Disputes Tribunal of New Zealand

Negligence / Land Transport (Road User) Rules 2004 / Applicant and Respondent were involved in a motor vehicle accident on a narrow road / Respondent’s truck had to cross the middle line to avoid veering off the road / Applicant swerved to avoid the Respondent's truck and crashed into a tree / Respondent claimed Applicant was speeding round the corner / Applicant claimed Respondent’s truck had crossed the middle line and onto his lane. / Held: legal duty to drive as near as practicable to the left side of the roadway / Truck was driving as far left as possible given circumstances / No general duty of care on trucks to have pilot vehicles / Neither party was negligent / Claim dismissed.

Contract / Motor vehicle collision / Applicants took their vehicle to Respondent to check out a noise. Whilst in the care of the Respondent the car had a minor collision and scraped against another vehicle / The applicants claimed the radiator started leaking as a result of the collision. Applicant claimed insurance and wanted all four tyres repainted. Additionally, applicant claimed the incident devalued the vehicle by $5,000  and the collision caused emotional stress / Held: collision was a low speed side-swipe and unlikely to cause structural damage. Vehicles depreciate naturally therefore the decrease in value was not caused by the collision. Motor vehicles collisions are an inconvenience but they are not uncommon. No evidence that the Respondents acted unreasonably to cause the applicants a greater degree of stress / Applicants have not proven their part of the claim, claim dismissed.

Tort / Applicant claims that Respondent cut cable and caused damage to home automation system / Respondent claims Applicant cut down trees on Respondent’s property / Held: Evidence does not show more likely than not that Respondent cut cable / Burden not discharged / Trees were on Respondent’s property / Trees were cut without Respondent’s consent but Respondent has no proven Applicant gave these instructions or is vicariously liable / No power to hear claims for personal injury or exemplary damages / Both claims dismissed.

Property / Applicant and Respondent share a property boundary / Applicant claimed Respondent cut a cable causing damage to his home automation system / Respondent claimed Applicant cut down trees on Respondent's side of the boundary / Applicant claimed $10,389.80 / Respondent counterclaimed $9,099.00 / Held: insufficient evidence to meet burden of proof necessary to establish claims / Claim and counterclaim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased a tumble dryer (dryer 1) for their rental property / Dryer 1 developed a heating fault / The applicant contacted the respondent for repair or replacement / The respondent was unsure as to whether or not the applicant had purchased dryer 1 from them / The respondent replaced the dryer with a second one (dryer 2) / Dryer 2 developed problems with overheating / Applicant complained to respondent / Respondent arranged for dryer 2 to be repaired / Applicant claims dryer 1 was purchased from the respondent / Applicant claims $6,000.00 in compensation / Held: On the balance of evidence the applicant was unable to prove that dryer 1 was purchased from the respondents / Held: dryer 2 was covered by the CGA, but as dryer 1 could not be proved to be purchased from the respondent then the applicant had effectively received a dryer free of charge / Claim Dismissed

Negligence / Tort / Disputes Tribunal Act 1988 (DTA) / Fair Trading Act 1986 (FTA) / Applicants purchased property relying on building report from Respondents / After purchase Applicants got two roof inspections from contractors which found roof issues / Applicants claim Respondents liable under FTA and for negligent misstatement / Applicants rely on High Court case Steel v Spence Consultants and Gary Spence [2017] NZHC 398 / Applicants claim Respondents trying to contract out of FTA obligations / Held: Disputes Tribunal does not have jurisdiction to cover this type of tort action as per section 10(1)(c) of the DTA / Reports from contractors not reliable as they are not independent / Applicants were not misled by Respondents as report clearly discloses issues with roof / Respondents were not trying to contract out of their liability under FTA due to wording of their report / Claims dismissed.

