Disputes Tribunal of New Zealand

Property / Contract / Applicants purchased a house from the Respondent / Settlement occurred but the Respondent failed to remove his belongings from the property for a further 5 days / When Applicants took possession they found the house was infested with vermin / Vermin had wrecked electrical wiring and the carpets, both had to be replaced / Applicants claimed $18,244.00 comprising of numerous costs arising out of the breach of agreement such as pest control, additional accommodation, legal fees, loss of income, cleaning and electrical work / Held: Respondent breached the Sale and Purchase agreement with regards to the carpet and wiring as neither were in working order at the time of settlement / Some expenses claimed by the Applicant were too far removed from the breach of contract and were not reasonably foreseeable so have not been awarded, such as loss of income / Tribunal granted some expenses to a lesser extent than claimed by the Applicant such as legal fees and accommodation /…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Applicant purchased ute from Respondent on basis it had new tyres, differential and WOF / Ute needed replacement clutch and rear differential and a turbo repair within months of purchase / Applicant claimed $15647 for repair costs / Held: Ute not of acceptable quality under CGA as reasonable consumer would not expect faults to key vehicle components to occur so shortly after purchase / CGA applies as ute was commonly used for personal use and parties had not contracted out of CGA in writing / Faults in culmination created failure of substantial character / Vehicle would have reduction in value below price paid but for repairs Applicant organised / Repair costs are fair and reasonable reflection of reduced value / Applicant entitled under s 18(3)(b) CGA to compensation of reduction in value / Respondent to pay Applicant $9385.17 / Claim accepted.

Contract / Negligence / Applicant provided emergency accommodation for 2 months to Respondents and their dogs / Significant damage to units discovered after Respondents left / Applicant and their insurer claimed $12,621.08 for damage / Held: Damage to Applicant's units caused by Respondents or their dogs with liability arising in contract and negligence / Undisputed that Respondents occupied units at relevant time and evidence shows damage occurred while Respondents occupied units / Damage was either willful or caused negligently by Respondents together or alone failing to take reasonable care to prevent damage / Respondents also signed registration forms accepting liability for any damage caused / Applicant and their insurer entitled to be returned to position they would have been in had damage not occurred / Respondents severally liable to pay $6310.54 each to Applicant's insurer / Applicant's insurer to pay $500 of $12,621 total to Applicant as compensation for excess paid / Claim a…

Consumer law / Fair Trading Act 1993 (FTA) / Applicant purchased house from Respondent with Second Respondent as estate agent / Applicant asked 2nd Respondent at open home about property boundary / 2nd Respondent said fence was on boundary with neighbouring property / Dispute arose with Neighbours after sale who informed Applicant that part of house encroached on their land / Neighbours told 2nd Respondent before sale about encroachment but vendor said issue resolved / Applicant claims $30,000 of legal, survey and council costs incurred in adjusting boundary through Court process / Held: 2nd Respondent's silence on potential encroachment was misrepresentation and therefore misleading conduct / 2nd Respondent did not take reasonable steps to resolve competing information about potential encroachment / Applicant had clearly asked about boundary and 2nd Respondent was silent despite professional standards creating positive duty to disclose and to avoid contravening ss 9 and 14 FTA / Appli…

Negligence / Respondents' shed blown off in a windstorm / Shed damaged Applicant's power pole / Applicant claimed compensation from Respondent / Respondents denied liability / Held: Respondents' shed struck pole and caused it to break / Applicant provided warnings that it should ensure outdoor items which could be blown about in storms be removed or secured / Respondents liable for damages / Risk of shed being blown in very high wind and causing damage must be regarded as foreseeable / Respondents liable to compensate Applicant for damages / Respondents ordered to pay Applicant $9,450.72 / Claim allowed.

Insurance law / Contract / Applicant owned residential property and appointed a property management company to look after it / Property manager did not notice issues during tenancy / Property damage and theft of items was discovered after tenants vacated / Applicant considered itself indemnified by Respondent under insurance policy which included "deliberate damage" by tenants / Applicant considered property manager's work in arranging repairs were "professional fees" and so covered by policy / Applicant claimed $10,750 for $6050 excess charged by Respondent and also for the "professional fees" / Held: entitlement under insurance policy based on when each event covered by policy occurred not the date damage discovered / Respondent entitled to apply excess to each item of damage arising from different sources or causes / Work done by property manager in organising repairs and representing Applicant not covered by "professional fees" / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant purchased car from Respondent which was manufactured by 2nd Respondent / Applicant experienced issues with sudden power loss / Applicant took car to be checked by Respondent on 4 occasions over 6 year period but no issues identified / Applicant claimed $30,000 and said 2nd Respondent was deliberately hiding defect by turning off Engine Management System (EMS) features or that Respondent had failed to check coolant levels during service / Held: Car was likely of acceptable quality when Respondent sold it and Respondent had provided services with reasonable car and skill / Unlikely car had latent defect and no evidence EMS features had been or could be turned off / Applicant had several months of trouble-free driving between each power loss / Respondent unable to replicate power loss issues during checks / Applicant declined options Respondent suggested to further investigate issues / Compensation unavailable as no Respondents…

