Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicants contracted Respondent to grind and resurface their driveway / Applicants claimed resurfaced driveway is cracking, did not have a smooth finish, and edges were not straight / Applicants claimed Respondent liable to pay them $19,000 / Held: driveway overlay not laid with reasonable care and skill by Respondent / Final product of Respondent's work not reasonably fit for purpose / Respondent liable to pay Applicant damages / Respondent ordered to pay Applicant $19,000 / Claim allowed.

Contract / Applicant discussed buying car from Respondent and was shown one he was interested in buying subject to satisfactory test-drive / Applicant test drove vehicle but cancelled deal after not agreeing satisfactory price with Respondent / Respondent refused to refund deposit and Applicant claims $2000 damages to reflect this / Applicant paid deposit believing Respondent would lower price for car and was not told deposit was nonrefundable unless Applicant was unhappy with test drive / Held: Respondent was not required to refund deposit to Applicant / Deposit not generally refundable in a sale of goods as purchaser takes risk of purchaser changing their mind about purchase / Contract for sale became unconditional and binding after Applicant was happy with test drive / Paying deposit confirmed Applicant wished to purchase at listed price and no obligation on Respondent to explain deposit nonrefundable / Deposit was reasonable as less than 5% of purchase price / Applicant had pulled …

Contract / Applicant purchased a property from Respondents / Sale and purchase agreement included special clause about a pre-existing weather tightness issue with deck / Applicant had property viewed by waterproofer, who recommended urgent work, estimated to cost $41,860 / Applicant negotiated $20,930 reduction in purchase price / Remedial work commenced after settlement / Problem was more extensive than originally thought / Remedial works exceeded $80,000 / Applicant claimed Respondents concealed true extent of issue and misled her / Applicant claimed $30,000 compensation for concealed defects and additional remedial costs / Held: sale and purchase of property is on a buyer beware basis / However, vendor cannot misrepresent property by concealing defects / No proof Respondents deliberately concealed defects / Sale and purchase agreement placed responsibility on Applicant to ensure satisfaction with own investigations, stated purchaser would have no claim against the vendor for deck re…

Negligence / Property / Respondent lived as a boarder in the Applicant’s house / Respondent was required to move out after damage by carpet moths was found in his room / Applicant sought recovery of costs associated with the infestation / Held:  evidence indicated that the carpet moth damage was the result of the Respondent’s lack of care / Respondent failed to keep his room in a condition that prevented or limited the moths’ growth / Reasonable boarder would have noticed the carpet damage and the moths and would have brought that to the Applicant’s attention / Evidence indicated that the carpet was beyond repair / Costs cannot be awarded for printing photos for the Applicant’s claim / Respondent ordered to pay $1,597.50 for carpet damage and associated costs / Claim allowed in part.

Contract / Applicant entered into a sponsorship agreement with Respondent / Agreement meant Applicant would pay Respondent $335.42 per month / Total value of the sponsorship was $3,500.00, plus GST / Agreement also included provision for the Applicant to have vouchers for guests / Agreement mentioned “20 guest passes” / Respondent banned Applicant’s director from their club following an incident when the director was intoxicated / Applicant sought a refund of the value of these vouchers, together with 30% of the monthly payment of $335.00 / Held: nothing in the arrangement entitled the Applicant to compensation for the guest passes / As regards the claim for 30% of the monthly payment, that was, for the period from the disciplinary decision to the end of that month / Respondent appeared to have honoured the strictly commercial aspects of the agreement, until its expiry / No basis for any part of the Applicant’s claim / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Respondent operate an online shop specialising in cashmere clothing / Applicant ordered a cashmere sweater from the Respondent for $284.00 / Once received the Applicant enquired whether the sweater was 100 percent cashmere as advertised / Later, Applicant stated that she wanted to return it / Respondent advised that as the item was a sale item it could not be returned / Applicant claimed the sweater was not fit for purpose / Applicant advised there were holes in the sweater, and she wished to return it for a full refund / Respondent refused to give a refund / Respondent suggested the holes were likely caused by incorrect storage or damage / Applicant sought $343.00, being the $248.00 refund price along with $59.00 filing fee / Held: no evidence provided to show the sweater was not 100 percent cashmere, apart from the Applicant’s own experience purchasing cashmere / Unclear whether holes were caused by machine washing or quality of sweater /…

