Disputes Tribunal of New Zealand

Bankruptcy / Applicant was declared bankrupt / Respondent kept charging Applicant accounting software fees despite Applicant ending her bankruptcy  / Applicant claimed being discharged of accounting fees after the end of her bankruptcy / Held : Applicant does not have to pay accounting software fees as Respondent had confirmed with Applicant that she did not have to pay accounting software fees at the end of her bankruptcy / Claim allowed.

Contract / Consumer Guarantees Act 1990 / Civil Aviation Act 1990 / Applicant booked flights with the Respondent which connected with another flight onto their final destination / First flight delayed due to mechanical issues which meant they missed their connecting flight /  Applicant booked a new flight with Respondent / Upon arriving at the airport, Applicant advised their flight was cancelled and a new departure time was issued / Applicant claimed damages of $877.20 for the cost of rescheduled flights / Applicant claimed Respondent failed to provide services within a reasonable time / Held: delay was due to force majeure / Respondent could not have reasonably foreseen propeller system failure / No entitlement to damages due to delay / Claim dismissed.

Fraud / Consumer Guarantees Act 1993 / Respondent sent a quote email to Applicant for flooring with bank account for payment / Applicant replied and asked for a requote / Applicant received an email from a hacker impersonating the Respondent who provided her with an alternative bank account for payment / Applicant then paid $5,007.83 into the hacker account / Payment was discovered by the bank but could not be recovered / Applicant paid $5,007.84 to the flooring company and verified the bank account over the phone / Respondent installed the flooring but took the position that the Applicant still needed to pay the full amount / Applicant sought a declaration that she was not liable to pay the sum she paid to the hacker account / Held: Respondent should bear the risk of what happened / Businesses are in a better position than consumers to insure against the risk of hacker fraud / Applicant not liable to pay $5,007.83 / Claim granted.

Contract / Specific performance / Applicant won online auction to purchase sports car and several car parts from Respondent / Respondent believed there had been manipulation of auction process and did not release car or parts to Applicant / Applicant claims Respondent repudiated contract / Applicant claims for specific performance of contract / Held: Respondent repudiated contract / Applicant was willing buyer and Respondent did not make goods available to them / Held: Applicant entitled to car and parts / Held: in lieu of specific performance, Respondent to pay Applicant $30,000 / Claim upheld.

Contract/ Enforceability / Vexatious claim / Applicant parked their vehicle in car park owned by the respondent / Applicant was unable to get a ticket to authorise their parking / Applicant stayed in their car for 54 minutes / Applicant was issued with a parking ticket of $65.00, “plus further administration costs” / Applicant claimed there was no contract / Applicant claimed that the penalty was unenforceable / Respondent claimed that the claims of the applicant were vexatious or frivolous / Held: there was a contract between the applicant and the respondent as the applicant knew that there were conditions for parking in this location / Held: The penalty of the $65.00 “plus further administration costs” is enforceable to protect the respondents reasonable interests / Held: the applicant’s claim is not vexatious or frivolous as they genuinely believed they were being treated unfairly / Applicant to pay respondent a total of $127.50 / Claim dismissed

Negligence / Land Transport (Road User) Rules 2004 / Applicant and Respondent were involved in a motor vehicle accident on a narrow road / Respondent’s truck had to cross the middle line to avoid veering off the road / Applicant swerved to avoid the Respondent's truck and crashed into a tree / Respondent claimed Applicant was speeding round the corner / Applicant claimed Respondent’s truck had crossed the middle line and onto his lane. / Held: legal duty to drive as near as practicable to the left side of the roadway / Truck was driving as far left as possible given circumstances / No general duty of care on trucks to have pilot vehicles / Neither party was negligent / Claim dismissed.

Contract / Motor vehicle collision / Applicants took their vehicle to Respondent to check out a noise. Whilst in the care of the Respondent the car had a minor collision and scraped against another vehicle / The applicants claimed the radiator started leaking as a result of the collision. Applicant claimed insurance and wanted all four tyres repainted. Additionally, applicant claimed the incident devalued the vehicle by $5,000  and the collision caused emotional stress / Held: collision was a low speed side-swipe and unlikely to cause structural damage. Vehicles depreciate naturally therefore the decrease in value was not caused by the collision. Motor vehicles collisions are an inconvenience but they are not uncommon. No evidence that the Respondents acted unreasonably to cause the applicants a greater degree of stress / Applicants have not proven their part of the claim, claim dismissed.

Tort / Applicant claims that Respondent cut cable and caused damage to home automation system / Respondent claims Applicant cut down trees on Respondent’s property / Held: Evidence does not show more likely than not that Respondent cut cable / Burden not discharged / Trees were on Respondent’s property / Trees were cut without Respondent’s consent but Respondent has no proven Applicant gave these instructions or is vicariously liable / No power to hear claims for personal injury or exemplary damages / Both claims dismissed.

Property / Applicant and Respondent share a property boundary / Applicant claimed Respondent cut a cable causing damage to his home automation system / Respondent claimed Applicant cut down trees on Respondent's side of the boundary / Applicant claimed $10,389.80 / Respondent counterclaimed $9,099.00 / Held: insufficient evidence to meet burden of proof necessary to establish claims / Claim and counterclaim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased a tumble dryer (dryer 1) for their rental property / Dryer 1 developed a heating fault / The applicant contacted the respondent for repair or replacement / The respondent was unsure as to whether or not the applicant had purchased dryer 1 from them / The respondent replaced the dryer with a second one (dryer 2) / Dryer 2 developed problems with overheating / Applicant complained to respondent / Respondent arranged for dryer 2 to be repaired / Applicant claims dryer 1 was purchased from the respondent / Applicant claims $6,000.00 in compensation / Held: On the balance of evidence the applicant was unable to prove that dryer 1 was purchased from the respondents / Held: dryer 2 was covered by the CGA, but as dryer 1 could not be proved to be purchased from the respondent then the applicant had effectively received a dryer free of charge / Claim Dismissed

Negligence / Tort / Disputes Tribunal Act 1988 (DTA) / Fair Trading Act 1986 (FTA) / Applicants purchased property relying on building report from Respondents / After purchase Applicants got two roof inspections from contractors which found roof issues / Applicants claim Respondents liable under FTA and for negligent misstatement / Applicants rely on High Court case Steel v Spence Consultants and Gary Spence [2017] NZHC 398 / Applicants claim Respondents trying to contract out of FTA obligations / Held: Disputes Tribunal does not have jurisdiction to cover this type of tort action as per section 10(1)(c) of the DTA / Reports from contractors not reliable as they are not independent / Applicants were not misled by Respondents as report clearly discloses issues with roof / Respondents were not trying to contract out of their liability under FTA due to wording of their report / Claims dismissed.

Encroachment / Private nuisance / Applicant and Respondent are neighbours / Respondent’s property had tall trees on boundary / Previous owner kept trees trimmed but Respondent has not / Applicant claims tree limbs fell on their shed / Applicant claims encroachment of tree caused damage to their fence, garage roof and storm-water system / Applicant claims $30,000 in compensation / Held: encroachment caused damage to shed / Element of betterment with new shed roof means full amount cannot be awarded / Respondent liable for $7,428.65 for damage to shed / Disputes Tribunal has no jurisdiction to remove a tree / No evidence of when tree started to encroach on land / Evidence of tree causing issues with garage but element of betterment with roof replacement so full amount cannot be awarded / Respondents liable for $3,732.80 for damage to garage roof / Storm-water system was damaged by root encroachment and full amount of $4,968 is awarded / Tribunal orders the respondent pay the applicant $1…