Disputes Tribunal of New Zealand

Contract / Contractual Mistakes Act 1977 / Applicant placed four live bets online on an international football match but stated she made a mistake by betting on first half goal scores / Applicant claimed $3,300 in refund / Held: do not accept Applicant made a unilateral mistake known to Respondent / with online betting Respondent does not have opportunity to engage with the other party to their contract prior to betting so cannot understand bettor’s intentions / Applicant had properly been informed of terms and conditions of online and live betting on website / rules necessary in fairness to all punters so they can rely on integrity of the betting system / claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased a wall-hung basin from Respondent after speaking to one of the salespeople / when the basin was removed from its box it was not able to be wall-hung / Applicant was told 20% would be deducted from the refund per Respondent’s terms and conditions / Applicant claimed the balance / Held: Respondent has not complied with guarantee as to fitness for purpose / Applicant made it known expressly that she wanted a wall-hung basin / Respondent is not entitled to make any deduction from refund amount / not lawful to contract out of Consumer Guarantees Act 1993 and terms and conditions can only apply where there has been no breach of statutory guarantee / Applicant entitled to receive full refund / claim allowed, Respondent ordered to pay Applicant $29.48.

Contract / Sale of Goods Act 1908 /  Applicant ordered two consignments of timber from Respondent worth $10,666.55 / Applicant rang to collect timber and was advised by Respondent timber had been picked by Applicant’s company / Applicant denies collecting timber and seeks remedy for loss of timber / Held: On balance of probabilities the Applicant did not collect timber / Respondent had a duty of care to Applicant and failed to take all reasonable precautions to prevent the loss of the timber to a third party / Claim allowed, Respondent to bear responsibility for loss of timber and refund Applicant cost paid for timber  

Contract / Agency / farm manager for Respondent employed applicant to rock pick paddocks / Applicant gave invoice for $9,948.08 / farm manager took first invoice to farm owner for approval and employed Applicant for further work / Applicant provided second invoice for $4,083.65 / Applicant claims for both invoices, totalling $14,031.17 / Held: farm manager had no apparent authority to employ a contractor / farm owner ratified farm manager’s authority retrospectively by agreeing to first invoice and saying Applicant could do further three hour’s work / if agent purports to act on behalf of principal without actual authority, absence of assent can be given retrospectively by principal through ratification / Applicant and farm manager say second work was not limited / second lot of work found on balance of probabilities to be limited to three hours / claim allowed in part, Respondent to pay first invoice and three hours for second invoice, totalling $10,862.33

Contract / Consumer Guarantees Act 1993 / reasonable care and skill / Applicant is an architect and was engaged by Respondents to complete two jobs on a piece of land, including drawing plans and applying for resource and building consents / second job had no written contract / Applicant claims for two unpaid invoices, totalling $6,182.40 / Respondent counter-claims that Applicant’s services not performed with reasonable care and skill, resulting in additional building costs and time delays / Respondents claim $50,000 which was reduced to $15,000 to fall within Tribunal jurisdiction / Held: the two sets of building consent plans were two separate contracts / first job was completed and paid for before second job was requested and at no time was a complaint made about first job / second job took same form as first despite having no written contract / amount charged by Applicant is reasonable for the nature of the work undertaken / insufficient evidence to prove that Applicant’s plans an…

Contract / Applicant’s manager signed a “three year agreement” with Respondent and a service agreement form recording a new address when Applicant moved premises / Applicant claimed it only intended to enter into a month by month agreement, was misled and document was misleading / Held: by signing the document Applicant entered into a binding contract, not proven there was any misleading conduct and second contract cancelled / Applicant’s manager did not read the document, even reading the front page would have told her the agreement was for a three year term and she was the manager of the store not a junior staff member / Applicant only wished to record change of address / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Respondent entered into a sole agency agreement with Applicant and authorised up to $2,500 to be spent on marketing / proposed auction was cancelled, conditional sale fell through and Respondent attempted to cancel the contract / Applicant claimed $2,500 for marketing expenses invoiced / Held: additional marketing costs distinct and not recoverable as there was no sale / pro-rata deduction of costs claimed warranted as all marketing ceased after Respondent attempted to cancel contract / no basis for auctioneer’s fee and pre-auction meeting as service was not provided / minor issues with marketing breach of guarantee to provide services with reasonable care and skill / claim allowed (in part), Respondent ordered to pay Applicant $1,103.23.

