Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / Variation of contract / Reasonable price / Respondent engaged Applicant to provide landscaping services at his home / Applicant provided Respondent a written scope of works priced as a “provisional estimate” / A variation order was issued to reflect a change in materials for a path from concrete to stone / During project disputes arose over quality of work and amounts being invoiced / Applicant claims unpaid invoices of $18,306.22 / Respondent counter-claims $30,000 representing sums over-paid and remedial costs / Held: no meeting of the minds with respect to the variation of the total price for the stone path / Applicant’s variation order was not clear or consistent with other comparable pricing for paving with the same product / Respondent claims “remedial” work not carried out by Applicant but was charged in provisional estimate / Held: reduction for remedial work in the overall claim per terms of “reasonable price” under s 31 of the CGA / C…

Negligence / Applicant’s hot water cylinder leaked and had to be replaced / Applicant claims cause was Respondent’s act of chlorinating water supply / Applicant claims cylinder replacement cost of $2,167.75 / Held: Respondent was not negligent in adding chlorine to water supply / Amount added well within New Zealand drinking water standards / Levels were frequently monitored / Held: Insufficient evidence to prove more likely than not that chlorine caused cylinder to fail when it did / Claim dismissed 

Consumer Guarantees Act 1993 / Failure to comply with guarantee that services be provided with reasonable care and skill / Applicant engaged Respondent to carry out painting work at a property / Applicant claims the work done was substandard / Applicant claims $12,677.86, for cost of remedying work, alleged overcharging and damage to the property / Held: Evidence establishes that the services provided by the Respondent were not of acceptable quality / Respondent therefore failed to comply with the guarantee that services be provided with reasonable care and skill / Overcharging established for GST amount included on one invoice / Damage to carpet established, taking into account depreciation over time / Claim allowed / Respondent ordered to pay Applicant $8,908.75

Consumer law / Fair Trading Act 1986 / Applicant purchased a refurbished phone for $699.99 from Respondent / Applicant’s daughter dropped the phone into a pool / Afterwards problems with the phone / Applicant returned phone to Respondent for repairs / Respondent refused to repair phone without charging / Applicant alleged phone was marketed as being waterproof but was not / Applicant claimed original cost of the phone / Whether Respondent engaged in misleading and deceptive conduct / If so, whether amount claimed was reasonable / Held: Respondent’s website did not state that refurbished phones are not as durable nor that the warranty did not cover water damage / Respondent engaged in misleading and deceptive conduct / Test was how long a reasonable person would expect a refurbished phone to last / Expectation that EK’s phone would last another 26 months / Calculated that Applicant’s phone had 72 percent of its life left / Claim allowed in part / Respondent ordered to pay Applicant $503…

Jurisdiction / applicant purchased trailer to build tiny house / trailer registered in applicant’s name & statement that ownership transferred on payment / seller went into liquidation & trailer & partially built house included in sale of business / whether Tribunal has jurisdiction or whether claim should be transferred to District Court (DC) / whether applicant had title to trailer / whether respondent liquidator liable for conversion / Companies Act 1993, s284 / Contract and Commercial Law Act 2017 / Held: claim based on property ownership not debt so Tribunal has jurisdiction / Tribunal regularly deals with interpretation of contracts so no need to transfer to DC / trailer in a deliverable state / applicant had title to trailer / ownership transferred on payment & attaching plates signified intention to transfer / respondent liable for conversion / applicant deliberately excluded from possession by respondent / claim allowed / respondent ordered to pay $12,737.05 to applicant.

