Disputes Tribunal of New Zealand

Contract / Building Act 2004 / Applicant entered agreement to purchase a new-build property / After moving in, Applicant raised several issues with the developer, including scratching and damage to much of the joinery in the house / Damage to joinery was not remedied / Applicant now claimed $23,138.00 from the Respondent building contractor for full re-coating of all the joinery in the property / Held: photographs demonstrated problem with joinery was widespread / Respondent failed to provide evidence the defects were not present at completion of the build or at settlement and therefore had an external cause independent of the building work / Building work was not carried out in a proper and competent manner, nor with reasonable care and skill / Damaged joinery was a building defect per the Building Act / Applicant notified the building defect within 12 months of building completion / Issue was not remedied within reasonable time / Applicant entitled to damages / Respondent ordered to …

Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased a motorbike from Respondent / Applicant claimed Respondent misrepresented motorbike by describing it as being in “immaculate condition” and “mechanically perfect” and telling Applicant it had not been dropped / After purchase Applicant noticed signs of damage and repairs / Applicant had bike appraised, which found several defects and damaged parts suggesting bike had been previously dropped / Applicant sought to return motorbike for full refund of $5200.00 purchase price, plus reimbursement of cost of appraisals and repairs / Held: bike was misrepresented / Bike had faults and was damaged / While Respondent did not know bike had been dropped, bike showed clear evidence of having been dropped / Misrepresentations induced Applicant to buy motorbike / Applicant entitled to $3,900.00 damages, being purchase price less $1800.00 assessed value of motorbike plus appraisal and repair costs / Respondent ordered to pay $3,…

Contract law / Contract and Commercial Law Act 2017 / Private sale of vehicle between parties / Held: only arguable basis for the claim was misrepresentation or mistake / No proven representations made by Respondent, either verbally or in writing, about mechanical condition of vehicle / Parties entered into agreement on the basis of a mistake / Mistake was essential to contract / Mistake resulted in a substantially unequal exchange of values / Respondent ordered to pay Applicant $4,000.00 / Claim allowed.

Consumer Guarantees Act 1993 / Applicant purchased bike bag from Respondent / Applicant noticed small cut in bag / Applicant used the bag for a week and then requested it be replaced / Applicant claimed bag sold with a defect / Term on Respondent's website states any defect must be reported before use / Respondent claimed Applicant had nicked the fabric when opening package with knife / Each view equally credible / Applicant has not discharged onus to prove claim / Claim dismissed.

Property / Fencing / Property Law Act 2007 (PLA) / Fencing Act 1978 (FA) / Applicant and Respondent owned adjoining properties on a hill, with Applicant’s property situated above Respondent’s property / Applicant claimed Respondent removed sections of the retaining wall and left Applicant’s property unsupported / Respondent claimed retaining wall was partly on his property, so was a wrongly placed structure in terms of PLA / Applicant claimed 75% of cost of building new retaining wall and fence, $29,550.03 / Held: no adequate fence on boundary at present / New fence built by Respondent was not an adequate boundary fence / Retaining work on boundary was preparatory work required for an adequate fence to be built, so covered by the FA / Best estimate for cost of boundary and fence work was $29,500.00 builder’s estimate submitted by Applicant / Parties liable to contribute to cost of fence in equal shares / Applicant to organise construction of fence and retaining wall to ordered specific…

Contract / Consumers Guarantees Act 1993 / Applicant purchased vehicle from Respondent’s website / Car made a loud banging noise when Applicant received car / Applicant went to car dealership to have it checked / Applicant advised front and back tyres were a different circumference / Applicant changed tyres / Applicant claims refund on costs incurred / Held: Vehicle not of acceptable quality / Defect was substantial character / Applicant entitled to be reimbursed for costs / Claim allowed.