Contract / Applicant booked Respondent's accommodation / Upon arrival, Applicant discovered accommodation was not a separate accommodation with its own bathroom / Accommodation shared between Applicant and Respondent / Applicant and Respondent's living relationship deteriorated / Applicant left accommodation after being asked by Respondent / Applicant claimed for bond paid, reimbursement of excess rent, hotel accommodation charge and parcel not received / Held: Respondent obliged to reimburse bond and balance of rent paid / "No refund" term set aside as harsh and unconscionable / Respondent terminated accommodation agreement / No order to reimburse hotel expenses and parcel not received / Respondent ordered to pay Applicant $5,709.71 / Claim allowed in part.

Consumer law / Property / Building Act 2004 / Applicant purchased new-build townhouse from Third Respondent (developer and vendor) / Applicant sent defect list and was informed they were to be remedied / Applicant claimed $25,000 for cost of remedying issues and time spent chasing contractors / Held: Respondents breached implied warranty of reasonable care and skill due to issues contained in defect list / Respondents given adequate opportunity to remedy defects / Tribunal unable to factor future costs / Reasonable costs awarded / Claim dismissed against First and Second Respondents / Third and Fourth Respondent ordered to pay Applicant $16,479.67 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicants bought a diamond ring in an auction conducted by Respondent / Ring was listed in the auction catalogue with an estimated price guide of $17,000.00 to $22,000.00 / Catalogue stated that a gemologist valuation was available / Applicants said the ring was worth much less than the valuation / Applicants claimed the Respondent misrepresented the retail value of the ring and misled them / Respondent stated it did not make any representation as to the value of the ring / Applicant sought an order that the Respondent was liable for $15,231.25, amount of purchase price and Respondent fee / Held: not enough evidence to find there was a misrepresentation or misleading conduct by the Respondent / Insufficient evidence there was a breach of the legislation / Claim dismissed.

Tort / Applicant alleged Respondent damaged Applicant's car while it was parked / Applicant and Respondent were colleagues who did not get on well / Applicant viewed security camera footage overlooking car from neighbouring business immediately after discovering damage and saw Respondent walking around car / Respondent said they were walking around car to inspect and feel scratches already on car / Applicant and insurer claim for costs of repairs / Held: Respondent caused damage to Applicant's car as Respondent was only person around car on relevant day, Respondent's behaviour inconsistent with just looking at car, behaviour consistent with damage caused, clearly carrying something more than just items Respondent said in evidence they were carrying / Damage to car repaired for cost of $4684 / Applicant liable to pay full cost / Claim allowed.

Consumer law / Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicants purchased a bracelet online / Applicants alleged the bracelet was misrepresented in the advertisement/ Applicants wanted to return the bracelet and receive a refund / Held:  it is for the potential buyer to fully acquaint themselves with the detail of the advertisement and what they are buying / Prudent person does not rely on only one statement in an advertisement / Advertisement did not misrepresent the bracelet / Claim dismissed.

Negligence / Traffic law / Applicant had stopped to turn right with Respondent driving towards Applicant in opposite lane / Head-on collision occurred and Applicant and witness said Respondent had veered into Applicant's lane / Applicant claimed $9075.51 for written off car and towing costs / Respondent counterclaimed for $17955 for repairs and towing costs / Held: more likely than not that Applicant remained in own lane and collision was caused by Respondent / Witness said Respondent's vehicle was coming towards Applicant's vehicle despite sufficient room in Respondent's own lane / Respondent had duty to not drive in way that causes damage to other vehicles or property / Respondent breached duty by causing damage to Applicant's car and was liable for reasonable costs of returning Applicant to position they would have been in if breach did not occur / Costs claimed were reasonable / Respondent to pay Applicant’s insurer $9075.51 / Claim allowed and counterclaim dismissed.