Disputes Tribunal of New Zealand

Negligence / Traffic Law / Applicant and Respondent’s vehicles were involved in a collision / Applicant and his insurer claimed that the Respondent caused the collision by failing to give way / Applicant sought damages of $10,829.57 / Held: Respondent had an obligation to give way to Applicant’s car and failed to do so, thereby causing the collision / Applicant’s driving did not cause the collision / Applicant and insurer proved that the amount claimed was reasonable for repair costs / Respondent must pay Applicant’s insurer $10,829.57 / Claim allowed.

Contract / Building Act 2004 (BA) / Applicant purchased newbuild from Respondent / Dispute over remedial work arose / Fault with kitchen tap caused water damage to flooring / Respondent delayed in repairing leaking shower hose / Applicant had items stolen allegedly due to improper security design and lighting / Applicant claims $23,992 for kitchen repairs, anxiety and stress, keys, replacement shower house, value of stolen items, plus work order to further secure property / Respondent counterclaimed $3815.56 / Held: Respondent breached contract by failing to remedy leaking kitchen tap in reasonable time and failing to provide Applicant with keys and Applicant breached contract by failing to pay balance of purchase price on settlement date / 16 day delay in arranging plumber for kitchen issues was unreasonable and Respondent liable for damaged flooring as consequential loss of leaking tap / Respondent not liable for shower hose as Respondent attempted to remedy issue / Compensation for …

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.  

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 (CCLA) / Applicant signed flatmate agreement with Respondent as head tenant and paid $1790 for bond and rent / Respondent gave notice to vacate tenancy before agreement commenced / Applicant cancelled agreement but Respondent refused to return amounts paid / Applicant claimed $1790 / Held: Respondent’s early termination breached implied essential term and Applicant would not have entered agreement if aware of imminent termination / Breach substantially reduced benefit and increased burden of contract on Applicant / Respondent’s offer to transfer lease no defence as it imposed substantially different obligations on Applicant / Tribunal held Applicant’s cancellation justified under s 36 or s 37 CCLA / Respondent ordered to pay Applicant $1260 as balance of amount not returned to Applicant.

Contract / Consumer Guarantees Act 1993 / Applicant agreed to paint Respondent's house for $6,325 / Respondent changed paint colour selection and Applicant charged $1,547.90 extra / Contract required use of scaffolding and Respondent said parts of roof could not be walked on / Respondent paid $2,300 / Applicant claimed $5,572.90 unpaid balance / Respondent counterclaimed $4,999 for various damages and costs / Held: Applicant's claimed balance is payable under contract, subject to findings in Respondent's counterclaim / No sufficient evidence provided by Respondent to the extent of damage to the outdoor table and roof tiles / No tangible evidence to show any quality issues with Applicant's job / Applicant liable to reduce invoice by $500 for roof damages, $200 for table damages, $400 for touch-up work / Respondent ordered to pay Applicant $4,472.90 / Claim allowed in part / Counterclaim allowed in part.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Fair Trading Act 1986 (FTA) / Applicant booked flights with Respondent but accidentally booked opposite direction of intended travel / Applicant asked Respondent for refund or flight change / Respondent said fare type did not allow refund or free changes but Applicant could pay $1604 to change flights / Part of amount charged included $320 contact handling centre fee / Applicant claimed refund of $1064 additional flight change fees /  Held: Applicant made mistake but should have taken reasonable care to book flights in right direction / No remedy under CGA when consumer mistakenly purchases good or service / Not unfair under s 26A FTA for airline to impose charges for flexibility of fare types or flight changes / Respondent accepted they should not have imposed contact centre handling fee / Respondent to refund $320 contact centre handling fee to Applicant / Claim accepted in part.

Contract law / Contract and Commercial Law Act 2017 (CCLA) / Applicants purchased racehorse from Respondent for $22,500, intending to use the horse for equestrian events / Shortly after purchase, horse exhibited behavioural issues / Veterinary investigations shows horse had congenital condition known as Kissing Spine / Applicants claimed refund of $22,500 plus $4,890.13 in associated costs / Held: Respondent made an innocent misrepresentation by stating the horse was suitable for eventing, which induced Applicants into contract / Horse not suitable for eventing / Although respondent unaware of the congenital condition, the misrepresentation entitled the Applicants to compensation / Under CCLA the Applicants could not cancel the contract but were entitled to compensation for their losses / Respondent ordered to pay Applicants $27,390 / Claim allowed.

