Disputes Tribunal of New Zealand

Contract / Applicant’s mother passed away / Applicant and his brother were executors of their mother’s estate / Applicant’s brother entered into an agreement with Respondent to provide funeral services, including cremation / Applicant’s brother authorised their sister to collect ashes / Applicant initiated legal action to take possession of his mother’s ashes / Applicant claimed Respondent breached contract by releasing his mother’s ashes to his sister / Applicant claimed $1,723.00 in compensation for losses suffered as a result of initiating legal proceedings to retrieve the ashes / Held: Applicant did not enter into a contract with Respondent / Applicant’s name was not on the contract, and he did not sign the contract / Nothing in the contract to indicate other executors were parties to contract / Respondent did not breach contract by releasing the ashes to the Applicant’s sister / Respondent was authorised to release the ashes by the Applicant’s brother, who was a party to the contr…

Consumer law / Property / Applicant decided to sell her house by auction using the Respondent’s services / Respondent changed her mind about the auction an hour before it was planned to proceed / Respondent failed to pay invoice from Applicant / Applicant claimed $2,586.25 for marketing costs (including signage) and the auctioneer’s fee / Respondent did not dispute her obligation to pay the remainder of the charges, $1585.75 / Dispute limited to the cost of the signage being $195.50 and the auctioneer’s fee of $805.00 / Held: agreement between the parties referred to a standard sign only / No obligation to provide the Respondent with a brand new sign / Respondent unable to show any loss relating to the sign / Respondent required to pay $195.50 for the sign / Unlikely that the Respondent would advise a client that the auctioneer’s fee would not be required in the circumstances / Respondent ordered to pay $2,586.25 for marketing costs and auctioneer’s fee / Claim allowed.

Trespass / Parking / Applicant parked in carpark controlled by third party for seven minutes / Carpark had one sign indicating "No Parking" and another indicated "Customer Parking Only" / Respondent sent Applicant breach notice and three reminder notices / Applicant advised Respondent they thought park was for surrounding businesses / Applicant also stated that she had attended a third party business who controlled carpark / Applicant sought order that they were not liable to Respondent / Respondent claimed $320 for breach notice, reminder notices, and 2.5% monthly interest on unpaid notices / Held: Applicant did not trespass as Applicant could be customer of third party business / Signage indicated she was authorised to park there as a customer / Nothing to indicate appointment required or potential customers were not permitted to park / Applicant did not trespass so not liable to Respondent / Respondent's claim against Applicant dismissed.  

Contract / Respondent and Applicants were friends / Respondent had recently paid Applicant for some work done / Respondent asked Applicant to take plant to her house and if Applicant wanted to quote for plumbing work for Respondent / Respondent did not accept quote when Applicant gave it and did not pay Applicant for delivering plant and preparing quote / Applicant claimed $768.95 for work done and value of barbeque / Held: no contract between parties as no discussion that payment would be made / It would also be unusual to charge for time spent in preparing quote / Casual arrangements between parties were characteristic of favours between friends, not legal relationship / Not reasonable for Applicant to expect payment in the circumstances / Quasi-contract not established when clear Applicant agreed to do work as favour / Applicant gave barbeque as a gift to Respondent and was not entitled to its return / Claim dismissed.

Contract / Building Act 2004 / Applicant bought new-build property from Respondent which had a Code Compliance Certificate / Applicant noticed overflow relief gully had not been installed as per plans and council sign off / Respondent claimed they can complete work but Applicant will not allow it / Applicant discovered drainlayer who completed drainage work was not licensed / Document signed by a separate plumber verified they had completed work according to plans despite lack of overflow relief gully and fact that he had not done the work / Council passed inspection of property based on certified documents from the plumber / Applicant claimed $10,000 for another plumbing company to carry out necessary work / Held: work not carried out nor completed in accordance with plans / Work also not done in accordance with legal requirements as a non-LBP tradesperson had completed work and person certifying they did the work had not actually done it / Respondent liable for non-complaint work / A…

