Disputes Tribunal of New Zealand

Consumer law / Fair Trading Act 1986 / Respondent ran sticker collecting promotion, where consumers could exchange specific number of stickers collected for free kitchenware / Respondent ran out of stock before Applicant was able to exchange his stickers / Applicant claimed $125 ($80 for stickers and $45 Tribunal filing fee) from Respondent, plus an unspecified value in punitive damages to be paid to charity / Held: Respondent did not engage in conduct that was misleading or deceptive or that was likely to mislead or deceive, or “bait” advertising / Reasonable quantities of the kitchenware were available, with stock only becoming low at end of promotion / Respondent’s messaging was clear that promotion was “while stocks last,” encouraging consumers to redeem stickers early / Claim dismissed.

Trespass / Applicant parked her car in a car park while visiting a bakery / Applicant later received a reminder letter from Respondent informing of an earlier parking breach notice for $95 and further $75 charge for non-payment / Respondent continued to charge administration/recovery fees of $75 every two weeks / At time of filing claim, Applicant had paid original $95 and had requests for payment from Respondent for $325 / Applicant sought order she was not liable for the $325 / Held: insufficient evidence that Applicant trespassed on private property / Respondent not entitled to charge Applicant for parking where she did / Applicant not liable for $325 fees / Respondent ordered to refund $95 paid by Applicant / Claim allowed.

Consumer law / Fair Trading Act 1986 (FTA) / Consumer Guarantees Act 1993 (CGA) / Applicant booked rental car with First Respondent using Second Respondent’s website, paid $18.02 deposit / When collecting car, Applicant was advised by First Respondent of $150 surcharge due to Applicant’s age / Applicant refused to pay surcharge as it had not been advised at time of booking, sought refund of deposit / Refund initially refused, but later paid after claim filed / Applicant sought $90 for Tribunal filing fee and $2500 damages for stress and inconvenience / Held: Second Respondent misled Applicant as to price of rental car, breaching FTA / First Respondent was not responsible for content on website, so had not breached FTA / First Respondent failed to provide customer service with reasonable care and skill, breaching CGA / Immediate loss suffered by Applicant was $18.02, which had been refunded / No further compensation payable / Claim dismissed.

Negligence / Respondent hit Applicant’s vehicle causing damage / Respondent ordered to pay Applicant $834.00 / Applicant claimed officer failed to submit costs incurred in time for the court to consider / Applicant did not collect $834.00 / Applicant claimed $10,260.00 for written off vehicle, storage and towing costs, phone repair costs, compensation for days off work due to injury, courtesy car costs, child picking/dropping costs, and filing fee reimbursement / Held: Respondent breached duty of care / Respondent was negligent as he failed to stop short of Applicant’s vehicle and caused collision / Respondent liable for cost of reasonable losses suffered by Applicant / Respondent ordered to pay Applicant $3,995.92 for vehicle written off, storage and towing charges / Claim allowed in part.

Contract / Consumer Guarantees Act 1993 / Applicant contracted Respondent to complete house renovations / Applicant claimed Respondent's contractor used the wrong product when painting the cladding, which caused the paint to flake off and look uneven / Applicant sought $25,874.45 in compensation (including the filing fee of $180.00) and $1,437.50 for the cost of a technical report / Held: Respondent more likely than not used the wrong product when painting the cladding / Applicant not entitled to recover $180 filing fee / Applicant entitled to remedial costs minus depreciation ($19,694.45) /  Applicant entitled to recover the cost of expert report as a foreseeable loss resulting from the breach / Respondent must pay Applicant $21,150.00 / Claim allowed.

