Disputes Tribunal of New Zealand

Consumer law / Applicant booked 2 nights’ accommodation at luxury holiday home owned by the Respondents for $890.00 / Applicant claimed $505.00 for several inconveniences / Applicant said there was wrong size duvet, no toilet paper, insufficient dish washing powder, no toilet spray, no curtains on two windows and see-through curtains elsewhere, insufficient glasses, no microwave, no wheelie bin, and no hot water on the second morning / Held: accommodation not at reasonable standard consistent with accommodation’s promotion in some ways / Advertised microwave was not working / Insufficient hot water was inconvenient / Glasses could have been replaced before Applicant’s stay / Advertised that guests should bring their own toilet paper / Adequate rubbish bags were provided / Duvet supplied was adequate / Toilet spray not required item / Adequacy of curtains matter of perception / $150 refund was appropriate to compensate for inconvenience / Claim allowed in part.

Contract / Employment / Misrepresentation / Applicant is a medical company who employed the Respondent / Respondent provided notice of termination before starting the job / Applicant claimed Respondent should pay it $30,000 in damages for failure to give three months' notice of termination / Held: Applicant failed to disclose earlier professional misconduct, loss of registration and lack of ability to offer independent professional mentorship of supervision, which amounted to misrepresentation / Misrepresentation induced Respondent to enter the contract as she believed Applicant was skilled and experienced registered medical professional who could help mentor and develop her skills / Respondent able to cancel contract / Claim dismissed.

Property law / Fencing Act 1978 / Applicants purchased property and sought to build a fence between their property and the respondent’s property / Fencing notice was served on Respondent, proposing a boundary survey and construction of a fence / Respondent opposed notice, citing financial hardship and claimed an adequate fence previously existed / Applicants claimed for 50% contribution of $16,972.64 costs from Respondent for construction of a fence / Held: no adequate boundary fence / Applicants proposed paling fence deemed adequate, while Respondent’s wire fence deemed insufficient for privacy and containment / Costs should be apportioned equally / Respondent ordered to pay Applicants $8,486.32 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicants took their vehicle to Respondent for servicing work and paid $2,890 / Vehicle engine failed and was discovered to have debris and metal pieces that had broken off when the engine seized / Applicant claimed that the vehicle's oil pick up was blocked by material introduced into the oil reservoir when Respondent carried out oil change / Applicant claimed $11,368.81 consisting of the service work, inspection and value of vehicle / Held: Applicants have not proved the debris entered the oil reservoir when Respondent carried out oil change / Debris more likely to have accumulated overtime / Claim dismissed.

Tort / Private Nuisance / Applicants and Respondent own adjoining properties / Applicant said Respondent's development work increased amount of water flowing on their property which caused damage to a wall in their home and attached shed built on the boundary / Applicant claimed for Respondent to pay $15,000 in damages and an order to abate water flow / Held: not enough evidence to support finding that Respondent's development created nuisance / Old stables now demolished previously sheltered Applicant's property from rainwater falling naturally to their land / Adjoining neighbour will not have a positive duty to reduce or mitigate natural water flow from neighbour's land / Damages not considered / Claim dismissed.

Transport law / Negligence / Applicant attempted a right hand turn across a busy road into a shop / As applicant turned, Respondent appeared on a bicycle from a narrow gap between parked cars in a bus lane and stationary traffic / Respondent collided with applicant and another car, sustaining a fractured wrist and concussion / Applicant sought a determination of liability / Respondent and insurer counterclaimed $4,392 for damage to Respondent’s belongings / Held: Respondent made an unsafe passing movement and caused the collision / Applicant did not contribute to the accident and could not have reasonably anticipated Respondent’s approach / Counterclaim dismissed.

Contract / Consumer Guarantees Act 1993 / Building Act 2004 / Fair Trading Act 1986 / Applicant entered into a contract with First Respondent to construct garage-sleepout / Contract not completed and eventually cancelled / In a previous claim, Applicant was ordered by Tribunal to pay Respondent for amount owing under contract / Applicant claimed $30,000 damages / Held: any claim against Respondent under consumer legislation relating to contract for construction of garage-sleepout had been previously considered by Tribunal / Previous claim was dismissed and the District Court appeal had also been dismissed / Tribunal does not have jurisdiction to hear claims under the Crimes Act 1961 / No evidence that Second Respondent had any dealings with Applicant in his personal capacity / Claim against Third Respondent was withdrawn / Claim dismissed.

