Disputes Tribunal of New Zealand

Contract / Tort / Trespass / Applicant instructed his son to park in a private carpark / Respondent issued Applicant with a letter to pay $95 for the breach and $75 late payment / Applicant advised Respondent he had not received the first breach letter but paid the $95 / Applicant later received notice from a debt collection agency to pay $288.75 / Applicant sought declaration he was not liable to pay any further monies to the Respondent and claimed reimbursement of the filing fee / Whether the Applicant trespassed onto land by parking without authorisation / Whether the Applicant was a party to a contract by parking where he did / Whether the Applicant was entitled to a declaration that he was not liable to pay the breach fees / Held: $95 paid by Applicant for trespassing onto the Respondent’s land was more than sufficient compensation / No contract between the parties / No foundation for the Respondent’s notice seeking late payment or debt collectors’ fees / Applicant was entitled to…

Consumer Guarantees Act / Applicant purchased used vehicle from Respondent / Vehicle represented as having current Warrant of Fitness (WOF) / Noticed extensive rust on the floor and other places / Alleged misrepresentation by Respondent / Respondent claimed no knowledge of the rust / Respondent claimed they are not responsible for alleged failures of business who issued WOF / Held: vehicle not misrepresented as rust was not "visible rust" / Held: Respondent not responsible for invalid WOF / No evidence that Respondent knew or ought to have known the issuing authority for the WOF was unreliable / Claim dismissed

Contract / Property agreement / Applicant entered into agreement to purchase a property from respondent / Applicant claimed $2,800.00 from respondent for cleaning, removal of cat door, tiling wardrobe and replacing wardrobe sliding doors / Applicant also claimed compensation for missing swipe cards and keys / Whether respondent breached contract / What damages, if any, were payable/ Held: no obligation in written agreement to clean house before settlement / no breach in relation to cleaning / no written agreement relating to cat door and tiling wardrobe / no agreement to attend to those matters was proven / absence of wardrobe sliding doors was breach of contract / failure to provide all keys and swipe cards was breach of agreement / on evidence respondent must pay cost of $418.10 for replacement swipe cards and keys /  Quote provided for sliding doors was lower than applicant’s claim so he can only recover $2,150.00 for doors / Respondent ordered to pay total sum of $2,568,10 to appli…

Contract / Section 35 of the Contract and Commercial Law Act 2017 / Applicants purchased vehicle from Respondent / Applicants asked if any defects or issues / Respondent replied there were none / Applicants had vehicle serviced and discovered leaking head gasket / Applicants claimed respondent misrepresented condition of vehicle / Applicants claimed $2,500.00 for cost of repair / Held: Respondent misrepresented state of vehicle / Held: Respondent to pay $2,000.00 to Applicant because only one quote provided and risk of betterment / claim upheld

Contract / Contract and Commercial Law Act 2017 / Applicant paid $2000 deposit for car / Respondent sold car to another purchaser / Respondent refused to refund deposit to Applicant / Held: an implied term of the contract that the deposit was refundable / No evidence that deposit was intended as either liquidated damages or as a penalty / Respondent not entitled to cancel contract / Breach of s 33 of the Contract and Commercial Law Act 2017 / Respondent entitled to recover the entire deposit of $2000

Contract / Sale and Purchase / Tipper Trailer / Second Respondent did not make agreed payments / Trailer released on good faith / No payments received / Fourth Respondent asked for invoice to be transferred to his new company / Invoice reissued / Applicant remained registered owner / Trailer written off in an accident / Part of purchase price paid by insurance company / Applicant claims balance of purchase price / Third Respondent found to be liable for balance of purchase price plus interest

Contract / The Building Act 2004 / Consumers Guarantees Act 1993 / Applicant purchased house from Second Respondent / Respondent Director of Second Respondent / House built and warranty issued by Third Respondent / Applicant claims for defective painting and defective sewer pump / What were terms of contract / Whether the CGA applies to the build / Whether sewer pump fit for purpose / Whether reasonable care and skill exercised in painting and was it fit for purpose / Whether failure to transfer warranty on time / Whether Respondent personally liable / Whether defects covered by warranty / Whether Appellant entitled to relief / Held: both the Builder under the Project Management contract and the developer are liable for any breach of implied statutory warranty under the Building Act concerning any failure to exercise reasonable care and skill in providing painting service / Held: sewer pump is a good under the CGA / Must be of acceptable quality and fit for purpose under ss 6 and 8 CGA…

