Disputes Tribunal of New Zealand

Property / Nuisance / Fencing Act 1978 / Applicant and Respondent were previously neighbours / Applicant claims $30,000.00 from Respondent for the costs of building a retaining wall and replacing a boundary fence / Respondent counterclaims $4,233.85 for costs incurred in defending Applicant’s claim / Whether Respondent was responsible for half the cost of fence and wall / If so, what remedy was available to Applicant / Whether the Respondent was able to claim her costs from Applicant / Held: Respondent no longer owner of the property next to Applicant / No evidence to suggest Respondent used former property in an unreasonable manner that interfered with the Applicant’s property / Held: Respondent not liable for half the cost of the fence or the retaining wall / No remedy available to Applicant / Reasonable to assume Applicant brought his claim based on a reasonable belief / Applicant not found to have unnecessarily prolonged proceedings / claim and counterclaimed dismissed.

Contract and Commercial Law Act 2017 / Applicant purchased truck in January 2020 from Respondent based on advertisement truck had new COF / Truck failed COF in July 2020 due to rust / Applicant contacted Respondent who claimed no liability / Applicant made confidential settlement with mechanic that issued previous COF / Applicant claims $7000.00 being the amount out of pocket after settlement / What law applies in dispute / Whether Respondent misrepresented condition of truck / What amount of damage at time of sale likely to mean not roadworthy when sold / If misrepresentation, was Applicant induced to buy truck because of that representation / Held: Contract and Commercial Law Act s 35 applies / if misrepresentation made other party entitled to damages / Held: innocent misrepresentation / Respondent unaware of rust damage / Held: truck should not have been issued COF prior to sale / Held: misrepresentation of COF induced Applicant to purchase truck / Claim allowed / Respondent ordered…

Fair Trading Act / Misrepresentation / Applicants purchased vehicle from Respondent advertised as “great ute” and with new WOF / Vehicle failed WOF check after purchase / Applicants claim condition of vehicle inconsistent with the description and it should not have been issued a WOF / Applicants claim costs of $5,577.31 for WOF check, inspection, repairs and legals costs / Whether Second Respondent engaged in misleading conduct or made misleading representation / Whether Respondent breached term of agreement to supply vehicle with new WOF / Whether Respondent misrepresented condition of vehicle / Whether Applicants entitled to all or part of costs claimed / Held: Applicants did not prove Second Respondent should not have issued WOF / Claim against Second Respondent dismissed / Held: Respondent breached express term of agreement relating to obtaining a WOF / Held: no proven misrepresentation / Claim against Respondent allowed / Respondent ordered to pay $500.00 to Applicants

Education / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / The Respondents’ child attended the Applicant’s school / Respondents withdrew their child from the Applicant’s school during the school holidays between term two and three in 2020 / The Applicant sought an order that the Respondents were liable to pay $5,181.50 for one full term of fees in lieu of notice of withdrawal / Respondents filed a counterclaim seeing refunds of fees of $10,427.50 for terms one and two of 2020 and refund of the $1000.00 bond paid to the Applicant / Whether the Respondents were liable to pay the Respondent any amount in lieu of notice of withdrawal  / Whether the Applicant failed to provide education services to the Respondents with reasonable care and skill / Whether the Applicant misled the Respondents about the education it would provide their child / Whether the Respondents were entitled to any losses / Held: Respondents failed to give full notice of their intention to withdrawn their child f…

Insolvency Act 2006 / Applicant adjudicated bankrupt / Whether Disputes Tribunal has jurisdiction to hear the claim / Right to claim vested in Official Assignee under s 64(1) Insolvency Act / Application struck out as outside the jurisdiction of the Disputes Tribunal

Consumer Guarantees Act / Applicant purchased electric golf trolley from Respondent / Original battery failed as did replacement battery / On/off switch also broken / Applicant seeks refund / Broken on/off switch caused batteries to lose charge / Trolley failed to meet the guarantee of acceptable quality / Trolley used in a reasonable manner / Lack of durability of the on/off switch means that the trolley failed to be fit for purpose / Held: Applicant entitled to full refund

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent had collision on motorway / Applicant claims for costs to repair motorbike / Respondent and insurer counter claim for costs to repair car / Whether Applicant or Respondent is responsible for collision, or is responsibility shared / Whether costs claimed reasonable to put injured party back in the position they would have been had collision not occurred / Held: Applicant was negligent and is responsible for collision / Lane splitting on left side and travelling at speed where unable to safely stop / Claim dismissed / Counter claim allowed / Applicant ordered to pay Second Respondent $3,753.42.