Contract / Applicant and Respondent were friends / Parties agreed that the Applicant would train Respondent for a body building competition / Applicant said Respondent agreed to be sponsored athlete and receive discounted rates in exchange for promoting Applicant as her trainer and allowing use of her photos / Respondent accepted she was sponsored athlete receiving reduced rate, but felt she had not been adequately informed about her obligations / Applicant invoiced Respondent of $735.00, of which $635.00 was paid / Applicant claimed $1,025.00, and associated Tribunal fees, as non-discounted rate for her services because she had no promotional benefit from arrangement / Held: contract existed between parties / Parties intended to create a legal relationship rather than simply an arrangement between friends / Respondent breached contract by not allowing her photos to be used for promotional purposes / Applicant did not receive benefit of promotional photos exchanged for discounted rates…

Tort law / Negligence / First respondent collided with applicant’s garage door / Door was repaired at total cost of $1,840, with $500 paid by the applicants as insurance excess and the remainder covered by their insurer / The applicant filed a claim to recover the excess and the insurer joined the claim to recover its own loss of $1,008 / First respondent admitted liability but questioned repair costs / Held: First respondent liable for damage caused by collision / Repair costs deemed reasonable, depreciation factored in by insurer / First respondent ordered to pay insurers $1,508.80, claim allowed in part.

Contract / Negligence / Fencing  / Fencing Act 1978 / Applicant and Respondents were neighbours who engaged a tree contractor to fell trees using Applicant’s driveway as accessway / Contractor damaged boundary fence and left debris / Applicant claimed Respondents agreed to reinstate 60 m of fencing and were liable for contractor’s negligence / Applicant claimed $25,731.25 for debris clearance and 120 m of fencing / Held: Respondents liable for breach of agreement to reinstate 60 m of fencing but not liable for contractor’s negligence nor strict liability in nuisance or under Fencing Act / Referee found enforceable agreements for 10 m and further 50 m of fencing / Respondents failed to reinstate fences as agreed / No evidence Respondents controlled contractor or breached primary duty or that work was inherently dangerous and policy considerations weighed against imposing liability on Respondents for contractor’s negligence / Respondents ordered to pay Applicant $4,600 for breached agree…

Contract / Building Act 2004 (BA) / Applicant purchased newbuild from Respondent / Dispute over remedial work arose / Fault with kitchen tap caused water damage to flooring / Respondent delayed in repairing leaking shower hose / Applicant had items stolen allegedly due to improper security design and lighting / Applicant claims $23,992 for kitchen repairs, anxiety and stress, keys, replacement shower house, value of stolen items, plus work order to further secure property / Respondent counterclaimed $3815.56 / Held: Respondent breached contract by failing to remedy leaking kitchen tap in reasonable time and failing to provide Applicant with keys and Applicant breached contract by failing to pay balance of purchase price on settlement date / 16 day delay in arranging plumber for kitchen issues was unreasonable and Respondent liable for damaged flooring as consequential loss of leaking tap / Respondent not liable for shower hose as Respondent attempted to remedy issue / Compensation for …

Contract law / Misrepresentation / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased vehicle from First Respondent acting for Second Respondent / Vehicle later found to have external oil leak / Applicants alleged misrepresentation and sought $2400 damages (reduced at hearing from $48000 refund) / Held: No misrepresentation under s 35 CCLA by Respondents / Respondents had not misrepresented condition of the vehicle as mechanic’s evidence showed vehicle was driveable, the leak was external and common for vehicle type / Applicant’s had been told vehicle needed a lot of oil especially on long trips / Consumer Guarantees Act 1993 protections did not apply as this was a private sale / Referee found contract fair and reasonable under s90 CCLA despite Applicant being minor at time / Claim dismissed.