Disputes Tribunal of New Zealand

Trespass / Applicants were trustees occupying land within city boundary / Applicants cropped part of the land with lucerne / Stock owned by Second Respondent on adjoining paddock accessed the paddock growing lucerne / Applicants sought damages / Whether the stock was owned by the Second Respondent / Whether the land was situated within the city boundary / If not, whether the fence was adequate / Whether the costs claimed reasonable / Held: Accepted that the stock was owned by the Second Respondent / All parties agreed the land was within the city boundary / Trust entitled to demand damages from the Second Respondent / Damages related to unharvested lucerne / Trust did not mitigate its loss by harvesting promptly after the stock trespass / Parties agreed $135.00 was fair amount for a bale of lucerne / Second Respondent ordered to pay Applicants $8505.00 for 63 bales by specified date / claim allowed.

Contract / Fair Trading Act 1986 / Building Act 2004 / Building Regulations 1992 / Housing Improvements Regulations 1947 / Applicant rented three-bedroom apartment managed by Respondent for one week at cost of $3,030.00 / Applicant discovered one bedroom had no window / Applicant and friend found this unpleasant and slept on the couch for the last three nights / Applicant claimed $1,010.00 from Respondent as compensation / Held: Respondent did not mislead or deceive Applicant when advertising the apartment as having three bedrooms / The bedroom was not required to have a window in order to comply with applicable legislation /Respondent not liable to pay amount claimed by Applicant / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Breach / Applicant owns interior panting business / Respondent contracted Applicant to complete painting work / Applicant did not receive payment on second invoice for completed work / Applicant claims for unpaid invoice / Respondent counter-claims work completed not to professional standards and they were required to remedy Applicant’s work / Held: Respondents in breach of conditions for non-payment of second invoice / Held: Applicant did not complete work to reasonable skill and care, failure of a substantial character / Claim and counter-claim allowed/ Respondent ordered to pay Applicant $2160.87

Land Transport (Road User) Rule 2004 / four vehicles involved in nose-to-tail accident / stationary queue had formed / Driver A stopped, was hit from behind by Driver B who was hit from behind by Driver C who was hit from behind by Driver D / liability for compensation for damage disputed / Driver A claimed $2,000 from Driver B / Held: duty to stop short even if driver in front stopped suddenly / Held: Driver B failed to stop short of Driver A / Driver A heard two hits, when Driver B hit and when Driver C hit Driver B / Held: Driver C failed to stop short of Driver B / Driver B's car extensively damaged at rear and written off / Held: each driver who hit another liable for damage they did / difficult to determine damage Driver B did to Driver A / insufficient evidence that Driver D caused additional harm to Driver A / damage to Driver A apportioned on 50/50 basis between Drivers B and C / Driver C liable to pay for damage to Driver B / Insurer to pay Driver A $1,000 / Driver C to pay D…

Contract / Contract and Commercial Law Act 2017 / Applicant booked Respondent for her services as a make-up artist for a wedding photoshoot / Applicant paid a deposit of $225 and booked airline tickets and accommodation / Respondent chose not to undertake the job because of concerns around COVID-19 / Respondent refunded deposit / Applicant claimed refund for booked flights, accommodation and filing fee / Whether Respondent breached the contract by not travelling for the job or whether contract frustrated by events / If the Respondent breached the contract what losses did Applicant suffer /  Whether Respondent was entitled to flight amount and accommodation / Whether Respondent entitled to filing fee / Held: not satisfied contract was frustrated / contract not impossible to perform as Applicant secured services of another make-up artist for the shoot / Respondent failing to perform contract was a breach of the contract / Applicant suffered loss of costs of flights booked for Respondent …

Land Transport (Road User) Rule 2004 / Applicant and Respondent were involved in a car collision / Applicant was hit from behind by Respondent / Collision caused $3,934.06 of damage to Applicant’s car and $3,139.20 of damage to Respondent’s car / Both parties seek cost of repairs / Applicant claimed the Respondent was at fault because he was following behind / Respondent claimed Applicant drove in an unsafe manner that created a situation on the road / Inference that Respondent as following driver responsible for failing to see Applicant, failing to keep a proper distance or failure to stop short / Respondent raised defence per r 1.8 of the Land Transport (Road User) Rule 2004 that he was responding to a situation on the road that was not of his making and was avoiding another crash / Held: unable to find Applicant was at fault / Applicant’s claim allowed / Respondent’s claim dismissed / Respondent ordered to pay Applicant’s insurer $3,934.06

