Disputes Tribunal of New Zealand

Fencing / Fencing Act 1978 / Applicants shared boundary fence with Respondent / Respondent erected corrugated iron and post fence attached to existing boundary fence without consultation with Applicants / Applicants sought removal of corrugated iron addition and claimed $100.00 to replace gate they said was broken by Respondent / Held: posts and corrugated iron constructed by Respondent was an alteration to an existing fence and not an independent fence within Respondent’s property / Due process was not followed by serving notice on Applicants or obtaining their consent / Original fence to be reinstated and additions made by Respondent removed / Any damage incurred in reinstated fence to be fixed at cost to Respondent / Insufficient evidence that gate was damaged / Claim allowed in part.

Bailment / Negligence / Applicant decided to sell his motorbike / Respondents offered to sell bike on Applicant’s behalf / Respondents sold bike to person living in a caravan at their house / Buyer purchased bike for $13,400.00 and paid $1,400 into Applicant’s account / Applicant told Respondents on no account was buyer to take possession of bike before full payment was made / Some months later, Applicant had still not received the $12,000.00 / Respondents told him buyer had taken the bike / Applicant claimed price he originally paid for bike together with other losses / Held: Respondents entered into bailment relationship with Applicant when they took his bike on agreement they would sell it for him / Respondents were negligent in their duty as bailee by failing to keep possession of bike until payment received in full / Applicant incurred loss of $12,000 unpaid balance / Respondents ordered to pay $12,000 / Claim allowed in part.

Contract / Applicant, a furniture manufacturer, was engaged by Respondent’s employee to make prototypes for chairs and bar stools / It was understood resulting items of furniture would be manufactured in part by Applicant and sold by Respondent / Applicant made prototypes and invoiced Respondent but had no response / Applicant later learned the employee he had been dealing with was no longer employed by Respondent, and Respondent was disputing liability for the invoice / Applicant claimed $3,450.00 unpaid invoice / Held: Respondent’s employee had, and was held out by Respondent as having, authority to make the arrangements in question with Applicant, and did so / Employee’s failure to record details of arrangement according to Respondent’s expectations or to obtain purchase orders did not make any difference to Respondent’s liability / Respondent bound by the actions of its employee / Respondent ordered to pay $3,450.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant contracted Respondent to paint his driveway for $2,800.00 / Applicant said the driveway was now slippery when wet / Applicant sought an order that Respondent was liable to pay $1000.00 to reseal driveway / Held: painting of the driveway was not done with reasonable care and skill and was not fit for purpose / Driveway was now slippery and dangerous when wet / Professional painter must be taken to understand that a consumer would like the resulting surface to be as safe as possible / Respondent ordered to pay $299.00, calculated cost of resealing driveway / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a car via private sale from Respondent for $12,750.00 / Respondent advertised the car as a “great vehicle” that was “regularly serviced” / Applicant paid a deposit, then inspected and test-drove the vehicle, identifying no major issues / Within a month of purchase, major mechanical issues were identified / Applicant claimed issues were inconsistent with the vehicle having been “regularly serviced” by the Respondent and sought $7,794.39 for repairs / Held: not proven Respondent made false or misleading representations about the vehicle / Insufficient evidence to establish connection between alleged lack of servicing and problems that arose / Applicant had carried out thorough inspection of vehicle prior to purchase and neither he nor two mechanics noticed any symptoms to alert them of the major issues with car / Claim dismissed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Car did not have a WOF, but advertisement stated it would “have a fresh warrant” upon sale / After a test drive, Applicant agreed to purchase car without WOF for reduced price / Applicant took vehicle to mechanic, found repair would require removal of gearbox / Applicant claimed $3,000.00 refund of purchase price and $375.82 for cost to investigate issue / Held: no misrepresentation regarding WOF / More likely than not that faulty odometer had under-counted kilometers car had travelled / Representation that car had travelled 104,506km was therefore misrepresentation, which induced Applicant into the purchase / Insufficient evidence about extent of undercounting or effect it would have had on price / Respondent ordered to pay $500.00 for misrepresentation / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant paid $12,000.00 deposit to secure purchase of horse from Respondent / Horse remained with Respondent, apart from a period when it was leased to Applicant for a horse camp / When Respondent retrieved horse after camp, she claimed it was lame / Applicant decided not to proceed with purchase, requested refund / Applicant claimed $12,250.00 for purchase price and filing fee / Respondent counter-claimed $8,000.00 for reduced value of horse / Held: Applicant entitled to cancel contract and obtain full refund until final payment was made, according to agreement / Respondent failed to prove horse suffered laminitis caused during time she was under Applicant’s responsibility / Respondent breached agreement by failing to refund Applicant / Filing fee not recoverable / Respondent ordered to pay $12,000.00 / Claim allowed in part and counter-claim dismissed.

