Disputes Tribunal of New Zealand

Nuisance / Respondent installed a sump on Applicant’s neighbouring property using a large digger / Applicant claims the digger caused significant vibrations that shook her house and caused cracking / Applicant claims for repairs for the damage / Held: not proven that the damage was caused by the Respondent / No evidence prevented to suggest damage caused by Respondent / Claim dismissed

Contract / Applicants purchased house from Respondents / Respondents carried out pre-purchase inspection / Applicants removed carpet and found floor boards were wet / Water damage caused by long-standing failure of waterproof membrane to tiled shower tray / Applicants' claim Respondents breached terms of the sale and purchase agreement and failed to carry out inspection services with reasonable care and skill / Applicants seek repair costs / Held: no basis on which to hold Respondents liable for repair costs / Not sufficiently proven Respondents missed vital indicators / Claim dismissed.

Contract / Respondent hired two scooters from the Applicant / Applicant alleged the scooters were thrown into the water / Applicant claimed the cost of the scooters plus loss of revenue totalling $3,141,62 / Held: sufficient evidence to establish the Respondent was responsible for the hiring and destruction of the scooters / Respondent was therefore responsible for any damage and resultant loss under the contract / Respondent ordered to pay $3,141,62 to the Applicant / Claim granted.

Contract / Respondent engaged Applicant to edit series of training videos / Respondent gave notice that no further editing work would be required after Applicant produced eight videos due to COVID-related changes / Applicant claimed $4,400.00 being the full contract price / Whether terms of contract allowed for variation in price or scope / Whether Respondent’s notice constituted repudiation of contract / Held: terms of contract did not allow for variation in price and scope / Notice constituted repudiation contract / Respondent to pay Applicant $2965.22 being $1530.43 for work done plus $1443.79 for 50% of remaining balance of contract price as general damages / Claim granted.

Contract / Applicant was looking for a car to drive as an uber / Applicant agreed to buy a car from the Respondent / Respondent accepted the offer and the Applicant paid a deposit of $1,000.00 / Afterwards, Applicant was advised that it was not an ideal car for an uber / Applicant cancelled the contract and requested a refund / Respondent declined to give a refund / Whether the contract was conditional / Whether the Applicant was entitled to a refund / Held: contract can be varied by agreement but not unilaterally after it has been formed / Contract was not varied to become conditional on an inspection or opinion / Deposit not generally refundable if a purchaser changes their mind / No evidence of significant issues with the car / Applicant was not entitled to a refund / Claim dismissed.

Contract / Applicant entered into an agreement to purchase a property including chattels from the Respondent / Applicants agent raised issues following pre-settlement inspection regarding missing furniture, cleanliness and furniture swapped with inferior quality items / No agreement was reached prior to settlement / Applicants claim $20,390.00 for replacement and removal of furniture, cleaning and travel costs, and loss of rental income / Held: The Respondents breached the agreement by not leaving two side tables at the property and failing to remove stickers and decorative mirrors / The respondents did not breach of the vendor warranties for chattel / Applicants are not entitled to compensation for loss of rental income / Respondents to pay Applicants $600.00 / claim: upheld.

Trade practices / Fair Trading Act 1986 (FTA) / First Respondent was promoting “gifting programme” which Applicant attended / At meeting First Respondent told attendees for every $1,000.00 paid into programme they would receive $3,000.00 back / Applicant paid $10,000.00 to First Respondent initially / Later Applicant paid further $8,000.00 / After Applicant made payments she discovered programme appeared to be pyramid scheme / Respondents have since repaid $8,000.00 to Applicant / Dispute over how much Applicant paid to First Respondent / Applicant claimed further $20,00.00 / How much did Applicant pay to First Respondent / Was “gifting programme” promoted by First Respondent to Applicant pyramid selling scheme / What remedy, if any, was available to Applicant / Held: conflicting evidence on how much Applicant paid to First Respondent / Found Applicant only proven $18,000.00 was paid to First Respondent / Scheme fits description of pyramid-selling scheme under FTA / Applicant’s loss wa…

