Disputes Tribunal of New Zealand

Consumer law / Fair Trading Act 1986 / Applicant changed booked flights with Respondent airline and had to pay a change fee / Applicant sought a refund of the amount paid for the change being the difference between what he paid and what he thought he was going to pay / Held: change fee was clearly indicated / Number of steps had to be taken before a customer committed to paying for the flight /  When customer paid for the cost of change, the customer was in fact accepting the change fee being paid / Applicant did not pay sufficient attention to the costs for the change when he was making it / Applicant not entitled to a refund / Claim dismissed.

Contract / Applicant purchased property from Respondents / Contract had clause warranting that vendor had not received notice or demand from any party / Property had water tank moved by Respondents and a drain prior to Respondent's ownership / Applicant said she asked Respondents prior to purchase if water tank overflowed and was told it had not / Respondents said Applicant had not asked them about any issues / Water tank overflow was not compliant and Applicant had to have overflow attached to public stormwater / Tank leaked after a storm and Applicant realised boundary drain was blocked and broken / Neighbour told Applicant that they had frequently discussed water overflow issue with Respondents / Respondent said these discussions had not happened / Applicant claimed $15,000 towards drainage repairs alleging that Respondent breached sale agreement by not informing her of issues / Held: Respondents had engaged contractor who issued compliance notice so to Respondent's knowledge the ta…

Contract / Property / Applicant listed property with Respondent / Contract terms state $1750 to be expended on marketing with the Applicant paying half if property was withdrawn from the market / Property was not marketed due to market being quiet and it would be promoted again when the market improved / Applicant withdrew property from the market / Applicant denies liability for repayment of marketing fees / Held: Applicant withdrew listing and is liable to repay marketing / Applicant's wording in text clear that the property was to be taken off the market and re-listed at a later date / Applicant liable to pay marketing fee / Applicant ordered to pay Respondent $1,750 / Claim dismissed.

Building contracts / Negligence / Building Act 2004 / Consumer Guarantees Act 1993 / Applicants entered residential building contract with Respondent for construction of a house / First Respondent subcontracted driveway and path construction to Second Respondent / Applicants noticed issues with concrete upon moving in / Independent report commissioned by First Respondent found issues with driveway and path / Applicants claimed $30,000 for cost of replacing driveway and path / First Respondent counterclaimed a contribution of $20,000 from Second Respondent / Held: driveway, path and slab did not meet statutory warrants implied in residential building contracts / Respondents accepted  that statutory warranties not met and replacements for driveway, path and slab required / Respondents not liable for replacement cost of vehicle crossing as issues were largely aesthetic but liable for cost of lost amenity in respect of the crossing / Second Respondent liable to Applicants in negligence for…

Contract / Applicant engaged Respondent to store shipping container with his possessions inside / Applicant believed he owned container and was only paying for container to be stored / Contract between parties was a rental contract showing Respondent was owner of all rights over the equipment (including the container) / Respondent repossessed container after non-payment of fees by Applicant and refused to release container to Applicant on request / Applicant initially claimed $2000 but amended claim to seek return of container and possessions / Held: likely that Respondent owns container / Respondents provided documents showing it had purchased container from third party with same unique identifier as one used by Applicant / Respondent provided invoices it had sent to Applicant with the relevant unique identifier / Applicant could not provide evidence to support claim of ownership of container with the relevant unique identifier nor other containers held by Respondent / Claim dismissed…

Contract / Contract and Commercial Law Act 2017 / Applicant entered 12-month contract with Respondent for high-speed internet services / Since commencing service, broadband speed achieved was considerably less than advertised / Applicant raised issues with Respondent but no solution was provided / Applicant decided to switch providers / Respondent charged $99 for notice period requirement and $99 early exit fee / Applicant claimed $198 for charges plus reimbursement of 50% of monthly charge for the six months the contract ran, being $300 / Held: speed of service was an essential term of the contract / As Respondent did not provide agreed speed, Applicant entitled to cancel contract / Applicant not liable for notice period and early exit charges / Reasonable that Applicant pay price for service commensurate with service received, in this case half the contract price / Applicant entitled to $300 compensation claimed / Respondent ordered to pay $498 / Claim allowed.

