Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased candles online from Respondent / Applicant stated candles were smudged and flattened near the bottom and not of the quality she expected / Applicant sought to return the candles and receive compensation of $127.00 / Respondent stood by the quality of the candles saying they were produced in beeswax and were formed within a mold / Respondent said she offered to exchange the candles but the offer was not accepted / Held: candles were of acceptable quality and fit for purpose / Clear to any buyer that that the candles were not hand-carved / No breach of guarantee / No right to refund / Claim dismissed.

Property /  Contract / Applicants purchased home from Respondents / Discovered hole in floor of garage after signing agreement prior to settlement / Applicants reserved their right to bring claim after settlement / Real estate agent joined claim as Fourth Respondent to determine the responsible party for misrepresentation regarding the garage’s condition / Applicant also sought costs for installation of rangehood due to its inclusion in list of chattels under the contract / Applicants claimed $2,127.50 for rangehood supply and installation and $6842.50 for garage repair /  Held: First, Second and Third Respondents were liable  for misrepresentation of the garages condition / Requirement to disclose faults rested with them as vendors / Rangehood did not exist at time of agreement and was not intended to be included by parties /  Respondents breached agreement by preventing Applicants from undertaking a pre-settlement inspection but no further loss resulted from that breach  / First, Sec…

Consumer law / Misrepresentation / Fair Trading Act 1986 / Applicant purchased a truck that recently received Certificate of Fitness (CoF) issued by Respondent / After transporting truck home, Applicant discovered rust in body of truck / Vehicle Condition Assessment confirmed the rust / Applicant made complaint to NZTA and CoF was revoked / Applicant alleged misrepresentation and claimed $9,190 / Held: Respondent’s issuing of CoF amounted to false or misleading representation / Rust on truck’s body would have been present at time of inspection and should have been identified by Respondent / Applicant entitled to reasonable cost of repairs / Applicant not entitled to additional costs as not closely connected to Respondent’s actions and partially attributed to Applicant’s action not to view truck before auction / Respondent to pay Applicant $7,797 / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant entered Distribution Agreement with Respondent granting rights to distribute food and dairy products / Applicant experienced loss of leased refrigerated truck a month later and emailed intention to terminate agreement / Respondent invoked clause requiring $5000 plus GST for cancellation without three months written notice and withheld commission from Applicant / Applicant claimed payment of February commission $4459.89 plus GST / Held: clause was an enforceable penalty clause / Penalty amount was not out of proportion and was reasonable pre-estimate of loss given increased costs to perform distribution during 3 month notice period / No frustration of contract through force majeure / Loss of leased truck was foreseeable and performance was not impossible / Also,   later personal events occurred after cancellation / Claim dismissed.

Contract / Flatmate agreement / Contract and Commercial Law Act 2017 / Parties were co tenants in a fixed term tenancy under flatmate agreement / Respondent alleged safety concerns with other tenants so moved out before lease ended and stopped paying rent / Applicants claimed unpaid rent and costs / Respondent counterclaimed for return of bond / Held: Respondent’s concerns with other tenants did not amount to breach of contract / Respondent remained liable for rent until suitable replacement found / Applicants failed to mitigate own loss by unreasonably declining a replacement tenant / Respondent only liable for rent until suitable replacement was declined by Applicants / Respondent’s bond of $1,000 equalled the four weeks’ rent Respondent owed so Applicants could retain it / Claim allowed in part and counterclaim dismissed.

Contract / Property / Applicant purchased land from Respondent to provide access to property / Agreement was for Applicant to grant easement over land to allow Respondent continued access to their land / Respondent failed to sign required documents and no new certificate of title was issued or easement registered / Respondent later sold to third party who informed Applicant they did not have legal right to access their property / Applicant required to reach further agreement with new owners to grant an easement / Applicants claimed $30,000 from Respondents being price to obtain an easement in a previous claim / Applicants claimed further expenses totalling $29,858.00  for additional costs associated with obtaining the easement from the third party /  Held: Applicants have attempted to divide their cause of action into two claims contrary to s 15 of DT Act / Applicants cannot bring such a split claim in an attempt to obtain a figure greater than the $30,000 Disputes Tribunal limit / Cla…

Consumer law / Applicant purchased vehicle from Respondent advertised as having 17” tyres / Applicant later discovered spare tyre was 16” / Applicant claimed $610.22 to upgrade tyre / Held: advertisement did not exclude spare tyre / Reasonable consumer would expect spare to match other tyres / Manufacturer specification required same size type tyres to be used / Respondent ordered to pay Applicant $610.22 and to collect 16” tyre within three weeks after payment / Claim allowed.

