Disputes Tribunal of New Zealand

Contract / Contra Proferentum / Applicant entered contract with Respondent for house design work / Applicant had paid $11,040.00 and Respondent had completed much of the work before dispute arose over whether Council fees were included in contract / Applicant claims full refund of $11,040.00 / Respondent counterclaims for $12,000.00, comprising $4,657.50 for partial completion, $2,530.00 for cost of third party resource consent work and $3,000.00 for legal costs, time spent and interest / Held: agreement covered Council deposit fees but not structural design fees / Respondent implicitly accepted Applicant’s interpretation of contract but it is unreasonable to understand contract fees to cover full amount of Council fees / Held: Applicant not entitled to refund / work was already undertaken and it is possible for the work to be continued / claim and counterclaim dismissed.

Contract / Fair Trading Act 1986 / Applicant discussed laying his driveway with Second Respondent / Second Respondent issued an invoice from First Respondent / Applicant paid $19,665.00 to Second Respondent / Second Respondent not a legal entity / Work was not done / Question of who was the party to the contract / Held: Second Respondent cannot be a party to the contract as they were not a legal entity / First Respondent was a party to contract / Second Respondent engaged in conduct that was misleading or likely to mislead / Legislation provided that if a person suffered loss by such conduct of another person, an order can be directed that person pay amount of the loss to the other / Second Respondent ordered to pay Applicant $19,665.00 / Claim against First Respondent dismissed / Claim against Second Respondent granted.

Tort / Contract / Negligence / Contra Proferentum / Applicant had assets located within Respondent’s property / There was an outage in the service provided by Applicant / Applicant investigated outage / Outage appears to have been caused by a fire in Respondent’s premises / Applicants claim that Respondent’s tenants were negligent and caused the fire / Applicant also claims that Respondent, as the landlord, is contractually liable for the damage / For negligence a third party report was used by the Applicant as evidence / Respondent’s tenant’s insurer’s report was also used in evidence / Held: there is insufficient evidence to prove negligence on tenant’s part / For contractual liability the word “cause” is ambiguous in the contract between Applicant and Respondent / Applicant wrote the contract / There is insufficient evidence to prove contractual liability of Respondent / Claims dismissed.

Contract / Contract and Commercial Law Act 2017 (CCLA) / Applicant purchased vehicle online by swapping for vehicle to value of $10,000 with third party / Vehicle repossessed by finance company as there was security interest registered against vehicle in relation to finance owed by Respondent / Applicant claims $10,000 for value of car and $6,000 in other costs incurred on repairs and upgrades / Held: Respondent did not sell vehicle to Applicant therefore there no contract between parties and s135 of the CCLA does not apply / Claim dismissed.

Contract / Negligence / Consumer Guarantees Act 1993 / Respondent completed building work on Applicants' property / After the works were completed the Applicants' pool partially collapsed / Collapse led to a significant amount of water loss from the pool / Applicants claimed Respondents breached its duty of care owed to them / Applicants claimed $30,000.00 in damages / Held: no single cause of the pool's collapse was proven / Insufficient evidence to establish the extent building work hastened the pool's demise / No evidence that the Respondent breached its duty of care / Claim dismissed.

Contract / Applicant parked vehicle in carpark to attend gym / Applicant parked in neighbouring business carpark rather than gym carpark / Respondent provided parking enforcement services / Respondent sent Applicant notice for $95.00, for parking in business carpark / Applicant contacted Respondent, appealed fee, claimed it was honest mistake / Respondent declined appeal saying vehicle was parked in front of sign identifying carpark owner, which was not gym / Subsequently, Respondent advised Applicant of additional costs, bringing total owing to $320.00 / Later Applicant received email from credit agency seeking $416.71 / Applicant disputed liability / Applicant sought declaration of non-liability for $416.71 / Respondent counterclaimed for $425.35 at hearing / Held: sign in business carpark indicated it was not gym’s carpark / Sign did not constitute offer / Sign indicated unauthorised drivers could incur a fine for parking there / Respondent not providing parking, not offering anythi…

Contract / Resource consent / Applicant, Respondent and third party hold resource consent for proposed driveway / Applicant claims cost of surveying, plumbing, and engineering design work for proposed driveway / Respondent denies liability for these sums on basis she has repeatedly informed Applicant she did not wish to proceed with construction of driveway / Held: signing resource consent application form and paying costs of application did not amount to entering contract to build shared driveway / expenses incurred by Applicant were incurred in situation where there was no reasonable expectation for Respondent to contribute / claim dismissed.