Consumer law / Contract / Negligence / Fair Trading Act 1986 / Applicant had entered construction contract with another company operated by Respondent to build minor rear dwelling / Respondent was sole director and shareholder of the company / Work commenced but Respondent abandoned unfinished project / Applicant claimed $30,000 for amount lost as result of Respondent's conduct / Respondent's company was initially joined to claim but was then liquidated so Applicant progressed claim against Respondent on basis of personal liability / Applicant alleged Respondent refused to communicate about when he could return to work, claimed progress payments upfront, did not complete work already paid for and did not advise of abandoning project amongst other misleading conduct / Held: Respondent's actions amounted to misleading and deceptive conduct or were likely to mislead or deceive / Respondent's personal liability not relieved by company's liquidation nor does limited liability concept not in…

Towing / Applicants parked their car in a GP practice parking area / After the appointment the car failed to start / No mechanic was able to attend to the car until later that evening / Car was towed that evening by the Respondent / Applicants paid $420.00 to release the car from the tow yard /  Applicant sought a refund of $420.00 towing fee / Applicants also claimed $580.00 for inconvenience and trauma as they believed the Respondent dealt with the situation unreasonably /  Held: Applicants were clearly in breach of the parking timeframes notified, albeit not intentionally / There were extenuating circumstances for the Applicants, but there were none from the Respondent’s point of view / Respondent was entitled to tow and acted both within their authority and reasonably in the circumstances known to them / Respondent not liable to either refund or compensate the Applicants for their misfortune in breaking down / Claim dismissed.

Negligence / Applicant was involved in a road collision / A few days earlier, Respondent had replaced a punctured tyre on Applicant’s vehicle with a space saver tyre / Applicant blamed the collision solely on the tyre being placed on the front of the vehicle / Applicant claimed the  Respondent was liable for the resulting damage to his vehicle / Respondent denied liability, claiming collision was caused by Applicant’s speed in wet conditions in a highly urban area, in contravention of NZTA guidelines / Held: position and existence of space saver tyre may have contributed to collision, but was not the only factor / Applicant was clearly not driving to the conditions / Not satisfied Respondent’s actions in replacing the punctured tyre with space saver tyre at the request of Applicant was negligent / Applicant proceeded to take unnecessary travel knowing it was a bad idea / Liability for collision and loss remained with Applicant / Claim dismissed.

Negligence / Land Transport Act 1998 / Applicant and Respondent had a car accident / Applicant claimed the Respondent's car had crossed over the give way line which caused the Applicant to run into him as he turned in front / Respondent had insurance cover which had paid for their car repairs / Applicant did not have insurance cover / Applicant sought $6,200.00 for repair costs / Held: always for an Applicant to prove their claim on the balance of probabilities / Applicant needed to prove that the Respondent's was at fault / Photographs taken immediately after the collision suggested that the Respondent’s car was behind the give way line at the intersection at the time of the collision / Tribunal unable to find in favour of the Applicant / Claim dismissed.

Contract / Respondent engaged Applicant to do plastering work / Applicant sought payment of $18,268.00 / Respondent’s bank account frozen rendering Respondent unable to pay / Respondent acknowledged debt / Order made for payment of debt / Respondent ordered to pay Applicant $18,268.00 / Claim allowed.

Contract / Property / Fair Trading Act 1986 (FTA) / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased house from Respondents / Applicant advised by tradesman four months after settlement about issues with roof / Subsequent investigation revealed rust and holes requiring full roof replacement / Applicant said Respondents provided building report describing roof as being in "average condition" and estate agent said roof was in good nick / Purchase agreement included warnings about relying on vendor-supplied reports / Report itself outlined limitations including that any other person relying on report does so at own risk and that only visual inspection had been completed / Applicant claimed $23,433.16 as quoted amount for full roof replacement / Held: Roof is in poor condition but Respondents had not misled or misrepresented its condition within meaning of s 9 FTA or s 35 CCLA / Building report limitations would alert reasonable purchaser to fact that more in-depth investi…