Contract / Respondents and Applicant farm neighbouring properties / Respondent swapped use of digger for various farm assistance from Applicant / Applicant claimed $14,033.87 for the value of grazing cattle / Dispute over whether value of digger use was greater than, equal too, or less than the value of assistance provided by Applicant / Held: Applicant did not have contractual right to fee sought / Applicant can claim quasi-contract for restitutionary compensation for value provided in the exchange / Values of services exchanged assessed in light of equitable consideration not market value / Applicant provided grazing services and animal health products to value of approximately $5,904.00 and $1,250.00 respectively / Respondent provided digger use to a value of $1,600.00 to be subtracted from the value owed to the Applicant / Respondent ordered to pay Applicant $5,554.000 / Claim allowed in part. 

Consumer law / Contract and Commercial Law Act 2017 / Applicant provided packing and moving services to Respondent / Applicant claimed $2,000 for services / Respondent counterclaimed $9,100 as Applicant damaged goods and left property behind / Held: Applicant was paid in full and offered no evidence to support claim for additional $2,000 / Contract of carriage was at owner’s risk / Applicant not liable for loss or damage unless they intentionally damaged the goods or were reckless / Respondent failed to prove intentional or reckless damage / No independent valuation of losses were provided / Claim and counterclaim dismissed.

Consumer law / Building / Consumer Guarantees Act 1993 / Applicant’s builder engaged Respondent to do a final clean of the Applicant’s finished home / Scratches were discovered on some of the windows / Window supplier replaced some panes where they were responsible for faults or damage in transit / Five windows were not replaced / Applicants attributed the damage to the Respondent when cleaning the windows / Applicants claimed $6,520.70 for replacement costs /  Held: Applicants failed to prove it was more likely than not that the Respondents failed to carry out their work with reasonable care and skill / Claim dismissed. 

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant purchased Respondent’s battery system from third party / Battery failed after eight years of use / Applicant contacted third party and their agent but received no remedies / Respondent refused liability as batteries not meant to be sold as retail products / Batteries were irreparable and disposed / Applicant claimed $7,419.15 for inspection, disposal and unused battery life / Held: Respondent not liable because it did not intend for batteries to be sold as retail products / Respondent under belief that third party would maintain and service the batteries / Batteries not of acceptable quality / However, manufacturer liability under CGA not applicable for Respondent / Applicant did not notify Respondent of failure within reasonable time / Delay prejudiced Respondent’s ability to assess problem or offer remedy / Claim dismissed.

Negligence / Respondent drove vehicle into garage of Applicant’s rental property / Damage to garage was extensive and took 18 weeks to repair / Applicant reduced weekly rent by $50 during repair period / Insurers for both parties covered repair costs but not rent-reduction loss / Applicant claimed $900 / Held: Respondent not liable for rent-related loss / While Respondent caused the damage, consequential loss of rent reduction was too remote / Not reasonably foreseeable that driving into garage would lead to rent reduction / Main dwelling was not been affected / Rent reduction was voluntary decision by Applicant / Claim dismissed.

Insurance / Contract / Applicant purchased travel insurance policy from Respondent / While abroad Applicant got sick and was diagnosed with medical condition / Applicant was advised to undergo surgery / Applicant sought pre-approval from Respondent who declined it as not an emergency and could wait until Applicant returned to New Zealand / Applicant proceeded with surgery at own expense / Applicant claimed $14,493.85 / Held: surgery was medically necessary and fell within policy’s coverage for “reasonable overseas emergency medical treatment” / No requirement in policy that only lifesaving surgery will be approved / Applicant’s symptoms were painful and prolonged so not reasonable for Applicant to suffer through long flight to receive care / Respondent did not appear to have all information when initially assessing necessity but subsequent reports should have alerted them that surgery was the only treatment available / Respondent ordered to pay Applicant $14,493.85 / Claim allowed.