Contract / Limitation / Building Act 2004 / Limitation Act 1950 / Limitation Act 2010 / Applicants entered into a building contract with a previous iteration of the Respondent / Dispute over work done / Applicants ordered to pay $15,723.99 in a previous decision / Applicants claimed they should not have had to pay / Applicants claimed for money paid as well as interest, $30,000.00) / Held: Respondent did not assume any of the liabilities of previous company / Previous company had been removed from the Companies Register / Respondent not a party to the original contract / Claim was out of time under relevant legislation / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to auction her painting / Applicant believed painting was an original / Respondent believed it was a copy / Reserve price of $100.00 was set / Applicant observed the auction online / Respondent appeared to be shaking his head at one of the bidders / Painting sold for $250.00 / Applicant believed Respondent told the buyer not to bid as it was not an original / Applicant believed the painting should have fetched $2000.00 / Applicant claimed $1750.00 from Respondent / Whether Respondent failed to provide service with reasonable skill and care / Whether Respondent engaged in misleading or deceptive conduct / Held: Applicant agreed to the reserve price / Respondent confirmed with the bidder that the painting had not been authenticated / Respondent acted with reasonable skill and care / No evidence of misleading or deceptive conduct by the Respondent / Applicant not proved any wrongdoing by the Respondent / Claim dismisse…

Contract / Consumer Guarantees Act 1993 / Applicant booked international travel with the Respondent / First flight into their transition city arrived late / Outbound flight was overbooked and the Applicant's family were unable to board / No further flights for a few days so the Applicant's family opted to return home / Applicant claimed Respondent failed to carry out their job with reasonable care and skill / Applicant claimed communication was poor with the Respondent / Applicant claimed $18,000.00 in compensation / Held: Respondent was not responsible for the loss the Applicant suffered / Loss was caused by the airlines / Claim dismissed.

Contract / Respondent was walking her dog down a street opposite the Applicant’s property / Applicant came out of her house with a larger dog than Respondent’s / Applicant leaned into her car to clear some items / Applicant heard someone shouting and saw Respondent’s dog lying on the footpath / Later the Applicant received a phone call from the Respondent saying her dog was at the vet and needed a MRI scan costing $5,000 / Respondent refused to pay for the dog's treatment / Applicant paid for the MRI / MRI revealed there was no sign of a dog bite and that condition could have been caused by other factors / Respondent paid for additional vet bills when informed the dog would otherwise be put down / Applicant claimed $6,000 for cost of vet bill / Held: parties came to an agreement to share vet costs before coming to the Tribunal / Agreement should not be disturbed / Claim dismissed.

Negligence / Applicant was parked in his car on the side of the road when he was hit by another car / Respondent then drove past and parked ahead of the Applicant / Applicant took a video of the damage to his own vehicle and noted damage on the Respondent's car / Respondent denied he hit the Applicant's car / Respondent also heard a crash and saw a white car speed past / Respondent stated there was no damage to his vehicle / Respondent claimed he pulled over as a witness, not because he was liable / Held: onus was on the Applicant to prove on the balance of probabilities that the damage was caused in the manner he described / Claim not proven to the required standard / Claim dismissed.

Bankruptcy / Applicant was declared bankrupt / Respondent kept charging Applicant accounting software fees despite Applicant ending her bankruptcy  / Applicant claimed being discharged of accounting fees after the end of her bankruptcy / Held : Applicant does not have to pay accounting software fees as Respondent had confirmed with Applicant that she did not have to pay accounting software fees at the end of her bankruptcy / Claim allowed.