Nuisance / Property / Applicants owned a property at the lowest point in a series of neighbouring commercial properties including those owned by Respondents / The properties had easement for rights of way / Applicants alleged stormwater from Respondents’ properties flowed onto their property, causing damage to their driveway and building / Applicants claimed that Respondents allowed water pooling and overflow, leading to significant damage / Applicants claimed $30,000 to remediate the damage caused by the stormwater / Held: Applicant did not prove damage was solely caused by Respondents / Water from multiple properties and public use of the right of way contributed to the damage / Claim dismissed.

Property / Parties own cross-leased properties / Applicant sought Respondent's permission for significant changes to his property / Respondent opposed proposed alterations / Applicant incurred costs and claimed payment from Respondent / Held: it was Applicant's choice to obtain plans / Respondent not liable to reimburse Applicant's expenses / Claim dismissed.

Contract / Property / Applicant purchased house from Respondent / Applicant found lights did not work in rainy weather and also incomplete earthquake repairs / Applicant and agent had problems with lights at viewings for property prior to settlement / Applicant found original floors present and peeling paint from windows, soffits and fascia boards / Chimney was not repaired / Only two of three EQC scopes of repair for property were available to purchasers / Third EQC scope allowed for removal and replacement of floors, painting on soffits and fascias, removal of chimney and associated repairs / Applicant was quoted $19,000 for repairs / Applicant claimed for costs to remedy issues with property / Held: failure of lights was breach by Respondent of warranty in agreement that utility or amenity systems for property were in good working order / Failure to disclose third EQC scope was misrepresentation by Respondent about status of earthquake repairs / Applicant's understanding that Respon…

Consumer law / Consumer Guarantees Act 1993 / Applicant hired First Respondent to asphalt around Applicant's new home and driveway / Applicant unhappy with service and remedial work provided by First Respondent as driveway was continuing to deteriorate / Applicant concerned about asphalt in driveway / Applicant also concerned that asphalt product itself was not durable / Respondents caused denting and abrasive damage to Applicant's fence / Respondents said Applicant had unreasonable and unjustified expectations about asphalt and driveway surface / Held: Respondents breached reasonable care and skill guarantee by damaging Applicant's fence during their work and issues with neatness of asphalt compacting and edging / Insufficient evidence to show breach of reasonable care and skill in respect of whole asphalt job as reasonable care and skill not a standard of perfection / Applicant unable to prove breach by gradient and join issues with asphalt as was still reasonable in terms of care an…

Consumer law / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Applicants purchased horse from Respondent for $10,000.00 / Applicants aware horse was ‘out-of-work’ when purchasing him for competitive show-jumping / Applicants relied on ad stating it was “quality horse with loads of talent” and outlined showjumping success / Applicants considered ad meant high likelihood horse could return to previous form / Applicants contended Respondent misrepresented horse’s previous success / Applicants claimed difference between price paid and re-sale value plus $3000.00 costs / Held: contract binding on all parties / Respondent acting in trade when selling horse / Ad ambiguous but no failure of acceptable quality guarantee / Statements made in context of selling out-of-work horse with no guarantee of future performance / Applicants knew horse might never achieve past potential / No remedy available to Applicants / Claim dismissed.

Negligence / Government Roading Powers Act 1989 / Applicant held maintenance contract to maintain motorways and repair any damage / Respondent crashed into the wire rope barrier on a motorway causing $43,274.05 worth of damage / Applicant reduced claim to fit within the $30,000.00 limit of the tribunal / Held: on the balance of probability, Respondent was liable for the damage and the remedial cost as claimed / Respondent ordered pay Applicant $30,000.00 / Claim allowed.

Negligence / Applicant and Respondent were involved in minor vehicle collision / Applicant and Respondent provided conflicting statements / Applicant claimed payment for vehicle damages / Held: on balance of probabilities, Respondent found liable in negligence for failing to stop in time behind Applicant's vehicle at traffic lights / Insufficient evidence that another vehicle hit Respondent's vehicle first pushing him into Applicant's vehicle / No evidence pre-existing rear damage on Applicant's vehicle / Vehicle uneconomical to be repaired / Respondent liable to pay vehicle's pre-accident value less nominal amount that could have been obtained for sale of wreck / Respondent ordered to pay Applicant $3,650 through Respondent's insurer / Claim allowed.