Disputes Tribunal of New Zealand

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a furniture franchise from Respondent / Applicant claimed Respondent misrepresented potential of business because there was not enough work in the area to earn money promised / Applicant claimed $30,000 to cover losses suffered as a result of lack of income in the business / Held: Respondent induced Applicant to enter into the contract by making a misrepresentation that the business would earn $4,000 plus per week / Sales were so poor that the business had to cease trading / Applicant suffered loss and is entitled for compensation / Respondent ordered to pay Applicant $30,000 / Claim allowed.

Consumer law / Fair Trading Act 1986 / Contract and Commercial Law Act 2017 / Applicant flew on domestic flight with First Respondent airline / Applicant’s checked-in bag was not returned until after a considerable delay / Applicant’s bag contained some perishable items including fish / Applicant said perishable goods had value of about $100.00 / Applicant claimed $2,700.00 for goods lost plus and time and inconvenience involved in retrieving bag / Claim brought against First Respondent airline and Second Respondent baggage handler company / Held: Applicant entitled to value of perishable goods / Applicant entitled to compensation for long period of delay and inconvenience / First Respondent failed to provide reliable and reasonable information to Applicant, amounting to misleading conduct / Applicant experienced waste of time and money as a result / Reasonable compensation for time and trouble caused by First Respondent’s misleading conduct was $750.00 / First Respondent ordered to pa…

Contract / Applicant provided Respondent estimate of $2,104.50 for renovation work, Respondent accepted and paid $1,052.25 deposit / When Applicant arrived on site, several factors increased scope of work / Applicant advised Respondent a price variation was needed, but no estimate was given / When work was completed, Applicant invoiced total of $8012.47, less deposit, leaving $6960.22 outstanding / As Respondent disputed amount charged, Applicant brought claim for balance of invoice / Held: pricing supplied by Applicant clearly stated it was an estimate, not a quote / Parties did not agree on a variation and scope of work did not change / Work proceeded on basis of original estimate / Final price may vary from an estimate by up to 15% / Due to costs incurred, reasonable to allow 15% variation / Respondent also liable for additional costs for cladding materials and finishing lines / Respondent ordered to pay $1726.25 / Claim allowed in part.

Insurance / Contract / Fair Trading Act 1986 / Applicant hired a truck from Respondent, selecting a zero excess insurance option / When Applicant returned truck, some damage was identified / Applicant was advised that his insurance did not cover that type of damage / Applicant paid the $2000.00 excess without prejudice and subsequently the repair costs were deducted from his credit card and the balance refunded / Applicant claimed he did not agree to the exclusion applied by the Respondent when he booked the truck / Applicant claimed a refund of the charged $2367.74 / Held: presence of an asterisk and a hyperlink on the online booking page was sufficient to alert customers to the existence of further terms / Common for insurance policies of all types to contain exclusions / Respondent gave adequate notice that the zero excess insurance option was subject to specific terms and conditions / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased a kitchen from Respondent / Applicants claimed Respondent described the kitchen as being solid wood, when it had MDF panelling when installed / Applicants also claimed the oven and microwave cavities were installed at the incorrect height and the kitchen had imperfections and defects / Applicants claimed $18,630.00, half the purchase price / Held: Respondent represented the kitchen as being of solid wood / Kitchen was not made of solid wood as described / Evidence showed several defects with kitchen installation / Failure of kitchen to match the description was of substantial character as it departed in a significant respect from the description / Applicants entitled to $15,000 compensation / Compensation equated to difference in price between what was contracted for and what was received and that the Applicants had an inferior product installed in their home / Claim allowed in part.

Contract / Consumer Guarantees Act 1993 Applicant referred to Respondent for washing machine repairs / Applicant not satisfied with Respondent's services / Applicant claimed damages being repair cost, cost of second-hand replacement washing machine, cost of new module and Tribunal's fee / Held: Respondent failed to carry out services with reasonable care and skill / Respondent's technician did not install both of the brushes in the module / Applicant entitled to remedy / Applicant awarded damages being repair cost and cost of second-hand replacement washing machine / Claim allowed in part.

Contract / Consumer Guarantees Act 1993 / Applicant entered contract to purchase second-hand fridge from Respondent / Fridge was working at Respondent’s storage facility, but once in Applicant’s possession it tripped the house fuse box every time Applicant tried to run it / Applicant had fridge tested by an electrician, who found its insulation resistance was too low and put the user at risk of electrical shock / Applicant tried unsuccessfully to resolve issues with Respondent / Held: fridge was unsafe to use / Fridge was not of acceptable quality / Failure was substantial and Applicant would not have purchased fridge if he had known of failure / Applicant entitled to refund of purchase price / Respondent ordered to pay $455.00 / Claim allowed.

