Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a waterproof cargo bag from Respondent for $159.00 plus $19.99 shipping / Bag designed to be carried on a car roof / Applicant attached bag to roof of vehicle for a long journey / Applicant noticed two tears in the fabric near fastening straps during course of journey / Respondent considered damage was caused by overtightening fastening straps / Applicant claimed $223.99, purchase price plus shipping cost and $45 filing fee / Held: cargo bag was not of acceptable quality / Bag was not fit for purpose it was described by supplier as being suitable for and was not durable / Applicant entitled to reject goods and receive refund, $159.00 / Applicant also entitled to shipping cost of $19.99 as a loss directly arising from the failure / Respondent required to collect the goods at own cost / Filing fee unable to be awarded in the circumstances / Respondent ordered to pay $178.99 / Claim allowed in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased house from Respondent / After moving in, Applicant discovered black mould under the stairwell / Applicant was aware prior to purchase that stairwell had been relined after a leak had caused damage / Applicant undertook further investigation and was advised it appeared leak had been present for years / Applicant paid $11,800.00 to have leak repaired / Applicant then discovered further mould in a bedroom, also caused by a leak / Applicant claimed $11,800.00 for cost of initial repair and $7,935.00 estimated cost of bedroom repair, alleging Respondent failed to disclose the leaks and black mould / Held: no failure to disclose issues, as Respondent was not aware of them / Agent’s statement that historic leak above stairwell had been repaired was a misrepresentation, as further permanent repairs were necessary / Misrepresentation was innocent / Applicant obtained a building report before purchase which…

Consumer law / Applicant purchased a car from Respondents via a private sale / Applicant paid $4200.00 / Respondents stated that the car “runs and drives beautiful” / Applicant noticed the coolant level was low when he inspected the car but purchased it regardless / Low coolant level turned out to be a crack in the radiator that required repairs / Held: Respondents’ statement regarding the car’s condition did not amount to a misleading statement / In the absence of independent mechanical evidence, the car may have been “running well” in lay terms / Not established that the statement induced the Applicant to buy the car / Misrepresentation not established / Claim dismissed.

Tort / Negligence / Respondent undertook resealing work on portion of a state highway / Seal began to fail within 5 days / Respondent advised seal was failing and emergency remedial work required / Applicant claimed Respondent was negligent by taking too long to close the road and had inadequate signage / Applicant claimed negligence caused damage to his vehicle / Held: Respondent owed Applicant a duty of care / Applicant failed to provide evidence that Respondent was negligent in its original sealing work / Time Respondent took to arrive on site was not unreasonable / Damage claimed by Applicant not due to alleged breach / Claim dismissed.

Procedural law / Disputes Tribunal Act 1988 / Hearing for original matter heard in February 2020 / Respondent missed initial hearing and rehearing / Respondent applied for second rehearing but did not attend due to family tragedy / Respondent now seeks a third rehearing three years later / Held: lack of urgency in applying for third rehearing / Applicant would be prejudiced if a rehearing were allowed / Claim dismissed, rehearing not allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicants booked flights via travel agent to fly with Respondent / Tickets were converted to flight credits due to Covid / Applicants requested a refund /  Respondent advised they had no record of their refund request and recommended that they rebooked using the credit / Applicants booked return international flights / When the Applicants arrived at the airport, they were told that Applicant’s mother’s ticket was invalid as the refund had been issued to her travel agent / Family purchased a new fare for $1327.03  / Applicant claimed $2327.03, $1327.03 cost of replacement ticket and $1000.00 for emotional distress / Held:  Respondents failed to exercise  reasonable care and skill / Appropriate award was the difference in the fares of $828.72 / Situation did not meet the high threshold for an emotional damages award / Respondent must pay $874.54, difference in fare and interest amount of $45.82 / Claim partially allowed.  

Negligence / Parties were involved in vehicle collision / Applicant was in his van on median strip, planning to turn right / Respondent turned right onto road / Respondent moved onto median strip to turn right and the two cars collided / Held: more likely that Respondent was responsible for damage to Applicant’s van / Applicant was entitled to be on median strip, and was there to be seen if Respondent had looked more carefully / No exceptions to rule that cars turning right must give way to all traffic not turning / Costs of repairs reasonable and consistent with damage done / Respondent ordered to pay Applicant’s insurer $11,984.02 / Claim allowed.  

