jurisdiction / Tribunal regularly deals with interpretation of contracts so no need to transfer to DC / trailer in a deliverable state / applicant had title to trailer / ownership transferred on payment & attaching plates signified intention to transfer / respondent liable for conversion / applicant deliberately excluded from possession by respondent / claim allowed / respondent ordered to pay $12,737.05 to applicant.

Contract and Commercial Law Act 2017 / Caveat emptor / Applicant purchased vehicle from Respondent / Applicant brought claim for cost of having repairs done to vehicle after purchase / Applicant claims Respondent misrepresented condition of car / Held: Applicant not able to prove case to required standard / No actionable misrepresentation by Respondent / Claim dismissed

Contract / Misrepresentation / Applicant purchased a car from Respondent in a private sale / Car developed problems / Mechanic determined would cost more to fix than the car was worth / Applicant asked for money back from Respondent / Respondent refused / Applicant claim was for refund of $3,500.00 or for repair costs / Whether the Respondent made a untrue statement about the car / If so whether the untrue statement induced the Applicant to buy the car / If so, what was the costs of repair / Held: unable to find that the Respondent made untrue statements / Claim in misrepresentation fails / Claim dismissed

Limitation Act 2010 / Incapacity / Applicant purchased unit in a unit title development from the Respondent in a mortgagee sale / Dispute arose over who was to pay outstanding levies owed on unit / Applicant paid levies without prejudice to seek compensation  / Applicant sought $30,000 in levies, interest and costs incurred when levies were paid / Whether the claim was out of time / Whether it was just to allow the claim on the grounds of incapacity / Held:  Applicant filed claim six years after settlement / Respondent was entitled to defend the claim on the grounds that it was out of time / Applicant was incapacitated for periods of time / However, Applicant had capacity to instruct a lawyer during in the six year period before the claim was to be heard / Extension in filing unjust / Late filing of claim delayed the Respondent's ability to defend claim / Claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased avocado seedlings from Respondent / 240 trees died the following season / Respondent offered to replace half of the trees / Applicant did not accept this offer / Applicant seeking compensation for the 240 affected trees / Held: Consumer Guarantees Act applies / Respondent was a supplier and avocado seedlings are goods / Insufficient evidence to show that the trees were had some sort of inherent fault or weakness / More likely that the trees were reasonably healthy and fit for purpose when they were supplied / Claim dismissed

Contract / Contract and Commercial Law Act 2017 / Applicants booked cycle tour through Respondents / Country became restricted due to COVID-19 pandemic / Respondent offered three options: transfer booking, continue tour or cancel and receive 50% refund / Applicant claims contract was frustrated / Applicant claims $14,066.91 for refund plus legal costs / Held: contract was not intended to cover event in question / Held: contract frustrated due to events outside control of both parties / Applicants therefore entitled to refund of money paid for tour / Held: Respondent entitled to retain $9,340 being reasonable overhead and business expenses / Held: claim for legal costs dismissed as not agreed to in contract or fitting in specific circumstances / Outcome: Respondent ordered to refund balance of $4,613.91.

Contract / Breach of contract / Applicant enrolled in Personal Trainer course with Respondent / Course shifted to online delivery due to lockdown / Applicant unable to participate in course due to child care commitments / Applicant requested to defer course or receive refund and Respondent declined / Applicant claimed Respondent breached contract by failing to provide course / Applicant claimed $4,495.00 refund / Respondent counterclaimed the sum of $4,495.00 / Whether Applicant withdrew from the course / Whether the Respondent breached the contract by failing to provide the course / What amount, if any, either party was entitled to / Held: Applicant did not withdraw from course and was only offered access to the introductory class /  Respondent breached contract by failing to provide course / Respondent to pay Applicant $4,495.00 / counter-claim dismissed / claim allowed.

Consumer Guarantees Act 1993 / Applicant hired marquee from Respondent / Applicant claims damages caused by ballooning of marquee, water pooling and compensation for early lowering during a wedding reception / Held: water pooling on the marquee indication marquee had not been erected with reasonable care and skill / Held: Applicant followed instructions of Respondent attempting to lower and adjust marquee poles to fix flat areas where water was pooling / Held: wind speed not a significant factor to problems which arose / Held: Respondent failed to provide marquee hire and installation with reasonable care and skill, Applicant entitled to remedy under the Consumer Guarantees Act / Claim allowed / Respondent ordered to pay Applicant $3078.88

Consumer Guarantees Act 1993 / Applicants purchased bathroomware from Respondents / After six months the products showed wear / Applicants sent photo to Respondents advising of issue / Respondent claimed issue was due to wear and tear / Applicant claims costs for product refund, retiling and plumbing costs / Held: there is a failure of guarantee of acceptable quality as the goods are not durable / Held: Applicant’s have right to reject the goods and claim a refund and other foreseeable losses resulting from the failure / Claim allowed: Respondent ordered to pay $1694.00 to Applicants.

Consumer Guarantees Act 1983 / Applicant purchased racehorse from Respondent via an online auction / Horse was found to be lame after delivery to Applicant and took time to recover / Although Applicant took a chance purchasing an older racehorse he could reasonably expect that the horse would have feet in rideable condition / Extent of issues with the horse must have related to a pre-existing condition at the time of sale / Applicant claimed refund costs plus remedial costs or, alternatively, remedial costs plus training fees to bring horse back into work / Held: Consumer Guarantees Act 1983 applies to sales by auction / The horse recovered and is of acceptable quality / The applicant was not in trade and the Respondent could not contract out of the Consumer Guarantees Act 1983 therefore it covers the state of lameness on arrival of the horse / Claim allowed / Respondent ordered to pay applicant $742.00.

Contract / Consumer Guarantees Act 1993 / Applicant entered into a contract with Respondent for employment advocacy services after Respondent was made redundant from part-time job / Applicant claims $4,338.13 in total for termination fee, debt collection and filing fee / Held: Applicant has not proven Respondent terminated the contract / Applicant not entitled to charge termination fees / Contract cancelled due to Applicant's repudiation / Respondent not liable to pay any fees to Applicant / Claim dismissed.

Contract / Breach of contract / Consumer Guarantees Act 1993 / Applicant paid $885.54 for two tickets to an Elton John concert / Applicant attended concert / Performer had walking pneumonia so could only play 14 of his 24 playlist / Respondent was promoter of concert / Applicant claimed partial refund of $440.00 for the concert tickets / Whether there was a breach of contract / Whether Applicant was entitled to a remedy / Held: Respondent knew before concert that Elton John was unwell / Concert should have cancelled or postponed / Respondent chose to proceed so had to guarantee that the concert was reasonably fit for purpose and of a reasonable nature and quality / Respondent has breached guarantee and therefore contract / Highly unlikely reasonable person acquainted with Elton John’s condition would have purchased tickets to the concert / Applicant entitled to claimed amount / Respondent ordered to pay $440.00 to Applicant / Claim allowed