Contract law / Consumer Guarantees Act 1993/ Applicant claimed he paid $7,225.00 for job seeking services to First Respondent / Applicant said his wife went to a job interview organised by First Respondent but the job did not meet requirements of skilled migrant visa category / Applicant sought a refund from First Respondent / First Respondent refused / First Respondent said it provided a range of services / At the second hearing, it became apparent that some of the funds were not paid to First Respondent but to the Second and Third Respondents / First Respondent was a company owned and operated by Second and Third Respondent / Applicant brought a claim against First Respondent for $7,225.00 / Held: two separate contracts / First was between Applicant and First Respondent for immigration and job seeking services / Second was between Applicant and Second and Third Respondents for accommodation / Lack of coherent evidence about the cost of services provided / Applicant said he paid $7,22…

Contract / Property (Relationships) Act 1976 / Applicant lent Second Respondent, her son, $5,000.00 to purchase a car / Applicant and Second Respondent signed contract stating Applicant would repossess car if repayments not made / Car was purchased and registered in the name of the First Respondent, the Second Respondent’s partner / First and Second Respondent later separated, and First Respondent retained possession of car / No repayment of loaned amount had been made / Applicant brought claim requesting return of car or repayment of loan / Held: First Respondent was not party to the contract between Applicant and Second Respondent / Second Respondent repudiated contract by failing to make any repayments of loaned amount / No legal relationship between Applicant and First Respondent that could allow an order for First Respondent to give vehicle to Applicant / Second Respondent ordered to pay Applicant $4,999.00 / Claim partially allowed.

Contract / Applicant provided educational advocacy services for the Respondent / Respondent did not receive invoice but paid Applicant $431.28, understood to be consultation fee / Applicant suggested Respondent required decluttering assistance at her home / Respondent said she was happy to pay Applicant’s friend $30 an hour for decluttering / Applicant and her friend attended Respondent’s home to perform decluttering services to mixed results / Respondent received invoice for $1,717.74, less the $431.27 paid, for educational advocacy and decluttering services / Respondent paid for Applicant’s friend’s services but declined to pay Applicant’s charges for decluttering / Applicant claimed $1,286.46 from Respondent for balance of invoice / Held: Applicant did not explain her charging structure or seek Respondent’s agreement / No contract of service was entered into at the time / Applicant did not appropriately and effectively contract the Respondent into de-cluttering services / Charges re…

Contract / Applicant provided services to Respondent in relation to the fire aspects of a council notice to fix Respondent's building / Applicant claimed payment of two unpaid invoices totalling $9,170.38 / Held: Respondent created the appearance that agent had authority to engage Applicant on her behalf / Respondent directly liable to Applicant rather than Applicant being in position of a subcontractor / Applicant contractually entitled to be paid for work performed / Respondent ordered to pay Applicant $8,662.08 / Claim allowed.

Contract / Applicants contracted with Respondent to buy a puppy advertised online / $800 was agreed price / Applicants deposited $400 initially and then paid balance prior to pickup / Subsequent events suggested the transaction was a scam / After full payment was made, further money was requested by Respondent to cover insurance and vet costs / Applicants queried additional costs / Respondent replied that she would cancel the contract and refund the money as she did not wish to sell to buyers who “could not afford puppy insurance” / No refund eventuated / Held: transaction appeared to be a scam / Possible, even probable, that Respondent’s name was fake and address was unrelated to actual sellers / Applicants entitled to a refund / Respondent ordered to pay $800.00 / Claim allowed.

Contract / Trespass / Applicant engaged Respondent to retrofit windows in his home to reduce noise / Applicant accepted Respondent’s quote and paid $1,042.00 deposit / Respondent installed windows and sent invoice for $860.00 balance / Applicant was not happy with degree of noise reduction and also complained that sealant was not dry after a couple of days / Respondent asked to come check the windows / Applicant agreed / Respondent arrived and took the retrofit windows away / Applicant claimed $1,900.00 for deposit refund and compensation for “mental damage” / Held: Respondent removed windows without contractual right to do so / Applicant entitled to full refund / “Mental damages” not generally available in contract law / However, Respondent gained access to property on false pretext, then removed windows without permission / Respondent’s actions constituted trespass to land / Further $100.00 in nominal damages awarded for trespass / Respondent ordered to pay $1,142.00 / Claim allowed …