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.

Contract / Misrepresentation / Contracts and Commercial Law Act 2017 / Applicants purchased property from Respondents / Just prior to settlement, central heating unit developed a fault which could not be repaired prior to settlement / Applicants moved in and raised the issue with the selling agent who organised for it to be repaired / Applicant was advised that the unit was not sufficiently powerful to heat the lounge downstairs / Applicant claimed the lounge downstairs was cold and he had to install a gas heating unit worth $19,081.72 / Applicant believed he was misled as the property was sold as being a “lovely warm home” / Respondent stated he found the heating to be sufficient / Respondent submitted the house had been built to code / Held: evidence did not show the property was misrepresented / Whether the unit sufficiently heated the lounge was a subjective matter / At the time of sale, no specific representation about the effectiveness of the central heating unit / Claim not prov…

Fencing law / Fencing Act 1978 / Parties are neighbours and had obtained interim Fencing Act order for building a boundary fence / Decision finalises the interim order with some amendments where necessary / The parties sought an updated quote from builder to allow variations to fence not included in interim order / Order sets out matters relating to how fence is to be constructed, payment of costs, and the timeline for when parties should complete acts they have been ordered to / Order records discussion at hearing of issues with as-built plans affecting plumbing to assist parties to continue with as-built plans and make corrections to plan where necessary / Order records 2nd Applicant's agreement to use best endeavors to investigate matters relating to plumbing in as-built plans and to lodge corrected plans with local council as soon as practicable.

Contract / Applicant discussed buying car from Respondent and was shown one he was interested in buying subject to satisfactory test-drive / Applicant test drove vehicle but cancelled deal after not agreeing satisfactory price with Respondent / Respondent refused to refund deposit and Applicant claims $2000 damages to reflect this / Applicant paid deposit believing Respondent would lower price for car and was not told deposit was nonrefundable unless Applicant was unhappy with test drive / Held: Respondent was not required to refund deposit to Applicant / Deposit not generally refundable in a sale of goods as purchaser takes risk of purchaser changing their mind about purchase / Contract for sale became unconditional and binding after Applicant was happy with test drive / Paying deposit confirmed Applicant wished to purchase at listed price and no obligation on Respondent to explain deposit nonrefundable / Deposit was reasonable as less than 5% of purchase price / Applicant had pulled …

Contract / Applicant purchased a property from Respondents / Sale and purchase agreement included special clause about a pre-existing weather tightness issue with deck / Applicant had property viewed by waterproofer, who recommended urgent work, estimated to cost $41,860 / Applicant negotiated $20,930 reduction in purchase price / Remedial work commenced after settlement / Problem was more extensive than originally thought / Remedial works exceeded $80,000 / Applicant claimed Respondents concealed true extent of issue and misled her / Applicant claimed $30,000 compensation for concealed defects and additional remedial costs / Held: sale and purchase of property is on a buyer beware basis / However, vendor cannot misrepresent property by concealing defects / No proof Respondents deliberately concealed defects / Sale and purchase agreement placed responsibility on Applicant to ensure satisfaction with own investigations, stated purchaser would have no claim against the vendor for deck re…

Negligence / Property / Respondent lived as a boarder in the Applicant’s house / Respondent was required to move out after damage by carpet moths was found in his room / Applicant sought recovery of costs associated with the infestation / Held:  evidence indicated that the carpet moth damage was the result of the Respondent’s lack of care / Respondent failed to keep his room in a condition that prevented or limited the moths’ growth / Reasonable boarder would have noticed the carpet damage and the moths and would have brought that to the Applicant’s attention / Evidence indicated that the carpet was beyond repair / Costs cannot be awarded for printing photos for the Applicant’s claim / Respondent ordered to pay $1,597.50 for carpet damage and associated costs / Claim allowed in part.