Negligence / Fencing Act / Applicant sought monetary contributions from Respondents for remediation work to fence / Applicant claimed fence damage was result of negligent renovations by Respondents / Counterclaim for damage and interference / Held - damage to fence caused by natural degradation of stormwater system / Respondents have no duty of care to carry out work on their property to prevent loss to neighbours / Applicant did not comply with Fencing Act process so relief under that Act is unavailable / Lack of evidence as to loss caused to Respondents by Applicant's actions or interference / Claim dismissed / Counterclaim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased weatherboard product and engaged the Respondent to reclad their home / Weatherboard manufacturer recommended stainless steel nails be used with the weatherboard as they resist rust which was especially important given the proximity of the house to the sea / Respondent used hot galvanised nails instead which voided the weatherboard warranty as it breached the manufacturer's installation specifications / Applicant claimed $28,761.50, being a remedial repair cost required to fix their home / Respondent counter-claimed for $11,794.00, being a balance owing for the work / Held: specifications on the weatherboard product were clear / Respondent failed to exercise reasonable care and skill / Respondent ordered to pay the sum of $28,761.50 to Applicant / Claim allowed and counterclaim dismissed.

Contract / Applicant worked for Respondent as a sales agent / Applicant claimed she had not been paid her commission / Held: Applicant had a contractual entitlement to team share portion of any commission while current "team share" structure was in place / No persuasive evidence that sales team all agreed to the change in team structure or that Applicant's contract was varied with consent of both parties / Applicant entitled to receive commission / Respondent ordered to pay Applicant $3,084.00 / Claim allowed.

Tort / Nuisance / Applicant and Respondent own neighbouring properties / Applicant claimed Respondent's property were used in prostitution and selling drugs / Applicant experienced harassment and threatening behaviour / Applicant claimed costs of abating nuisance caused by tenants / Held: First and Second Respondent implicitly authorised creation or continuance of nuisance by tenants / Cross-lease relationship between two properties heightened landlord's responsibilities / First and Second Respondent responsible for ongoing nuisance created by tenant / Third Respondent as property manager does not have the same responsibility / First and Second Respondent ordered to pay Applicant $1,415.74 / Claim allowed in part.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to seal shower floor and replace glass shower wall / Leak continued upon Respondent's inspection and remedial work / Applicant claimed leak was caused by Respondent's tampering with brass fitting / Applicant claimed repair and material costs / Held: no evidence that Respondent was responsible for loosening crox nut or that defects in Respondent's work caused leak / Claim dismissed.

Contract / Capacity / Respondent paid for dental treatments using credit card belonging to parent of Applicants / Respondent said payment was a gift or loan from Applicants' parent / Applicants (as parent's attorney) claim damages of the amount Respondent spent on dental treatments and legal costs / Held - Applicants' parent did not have legal capacity to gift or loan to Respondent so payment is set aside as a gift / Respondent likely knew of incapacity so payment would still be set aside if it was a loan / Applicants awarded part of damages claimed / Balance of claim dismissed.

Contract / Applicant was engaged to undertake work for Respondent on behalf of the Respondent’s client / Applicant claimed that two of their invoices, one in the amount of $8,682.89 and the other in the amount of $1,832.81, remained unpaid / Respondent agreed work was completed, but stated that the invoices were not sufficiently substantiated for the purposes of their client / Respondent therefore did not receive payment from their client, and as such did not pay Applicant / Applicant claimed for payment of the unpaid invoices / Held: based on the evidence, the work was completed by the Applicant for the Respondent / While the Respondent’s client may have required substantiated support for the invoices it was paying, this was their contract with the Respondent / Respondent liable to pay the invoices issued by the Applicant for the work done / Respondent ordered to pay $10,515.70 / Claim allowed.

Consumer law / Contract / Consumer Guarantees Act 1993 / Applicant entered contract with Respondent to hire campervan / Campervan broke down and was replaced by Respondent / Respondent refunded some money to Applicant / Applicant claimed costs relating to three nights campervan rental and cost for loaned vehicle / Held: Respondent breached its obligations as it did not provide a campervan that is fit for purpose / Where no price had been agreed, Respondent entitled to be paid no more than a reasonable price for use of loaned vehicle / Respondent ordered to pay Applicant $717.00 / Claim allowed.