Trespass / Applicant parked her vehicle in parking area / Respondent had authority to tow vehicles in parks leased by two businesses / Applicant admitted parking in the carpark but denied particular park was leased by relevant business and therefore Respondent was not legally entitled to tow her vehicle / Applicant sought repayment of towing fee paid to release her vehicle / Respondent provided evidence park was leased by relevant business and Respondent was authorised to tow the vehicle / Whether Applicant was given sufficient notice of park being subject to tow restrictions and whether amount claimed to release her vehicle was reasonable / Held: Applicant was given adequate notice of restrictions on use of the carpark and Applicant breached those terms / Respondent entitled to tow Applicant’s vehicle / Absence of evidence that Respondent’s $420.00 charge to release Applicant’s vehicle was unreasonable / Claim dismissed.

Consumer law / Applicant selected vehicle in Respondent’s yard and paid deposit to secure it / Once Applicant’s loan was approved he returned to Respondent’s premises to uplift vehicle / Respondent advised vehicle had been sold and Applicant would have to select another vehicle / Applicant did not wish to select another vehicle was sought full refund of deposit / Respondent refused / Applicant claimed for refund of $2,050 deposit / Held: Applicant paid deposit on specific vehicle / Not open to Respondent to sell that vehicle and insist on deposit being used to purchase a different vehicle / Applicant entitled to full refund / Respondent ordered to pay $2,050 / Claim allowed.

Consumer Law / Contract / Applicant laid concrete supplied by the Respondent on a driveway of a property development / The bottom half was much darker than the top half / The bottom half was supplied by the Respondent / Applicant claimed there was no black oxide or very little in the concrete for the concrete for the bottom half supplied by the Respondent / Applicant sought a refund of the price it paid the Respondent for the concrete ($5,146.22) plus interest (6% current bank rate at the time) /  Respondent claimed they were not told the concrete ordered needed to match with the concrete already there or they would have told the Applicant to use the top half supplier / Held: Applicant failed to prove their version of events was on balance more likely than the Respondent’s version / Of particular note was the Respondent’s evidence regarding different suppliers and that they were not aware they needed to match concrete / Respondent not liable for the difference in colour of concrete / C…

Consumer law / Education / Consumers Guarantees Act 1993 / Applicant enrolled son with Respondent for extra English tuition /  Applicant believed that programme was inadequate and did not prepare son for exams / Son failed mock exams / Applicant claimed refund for fees paid / Held: services provided must be provided with reasonable skill and care / Goods or service must be fit for purpose / No evidence to conclude Respondent’s classes were not in accordance with curriculum / Number of reasons why son could have failed / Claim dismissed.

Damage / Vehicle collision / Parties were involved in vehicle collision / Applicant claimed Respondent deliberately rammed his vehicle into a barrier / Applicant sought compensation for value of his vehicle, which was written off / Held: more likely than not that Respondent was driver of vehicle / Respondent deliberately rammed Applicant’s vehicle / Respondent liable for resulting damage and loss / Respondent ordered to pay Applicant’s insurer $9,957.00, $1,200 of which was to be paid to Applicant for excess / Claim allowed.

Nuisance / Applicants lived next to a new development / Applicants were concerned with sunlight reflecting off the roof into their house / Applicants claimed $15,000.00 in nuisance for harm to their health, visual pollution and a potential reduction in property value / Applicants also sought that the Respondents reclad/overclad part of the development’s roof with non-reflective roofing materials / Held: nuisance confined to situations where there was property damage, loss or injury / Applicants did not allege any physical property loss or damage / Applicants claim solely concerned the impact on their personal health, the visual impact and a ‘potential’ economic loss which might arise / Tribunal did not have jurisdiction to determine the claim / Noted that reduction in property value fell within definition of property damage/loss / However, no substantive evidence was produced, only speculation / Claim struck out

Contract / Accord and satisfaction / Applicant built a dwelling on Respondent’s property pursuant to a contract between the parties / Final invoice was rendered for $46,500.59 but only $26,598.73 was paid / Respondent stated he was making a number of deductions and tendered the amount in full and final settlement / Applicant rejected full and final settlement term but kept the sum tendered / Applicant claimed for recovery of $19,901.86 remaining amount unpaid by Respondent / Held: no evidence that the dispute was a real dispute / Unable to determine that any of the alleged deductions from the unpaid amount were valid deductions / Respondent required to pay full remaining amount of the invoice / Respondent ordered to pay $19,901.86 / Claim allowed.