Disputes Tribunal of New Zealand

Contract / Contract and Commercial Law Act 2017 (CCLA) / Second Applicant purchased vehicle from First Respondent / Vehicle had Warrant of Fitness issued by Second Respondent / Vehicle had defects and Applicants seeks costs / Held: Legislative consumer protection not available for private sales / No obligation on First Respondent to ensure vehicle was mechanically sound / Second Applicant not induced to enter agreement through misrepresentation or mistake / Lack of knowledge on defects does not meet legal criterial of mistake / Onus on Applicant to exercise due diligence / Second Respondent did not use reasonable care and skill when doing WOF inspection / Waka Kotahi report identified faults Second Respondent failed to identify / Second Applicant relied on report and suffered loss / No independent evidence about cost of remedy / Conservative approach to compensation taken / Second Respondent to pay Second Applicant $400 / Claim allowed in part.

Negligence / Applicant contacted lawyer from Respondent for legal advice on restraint of trade clause in employment contract with her former employer / On lawyer’s advice Applicant set up business at home which violated clause / Former employer filed and obtained interim injunction from Employment Relations Authority (ERA) preventing Applicant’s business from operating / Applicant claimed lawyer gave wrong advice and sought $20,000 / Held: not satisfied Applicant established on balance of probability lawyer was negligent or gave wrong advice / Another experienced barrister gave her similar advice / ERA member had different opinion but their finding was not a final determination / Issue never went to final determination as it was settled by mediation / Claim dismissed.

Contract / Applicant parked in Respondent’s carpark / Applicant made no payment for parking / Respondent sent Applicant parking breach notice and claimed $85 payment  / Applicant paid $17 as Applicant stated that was the actual loss Respondent had gotten from Applicant’s non payment / Respondent arranged debt collection services and requested Applicant to pay $118 for balance of amount owing, debt collection fees and administration costs / Held: Signage in car park was visible so Applicant had accepted its terms when he parked car in car park / The New Zealand Supreme Court has stated in contract a reasonable payment can be requested for a breach to protect legitimate business interests by who the sum is claimed / $85 was a reasonable sum claimed / Claim dismissed / Applicant to pay Respondent $68.00. 

Contract law / Applicant parked in a private car park managed by respondent while delivering food / Signs in the car park warned of a $95 infringement fee for unauthorised parking and further liabilities for late payment / Applicant paid the $95 fee but disputed liability for additional late fees and debt collection costs / Respondent counterclaimed for $416.71 in late fees, debt collection costs, and interest / Applicant sought a declaration that he was not liable for $225 in late payment fees / Held: no contract (unilateral or bilateral) was formed between parties by entering the car park; the signage was a warning, not an offer / Initial $95 fee was enforceable under the law of trespass as a reasonable fee for unauthorised use of land / No legal basis for charging additional late payment fees, debt collection costs, or interest under trespass or contract law / Applicant not liable to pay $225 in late payment fees or other amount beyond initial $95 fee, Claim allowed / Respondent’s c…

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged the Respondent to rebuild an engine for their vehicle / Two weeks later, Applicant contacted Respondent regarding issues with the van  / Respondent carried out work on the van over several months / Applicant collected the van and was asked to pay $2,000 for additional work / Applicant was dissatisfied with the Respondent’s work and stated there were missing and damaged parts / Applicant claimed $7,934.00 consisting of refund for of additional work, cost of remedial work, and for damaged and missing parts / Held: Respondent did rebuild the engine with reasonable care and skill / Insufficient evidence that the Respondent took or damaged any parts / Respondent was entitled to charge $2,000 for additional work because a considerable amount of time was spent trying to diagnose the problem / Applicant not entitled to any compensation as work was carried out with reasonable care and skill / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a new vehicle from first respondent and had a new towbar fitted by them / Applicant alleges the towbar was too law, causing damage and requiring removal / Applicant claimed compensation for cost of replacement towbar, inconvenience, and potential unquantified damage, alleging the towbar was not of acceptable quality / Held: Tribunal found the towbar was fit for purpose and the damage was consistent with misuses, not a defect or design fault / Claim dismissed.