Contract / Applicant entered into a sponsorship agreement with Respondent / Agreement meant Applicant would pay Respondent $335.42 per month / Total value of the sponsorship was $3,500.00, plus GST / Agreement also included provision for the Applicant to have vouchers for guests / Agreement mentioned “20 guest passes” / Respondent banned Applicant’s director from their club following an incident when the director was intoxicated / Applicant sought a refund of the value of these vouchers, together with 30% of the monthly payment of $335.00 / Held: nothing in the arrangement entitled the Applicant to compensation for the guest passes / As regards the claim for 30% of the monthly payment, that was, for the period from the disciplinary decision to the end of that month / Respondent appeared to have honoured the strictly commercial aspects of the agreement, until its expiry / No basis for any part of the Applicant’s claim / Claim dismissed.

Contract / Consumer Guarantee Act 1993 (CGA) / Applicant purchased a puppy from Respondent / Subsequently, puppy was diagnosed with elbow dysplasia / Applicant claimed $6,048.36 from Respondent for the balance of treatment costs after insurance / Held: Respondent was not in trade as defined by CGA, therefore CGA did not apply to sale of this puppy / No representations were made about puppy’s health that induced Applicant’s decision to purchase puppy / Buyer beware applied / Claim dismissed.

Towing / Applicants parked their car in a GP practice parking area / After the appointment the car failed to start / No mechanic was able to attend to the car until later that evening / Car was towed that evening by the Respondent / Applicants paid $420.00 to release the car from the tow yard /  Applicant sought a refund of $420.00 towing fee / Applicants also claimed $580.00 for inconvenience and trauma as they believed the Respondent dealt with the situation unreasonably /  Held: Applicants were clearly in breach of the parking timeframes notified, albeit not intentionally / There were extenuating circumstances for the Applicants, but there were none from the Respondent’s point of view / Respondent was entitled to tow and acted both within their authority and reasonably in the circumstances known to them / Respondent not liable to either refund or compensate the Applicants for their misfortune in breaking down / Claim dismissed.

Negligence / Applicant was involved in a road collision / A few days earlier, Respondent had replaced a punctured tyre on Applicant’s vehicle with a space saver tyre / Applicant blamed the collision solely on the tyre being placed on the front of the vehicle / Applicant claimed the  Respondent was liable for the resulting damage to his vehicle / Respondent denied liability, claiming collision was caused by Applicant’s speed in wet conditions in a highly urban area, in contravention of NZTA guidelines / Held: position and existence of space saver tyre may have contributed to collision, but was not the only factor / Applicant was clearly not driving to the conditions / Not satisfied Respondent’s actions in replacing the punctured tyre with space saver tyre at the request of Applicant was negligent / Applicant proceeded to take unnecessary travel knowing it was a bad idea / Liability for collision and loss remained with Applicant / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent / Right headlight of vehicle not working / Respondent failed to fix issue with given time / Applicant claimed amount to have vehicle repaired / Held: not acceptable for headlight to fail within a short period / Vehicle not of acceptable quality if not legally driveable without headlight / Respondent had more than reasonable time to arrange for fix of vehicle or propose refund for vehicle / Applicant entitled to reimbursement of road user charges and repair costs / Respondent ordered to pay Applicant / Claim allowed.

Contract / Building / Local Government Act 2002 / Applicant entered real estate sale and purchase agreement with Respondent / Agreement conditional upon title and the Applicant entered into an unconditional building contract with Respondent / Applicant received invoice from Council regarding Development Contribution / Applicant claimed Respondent liable for invoice / Held: Respondent liable to pay for Development Contribution / Intention of the parties for Respondent to provide Applicant with a fixed price contract / Delays put forward by Respondent reasonable / Compensation claim for delays dismissed / Respondent ordered to pay Applicant $19,355.88 / Claim allowed.

Contract / Respondent had dental work done by Applicant / Cost of work was $65,000 / Respondent paid deposit and agreed to pay off remainder in instalments / Applicant filed $38,000 claim against Respondent / Applicant went into liquidation / Liquidator claimed $30,000 from Respondent / Respondent claimed debt was forgiven / Held: Applicant was unable to prove that the debt was not forgiven / Claim dismissed.