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased car from Respondent / Car was advertised as in “excellent condition” with no mechanical or electrical issues / After purchase Applicant found several mechanical issues with car and contacted Respondent to get money back / Respondent refused and no resolution was reached / Applicant claims $4,100.00 for repair of car / Held: statement car was in excellent condition was a misrepresentation / Held: Applicant induced to enter contract by misrepresentation / Claim allowed / Respondent ordered to pay Applicant sum of $2,000 being the difference in value between a car in excellent condition and a car requiring further repairs

Towing / Respondent towed applicant's car from private parking area / Applicant paid $380 to retrieve car from respondent’s yard / Applicant seeks to recover amount paid as he parked outside business hours / Applicant questioned whether respondent authorised to tow car / Applicant argued $380 was excessive and there were no towing signs / Whether respondent was entitled to tow applicant’s car / If so, was cost justified / Held: parking area was private property subject to the rules of the owners / Instructions of owners permitted respondent to tow in stipulated times / Respondent provided evidence of authority to tow from parking area / Cost charged by applicant in line with other towing costs / Numerous towing signs at parking area / Claim dismissed.

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased car from Respondent that was represented to be in good working condition / Car would not start after being driven 30 minutes day of sale and likely to require engine rebuild / Applicant claims $6,500.00 from Respondent for cost of rebuild or refund of purchase price / Held: Respondent represented car in good working condition, ran well, had rebuilt engine and had work done / Held: Applicant proved on balance Respondent’s representations were incorrect and amounted to misrepresentation under s 35(1)(a) CCLA / Held: Applicant relied on Respondent's representations and was induced to purchase by misrepresentation / Held: fair and reasonable estimate of Applicant’s loss is $3,943.75 / Claim allowed

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased automatic watch from Respondent / Applicant sought refund as unhappy with watch functionality / Respondent refused refund / Applicant claimed watch was not of acceptable quality or fit for communicated purpose ss 6 and 7 CGA / Applicant claimed $899.00 refund / Held: watch not fit for communicated purpose / Respondent did not clearly alert Applicant to characteristics that might make automatic watch unsuited to Applicant’s purposes / Applicant entitled to reject the watch and receive a full refund / Respondent to refund Applicant $899.00 / Claim granted.

Contract / Applicant agreed to purchase puppy from Respondent for $2,600.00 / Applicant paid non-refundable deposit of $500.00 / Parties agreed balance would be payable on pick up of puppy / Later Applicant said he no longer wanted puppy / Applicant requested refund of deposit / Respondent indicated that he would refund deposit if prospective buyer purchased puppy / Later Respondent said he would not refund deposit as prospective buyer backed out / Applicant claimed refund of $500.00 deposit together with filing fee / Was Respondent obliged to refund deposit / Held: predictable that buyer backing out would cause Respondent loss / $500.00 was reasonable pre-estimate of loss / Contractual term that deposit was not refundable enforced / In absence of any evidence the condition of Respondent’s promise was fulfilled / Respondent not obliged to refund deposit / Claim dismissed.

Negligence / Applicants and Respondent shared a property boundary / Respondent cut down a tree on the Applicants’ property / Respondent said the tree was overgrown and essentially a weed / Applicants claimed loss of tree resulted in loss of privacy and affected their enjoyable of the property / Applicants claimed $3,000.00 to compensate for their loss and to provide for replanting of a replacement tree / Whose property was the tree on / If the tree was on the Applicant’s property, did the Respondent cause loss by cutting it down /  Held: tree was on Applicants’ property / Respondent caused loss to Applicants by cutting down the tree / The “self help” remedy chosen by the Respondent was unlawful / Applicants entitled to be compensated /  Respondent ordered to pay the Applicant $1430.59 / Claim granted.