Disputes Tribunal of New Zealand

Tort / Negligence / Respondent suffered blown tyre and collided with Applicant’s fence / Applicant claims Respondent breached duty of care / Applicant claims there was damage to property / Applicant claims $3,144.56 in costs / Held: Respondent did not breach duty of care / car in road worthy condition / Applicant drove in manner expected of a reasonably prudent driver / Claim dismissed

Negligence / Trees / Applicants and Respondent owned neighbouring properties / Respondent made arrangement with another neighbour to cut down trees on the boundary of their properties / Trees were cut down on Applicants’ property instead, fence damaged / Applicants marketing property at the time / Applicants claimed that gap left by felled trees put off potential buyers / Applicants sold property but said sale price was diminished due to loss of privacy / Applicants claimed $4,999 from Respondent in relation to felled trees and damaged fence / Whether Respondent liable for felled trees and fence damage / Whether Applicants entitled to sum claimed / Held: evidence indicated that another neighbour cut down trees / Respondent did not cut down trees / Respondent did not have any connection with incident, other than giving authorisation to cut down trees on her property / Respondent cannot be liable to Applicants for damage to trees or fence / Claim dismissed.

Tort / Fencing Act 1978 / Applicants purchased a house neighbouring the Respondents’ property / Applicants removed trees, vegetation and a fence from the Respondents’ property / Respondents claimed for cost of damage to their land and fence / Whether the Applicants owed a duty of care to the Respondents / Held: Applicants owed a duty of care not to damage the Respondents’ property /  Applicants failed to comply with Fencing Act / Applicants were liable for the cost of making good the damage they caused to the fence / Fence was a structure on land privately owned by the Respondents / Respondents proved that the damage caused by the Applicants to their fence and land exceeded the monetary jurisdiction of the Tribunal / Applicants ordered to pay $30,000 to the Respondents / Claim granted.

Contract / Loan / Applicant loaned $1,400.00 to Respondent so she could pay her rent and avoid eviction /  Money was transferred directly into Respondent’s landlord’s account / Respondent agreed to repay money / Loan not repaid / Did Applicant agree to loan money to Respondent on the promise it would be repaid / Held: no dispute that $1,400.00 was loaned to the Respondent and that she agreed to repay it / No reason to not accept the Applicant’s evidence that loan has not been repaid / Respondent did not answer her phone to further her defence / Respondent ordered to pay $1,400.00 to the Applicant / Claim granted  

Towing / Applicant’s car towed by Respondent / Applicant paid $429.24 to recover car / Applicant claimed amount charged unreasonable / Applicant claimed there no signage that car was parked on private property or in tow away zone / Applicant sought $429.24 from Respondent /  Whether car should have been towed / Whether tow fee unreasonable / Held: no legal requirement for private property owners to display signage that car parked on their property may be towed / Cost charged by Respondent was in line with other tow costs / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased motorbike from Respondent through Facebook / After purchase motorbike would not start / Did Respondent make misrepresentation about motorbike prior or at time of purchase? / If yes, did that misrepresentation induce purchase? / If so, what loss suffered? / Held: reasonable person reading Facebook messages would have understand motorbike had full engine rebuild / As this was not the case, Respondent made misrepresentation about motorbike / Held: Applicant relied on Respondent’s statement about engine rebuild in making her purchase and thereby induced the purchase / Held: $1,800 represents the amount to be spent to put Applicant in position she would have been had the motorbike been as represented / Claim allowed / Respondent ordered to pay $1,800 to Applicant.

Consumer Guarantees Act 1993 / Civil Aviation Act 1990 / Applicant and Respondent disagreed on where bags were to be checked in and collected / Respondent booked Applicant flight to another city / Applicant missed flight to overseas / Applicant claims $2,022 cost of reissuing overseas flight tickets / Held: Respondent did not carry out its service with reasonable care and skill and caused Applicant not being able to board overseas flight / Compensation limited to maximum ten times sum paid for carriage / Respondent ordered to pay applicant $1,980 / claim partially allowed.

Consumer Guarantees Act 1993 / Applicant claiming costs of repair of freezer from Respondent / Whether freezer was of acceptable quality, if not, whether Respondent has to pay repair costs / Held: freezer of acceptable quality / Freezer repair minor and not unreasonable six years after purchase / Claim dismissed

Limitation Act 2010 / Applicant took over operating business after her husband died / Applicant asked Respondent to pay $19,072.30 for outstanding invoices from 2012 to 2019 / Respondent paid $14,325.40, disputed remainder which related to older invoices / Applicant claimed the balance of $4,836.90 / Whether claim barred by Limitation Act / Held: all disputed invoices issued before August 2015 / In absence of any evidence of unusually long payment terms, they would have been overdue more than six years / Late knowledge period inapplicable as true claimant is company which issued invoices / Claim statute-barred / Claim dismissed

Conversion / Gift / Applicant gifted scooter to his son / Applicant claimed scooter was being held by his son’s mother / Applicant claimed $479.00, the cost of the scooter / Who owned the scooter / If the Applicant owned the scooter, whether $479.99 was a reasonable amount to restore him to his original position / Held: Applicant did not own scooter / No need to consider second question / Claim dismissed

Guarantee / Consumer Guarantees Act 1993 (CGA) / Earbuds / Applicant purchased earbuds from the Respondent / After six months the right earbud lost volume / When the Applicant contacted the Respondent he was given a cleaning guide / Applicant found that cleaning did not resolve the right earbud issue / Respondent declined to provide a replacement or a refund / Applicant claimed the sum of $470.81 for the cost of having the earbuds repaired / Were the earbuds of acceptable quality / If not, what remedy is the Applicant entitled to under the CGA / Held: earbuds were of acceptable quality / No breach of guarantee / Claim dismissed.

Contract / Credit card / Applicant visited Respondent’s bar while intoxicated / Applicant later discovered he was charged $5,213.00 across five transactions by Respondent / Whether Respondent’s bar used Applicant’s credit card dishonestly / Whether Applicant can get a refund on the grounds of intoxication / Held: Applicant provided evidence to show he was drunk before arriving at Respondent’s bar / Applicant failed to prove that he was so very drunk he could not understand the general nature of the transactions he entered into / Not equitable in all the circumstances to set aside the contract / Contract was fully performed / Respondent’s contractors cannot take back their services / Would not be equitable for the Applicant to receive a refund for services he received when drunk / Claim dismissed.

Consumer law / Reasonable care / Consumer Guarantees Act 1993 / Applicant and her children were booked into a motel for nine nights / Applicant and her family received multiple unwanted visitors while staying at the motel / Applicant failed to receive an immediate response to their concerns from the motel manager / Later, the motel manager informed the Applicant that they would not be able to change rooms until the following day / The visitors became increasingly threatening leading to the Applicant and her family to leaving for alternative accommodation before the end of their planned stay / Respondent refunded $480.00 to the Applicant and provided CCTV to the Police / Applicant sought $10,000.00 for the balance of a full refund, cost of new hotel and damages for emotional stress / Whether the motel carried out its services with reasonable care and skill / What sum, if any, must the hotel pay to the Applicant / Held: unable to find that the Respondent failed to respond to the situatio…