Contract and Commercial Law Act 2017 / Caveat emptor / Applicant purchased vehicle from Respondent / Applicant brought claim for cost of having repairs done to vehicle after purchase / Applicant claims Respondent misrepresented condition of car / Held: Applicant not able to prove case to required standard / No actionable misrepresentation by Respondent / Claim dismissed

Contract / Misrepresentation / Applicant purchased a car from Respondent in a private sale / Car developed problems / Mechanic determined would cost more to fix than the car was worth / Applicant asked for money back from Respondent / Respondent refused / Applicant claim was for refund of $3,500.00 or for repair costs / Whether the Respondent made a untrue statement about the car / If so whether the untrue statement induced the Applicant to buy the car / If so, what was the costs of repair / Held: unable to find that the Respondent made untrue statements / Claim in misrepresentation fails / Claim dismissed

Limitation Act 2010 / Incapacity / Applicant purchased unit in a unit title development from the Respondent in a mortgagee sale / Dispute arose over who was to pay outstanding levies owed on unit / Applicant paid levies without prejudice to seek compensation  / Applicant sought $30,000 in levies, interest and costs incurred when levies were paid / Whether the claim was out of time / Whether it was just to allow the claim on the grounds of incapacity / Held:  Applicant filed claim six years after settlement / Respondent was entitled to defend the claim on the grounds that it was out of time / Applicant was incapacitated for periods of time / However, Applicant had capacity to instruct a lawyer during in the six year period before the claim was to be heard / Extension in filing unjust / Late filing of claim delayed the Respondent's ability to defend claim / Claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased avocado seedlings from Respondent / 240 trees died the following season / Respondent offered to replace half of the trees / Applicant did not accept this offer / Applicant seeking compensation for the 240 affected trees / Held: Consumer Guarantees Act applies / Respondent was a supplier and avocado seedlings are goods / Insufficient evidence to show that the trees were had some sort of inherent fault or weakness / More likely that the trees were reasonably healthy and fit for purpose when they were supplied / Claim dismissed

Contract / Contract and Commercial Law Act 2017 / Applicants booked cycle tour through Respondents / Country became restricted due to COVID-19 pandemic / Respondent offered three options: transfer booking, continue tour or cancel and receive 50% refund / Applicant claims contract was frustrated / Applicant claims $14,066.91 for refund plus legal costs / Held: contract was not intended to cover event in question / Held: contract frustrated due to events outside control of both parties / Applicants therefore entitled to refund of money paid for tour / Held: Respondent entitled to retain $9,340 being reasonable overhead and business expenses / Held: claim for legal costs dismissed as not agreed to in contract or fitting in specific circumstances / Outcome: Respondent ordered to refund balance of $4,613.91.

Contract / Breach of contract / Applicant enrolled in Personal Trainer course with Respondent / Course shifted to online delivery due to lockdown / Applicant unable to participate in course due to child care commitments / Applicant requested to defer course or receive refund and Respondent declined / Applicant claimed Respondent breached contract by failing to provide course / Applicant claimed $4,495.00 refund / Respondent counterclaimed the sum of $4,495.00 / Whether Applicant withdrew from the course / Whether the Respondent breached the contract by failing to provide the course / What amount, if any, either party was entitled to / Held: Applicant did not withdraw from course and was only offered access to the introductory class /  Respondent breached contract by failing to provide course / Respondent to pay Applicant $4,495.00 / counter-claim dismissed / claim allowed.

Consumer Guarantees Act 1993 / Applicant hired marquee from Respondent / Applicant claims damages caused by ballooning of marquee, water pooling and compensation for early lowering during a wedding reception / Held: water pooling on the marquee indication marquee had not been erected with reasonable care and skill / Held: Applicant followed instructions of Respondent attempting to lower and adjust marquee poles to fix flat areas where water was pooling / Held: wind speed not a significant factor to problems which arose / Held: Respondent failed to provide marquee hire and installation with reasonable care and skill, Applicant entitled to remedy under the Consumer Guarantees Act / Claim allowed / Respondent ordered to pay Applicant $3078.88

Consumer Guarantees Act 1993 / Applicants purchased bathroomware from Respondents / After six months the products showed wear / Applicants sent photo to Respondents advising of issue / Respondent claimed issue was due to wear and tear / Applicant claims costs for product refund, retiling and plumbing costs / Held: there is a failure of guarantee of acceptable quality as the goods are not durable / Held: Applicant’s have right to reject the goods and claim a refund and other foreseeable losses resulting from the failure / Claim allowed: Respondent ordered to pay $1694.00 to Applicants.