Disputes Tribunal of New Zealand

Contract / Respondent was franchisee of Applicant’s business system / Second Respondent was Applicant’s guarantor / Applicant’s earnings has not met expectations / Respondent terminated contract with Applicant for abandonment, non-payment of franchise fees and disparagement / Applicant claims to be refunded for the franchise fees paid / Respondent counter claims for unpaid invoices / Held: Tribunal has jurisdiction to hear matters regarding misrepresentation / Respondent’s did not misrepresent Applicant with business model / Applicant breached contract by failing to pay invoices  / Respondent’s counterclaim is allowed / Applicant to pay Respondent $30,000.

Consumer law / Fair Trading Act 1986 (FTA) / Applicants purchased caravan after no issues identified in warrant of fitness (WOF) inspection by Respondent's company / Caravan renovations revealed rust affecting structural integrity / Applicants alleged Respondent breached FTA and claimed $19,764 for work done to restore caravan to roadworthy condition / Held: Respondent did not breach FTA nor was Respondent negligent in carrying out WOF / Applicants unable to prove corrosion or damage visible on day of WOF such that WOF standard would be breached / Insufficient evidence that WOF could not have been lawfully issued by Respondent / No basis for compensation / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Respondent engaged Applicant to manufacture and install kitchen benchtops / Applicant carried out installation and issued invoice for unpaid balance / Respondent disputed invoice on grounds that she was not satisfied with installation / Applicant claimed payment for unpaid invoice / Held: minor issues identified by Applicant were remediable / Applicant had the right to remedy failure by carrying out repaired work / Applicant not given opportunity to remedy minor issues identified / Applicant failed to exercise reasonable care and skill in communicating with Respondent about the cooktop, fill and waterfall / Final product did not have the look that Respondent wanted to achieve / Respondent entitled to 25% compensation of total price / Respondent ordered to pay remaining invoice less compensation / Respondent ordered to pay Applicant $7,242.84 / Claim allowed in part.

Property / Contract / Applicants purchased a house from the Respondent / Settlement occurred but the Respondent failed to remove his belongings from the property for a further 5 days / When Applicants took possession they found the house was infested with vermin / Vermin had wrecked electrical wiring and the carpets, both had to be replaced / Applicants claimed $18,244.00 comprising of numerous costs arising out of the breach of agreement such as pest control, additional accommodation, legal fees, loss of income, cleaning and electrical work / Held: Respondent breached the Sale and Purchase agreement with regards to the carpet and wiring as neither were in working order at the time of settlement / Some expenses claimed by the Applicant were too far removed from the breach of contract and were not reasonably foreseeable so have not been awarded, such as loss of income / Tribunal granted some expenses to a lesser extent than claimed by the Applicant such as legal fees and accommodation /…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Applicant purchased ute from Respondent on basis it had new tyres, differential and WOF / Ute needed replacement clutch and rear differential and a turbo repair within months of purchase / Applicant claimed $15647 for repair costs / Held: Ute not of acceptable quality under CGA as reasonable consumer would not expect faults to key vehicle components to occur so shortly after purchase / CGA applies as ute was commonly used for personal use and parties had not contracted out of CGA in writing / Faults in culmination created failure of substantial character / Vehicle would have reduction in value below price paid but for repairs Applicant organised / Repair costs are fair and reasonable reflection of reduced value / Applicant entitled under s 18(3)(b) CGA to compensation of reduction in value / Respondent to pay Applicant $9385.17 / Claim accepted.

Contract / Negligence / Applicant provided emergency accommodation for 2 months to Respondents and their dogs / Significant damage to units discovered after Respondents left / Applicant and their insurer claimed $12,621.08 for damage / Held: Damage to Applicant's units caused by Respondents or their dogs with liability arising in contract and negligence / Undisputed that Respondents occupied units at relevant time and evidence shows damage occurred while Respondents occupied units / Damage was either willful or caused negligently by Respondents together or alone failing to take reasonable care to prevent damage / Respondents also signed registration forms accepting liability for any damage caused / Applicant and their insurer entitled to be returned to position they would have been in had damage not occurred / Respondents severally liable to pay $6310.54 each to Applicant's insurer / Applicant's insurer to pay $500 of $12,621 total to Applicant as compensation for excess paid / Claim a…

Insurance / Respondent's vehicle collided with a vehicle / Respondent settled insurance claim with the owner of that vehicle / Applicant claimed Respondent also impacted his vehicle when it was parked and unattended / Applicant's insurer claimed $8,948.36 repair costs / Held: unknown who wrote evidence submitted by Applicant and therefore given no weight / Unlikely for Respondent to have collided with both vehicles while reversing / Applicant's vehicle had pre-existing frontal damage / Applicant's evidence insufficient to prove claim on balance of probabilities / Claim dismissed.

