Disputes Tribunal of New Zealand

Cross-lease / Applicant and Respondent are neighbours in a cross-lease property made up of one building divided into two flats / Terms of the cross-lease require each unit to pay half the cost of repairs and maintenance of the building, including the roof / Applicant considers Respondent has not kept up responsibilities under terms of cross-lease / Applicant claims Respondent’s roof needs to be repaired and repainted, exterior walls of flat repainted to original colour and shared fence to be painted / Held: terms of cross-lease require roof to be repaired and repainted / Held: requirement of “high standard” in terms of cross-lease do not apply to fence, no obligation on Respondent to contribute to painting it / Respondent entitled to paint exterior walls of their flat / Respondent ordered to repair roof and arrange painting with Applicant / Respondent to also repaint small shared external wall area.

Contract / Section 28 of the Consumer Guarantees Act 1993 / Section 9 of the Fair Trading Act 1986 / Respondent contracted with Applicant cover band to play at their wedding / Song list was discussed shortly before wedding / Respondents were unhappy with the style of many songs and Applicant was unable to learn new songs under short notice / Respondents cancelled contract and refused to pay cancellation fee due to lack of communication about song list / Held: Applicant failed to communicate regarding song choice with reasonable care and skill, and misled the Respondents about limits of its ability to perform requested songs / Applicant’s failures of communication were not sufficiently serious to justify cancellation of the contract (s 43, FTA 1986) / Damages reflect shared responsibility for Respondent’s invalid cancellation of contract and Applicant’s breaches of the CGA and FTA / Claim allowed / Respondent ordered to pay Applicant $900.00

Conveyancing / Consumer Guarantees Act 1983 / Duty of reasonable care and skill / Applicant engaged Respondent to provide conveyancing services for a property purchase / Applicant claims losses related to delay in moving into the property due to advice of Respondent / Respondent counter claims for time spent on post settlement matters and Tribunal attendance / Held: advice to Applicant regarding vendor having 7 days to take care of issues with property amounts to a failure of reasonable care and skill / Advice regarding 7 day period was inaccurate / Respondent not settling before 4pm amounts to failure of reasonable care and skill leading to losses for Applicant / Claim allowed / Respondent ordered to pay $393.00 to Applicant

Property / cross lease / Fencing Act 1978 / fence between exclusive area and common area / entitlement to park in common area / enforcement of requirement not to park in the common area / claim for compensation / Held: entitled to have a fence as no term in the lease preventing this / respondents not entitled to park in the common area / Tribunal not able to make order preventing long term parking / claim for compensation dismissed as not supported by evidence

Property / Fencing Act 1978 / Applicant contacted his Respondent neighbour about building a fence between their properties / Notice included details about the fence and an indication that the Respondents would be liable for a contribution to the fencing costs of $945.56 / Respondent replied to Applicant that he thought the existing fence was adequate / Parties failed to reach an agreement / Applicant stated he was concerned his animals would escape on to the Respondent’s property / Applicant commenced work on fence / Fence was completed and the Applicant attempted to recover fence costs from the Respondent / Whether the respondent was liable for a contribution to the fence costs / If so, whether the Applicant was entitled to claim $945.59 / Held: on the balance of probabilities, fence was not adequate / However, differences between the Applicant and the Respondent were not resolved when the Applicant chose to replace the fence / Fence did not require immediate work /  Respondent was no…

Contract / Contract and Commercial Law Act 2017 / Applicant sent a computer using a courier service / Respondent said the postal service was under a contract with another party / Following collection and before the item arrived at intended destination a redirection request was made / Computer never arrived at first destination or redirected address / Applicant unable to collect computer from depot due to Covid 19 restrictions /  Computer sent to redirected address but never arrived / Respondent said no ability to locate computer due to nature of contract with other party / Applicant claimed never given an option to pay for posting once the parcel was located at the depot or told there was anything irregular with tracking of the package / Applicant claimed $635.00 for costs of computer plus filing fee / No contract between parties and no liability at law from Respondent to Applicant for loss of computer / Applicant took a risk sending the parcel / Claim dismissed.

Contract / Companies Act 1993 / Applicant claims $27,252.00 from Respondent for commissions owed at time of liquidation / Held: Disputes Tribunal does not have jurisdiction for matters under the Companies Act 1993 or in equity / claim dismissed

Disputes Tribunal Act 1988 / Fair Trading Act 1986 / Applicant invested money in a terms deposit with a company where Respondents were directors / Company went into receivership then liquidation / Applicant claims employee’s of company engaged in misleading and deceptive conduct / Applicant claims directors should be respondible for the actions of their company and their employees under s 43 of the Fair Trading Act / Applicant did not have personal dealings with Respondents and claim is not caught under s 43 / No general liability on directors for actions or conduct of their company / Claim dismissed

Damages / Second respondent responsible for vehicle accident that caused damage to Applicant’s property / Applicant claimed costs of $5,196.23 to repair the damage / Second Respondent claims a deduction should be made from the sum claimed to reflect betterment and a failure to mitigate costs / Held: appropriate to allow a deduction of 20% for betterment of the damaged property / Held: deduction of 20% towards costs regarding hours spent on repair and age of property for lack of documentation of actual costs / Claim allowed / Second respondent ordered to pay $4,156.98 to Applicant.

Contract / Negligence / Duty of Care / Applicant presented his caravan at Respondent’s repair shop for a quote / Respondent prepared quote for work and did not provide to Applicant / Respondent completed quoted work without seeking Applicant’s approval  / Respondent withheld caravan due to disputed unpaid invoice, caravan subsequently stolen by unknown person / Applicant claims cost of caravan / Respondent counter claims cost of repair and storage of car caravan / Held: No agreement established between Applicant and Respondent for work on caravan to be completed / No agreement established to pay storage costs / Counter claim dismissed / Respondent breached duty of care by refusing uplift of caravan into Applicant’s possession and resulting in caravan being stolen / Respondent ordered to pay Applicant $2800.00 / Claim allowed

Consumer law / s 13(a) of the Fair Trading Act 1986 / s 28 of the Consumer Information Standard (Used Vehicle) Regulations 2008 / Applicant purchased vehicle from Respondent / Respondent provided Applicant with a Consumer Information Notice at point of sale / notice incorrectly stated that the vehicle had not been imported as a damaged vehicle / Applicant claims $29,980.00 for cost of vehicle and sign writing / Held: Respondent made false representations regarding history of the vehicle / Respondent did not comply with Consumer Information Standard regulations / No defence under s 44(5) of the Fair Trading Act as Respondent knew, or should have known, that it did not comply with the consumer information standard / Claim allowed / Respondent ordered to pay Applicant $29,980.00 / Applicant ordered to make vehicle available for collection by Respondent.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a power meter from Respondent on a website / Applicant stated advertisement claimed power meter was in an excellent condition / Applicant claimed the power meter readings were inaccurate / Website rules allowed three-day return period / Applicant contacted Respondent nine days after he received power meter / Applicant alleged Respondent misrepresented the condition of the power meter and had refused to refund his money / Whether Respondent made any misrepresentations which induced the Applicant to enter the contract / Whether Respondent breached terms and conditions implied in the contract / Whether Applicant entitled to return power meter and have his money returned / Held: no independent evidence to support allegation that the meter readings were well below what was advertised / Applicant did not prove there was a misrepresentation / Website rules were clear and provided for a three-day return period / Too many var…