Disputes Tribunal of New Zealand

Negligence / Head-on collision occurred between Applicant’s car and Respondent’s tractor as they turned a blind corner / Applicant claimed collision was inevitable as Respondent had not taken all necessary steps to ensure safety of other road users while driving his tractor / Applicant said Respondent had negligently positioned tractor forks / Applicant's vehicle was damaged beyond repair in the collision, determined to have pre-accident value of $1,500 / Held: collision caused because neither party was traveling at a speed that allowed them to stop in half the roadway that was visible to them / Not accepted that Respondent had a higher duty of care to avoid an accident when driving a tractor / Applicant and Respondent both contributed equally to the collision / Respondent ordered to pay Applicant $750, half the damage costs / Claim allowed in part. 

Civil/ Consumer / Limitation Act 2010/ Applicant sought compensation for shower purchased from Respondents / Alleged shower had incorrect dimensions and was not fit for purpose / Applicants withdrew initial claim for medical reasons and refiled / Applicants failed to appear at hearing due to timing confusion / Applicants applied for rehearing / Rehearing  could be granted  if error caused miscarriage of justice/ Held: strike out decision did not create a miscarriage of justice as Applicants were time-barred from pursuing the claim / Claim dismissed. 

Towing / Applicant parked in area where he believed allowed 90 minutes of free parking / Markings and signage were unclear or obscured / Carpark was for gym customers only / Applicant’s vehicle was towed / Applicant claimed refund of $432.08 towing fee / Held: despite unclear markings and signage, wider parking area was clearly and extensively marked as allocated parking for specific businesses / Applicant not a customer of gym so tow justified / Claim dismissed.  

Compensation / Vehicle collision / Applicants’ van and motorbike damaged in collision when Respondent failed to give way / Respondent acknowledged fault / Applicants did not have insurance / Respondent disputed quantum of remedy to be awarded to Applicants / Applicants claimed $7500 in compensation / Held: collision was the cause of the damage to the Applicant's motorbike /  Applicants were entitled to $6,501 being the costs claimed that were supported by receipt or valuation less $500 for the wrecked value of the van already received by Applicants / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1986 (FTA) / Applicant held credit card issued by Respondent / Applicant mistakenly paid $3,692.92 to foreign government agency and requested refund / No payment appeared in his account but he was informed that the agency had processed refund / Acquirer reference number was provided to him to assist tracking / Applicant paid $3,692.92 into credit card account to prevent it going into debt / Applicant contacted Respondent multiple times but Respondent incorrectly claimed money had already been paid into account / Applicant claimed $8,000 for financial loss and stress / Held: Respondent breached guarantee of reasonable skill and care by not investigating Applicant’s issue adequately / Respondent breached FTA by not honouring its advertisement to provide timely assistance to customers / Respondent’s failure prevented Applicant from recovering the refund, causing loss / Claim for compensation for stress and time spent did not m…

Contract law / Contract and Commercial Law 1997 / Applicant and Respondent were neighbours who discussed possible exchange of services / Applicant claimed there was verbal agreement for the Applicant to provide architectural services and Respondent to provide tiling work / Applicant undertook measurements and presented proposed drawings / Respondent said he would consider proposal / Applicant later issued invoice for work done which Respondent refused to pay / Applicants claimed $1,748 / Held: no contract existed between Applicant and Respondent / Essential terms were uncertain / No agreed consideration / Respondent had not authorised Applicant to proceed with work / No agreement that payment would be financial rather than via service exchange / Claim dismissed.

Negligence / Applicant left his vehicle at the mechanics / Mechanic shared same building with Respondent / Fire broke out in building that destroyed Applicant’s car / Applicant alleges fire was due to Respondent’s negligence / Applicant claimed $25,600 in replacement vehicle and claims assist fee / Held: fire started from unknown source / Respondent had taken reasonable steps to mitigate any loss / Respondent did not fail in their duty to take reasonable care / Claim dismissed. 