Contract / Applicant purchased a house from the Respondent / During the due diligence period, the Respondent indicated that one of the toilet seats had a crack in it / Respondent offered to replace the toilet seat / Applicant said he would find a replaced one / Fifteen months later, Applicant contacted the Respondent stating that he had a new toilet seat installed for $483.05 / Respondent disputed she was liable to pay / What was the offer that the Respondent made to the Applicant / Whether the Applicant accepted the offer within a reasonable time / If so, whether the Applicant was entitled to the costs of the new toilet seat and the cost to install it / Held: Applicant did not expressly promise to pay for the cost to install the seat / Discussion was about the price of the toilet seat only / Offer to pay for the toilet seat remained open for a reasonable time / Offer had expired and was no longer available for acceptance / Respondent was not contractually obligated to pay for the cost…

Contract / Misrepresentation / Applicant placed an order for booklets to be printed by the Respondent through its website / Statements made on the Respondent’s website and emails indicated the booklets would be received before Queens’ Birthday weekend in 2021 / Booklets arrived after Queen’s Birthday weekend / Applicant claimed the statements made by the Respondent were misleading /  Applicant sought $500 for losses incurred by the late booklets / Whether the Respondent made representations that were misleading as to when the booklets would be delivered / If so, whether the Applicant was entitled to all or any of the $500 claimed / Held: Applicant’s order was not an order contemplated by the Respondent’s website as qualifying for next day delivery or delivery with additional day as special finishing was needed / Applicant’s order was large / Respondent’s website was not misleading or likely to mislead / It was not reasonable that the Applicant was misled into the belief that turnover c…

Contract / Applicant contracted the Respondent to do earthworks at his property / Part of the contract included taking fill from other sites and delivering it to be used on the property / Applicant observed that some of the truck loads of fill were contaminated / Applicant discussed matter with the Respondent but it failed to be remedied / Applicant claimed for the cost of remedial work and completion of work / Did the Respondent breach the contract by providing contaminated fill / Did the Respondent repudiate the contract by refusing to complete the earthworks / What amount, if any, was the Applicant entitled to in damages / Held: Respondent breached the contract by providing contaminated fill / Through their communication and actions the Respondent made it clear it would not perform its remaining obligations under the contract / Respondent repudiated the contract and the Applicant was entitled to cancel it / Costs of removing contaminated fill and completing earthworks was in excess …

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased DIY electric gate motor from Respondent for $676 / Motor supplied pre-wired for battery power with installation instructions and manual showing two different power supply options / Applicant connected motor to AC power supply not battery / Gate did not move and motor smoked when checked / Applicant returned motor / Respondent did not find any problems with motor and returned it / Applicant hired electrician who found motor supplied without cable needed to connect to AC instead of battery / Applicant claims replacement motor, refund of $105 shipping fee and payment for $300 electrician fees / Held: motor supplied acceptable quality under CGA / problems were because it was connected to AC power when wired for battery power / Held: Respondent did not make false or misleading representations when advertising motor /  nothing untrue in the advertising / described as DIY product and came with thorough instructions / Claim di…

Contract / Applicant loaned Respondent $30,000 cash and is asking for loan to be repaid / Respondent claims cash not recieved or stolen / Respondent claims claim is out of time, s 11 Limitation Act 2010 / Applicant claims $30,000 plus interest / Held: Respondent received cash / email evidence of parties discussing cash / Held: claim not out of time / the act or omission is not the lending of the money but the failure to return it when asked / Held: Respondent to pay Applicant $30,000 / no contractual provision for interest and Applicant could have avoided loss of interest by filing claim earlier / Claim allowed.

Building contract / Consumer Guarantees Act 1993 / Applicants engaged Respondent to build deck at their property / When deck was finished a number of problems with the work identified / Applicants obtained report from another builder regarding repairs required / Applicants claimed $30,000 to repair deck / Has Respondent completed the work to required standard in terms of the guarantee in the Act / If not, can they be repaired and if so has Respondent failed or refused to do so / If not, what is Respondent required to pay the Applicants / Held: clear breach of the guarantee in the Act in respect of timber used, the screws used and the advice given / Applicants gave Respondent opportunity to repair breaches but he did not do so / Respondent required to pay $30,000 to Applicants / Claim allowed.