Tort and bailment / Applicant lent car to 1st Respondent to use and return later / 1st Respondent allowed 2nd Respondent to drive car / Car was involved in collision while 2nd Respondent was driving and car was written off / Applicant claimed $7750 as cost of replacing car and consequential loss / Held: 1st Respondent failed as bailee to take reasonable care and 2nd Respondent negligently drove at high speed with both breaches causing the single loss / Respondents jointly and severally ordered to pay Applicant $8,200 / Claimed accepted.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Issues with phone within two months of acquisition / Applicant provided phone to Respondent for assessment / Respondent had phone repaired within a week of receipt / Held: phone was not of acceptable quality / Respondent repaired the phone in a reasonable time / Applicant not entitled to reject the item or have it replaced / Respondent ordered to return the phone to the Applicant/ Claim dismissed.

Contract /Consumer Guarantees Act 1993 (CGA) / Contract and Commercial Law Act 2017 / Respondent engaged Applicant to design structural engineering requirements for extension to home / Applicant provided written agreement with estimated prices to Respondent which later increased due to design changes / Applicant issued two invoices which Respondent disputed as they were only willing to pay for work originally quoted / Applicant claimed payment of invoices plus interest / Held: Respondent changed scope of work which increased structural design work / The initial estimate was not fixed price contract until project requirements were more firmly established / Insufficient evidence Applicant breached contract by failing to provide services within reasonable time / Respondent never raised delay concerns with Applicant / CGA not breached as Applicant never briefed to design most cost effective solution but to incorporate Respondent’s preferences / Applicant did not breach agreement so Respond…

Consumer law / Consumer Guarantees Act 1993 (CGA) / Fair Trading Act 1986 (FTA) / Second Respondent owned a camper van and engaged First Respondent to sell it for a fee of $1,000 / First Respondent advertised the van and Applicant purchased it for $9,500 / Subsequently, the van suffered an engine failure / Mechanic quoted $3,315.76 for repairs / Applicant claimed van was not of acceptable quality and sough to reject the vehicle and receive a refund of $9,500 / Held: First Respondent was “in trade” and the sale was subject to the CGA and FTA / Van was not of acceptable quality / First Respondent was only an agent and never owned the van / Applicant cannot reject van and revest ownership to First Respondent / Applicant entitled to reasonable cost of repairs and diagnosis / First Respondent ordered to pay Applicant $3,405.76 / Claim allowed in part.    

Property / Consumer law / Consumer Guarantees Act 1993 / Applicant obtained property valuation from Respondent / Both Applicant and Respondent had been informed by real estate agent that the property included an apartment, garage and storeroom / Storeroom was not included in the purchased property / Error made by the real estate agent was not been identified by the Applicant’s lawyer and the two valuers including the Respondent / Applicant claimed Respondent had not provided services with reasonable care and skill due to a failure to properly ascertain relevant facts / Held: in ordinary course of events it was reasonable for a professional to rely on information provided by another professional / Valuers primary role is to provide a valuation for a property not to ascertain what is encompassed on a certificate of title / Respondent gave a considered valuation, turning his mind to relevant factors required / Claim dismissed. 

Contract law / Respondent requested Applicant to provide prices for arborist services / Applicant provided prices for work comprised of two stages / Stage 1 had fixed price for site visit and preparatory work / Stage 2 charged on hourly basis / Applicant stated they were unable to provide any estimates on time required / Respondent approved Applicant to commence stage 1 works but disputed they approved stage 2 / Applicant claimed $27,220.50 for unpaid invoices / Held: Respondent instructed Applicant to undertake further work after site visit and those fell under stage 2 / Hourly rate and basis for charging were clear / Contract formed when Respondent instructed Applicant to perform further work / Contract did not require acceptance to be in particular form / Applicant not required to declare work entered stage 2 / Respondent failed to provide sufficient evidence Applicant either charged unreasonably or excessively for work undertaken / Claim allowed.

Consumer law / Fair Trading Act 1986 / Respondent operated a cosmetic beauty business / Respondent offered Applicant a training programme in teeth whitening with the understanding Applicant would receive certificates from a professional body upon completion / Applicant paid $1,200 for the training, completed the courses and provided services for two customers / Certificate provided was in Respondent’s name / Professional body confirmed Respondent was not an authorised trainer and could not issue certificates / Applicant claimed a refund of $1,200 alleging misleading or deceptive conduct and false representation / Held: Respondent engaged in misleading or deceptive conduct  by representing Applicant would receive a certificate from the professional body / Applicant did not receive the training or certificate as represented and was entitled to a refund / Respondent ordered to pay Applicant $1,200 / Claim allowed.