Contract / Terms of contract / Respondent signed up online to complete a course of weekly business coaching with the Applicant / Respondent advised she wished to terminate service after entering online contract with Applicant / Applicant claims $600.00 on the basis his terms and conditions require a 6-week (30 business day) notice period / Respondent claims she did not receive adequate notice of the terms and conditions requiring this notice period / Held: Applicant’s terms normally include a notice period / Evidential onus on Applicant to prove terms of contract understood and accepted by Respondent / Tribunal unable to make a finding that notice period incorprated within contract entered by Respondent / Claim dismissed

Contract / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicant purchased cookware from First Respondent relying on error made by salesman / Applicant returned cookware via Second Respondent / Cookware lost by Second Respondent / Applicant sought order that she was not liable for $4,7555 cookware/ Whether Applicant had right of return / Whether Second Respondent was liable for missing cookware / Held: Applicant had right of return / Second Respondent lost the cookware / Wholesale price not disclosed / Once contract for sale of cookware was cancelled the cookware was only worth replacement value / Merits and justice of case required one direct payment from Second Respondent to First Respondent / Second Respondent ordered to pay nominal loss of $304 to First Respondent at maximum tracked parcel liability.

Contract / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Parties entered into agreement for Respondent to make Applicant dentures / Applicant paid agreed cost of $17,500 and Respondent made dentures / Applicant claims Respondent misled them into thinking they were paying for porcelain not composite for upper denture / Applicant claims dentures not of acceptable quality or fit for purpose / Applicant claims refund / Held: Respondent did not make false or misleading representation / Respondent carefully explained each denture option / Held: dentures were of acceptable quality / Normal for adjustments to be required after patient has worn them and allowed them to settle in / Outcome: claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased car from Respondent / Respondent advised there was an issue with the starter / After purchase Applicant noticed additional problems including mileage that was over the advertised amount / Applicant wrote to Respondent listing faults with car / Respondent declined to take car back for a full refund / Held: Respondent “in trade” as supplier for purposes of the CGA / Statutory guarantees and remedies contained in CGA apply to the transaction / Held: nature and number of problems mean car was not free from minor defects even given age and mileage / Condition constitutes breach of acceptable quality under ss 6 and 7 CGA / Held: Applicant met requirement to notify seller of problems and Respondent did not remedy within reasonable time / Claim allowed / Respondent ordered to pay $3020.00 to Applicant

Negligence / Animals Law Reform Act 1989 / Applicant collided with a herd of cows when driving on a rural road / Second Respondent acknowledged that a farm gate was damaged / Applicant claimed he suffered loss because his vehicle carried finance over and above market value of vehicle / Whether Second Respondent acted with a standard of care expected of a reasonable farmer / Whether Applicant’s loss was foreseeable / Held: Second Respondent did not act with a standard of care expected of a reasonable farmer / Applicant suffered a loss caused by a breach by Second Respondent / Applicant entitled to damages to put him back to the position prior to collision / Ordinary person would not expect to pay for finance above the value of the vehicle / Applicant not proved that he suffered a loss in terms of finance / Applicant’s insurance considered losses/ If insurance had not covered losses than Second Respondent would be liable / Claim dismissed.

Fencing Act 1978 / Applicants own a property with a long driveway / Respondents share a boundary line with Applicants driveway / Fencing notices exchanged regarding removal of fence / Respondent removed post and wire fence near boundary despite matter being in dispute / Applicants object to removal of fence / Whether existing fence was adequate / Whether Respondents liable to reinstate fence / Whether Applicants entitled to costs / Held: Fence adequate but needs to repair to ensure it is fit for purpose / Respondents removed fence and are liable to reinstate / Applicants claim for costs dismissed