Contract / Applicants contracted Respondent to photograph their wedding / Contract provided for album, online gallery, video highlight, physical prints / Applicants received online gallery containing duplicate photos from only part of wedding / Applicants did not receive video or other physical items in contract / Applicants claimed $3800 as refund / Held: Respondent breached contract by failing to provide agreed albums, prints, video highlight and other items outlined in contract / Respondent also breached term relating to online gallery as photos did not accurately represent entirety of day / Applicants entitled to be put back into position they would have been in if contract was performed / Respondent to provide Applicants all unedited photos and video footage and pay $1500 refund / Claim allowed.  

Contract law / Property / Respondent signed commission agreement appointing Applicant as sole agent to sell business / Applicant introduced Respondent to potential buyer who decided to not proceed with sale / Respondent cancelled listing of business months later / Respondent’s business sold four years later to company formed by the earlier potential buyer / Applicant claimed $30,000 commission from Respondent / Held: Respondent not liable to pay commission to Applicant as Applicant’s introduction was not effective cause of Respondent’s business sale / Purchaser not introduced by agent during agreement period and sale occurred over three years after agreement ended / Contact between agent and buyer after introduction was general and not causative of sale / Sale initiated independently by conversation between Applicant and employee of buyer’s company / Claim dismissed.  

Consumer law / Acceptable quality / Consumer Guarantees Act 1986 / Applicant purchased  mattress online for $549 plus $109 delivery / Applicant claimed $658 refund as mattress sagged on both sides after 3 months causing back pain and provided photos showing sagging / Respondent argued sagging due to expected foam compression, and said there was no defect as mattress low-priced, firmness subjective / Held: mattress not proven defective or below acceptable quality / Applicant’s photos unconvincing and price paid relevant to expectation of good’s performance / Applicant did not disclose mattress’ specific purpose or back condition to Respondent / Claim dismissed.

Contract / Consumers Guarantee Act 1993 “CGA” / Applicant hired Respondent to install steel roof, repair tiles on roof, supply and install new mains power supply, and the installation and ducting of new rangehood / Applicant claims refund for defects for all areas of work / Held: Goods are to be provided with reasonable skill and care / Respondent not liable for any issues regarding internal gutter and pitch /  Respondent to remove roof and refund Applicant / Concrete tiles are in reasonable condition and Applicant’s tile claim not made / Drip tray to be replaced / Claim allowed / Respondent to pay Applicant $8057.56.

Contract law / Applicants sold property to Respondents / Parties agreed to licence for Applicants to occupy for one day post-settlement and $3000 performance bond to be held / Respondents held bond beyond return date because Applicants failed to provide keys, working heater and tidy garden / Respondents also said Applicants had trespassed on property / Applicants claimed $3000 as return of bond / Respondents counterclaimed $12062.62 / Held: Applicants breached contract by failing to provide a working bathroom heater at settlement / Respondents entitled to $1119.64 for heater installation / Respondents could not prove trespass occurred / No breach regarding garden or vacant possession / Respondents not entitled to compensation for time off work or travel for Tribunal hearing / Respondents ordered to pay Applicants $1880.64 / Applicants ordered to pay Respondents $1119.64 / Claims accepted in part / Counterclaim accepted in part.

Consumer law / Consumer Guarantees Act 1993 / Respondent engaged Applicant to manufacture and install kitchen benchtops / Applicant carried out installation and issued invoice for unpaid balance / Respondent disputed invoice on grounds that she was not satisfied with installation / Applicant claimed payment for unpaid invoice / Held: minor issues identified by Applicant were remediable / Applicant had the right to remedy failure by carrying out repaired work / Applicant not given opportunity to remedy minor issues identified / Applicant failed to exercise reasonable care and skill in communicating with Respondent about the cooktop, fill and waterfall / Final product did not have the look that Respondent wanted to achieve / Respondent entitled to 25% compensation of total price / Respondent ordered to pay remaining invoice less compensation / Respondent ordered to pay Applicant $7,242.84 / Claim allowed in part.