Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 / Guarantee of acceptable quality / Remedies / Applicant had house carpeted by Respondent as result of an insurance claim / Four years later Applicant noted worn area in carpet under leg of stool used daily / Respondent agreed to repair worn area / Prior to repair Applicant noticed other worn patches in carpet and notified Respondent carpet defective / Respondent took sample of carpet and determined it was not defective / Applicant claims cost of replacing carpet; carpet not of acceptable quality / Respondent claims rubbing on carpet by stool leg cause of wear / Held: no breach of guarantee of acceptable quality under the CGA / Damage caused by excessive wear and tear and the Applicant’s dog / No need to consider remedies / Claim dismissed

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant arranged flights through the second and third Respondents / third Respondent disallowed Applicant to travel / second Respondent deducted cancellation fees and refunded balance to Applicant / Applicant claimed refund of fees deducted by second Respondent / Held: third Respondent did not provide its services to Applicant with reasonable skill and care / Applicant entitled to cancel contract with third Respondent because failure could not be remedied / third Respondent liable to pay Applicant damages in compensation / Applicant suffered consequential loss from third Respondent’s breach of the CGA which was the amount charged for second Respondent’s cancellation fees / claim allowed, third Respondent ordered to pay Applicant $1,550.

Contract / Consumer Guarantees Act 1993 (CGA) / Respondent performed renovation work on Applicant’s bathroom / several problems found with bathroom / Respondent performed remedial work / independent tile and waterproofing consultant advised applicant shower needed to be rebuilt / Applicant claims $1966.83 for remedial costs / Held: Respondent did not perform work with reasonable care and skill / finished product not of acceptable quality / Respondent handyman not tiler but still bound to meet statutory obligations towards customer under CGA / attempted remedies by Respondent unsuccessful / Applicant entitled to have work done by another supplier and recover costs from Respondent / Applicant also entitled to recover costs of independent inspection and report / claim allowed, Respondent ordered to pay Applicant remedial costs of $1966.83.

Consumer Guarantees Act 1993 (CGA) / Applicant purchased truck cab and chassis from first Respondent which included mechanical breakdown insurance (MBI) / first Respondent not authorised by second Respondent (insurer) to issue MBI for that type of vehicle / insurer cancelled insurance policy and refunded premium / ABS control unit failed and was replaced / Applicant previously brought a claim against first Respondent in Motor Vehicle Disputes Tribunal (MVDT) / Applicant claimed damages against first and second respondent  for breach of CGA and loss of cover / Held: matter should not be relitigated / issues in dispute in earlier proceedings between same parties cannot be the subject of proceedings in the Tribunal / issues raised in MVDT proceedings essentially the same / first Respondent had apparent authority to act on insurer’s behalf and approve insurance / first Respondent failed to take adequate care in supplying MBI services and provide MBI policy fit for Applicant’s purpose / ins…

Consumer Guarantees Act 1993 / Applicant purchased a bike online from Respondent which developed fault / stand-off between parties as to who should pay for freight to return bike to Respondent / Applicant eventually sent the bike to Respondent which discovered and repaired minor wiring fault / Applicant claimed $1,790.96 for refund of the bike, courier costs and compensation / Held: Applicant did not give Respondent opportunity to examine the bike and to repair and therefore did not have right to reject the bike / bike failed to meet guarantee of acceptable quality and Applicant is entitled to freight cost as it is cost reasonably foreseeable / Respondent liable for cost of freighting bike back to Applicant / Applicant’s claims for other consequential losses dismissed / supplier cannot contract out of Consumer Guarantees Act / claim allowed, Respondent ordered to freight bike back to Applicant and pay $90.

Consumer Guarantees Act 1993 / Applicant purchased a wall-hung basin from Respondent after speaking to one of the salespeople / when the basin was removed from its box it was not able to be wall-hung / Applicant was told 20% would be deducted from the refund per Respondent’s terms and conditions / Applicant claimed the balance / Held: Respondent has not complied with guarantee as to fitness for purpose / Applicant made it known expressly that she wanted a wall-hung basin / Respondent is not entitled to make any deduction from refund amount / not lawful to contract out of Consumer Guarantees Act 1993 and terms and conditions can only apply where there has been no breach of statutory guarantee / Applicant entitled to receive full refund / claim allowed, Respondent ordered to pay Applicant $29.48.

Contract / Consumer Guarantees Act 1993 / Respondents engaged Applicant to prepare a preliminary design for a new house but the plans produced were not accepted by Respondents / Respondents claimed refund of the money already paid / Held: more likely than not that figure communicated by Respondents was their total project budget and was an essential term of the contract / Applicant failed to prove any of its designs could be built for the budget / service was not provided with reasonable care and skill and not fit for purpose / failure cannot be remedied / Respondents cannot use designs therefore reduction in value is the price paid/due in its entirety / claim dismissed, Applicant ordered to pay Respondents $8,212.15.