Conversion / Animal Welfare Act 1999 / Damages / Applicant’s cat went missing / Cat was found, passed on to Respondent, and adopted by a new family from Respondent / Respondent approached adoptive family to return cat, they refused / Applicant seeks an order for return of cat / Held: Respondent liable to Applicant for conversion of cat / Section 141 of the AWA does not apply to Respondent as they do not qualify as an approved organisation under the Act / Respondent did not take reasonable steps to find owner / Third party has possession of cat / Applicant did not wish to pursue third person, did not want damages and did not want another cat / Claim dismissed

Consumer Guarantees Act 1993 (CGA) / Guarantee goods of acceptable quality / Applicant purchased boat from Respondent / Applicant experienced issues with boat emailing Respondent describing the problem and claiming a refund under the CGA as he had lost confidence in saftey of boat / Respondent inspected boat and found nothing wrong with factory workmanship, advised manufacturer would supply replacement boat / Applicant claims refund of purchase price of boat plus freight costs and compensation for loss of use of boat / Held: problem with boat more likely than not a manufacturing issue / Held: problem does not render boat unsafe, not a substantial failue that renders boat unfit for purpose / Claim dismissed

Consumer Guarantees Act 1993 / Applicant had Respondent lay concrete for him but was unhappy with result / Respondent undertook repairs including grinding back contract and applying tinted sealer to surface / Applicant is still unhappy with work and claims $19,658.15 from Respondent which is the cost that has been quoted to remove and re-lay the concrete / Held: concrete work not undertaken with reasonable care and skill, not acceptable and fit for purpose under CGA / Held: appropriate remedy is a full refund of the amount paid for the work / Claim allowed / Respondent ordered to pay $7,463.69 to Applicant

Contract / Contract and Commercial Law Act 2007 / Applicant purchased a vehicle from the Respondent for $3,400.00 / Respondent had purchased the vehicle from a friend / A finance company had a security interest registered over the vehicle / Finance company repossessed the vehicle as money was still owing / Respondent claimed he did not know money was owing when he purchased the vehicle / Applicant claiming $4,00.00 from Respondent / Whether the Respondent breached the contract of sale with the Applicant / What remedy was the Applicant entitled to / Held: Implied condition and warranties had been breached / Respondent did not have the right to sell the vehicle to the Applicant whether he knew there was a security interest or not / Applicant did not enjoy quiet possession of the vehicle / Applicant was entitled to damages for the breach of a warranty / Measure of damages was the estimated loss resulting from the breach / Damage was the price the Applicant paid to the Respondent / Applica…

Consumer Guarantees Act / Applicant had pacemaker implanted in China / Experienced health issues during trip to New Zealand / Pacemaker replaced by New Zealand company at no cost / Applicant claimed other medical expenses / Insurance company denied claim for medical cover / Whether Consumer Guarantees Acts applies / Held: Act does not apply as goods supplied outside of NZ / Whether insurance company liable for medical expenses / Held: Insurance company not liable as contract entered into after first medical event / Claim dismissed

Negligence / Land Transport (Road User) Rule 2004 / Applicant and Respondent were drivers in a vehicle collision / Collision occurred when Respondent was passing a truck and Applicant exited driveway onto road / Applicant claimed $5,000 from Respondent / Respondent’s insurer counter-claimed $8,317.85 from Applicant / Which party caused the collision / Whether Respondent contributed to the collision / Whether costs claimed reasonable / Held: it is more likely than not that Respondent caused collision / Applicant failed to give way to a vehicle on the roadway when he exited the driveway in breach of legislation / Respondent created situation with risk / Applicant beared greater responsibility and respective liability assessed as 80:20 / Costs accepted and proved reasonable / Applicant liable for 80% of Respondent’s loss / Applicant ordered to pay $4,312.13 to Respondent / Claim and counter-claim allowed