Consumer law / Consumer Guarantees Act 1993 / Applicant bought mower from Respondent for $499 that was advertised with free shipping / Respondent later said pick up only / Applicant arranged friend to collect mower but friend collected wrong mower / Respondent insisted Applicant must return wrong mower and pay for correct mower to be sent / Applicant claimed refund and costs / Held: Respondent failed to comply with guarantee as to delivery and failure was of substantial character / Applicant did not have correct mower and Respondent would only provide correct mower if Applicant paid to return incorrect mower / Applicant entitled to reject goods and related transport costs / Respondent ordered to pay Applicant $599 and Respondent to retrieve incorrect mower at own expense / Claim allowed.

Consumer law /  Consumer Guarantees Act 1993 / Applicants hired a portable cabin from Respondent / Applicants alleged cabin not of acceptable quality / Cabin was not clean, had faulty heat pump and lacked adequate insulation / Respondent failed to resolve issue or allow early termination without penalty / Applicants claimed $3,053.15 (50% refund of hire charges and bond) and declaration of non-liability for last invoice / Held: cabin not of acceptable quality / Cabin was not clean, heat pump was faulty and insulation was inadequate for purposes advertised / Removal of cabin not done with reasonable skill and care / Respondent to pay Applicants $3,053.15 / Applicants not liable to pay remaining invoice / Claim allowed.

Contract / Applicant parked in privately run car park without successfully paying for parking session / Applicant told Respondent of being unable to pay via Respondent’s chatbot and left car parked / Respondent sent Applicant $95 breach notice and additional collection costs for failure to pay breach notice in required time / Applicant claimed declaration of non-liability for breach notice and collection costs / Respondent counterclaimed for $460.99 / Held: Applicant failed to comply with terms and conditions of parking and was liable for breach fee / Additional enforcement and collection costs not enforceable as debt already in dispute when additional fees applied / Applicant ordered to pay $95 to Respondent / Collection costs dismissed / Claim allowed in part.

Fraud / Applicant invoiced Respondent $35,092.26 for the excavation work / Respondent received email from Applicant advising their bank account details had updated / Respondent paid $26,665.63 into Applicant’s new account / Parties subsequently discovered funds had been paid into a fraudulent account / Money was never recovered / Applicant claimed $30,000 / Held: the fraudulent email came from Applicant’s system / As a responsible business, Applicant obliged to ensure its financial systems are robust and its computers protected from unauthorised access / Applicant must bear loss that resulted / Respondent not negligent in its reliance on genuineness of email despite its casual tone and the inaccurate bank address / Respondent’s lateness in paying invoice did not cause or enable fraud to occur / Respondent to pay remaining balance of $3,334.37 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant bought mower from Respondent but broke handle a month later / Respondent advised replacement part would take 10-12 weeks / Respondent delivered incorrect part after 9 weeks / Applicant queried incorrect replacement part with Respondent and Respondent’s employee mistakenly told Applicant a new mower would be provided / Applicant requested refund after being without replacement part or new mower for 16 weeks / Applicant claimed refund of purchase price and associated losses / Held: Respondent breached guarantee as to delivery by failing to supply correct part within reasonable time but failure was not substantial / Applicant not entitled to reject goods or receive refund / Respondent ordered to pay Applicant $1,000 for consequential loss from breach and to deliver correct part immediately / Claim allowed in part.

Contract / Applicants bought a motorhome / Motorhome was advertised with a 2 year mechanical warrantee / Applicant made multiple attempts to inquire about warrantee details, but was not provided with any /  Respondent claims he has possibly maintained motorhome insurance that the Applicants may be interested in / Held: Promise made in the advertisement are representations about what Applicants purchased / Motorhome came with a 2 year mechanical warrantee / Motorhome has not suffered a mechanical issue / As mechanical issue has not occurred the Respondent has not refused to honour the warrantee / Dismissal of claim does not bar any further proceedings if mechanical issue occurs / Claim dismissed.