Contract / Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased food product from Respondent for distribution to staff and customers prior to Christmas / Applicant’s employee saw a media report regarding a recall of Respondent’s product / Article advised product should be returned or disposed of / Applicant immediately contacted as many staff and customers as possible to warn them but most businesses had shut down for the holiday break / Applicant contacted Respondent seeking a refund of $6,054.75 purchase price / Respondent stated that the product must be returned for credit to be issued / Applicant claimed it was unreasonable to expect recipients to retain a tainted and unsafe product indefinitely / Applicant claimed for a refund / Held: food was not fit for human consumption / Food was considered to be perished at point of contract / Refund not dependent on return of goods / Applicant entitled to full refund / Respondent ordered to pay $6,054.75 / Claim allowed.

Contract / Unconscionability / Applicant bid on Respondent’s car in online auction / Two highest bids were removed shortly before auction ended, leaving Applicant winner of auction / Respondent claimed highest bid had been removed at bidder’s request, and second highest bid had been removed accidentally / Applicant later discovered second highest bidder was a company whose address for service was Respondent’s residential address / Applicant claimed $12,000.00 on basis that shill bidding had pushed auction price up / Held: contract was unconscionable because process was carried out in unfair and unprincipled manner / Respondent claimed his brother was director of company, and was bidding on car as any other member of public / Viewed objectively, a seller’s family member being involved in increasing sale price before being removed at end of auction was unconscionable / Appropriate to vary sale price from $37,900.00 to $25,952.00, being last legitimate bid / Respondent ordered to pay Appl…

Negligence / Parties were involved in vehicle collision / Respondent was attempting to merge into Applicant’s lane / Respondent’s vehicle came into contact with Applicant’s passing vehicle / Both vehicles suffered damage / Applicant and his insurer claimed $5,143.95 for repair costs / Respondent denied liability, claiming Applicant caused accident because he was speeding / Held: suggestion that Applicant was speeding was speculation / Although Respondent did take care for most of the manoeuvre, in a brief moment she failed to see Applicant’s oncoming vehicle / Location of damage to cars was consistent with Applicant’s account of how the accident happened / Respondent ordered to pay $5,143.95 repair costs / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Respondent painted roof of Applicants’ home / Applicants claimed paint started bubbling within weeks / Applicants claimed $24,856.39 for cost of roof strip and repaint and reimbursement of coating specialist advice costs / Held: photos clearly showed blistering paint across all roof surfaces, plus several areas where paint work did not appear to have uniform finish / Respondent did not provide services with reasonable care and skill / Expert witnesses did not agree on cause of blistering, but on either explanation Respondent failed to exercise reasonable care and skill / $24,856.39 reasonable compensation / Applicants gave Respondent opportunity to put issue right but it had not done so in reasonable period of time / Applicants entitled to cost of someone else doing the work / Reasonably foreseeable Applicants would need to seek independence advice as to cause of issues / Respondent ordered to pay $24,856.39 / Claim allowed.

Contract / Respondent leased commercial premises from Applicant / Respondent sold its business, and the lease was assigned to the new business owner / The parties’ solicitors reconciled outstanding rent arrears, which were deducted from the bond paid under the lease, leaving a small balance for Respondent to pay / Applicant later became aware of some unpaid rates outstanding from when Respondent occupied premises / Applicant claimed $3,674.10 as outgoings payable by Respondent under the lease, being $3,071.55 in unpaid rates and $568.55 in late payment fees charged by Council / Respondent claimed that the reconciliation done when the lease was assigned to the new business owner was a full and final settlement / Held: the reconciliation recording rent arrears and legal fees to be offset against the bond amount did not constitute a full and final settlement, as there was no clear statement to that effect or consideration on either side / Respondent ordered to pay outstanding rates of $3,…

Contract / Misrepresentation / Respondent sold her cell phone to Applicant for $700.00 / Prior to sale, Respondent represented by text that a  camera lens had a crack but camera still worked “perfectly fine” / When Applicant picked up phone she discovered camera did not work / Applicant contacted Respondent to cancel contract and request refund, but Respondent refused / Subsequent professional diagnosis, costing $60.00, identified phone was in need of significant repair / Applicant traded phone in for credit of $521.00 / Held: Respondent misrepresented condition of phone / Phone was not fit for purpose / Applicant entitled to be reimbursed for her loss, being $700.00 purchase price plus diagnosis charge of $60.00, less $521.00 credit / Respondent ordered to pay $239.00 / Claim allowed.