Contract / Parties entered into lease for commercial premises / Respondents did not wish to renew lease with increased rent / Respondents paid at old rate while looking for other premises / Applicant seeks shortfall between old rent and new rent, management fee, operational expenses, legal costs, management time and loss of rental income / Held: no rent arrears because of timing of rent increase / Management fee cannot be charged to the tenant / Operating expenses accepted by respondents / Each party must pay their own costs / No power to award costs for filing fee and photocopying / Respondents liable for outstanding operational expenses and damages for loss of opportunity to rent / Claim allowed, respondents to pay applicants $6,342.86

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a sewing machine / Sewing machine was damaged when received by Applicant / Respondent admitted liability for damage / Respondent slow to respond but provided replacement value / Applicant claimed $532.30, $468.90 for replacement cost of sewing machine and $63.40 Tribunal filing claim and preparation cost / Held: Respondent liable for replacement value of sewing machine /  Respondent’s response was slow but by a narrow margin did not meet definition of costs for unnecessarily prolonged delays in proceedings / Claim for costs dismissed / Respondent ordered to pay $468.90 / Claim allowed in part.

Contract / Property / Applicant sold property to Respondent / Respondent concerned whether property vacated and cleaned before settlement / Applicant and Respondent agreed Respondent to retain $5,000 from settlement until property vacated and cleaned to an acceptable standard / Applicant claimed $5,422.14 which includes retention amount, interest and penalty, and tribunal filing fee / Held: Respondent unable to claim for accommodation costs / No obligation on Applicant to clean property / Applicant not entitled to interest or penalty payment / Respondent not entitled to compensation for tribunal fee and legal fees / Respondent entitled to retain $200.05 for failure to provide possession in accordance with agreement / Respondent ordered to pay Applicant $4,799.95 / Claim allowed.

Contract / Applicant bought vehicle from Respondent / Contract contained clause allowing return of vehicle to Respondent and full refund to Applicant in certain circumstances / Applicant wished to return vehicle as a result of inspection / Applicant claimed $8,818 which included full refund, mechanical check fee and Disputes Tribunal filing fee / Held: Applicant entitled to full refund as vehicle was not well maintained as advertised / Applicant not entitled to mechanical check fee as it was carried out after purchase of vehicle / Applicant not entitled to Disputes Tribunal filing fee reimbursement / Respondent ordered to pay Applicant $8,500 / Claim allowed in part.

Building / Building Act 2004 / Respondent manufactured and installed double-glazed doors in Applicant’s house / Eleven years later, Applicant claimed moisture issues and cracks had appeared / Applicant sought an order that the Respondent was liable to pay $4,999.00 / Held: claim barred since building work occurred more than ten years prior to filing of the claim / Claim dismissed.

Negligence / Respondent drove into parked cars while driving Applicant’s car/ Respondent advised afterwards that he did not have a driver’s licence /Applicant’s car was not drivable and had to be towed away / Car was written off / Applicant’s car was insured for $5,000.00 / Insurance company would not accept claim as damage occurred when car was driven by an unlicensed driver / Respondent accepted liability for damage and agreed to pay for it at a sum of $85.00 per week / Respondent paid $425.00 before payments stopped / Applicant claimed $5,500.00 for loss of insured value of car, $280 for towing fee and $180 Tribunal filing fee / Held: Respondent failed to take reasonable care whilst driving / Car insured for $5,000.00 which was reasonable estimate of value of car / Towing should be deducted from amount owing as offset by amount of selling car wreck / Amount paid by Respondent should be deducted too / Filing fee cost cannot be claimed in the circumstances / Respondent ordered to pay …

Legal fees / Applicant engaged Respondent to act on an employment matter / Respondent’s engagement letter provided fee estimate of $2,500 to $3,500 plus GST / Applicant paid 1,900.00 / Respondent issued a further invoice totalling $1,357.00 / Applicant’s employment settlement included contribution of $4,500 plus GST ($5,175.00) to Applicant’s legal fees by former employer / Applicant claimed payment covered total fee owed / Applicant claimed refund of $1,900.00 paid to Respondent and Tribunal application fee / Respondent claimed entitled to retain $1,900.00 / Respondent counterclaimed $1,456.67, for amount due plus interest / Held: amount paid by Applicant’s prior employer to Respondent exceeded fees payable / Respondent’s claim for filing fee not allowed / Respondent’s application for payment of additional fees dismissed / Respondent ordered to pay $1,900 / Claim allowed.