Disputes Tribunal of New Zealand

Contract / parties were cross-lease owners and signed an agreement where Respondent agreed to rebuild a fence at his expense and pay damages in the event the work was not completed / Applicant claimed $2000 damages / Held: practical difficulties experienced by Respondent fell well short for contracted to be frustrated, nothing harsh or unconscionable about the agreement, sum not proved to be a penalty / claim allowed, Respondent ordered to pay Applicant $2000.

Tort / Rylands v Fletcher / Respondent had a fire on their farm which burnt part of a boundary fence of Applicant who were neighbours / Applicant claimed $12,320 for lost deer and $400 labour costs / Held: likely that deer escaped through hole in the fence / Applicant credible and gave consistent and thorough evidence / delay creates challenges on the evidence but right to bring claim still exists / alleged number of lost deer discounted for uncertainties / values attributed to lost deer / claim allowed, First Respondent ordered to pay Applicant $4,660.

Contract / Applicants engaged First respondent to represent them in a personal grievance claim / Applicant claimed refund of $287.50 paid and $1,500 for costs they had to pay / Held: parties to the contract were Applicant and First Respondent / no written contract / doctrine of undisclosed principal applies because at the time Applicant met with First Respondent, it appeared they were dealing with him personally / parties agree that $287.50 was paid for First Respondent to file a statement of problem with the ERA which he did / contract came to end when liquidation of former employer / not established new contract was formed / in failing to file submissions in accordance with deadline set by the ERA, First Respondent failed to provide service with reasonable care and skill / award of costs against Applicant given First Respondent’s failure to file anything by deadline was entirely predictable / claim allowed, First Respondent ordered to pay Applicant $1,500.

Contract / Applicant paid $20,000 into bank account of ABC Ltd by way of a loan and also paid over $13,000 directly to ABC’s suppliers / Respondent was director of ABC, which has ceased trading and is being removed from Companies Register / Applicant claimed $15,000 from Respondent / Held: not persuaded loans were made to Respondent or that Respondent was personally liable, moneys were paid directly into ABC’s bank account and to its suppliers / appears Respondent was acting on behalf of ABC in his role as director / loans were made to the company and the obligation to repay rests on the company rather than Respondent personally / verbal agreement to guarantee ABC’s debts would be unenforceable / no jurisdiction to hear claim for breach of Companies Act 1993 / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent as property manager and agent for her rental property / problems developed with the tenant and a 90 days’ notice was issued but Respondent overlooked expiry of that notice and allowed the tenant to remain in the property / Applicant claimed $2,626.95 compensation / Held: do not accept it would protect Respondent if Applicant does not receive rent or property damage occurs by Respondent not performing its obligations under the contract / if Respondent had enforced the termination notice rental loss would not have been incurred / Respondent was not providing its services with reasonable care and skill causing additional loss to Applicant / additional costs claimed by Applicant would have been incurred by Applicant in any event and for her account / claim allowed, Respondent ordered to pay Applicant $436.19.

Contract / breach of contract / non-maintained operating lease / Contractual Remedies Act 1979 / Credit Contracts and Consumer Finance Act 2003 (CCCFA) / Credit (Repossession) Act 1997 (C(R)A) / Personal Property and Securities Act 1999 (PPSA) / Applicant and Respondent entered operating lease for car / Respondent would make weekly payments to Applicant and retain car at end of lease period / Applicant alleges Respondent in arrears / seeks $2,685 compensation for breach of contract including arrears, repossession cost and difference in assessed market value versus received wreck value / Respondent denies liability and claims she advised Applicant could no longer afford to proceed with agreement / issue of whether agreement is a consumer credit contract although it’s declared an operating lease in its text / Held: lease is a consumer lease under s 60(1) CCCFA but is qualified by s 60(2) / lease falls within s 16(1) meaning lease should be treated as a credit sale and consumer credit con…

Consumer / Credit (Repossession) Act 1997 / parties entered into loan agreement for Respondent’s purchase of car / Applicant claimed Respondent defaulted and issued pre-repossession notice / Respondent then returned car on the same day / Applicant claimed compensation for loss after having repaired car and sold it / Held: where car is returned without prior agreement because debtor is no longer able or willing to continue with the finance contract, the creditor is entitled to see this as repudiation by the debtor and as an instruction to sell the car / creates obligation to deduct proceeds of sale from amount owing under contract and reasonable cost incurred in respect of the sale / Applicant did not give post-possession notice as required by s 20 and deprived Respondent the opportunity to re-assess decision / unable to accept charge for repair costs / allowance for preparing car for resale appropriate / claim allowed (in part), Respondent ordered to pay Applicant $384.87.