Contract / Consumer Guarantees Act 1993 (CGA), s 28 / Valuers Act 1948, s 11(2) /  reasonable care and skill / Respondent engaged Applicant to value two properties / Respondent used both reports to obtain finance / Respondent paid part of the valuation price for one property but not the other as had issues with the work done on both properties / Applicant claims $970, compromising unpaid $920 and debt collection costs of $50 / Held: Respondents complaints can be considered by way of set-off as the two valuations were arranged under one contract / Applicant failed to take reasonable care and skill over some minor detail and description of properties / Applicant breached high standards of professionalism expected under contract by not consulting with Respondent before telling real estate agent about inaccuracies concerning size of property on advertisement / failure to consult amounts to damages for injured feelings, which are generally regarded as too remote in breach of contract / no e…

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased computer from Respondent / computer failed 4 times within 8 weeks / Respondent admits responsibility for one failure, but submits other failures caused by Applicant / Applicant seeks to cancel contract and receive refund of $610.00, including $52.17 for data transfer / Respondent willing to repair computer at no cost, but not to provide refund / while CGA states supplier must be given opportunity to repair goods, the test is reasonableness / 4 failures in 8 weeks renders computer’s failures of a substantial character / Applicant entitled under CGA to reject goods, request refund / entitled to refund of data transfer as of no value without computer / Respondent’s evidence that Applicant’s use caused failures generally, unclear / Respondent liable in terms of its contract and under CGA to refund Applicant / claim allowed, Respondent ordered to pay Applicant $610.00.

Contract / Consumer Guarantees Act 1993 / guarantee as to reasonable care and skill / Second Respondent operates a mortgage and insurance broking business and arranged contents insurance for First Applicant who had two properties / extreme weather event flooded Property A damaging most of First Applicant’s belongings / insurer declined cover because policy was only for Property B / Applicants claimed that they were wrongly informed that both properties were covered and cancelled existing insurance in reliance on this advice / Held: there can be no claim against First Respondent as it is a separate legal entity from Second Respondent and thus no legal relationship existed / Second Respondent’s evidence inconsistent with statement in his email therefore found to have told First Applicant that contents would be covered at both properties / Second Respondent breached guarantee as to reasonable care and skill under Consumer Guarantees Act 1993 / claim allowed, Second Respondent ordered to p…

Contract / Consumer Guarantees Act 1993 (CGA) / Applicants purchased furniture sold by Respondent company / Applicants did not receive full furniture setting / Applicants claim that contract be cancelled as well as a refund of the purchase price / Held: not reasonable for owner to assume customers were aware that furniture pieces could be sold separately without specifically discussing it or marking it clearly on the price tag / owner of company failed to ensure that customers’ intentions were clear and that he would be able to provide them with the exact product ordered / Respondent breached guarantee under s 10 CGA (goods supplied by reference to a sample or demonstration model must correspond with sample or demonstration model) / Respondent failed to remedy defect with the sale and purchase of the furniture within a reasonable period of time / therefore, Applicants entitled to cancel the contract and obtain a full refund of the purchase price / strike out / respondent company is the…

Contract / Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA) / after viewing a cast glass sculpture, Applicants agreed to purchase it from a gallery owned by First Respondent /  Applicants were surprised by different appearance of the piece on delivery / Applicants claimed cancellation of the contract / Held: the sculpture delivered to Applicants was the same one they saw in the gallery / light has significant effect on visual characteristics of glass sculpture / First Respondent did not display piece in misleading way thus no breach of s 10 of FTA / subjective disagreement as to whether bubbles in piece are a defect therefore not proven on objective basis that it was not of “acceptably quality” defined in s 7 of CGA/ no breach of s 28 of CGA as First Respondent could not be reasonably expected to know particular aesthetic concerns of customers / unreasonable burden to impose duty on seller to show a piece or explain how it may look in a range of different circumstance…

Contract / Misleading representation / Fair Trading Act 1986 / Applicant provided “garden quote” by email to Respondent for landscaping and garden work / Applicant then said he forgot to include GST in “garden quote” and increased total cost / work began and included additional work with no discussion as to price of new work / Respondent was told project was on budget but on final day was told it was little over budget / Respondent refused to pay as invoice exceeded agreed amount / Tribunal finds that “garden quote” was an estimate not quote as it lacked specificity / this estimate was GST exclusive as Respondent was put on notice and agreed to continue work / Applicant was entitled to exceed estimates in email but by no greater than 20 per cent / Applicant was entitled to charge no more than reasonable price for the additional work not included in estimate under s 31 Consumer Guarantees Act 1993 / Applicant’s assurance amounted to misleading representation and breached s 13(g) of Fair…