Disputes Tribunal of New Zealand

Contract / Applicant sold real estate as independent contractor for Respondent / Sale and purchase agreements for new townhouses were signed in 2018, but settled when build completed in 2022 / Respondent stopped trading in 2019 / Respondent remained registered pending late settlements / When townhouses completed, Applicant contacted Respondent expecting commission as selling agent / Respondent dispersed deposit without paying Applicant commission / Applicant claimed $17,978.64 commission plus 14% interest / Held: contract between parties was not terminated when Applicant signed with new agency / Applicant entitled to commission / No contractual provision for interest, but can be awarded at Tribunal’s discretion / Respondent ordered to pay Applicant 18,797.27 / Claim allowed.

Contract / Consumer law / Consumer Guarantees Act 1993 / Building Act 2004 / Applicants engaged Respondent to build retaining wall / Wall showed signs of failing some months later / Respondent attempted to fix wall, but problem persisted / Applicants claimed $19,600 cost of remedial work / Respondent claimed Applicants breached agreement for Respondent to undertake two years of building work at their property, counterclaimed for $30,000 for lost income / Held: retaining wall not built with reasonable care and skill / Insufficient evidence that parties agreed Respondent would work on Applicants’ property for two years / Respondent ordered to pay Applicants $19,600 / Claim allowed, counterclaim dismissed.

Negligence / Contract / Consumer Guarantees Act 1993 / Applicants went to carpark operated by respondent / Bolts protruding from ground punctured applicants tyre / Applicants couldn't repair tyre and took an Uber home / Applicant returned next day to meet tow truck / Applicants claim for tyre repair and replacement kit, uber, train fare, and parking fee / Held: respondent owed a duty of care to carpark users and has breached this duty / Damage occurred before carpark entered so no contract existed to contract out of / Can't contract out of the Act / Costs claimed are actual and reasonable and reasonably foreseeable consequence of damage caused by bolts / Parking fee not included as it didn't arise from the damage / Outcome: claim allowed, respondent to pay applicant $843.09

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a remanufactured laptop from Respondent / Laptop stopped working after three years / Applicant claimed laptop was not of acceptable quality as it was not reasonably durable / Evidence from Respondent stated laptop was remanufactured so had a shorter lifespan than a brand new laptop / Laptop was only sold with a one year warranty / Held: evidence provided suggested not unreasonable for the laptop to only last for three years / Laptop could be considered to be reasonably durable / Laptop had a lower purchase price to reflect that the consumer was getting less than from a brand new laptop / Claim dismissed.

Contract / Applicant was a member of an airline loyalty programme under which she earned loyalty points / Respondent cancelled 187,928 of the Applicant’s loyalty points / Applicant sought either reinstatement of points or $6,207.26, amount needed to purchase same number of points / Held: Loyalty Programme Rules constituted contract that was relevant to the claim / Rules indicated that the Applicant was responsible to keep track of her points and their expiry date / Respondent had not breached its contract with Applicant / Claim dismissed.

Contract / Applicant opened credit account with Respondent / Claim related to two invoices with respect to hiring of equipment by a contracting employee of Applicant / Applicant claimed employee did not have authority to hire equipment and incur debt on behalf of Applicant / Authority lay with only one of Applicant’s employees whom the Respondent knew / Respondent brought a counterclaim for disputed invoices and collection costs / Held: Applicant’s contracting employee did not have authority to bind Applicant to invoices in dispute / Applicant not responsible for invoices issued by Respondent / Claim and counterclaim dismissed.

Contract / Gambling Act 2003 / Applicant was invited by Respondent to join a poker club / Club was hosted by Respondent on an online gambling site / Applicant lost $1,824.00 gambling, and paid this sum to Respondent, who paid the winners / Later, Applicant won $11,200.00 but Respondent would not pay the sum as losing gamblers had refused to pay / Applicant sought $11,200.00 from Respondent / Held: Applicant and Respondent were parties to an illegal contract / Not appropriate for a gambler to receive winnings from illegal gambling in the circumstances / Appropriate for Applicant to receive restitution of amount he lost / Respondent may be left out of pocket but appropriate as penalty for promoting and profiting from illegal gambling much greater / Respondent ordered to pay $1,824.00 / Claim allowed.

Maritime law / Applicant seeks orders against the Second Respondents / Held: evidence shows third respondent has not been paid by any party / Second respondent has not paid third respondent the cost of shipping the containers internationally / Because they were not paid, third respondents were legally entitled to exercise a lien over the containers / Applicant entitled to payment of the shipping costs he paid to second respondent as second respondent has not paid those to third respondent / Claim allowed, Second Respondent ordered to pay NZ$11,771.

Contract / Consumer Guarantees Act 1993 / Applicant contracted Respondent to build dog box / Respondent failed to build dog box using correct colour and measurements / Respondent's second build badly damaged in transit / Applicant alleged Respondent failed to collect the first two boxes and had them destroyed / Respondent alleged no longer liable to build third box / Applicant claimed for remedy / Held: box is not of acceptable quality / Applicant not entitled to remedy / Goods have become property of supplier when Applicant rejected goods and asked for refund / Applicant destroyed Respondent's property / Claim dismissed.

Contract law / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased second hand kitchen advertised by Respondent / Applicant paid Respondent $100 deposit / Subsequently, Respondent informed Applicant he had accepted another offer and refunded the deposit / Applicant claims $850 for the cost of kitchen, $45 for Disputes Tribunal fee, $250 for half day of lost income and $550 for her husband’s lost income for a day / Held: evidence shows there was a binding contract of sale for the kitchen / By selling the kitchen to another person, Respondent breached his obligations and repudiated the contract with Applicant / Claim partly allowed, Respondent ordered to pay Applicant $850.

Contract law / Applicant was a commercial real estate broker contracted to Respondent / Applicant worked as local agent to sell property / Applicant discussed property with client / Property did not sell during the sole agency period and listing was opened to other agencies / Property eventually sold to a company whose sole director was son of client / Sale of property brokered by different company / Applicant claimed entitlement to commission on sale under terms of contract / Held: purchaser was not the Applicant's client / Client's son was the effective decision maker and he was introduced to the property by another company / Applicant not entitled to recover commission on the sale / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant bought TV from respondent / TV stopped working / Respondent advised that TV could be repaired in about 7 working days once part arrived / Applicant requested replacement TV / Service technician told not to complete repair as TV could be replaced / Applicant wanted TV to watch a sports event / Applicant claims compensation for stress and time spent locating and collecting replacement TV / Held: no failure of guarantee by Respondent / Applicants claimed losses were not reasonably liable to result from any failure / Act not intended to protect against all hassle or inconvenience / Outcome: claim dismissed

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Vehicle found to have mechanical hard fault causing shuddering and new transmission required / Applicant claimed repair and diagnostic assessment costs $5,474.85 / Held: Applicant persuaded to purchase vehicle on basis of Respondent's statement that shuddering is not an issue  / Applicant entitled to be placed back to the position he would have been in had the representation been true / Respondent ordered to pay Applicant $5,474.85 / Claim allowed.