Consumer law / Acceptable quality / Consumer Guarantees Act 1993 (CGA) / Applicant purchased second-hand vehicle manufactured by Respondent company / Vehicle type had common engine issues and manufacturer issued recall in 2019 / Applicant’s car head gasket failed and was repaired at Applicant’s cost after Respondent refused to pay / Applicant claimed vehicle had known engine defect affecting resale value and reliability / Applicant claimed $9000 to reflect well known issues and effect on resale value / Held: vehicle not proven to be of unacceptable quality / Car had no current mechanical issues and head gasket issue occurred when car was 10 years old and had driven 152000km / Tribunal accepted manufacturer’s obligations change over time with age and mileage of car / Applicant relied on anecdotal online sources without expert evidence / No proof that head gasket failure was due to systemic defect or that vehicle was unsafe or unfit for purpose / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993/ Fair Trading Act 1986 / Misrepresentation / Applicant purchased a motorhome online from Respondent / Motorhome was advertised and sold as a deregistered, damaged asset / Applicant purchased motorhome without inspection / Applicant’s mechanic discovered that the existing LV certification on the vehicle did not match its condition as the rear airbags had been removed / Applicant later discovered, that the Respondent’s vendor had allowed the previous owner to remove the airbags after the damage occurred / Vendor had not disclosed that to the Respondent / Neither Respondent nor Applicant would have been aware from a visual inspection that the rear airbags were missing / Held: not reasonable to rely on the sticker representing anything given the wording of the advertisement /  Not clear that the Applicant relied on the certification sticker when purchasing the motorhome / No misrepresentation found / Claim dismissed.

Contract / Misrepresentation / Contracts and Commercial Law Act 2017 / Applicant purchased a property from Respondent / After moving in and beginning renovations Applicant discovered extensive structural damage including rotting timber frames and unsafe roof structures / Applicant claimed $30,000 and alleged Respondent misrepresented the property's condition by failing to disclose substandard repairs leading to unexpected renovation costs / Held: property had extensive structural damage / Respondent misrepresented its condition through "half-truths" in the disclosure form / Respondent failed to disclose significant remedial work done during ownership / Applicant induced to purchase property based on misrepresentations / Respondent ordered to pay Applicant $18,881.87 / Claim allowed in part.

Insurance law / Contract / Applicant owned residential property and appointed a property management company to look after it / Property manager did not notice issues during tenancy / Property damage and theft of items was discovered after tenants vacated / Applicant considered itself indemnified by Respondent under insurance policy which included "deliberate damage" by tenants / Applicant considered property manager's work in arranging repairs were "professional fees" and so covered by policy / Applicant claimed $10,750 for $6050 excess charged by Respondent and also for the "professional fees" / Held: entitlement under insurance policy based on when each event covered by policy occurred not the date damage discovered / Respondent entitled to apply excess to each item of damage arising from different sources or causes / Work done by property manager in organising repairs and representing Applicant not covered by "professional fees" / Claim dismissed.

Property / Fencing Act 1978 / Applicant's property adjacent to property being developed by Respondent / Applicant and Respondent disputed  fencing surrounding properties / Picket fence had been removed and new timber close-boarded fence extended full length of Applicant's side boundary / Applicant claimed for fence replacement costs / Held: replacement timber fence was on the boundary / Applicant's lack of objection did not equate to consenting to new fence / Previous fence not an adequate boundary fence / Respondent not liable to remove timber-boarded fence on side boundary between parties / No general compensation relating to quiet enjoyment awarded / Applicant awarded costs related to encroachment of her land and painting / Respondent ordered to pay Applicant $2,296.17 / Claim allowed in part.

Contract / Applicant completed electrical work for Respondents / Respondents delayed in paying invoice and were charged a late payment penalty and interest / Respondent refused to pay further mediation and debt collection costs / Applicant claimed unpaid invoices / Held: dispute had been settled through mediation conference held between parties / Applicant cannot seek further amounts from Respondents / Respondents legitimately paid agreed settlement amount in full and final settlement / Claim dismissed.