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a cabin from Respondent for $9,107.00 / Cabin was constructed by a contractor / After construction, cabin’s door blew off, requiring replacement / Year before replacement door to arrive / Respondent also replaced some hardware / Applicant determined cabin was not safe, was concerned it would collapse / Applicant disposed of cabin / Applicant requested refund of price paid for cabin on basis it was not of acceptable quality or fit for purpose / Held: Applicant lost right to reject goods for refund when he disposed of cabin / Applicant’s claim likely would not have succeeded even if he had not disposed of cabin / Balance of probability was that cabin was of acceptable quality but failed due to its construction / Respondent agreed to make $2,000.00 goodwill payment to Applicant even if claim was dismissed / Claim dismissed.

Consumer Law / Consumer Guarantees Act 1993 / Applicants purchased a purebred dog from the Respondent for $4,500.00 / Dog subsequently became lame and was diagnosed with a hip condition / Applicants claimed $15,114.17, refund of purchase price and costs of the dog’s diagnosis and treatment / Held: sale of the dog was covered by the CGA / Dog was not fit for purpose as a purebred, as it cannot be shown or bred /  Respondent ordered to $9,500.00, $4,500.00 refund of sale price and $5000.00 towards medical payments / Claim allowed in part.

Property / Fencing / Fencing Act 1978 (FA) / Parties owned adjoining properties / No fence between the two properties, just several old fence posts from previous fence / Applicant wanted to build a new fence on the boundary / Applicant served fencing notices, and Respondents served a cross notice the following month / Applicant sought an order than Respondents were liable to pay $8,000.00 towards the cost of a new boundary fence / Disagreements regarding height and style of fence, and complications due to heritage status of Respondents’ property / Held: substantial compliance with FA requirements for serving fencing notice and cross-notice by both parties / Lack of adequate fence between the parties’ properties in terms of FA / Specific orders made for construction of fence / Parties to share cost of building fence ($12,650.00) equally / Respondents ordered to pay Applicant $6,325.00 for fence / Claim allowed in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a furniture franchise from Respondent / Applicant claimed Respondent misrepresented potential of business because there was not enough work in the area to earn money promised / Applicant claimed $30,000 to cover losses suffered as a result of lack of income in the business / Held: Respondent induced Applicant to enter into the contract by making a misrepresentation that the business would earn $4,000 plus per week / Sales were so poor that the business had to cease trading / Applicant suffered loss and is entitled for compensation / Respondent ordered to pay Applicant $30,000 / Claim allowed.

Consumer law / Fair Trading Act 1986 / Contract and Commercial Law Act 2017 / Applicant flew on domestic flight with First Respondent airline / Applicant’s checked-in bag was not returned until after a considerable delay / Applicant’s bag contained some perishable items including fish / Applicant said perishable goods had value of about $100.00 / Applicant claimed $2,700.00 for goods lost plus and time and inconvenience involved in retrieving bag / Claim brought against First Respondent airline and Second Respondent baggage handler company / Held: Applicant entitled to value of perishable goods / Applicant entitled to compensation for long period of delay and inconvenience / First Respondent failed to provide reliable and reasonable information to Applicant, amounting to misleading conduct / Applicant experienced waste of time and money as a result / Reasonable compensation for time and trouble caused by First Respondent’s misleading conduct was $750.00 / First Respondent ordered to pa…

Contract / Applicant provided Respondent estimate of $2,104.50 for renovation work, Respondent accepted and paid $1,052.25 deposit / When Applicant arrived on site, several factors increased scope of work / Applicant advised Respondent a price variation was needed, but no estimate was given / When work was completed, Applicant invoiced total of $8012.47, less deposit, leaving $6960.22 outstanding / As Respondent disputed amount charged, Applicant brought claim for balance of invoice / Held: pricing supplied by Applicant clearly stated it was an estimate, not a quote / Parties did not agree on a variation and scope of work did not change / Work proceeded on basis of original estimate / Final price may vary from an estimate by up to 15% / Due to costs incurred, reasonable to allow 15% variation / Respondent also liable for additional costs for cladding materials and finishing lines / Respondent ordered to pay $1726.25 / Claim allowed in part.