Negligence / car collision / Applicant’s insurance company claimed against First Respondent for repairs / First Respondent counterclaimed against Second Respondent for necessary repairs, as driver of Applicant’s car / Held: while Tribunal placed little weight on First Respondent’s admission of liability, not persuaded that accident caused by Second Respondent / First Respondent failed to take sufficient care while driving / costs claimed were actual and reasonable / claim allowed, First Respondent ordered to pay insurance company $4,855.85 / First Respondent’s counterclaim dismissed

Contract / Consumer Guarantees Act 1993 (CGA), s 28 / Valuers Act 1948, s 11(2) /  reasonable care and skill / Respondent engaged Applicant to value two properties / Respondent used both reports to obtain finance / Respondent paid part of the valuation price for one property but not the other as had issues with the work done on both properties / Applicant claims $970, compromising unpaid $920 and debt collection costs of $50 / Held: Respondents complaints can be considered by way of set-off as the two valuations were arranged under one contract / Applicant failed to take reasonable care and skill over some minor detail and description of properties / Applicant breached high standards of professionalism expected under contract by not consulting with Respondent before telling real estate agent about inaccuracies concerning size of property on advertisement / failure to consult amounts to damages for injured feelings, which are generally regarded as too remote in breach of contract / no e…

Contract / Applicant provided refrigeration advice and services to the Respondents / Applicant and Respondents agreed the new evaporator was not working / Applicant agreed to re-install the old evaporator at no cost to the Respondents / Applicant kept the new evaporator / when it came time to pay the Applicant, the Respondents withheld $3,000 from the total amount charged, stating that this reflected the cost of the new evaporator retained by the Applicant / issue of whether Applicant’s fees should be reduced for the cost of the evaporator and any installation costs / Held: the Applicant failed to supply the evaporator, and retained ownership and possession of it, so is not entitled to the payment for the evaporator / cost of evaporator is to be deducted from the $3,000 / Applicant is entitled to the remainder payment of $1,462.05 for the pipe work.

Contract / Consumer Guarantees Act 1993 / Applicant purchased a hover mower from Respondent / mower ran unevenly and was difficult to start so Applicant returned it for repairs / after receiving it back it ran no better and was returned again / 6-8 weeks later when Respondent attempted to return the mower Applicant rejected it and requested a full refund / Applicant claimed for repairs to their old mower, purchase price of the hover mower and the filing fee / Held: mower is not of acceptable quality / ongoing problems with starting and running that are intermittent / supported by evidence from a lawnmower shop owner who inspected the mower / issues and length of time they occurred mean the failures are of a substantial character / Applicant entitled to reject the mower under the Consumer Guarantees Act 1993 and entitled to full refund but not repair costs (of old mower) or filing fee / claim allowed, Respondent ordered to pay Applicant $988.

Nuisance / Disputes Tribunal Act 1988 / counter claim for costs under s 43 / Applicants claim Respondent is responsible for excess water flows on their property which have caused damage / Respondent counterclaimed for costs that he has unnecessarily incurred in defending claim / Held: Occupiers of land must accept water flowing naturally on to their land from higher ground / Respondent has not gone beyond what is deemed natural water run-off / Applicants’ claim is frivolous due to limitation period and is dismissed / Respondent’s counterclaim is granted / Applicants are to pay Respondent $793.50.

Contract / Cancellation / Respondent purchased the Applicants’ property at auction / failed to pay the deposit / Applicants cancelled the agreement and re-sold the property / Applicants claim for the financial loss they suffered as a result of the Respondent not going ahead with the sale / Held: Respondent liable to pay the Applicants $8,534.00.