Encroachment / Private nuisance / Applicant and Respondent are neighbours / Respondent’s property had tall trees on boundary / Previous owner kept trees trimmed but Respondent has not / Applicant claims tree limbs fell on their shed / Applicant claims encroachment of tree caused damage to their fence, garage roof and storm-water system / Applicant claims $30,000 in compensation / Held: encroachment caused damage to shed / Element of betterment with new shed roof means full amount cannot be awarded / Respondent liable for $7,428.65 for damage to shed / Disputes Tribunal has no jurisdiction to remove a tree / No evidence of when tree started to encroach on land / Evidence of tree causing issues with garage but element of betterment with roof replacement so full amount cannot be awarded / Respondents liable for $3,732.80 for damage to garage roof / Storm-water system was damaged by root encroachment and full amount of $4,968 is awarded / Tribunal orders the respondent pay the applicant $1…

Contract / Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent / Applicant paid $39,000 towards the vehicle /  Applicant had possession of the vehicle for approximately six months / Vehicle was then seized by Police as a stolen vehicle /  Respondent refunded the Applicant $22,000 / Applicant claimed remaining $17,000 / Held: Applicant was not able to enjoy undisturbed possession of the vehicle / Respondent sold a vehicle they had no right to sell / Applicant entitled to a refund / Respondent ordered to pay Applicant $17,000 / Claim granted.

Contract / Applicant purchased a new build property from the Respondent / Second Respondent was unable to connect the broadband and power for the Applicants as it could not find a connection and dropbox / Second Respondent investigated this and found that the Respondent had not provided a connection line to the dropbox / Respondent and Second Respondent found dropbox had been installed into Applicants neighbouring, but that there was no legal right for the Applicant to connect to that dropbox without significant cost / Second Respondent alternatively could have created a new dropbox / Applicants claimed $2,324.04 to have internet connected to their home, $1,280.00 for being the cost of transportation to the library where they had to work, $1,500.00 for mental stress and inconvenience / Held: Respondent had breached their obligations in the Sale and Purchase Agreement to provide fibre to the property / Second Respondent had not breached any obligations they had to the Applicants / Claim…

Contract / Consumer Guarantees Act 1993 / Applicant applied to reject a television he purchased from the Respondent / Applicant wanted to receive a refund or a replacement TV / TV required repair twice over eight year period / TV was repaired without costs and the Applicant was offered a replacement TV during repair period / Whether failure of the goods was of substantial character / Held: failure of the goods was not of substantial character, was not rejected within a reasonable time and can be repaired /  Claim dismissed.

Contract / Property Law Act 2007 / Applicant leased property to Respondent / Applicant states it suffered rent arrears and reinstatement cost loss / Respondent states it could not access the premises as a result COVID-19 lockdowns / Respondent notes that damage to the premises was not entirely caused by them / Respondent states not all damage was done by them, that they could not repair the premises as they could not relet the premise, and that they were not given opportunity to repair the damage / Applicant claims the amount of $21,605.52 for the cost of rent arrears and reinstatement costs / Held: Respondent would pay a portion of rent taking into consideration COVID-19 lockdowns and Applicant not satisfying that there was an agreement to extend the lease / Respondent to pay Applicant for reinstatement costs of power and water / Claim partially approved, Respondent to pay $21,605.52 to the Applicant.

Contract / Contra Proferentum / Applicants booked accommodation at holiday park owned by Respondents through third party website / Applicants cancelled accommodation and asked for full refund of $397.70 / Respondents denied refund as outside 14-day cancellation period / Whether Respondent is party to contract / Whether Applicant entitled to refund / Held: Respondent party to contract / Third party website not party to contract made clear in terms and conditions / Applicants not entitled to full refund of $397.70, but are entitled to partial refund of $228.70 having subtracted cancellation fee of $169.00 from total / ambiguity around cancellation to be interpreted against interests of party that created it / Claim partially granted.

Contract / Applicant purchased a farm from the Respondent / Horse walker was listed as a chattel / Applicant found it did not work after settlement and claimed $27,000 to repair / Under the sale agreement the chattels must be in reasonable working order / Applicant carried out a pre-purchase inspection and informed the agent that he was not happy with its condition / Electrician was engaged to carry out repairs / Horse walker was then witnessed to be in reasonable working order / When the horse walker was checked after settlement it was found to be too dangerous to use with horses / Held: Respondent did not breach the vendor warranty in regard to the horse walker / Evidence showed it had been working shortly before settlement / No valid claim for compensation / Claim dismissed.