Negligence / car collision / actual cost of repairs to Applicant’s car $22,566.21 / Applicant claimed maximum amount claimable in Tribunal / Held: Respondent caused collision by failing to give way / duty of care on all drivers to drive to the standard of a reasonable and prudent driver / Land Transport (Road User) Rule 2004 / Tribunal unable to find on the evidence that Applicant contributed to collision or extent of damage by driving too fast for conditions / undisputed costs claimed by Applicant were reasonable / claim allowed, Respondent ordered to pay Applicant’s insurer $15,000

Land Transport Act 1998 / Police seized and impounded car driven by Applicant’s son and three days later Applicant registered the car in her own name / Respondent stored the car for over 28 days then it was onsold and crushed / Applicant claimed Respondent unlawfully sold the car / Held: Respondent did not act unlawfully in selling the car / Section 97(2A) of Land Transport Act 1998 defines “owner” as the registered person in respect of the vehicle at the time it is impounded and Respondent entitled to rely on information provided by Police / Respondent not legally obliged to wait a further 10 days under s 98(4) / claim dismissed.

Contract / insurance policy / Applicant was referred to an eye specialist to be tested and it was noted that he did have ocular hypertension / Applicant after joining Respondent returned to the optometrist for new glasses and further testing but was declined prior-approval on the basis that the interocular hypertension was a pre-existing condition and excluded from Applicant’s policy / Applicant claimed $1,535 being the costs related to testing and treatment / Held: based on the definition of “pre-existing condition” in Applicant’s contract of insurance, Respondent is entitled to exclude costs of treatment of interocular hypertension from cover / Applicant ought to have been aware that the specialist regarded him as having ocular hypertension / word “condition” broader than “disease” and encompasses something like ocular hypertension even if it is merely a statistical classification / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased a second-hand windscreen from Respondent and engaged a third party to install it who discovered a crack / Applicant claimed for refund of the screen plus the installer’s fee and filing fee / Held: insufficient evidence to establish that the crack was already existing when it was sold to Applicant / impossible to tell when the crack occurred / guarantee of durability in Consumer Guarantees Act 1993 cannot be stretched to mean item made of glass will not crack or break / claim dismissed.

Tort / nuisance / Respondent is developing a large section to construct a retirement village next to Applicant’s property / Applicant claimed $15,000 compensation for cracks appearing in his property / Held: Respondent created a situation which interfered with Applicant’s use and enjoyment of land by causing frequent vibrations / clear Respondent anticipated potential impact of excavation and compacting on neighbouring sections / Respondent should have been well aware of the potential impact of the work on Applicant’s property / beyond doubt loss suffered by Applicant was foreseeable / multitude of cracks, cornices and tiles establish that impact on Applicant’s property amounts to a substantial interference with the use and enjoyment of his land / quote relied upon by Applicant excessive / amounts reduced and deduction applied for betterment / claim allowed, Respondent ordered to pay Applicant $10,400 and repoint all cracks in exterior walls of Applicant’s property.

Contract / Applicant claimed $3,588 on an unpaid invoice for website development / Respondent said the work undertaken by Applicant of its website was never completed within the agreed deadlines and was cancelled / Held: do not accept that it was expressly agreed Applicant could take as long as it liked to do the work / reasonable time element implied into contract / contract was breached almost immediately as Applicant did not begin work / Respondent entitled to cancel contract / work Applicant did up to cancellation was of absolutely no value to Respondent / claimed dismissed, Applicant ordered to pay Respondent $966.