Disputes Tribunal of New Zealand

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.

Fencing law / Fencing Act 1978 / Parties are neighbours and had obtained interim Fencing Act order for building a boundary fence / Decision finalises the interim order with some amendments where necessary / The parties sought an updated quote from builder to allow variations to fence not included in interim order / Order sets out matters relating to how fence is to be constructed, payment of costs, and the timeline for when parties should complete acts they have been ordered to / Order records discussion at hearing of issues with as-built plans affecting plumbing to assist parties to continue with as-built plans and make corrections to plan where necessary / Order records 2nd Applicant's agreement to use best endeavors to investigate matters relating to plumbing in as-built plans and to lodge corrected plans with local council as soon as practicable.

Consumer law / Property / Building Act 2004 / Applicant purchased new-build townhouse from Third Respondent (developer and vendor) / Applicant sent defect list and was informed they were to be remedied / Applicant claimed $25,000 for cost of remedying issues and time spent chasing contractors / Held: Respondents breached implied warranty of reasonable care and skill due to issues contained in defect list / Respondents given adequate opportunity to remedy defects / Tribunal unable to factor future costs / Reasonable costs awarded / Claim dismissed against First and Second Respondents / Third and Fourth Respondent ordered to pay Applicant $16,479.67 / Claim allowed in part.

Negligence / Damages / Insurance / Applicant's vehicle damaged while parked / Applicant found out it was the Respondent through a witness / Respondent admitted to minor collision which was due to her tyre blowing out / Communications continued for a few years after incident / Respondent refused to pay damages and claimed she did not damage the vehicle / Respondent reported Applicant to police for harassment / Applicant claimed $2,532.50 repair costs / Held: Applicant provided sufficient evidence to satisfy burden of proof / Respondent failed to exercise duty of care when her vehicle collided with the Applicant's vehicle / Respondent ordered to pay Applicant's insurer $2,510 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicants bought a diamond ring in an auction conducted by Respondent / Ring was listed in the auction catalogue with an estimated price guide of $17,000.00 to $22,000.00 / Catalogue stated that a gemologist valuation was available / Applicants said the ring was worth much less than the valuation / Applicants claimed the Respondent misrepresented the retail value of the ring and misled them / Respondent stated it did not make any representation as to the value of the ring / Applicant sought an order that the Respondent was liable for $15,231.25, amount of purchase price and Respondent fee / Held: not enough evidence to find there was a misrepresentation or misleading conduct by the Respondent / Insufficient evidence there was a breach of the legislation / Claim dismissed.

Tort / Applicant alleged Respondent damaged Applicant's car while it was parked / Applicant and Respondent were colleagues who did not get on well / Applicant viewed security camera footage overlooking car from neighbouring business immediately after discovering damage and saw Respondent walking around car / Respondent said they were walking around car to inspect and feel scratches already on car / Applicant and insurer claim for costs of repairs / Held: Respondent caused damage to Applicant's car as Respondent was only person around car on relevant day, Respondent's behaviour inconsistent with just looking at car, behaviour consistent with damage caused, clearly carrying something more than just items Respondent said in evidence they were carrying / Damage to car repaired for cost of $4684 / Applicant liable to pay full cost / Claim allowed.