Disputes Tribunal of New Zealand

Contract / Respondent engaged Applicant to print 100 copies of a book / Internal cover page printed as book’s main cover / Respondent paid for 10 copies, returned and refused payment for remaining 90 copies / Applicant claimed $1,148.47, being the unpaid invoice amount plus contractual interest charges / Held: books were printed and supplied in accordance with the contract / books were consistent with the quotation in terms of number of pages and with the final proof the Respondent approved / Respondent liable to pay invoiced amount / Claim allowed, contractual interest not awarded / Respondent ordered to pay Applicant $1044.75, Applicant ordered to deliver remaining books to Respondent

Consumer protection / Misleading or deceptive conduct / Applicant purchased foreign exchange trading software from Respondent, who was acting as agent for US-based company / In April 2020, Applicant put $3408.10 in trading account / Within a month, most money in the account was gone / Applicant withdrew remaining $679.32 / Applicant claims $3000.00 from Respondent, being his losses from trading while using the software / Held, Respondent’s conduct was not misleading or deceptive / Communication between parties occurred in a context where some knowledge of the risks of foreign exchange trading could be presumed, and included disclaimers that such trading is at the customer’s own risk / No evidence the software product was faulty / claim dismissed.

Contract / Applicant says Respondent knowingly and deliberately supplied under specification concrete rendering purpose built building unsuitable for purpose for which it was built / Applicant claims $30,000.00 to replace concrete / Held: no evidence that strength issues with concrete causes issues for Applicant as other factors identified / Applicant has not proved on balance that Respondent provided under specification concrete, claim dismissed

Property / Fencing Act 1978 / Applicant and Respondent own adjoining properties / Applicant removed fence between the properties and send a fencing notice to Respondent proposing a new 1.8m fence and sough 50% contribution of costs of replacing fence / Respondent issued a cross notice disputing any contribution as fence had been removed before fencing notice issued / Respondent claims pre-existing fence adequate /  Applicant seeks orders to determine if pre-existing fence was adequate and contribution to replacement fence / Held: It cannot be properly assessed if pre-existing fence was inadequate as it was removed by Applicant prior to determination / Claim dismissed

Negligence / Respondent negligently caused damage to applicant’s 1994 Nissan Largo van / Original Disputes Tribunal hearing assessed losses as $5500 for damage to van and $1980 for storage costs / Applicant claims these amounts were insufficient, as they failed to account for modifications to the van, loss of hire income, or costs / Held: Applicant entitled to be restored to the position it was in prior to the collision, including modifications / loss of hire income not reasonably foreseeable / costs related to insurance Ombudsman dismissed / travel costs allowed / claim allowed in part, Respondent ordered to pay Applicant $2172.40

Negligence / Whether Respondent negligently caused damage to Applicant’s vehicle / Applicant and Respondent were drivers in a minor motor vehicle collision / Respondent was reversing down a driveway when Applicant was driving along road / Parties dispute whether collision occurred on the road or on the driveway / Applicant’s insurer claims $4781.78 being the cost of repair to their vehicle / Held: collision occurred on driveway as Applicant moved off road to avoid the witness’ vehicle / Respondent was entitled to reverse down driveway, and therefore did not act negligently / Claim dismissed

Consumer Guarantees Act 1993/ Applicant bought a pony from Respondent / Pony bolted, bucked and exhibited dangerous behaviour contrary to advertisement about being easy to ride / Applicant claims pony not suitable to be ridden by daughter, requests refund of purchase price and to return pony to Respondent / Respondent claims pony as described in advertisement and issues were due to manner Respondent maintained, rode, or fed pony / Held: pony sold in trade therefore subject to guarantees under CGA / Pony not of acceptable quality / Applicant not able to reject pony as outside reasonable time to do so and had been returned to Applicant / Claim allowed / Respondent ordered to pay Applicant $5320.00 / Applicant may keep or sell pony

Contract / Credit Contracts and Consumer Finance Act 2003 (CCCFA) / Applicant made two loans to Respondents / Respondents unable to repay loans / Applicant tried to repossess security but did not / Applicant claims $4,074.14 on first loan and $3,080.74 on second loan / Whether Applicant acted responsibly in making loans, whether all disclosures made correctly, whether fees reasonable, whether Applicant breached legal requirements regarding repossession, what sum is payable, if any / Held: Applicant failed to comply with lender responsibility principles in relation to either Respondent / Held: Applicant failed to comply with requirements for subsequent disclosures / Held: entry onto Respondent premises without correct notices and documentation in breach of CCCFA Part 3A / Held: unpaid balances of both loans offset by damages recoverable by Respondents for breaches by Applicant / Claims dismissed            

Negligence / Duty of care / Truck owned by Respondent struck an overhanging branch that caused damage to the Applicant’s car / Claim initially against Respondent / Respondent contended that Council was at fault because overhanging tree limb was rotten / Claim was for $3,388.22 / Who was responsible for the damage / Held: duty of care on driver of truck owned by Respondent / Also duty of care on Council in relation to trees on suburban streets / Insufficient evidence to show that the Council had breached its duty of care / Evidence suggested driver of the truck was negligent and therefore Respondent responsible for the damage / Cost relating to towing queried / Cost relating to the balance of the claim were reasonable / Respondent ordered to pay $3,311.40 to insurer B Ltd / Claim allowed

Breach of contract / Consumer rights / Consumer Guarantees Act 1983 / Respondent stayed at Applicant’s respite care facility during a period of illness / Applicant invoiced Respondent for a 12 night stay, Respondent paid 6 nights due to perceived deficiencies in care provided / Applicant claims $962.40 for the unpaid balance of 6 nights / Respondent counter-claims requesting non-liability for debt collection costs / Held: Applicant did not breach the Consumer Guarantees Act requirement to provide services with reasonable care and skill / Respondent liable to pay outstanding balance invoiced / Dispute known by Applicant prior to commencement of debt collection process / Debt collection does not proceed where there is a known dispute / Claim allowed, Respondent ordered to pay $962.40 / Counter-claim allowed, Respondent not liable to pay debt collection costs.

Contract / Applicant rehomed cat using agency / Respondent fostered cat prior to committing to full adoption / Applicant sought return of cat due to concerns about Respondent / Respondent refused to return cat after deciding to adopt it / Applicant filed claim seeking return of cat / Held: law of contract applies though no written agreement between parties / Held: parties agreed to terms including Respondent taking cat as foster arrangement, adopting if arrangement worked / Held: Applicant not entitled to demand return of cat or visitation rights / Claim dismissed / Respondent ordered to pay Applicant $250.00 / Ownership of cat vested in Respondent.

Negligence / Breach of duty of care / Contributory negligence / Assessment of reasonable losses / Applicant and respondent were drivers in a motor vehicle collision / Collision occurred when Applicant was driving on flush median, Respondent turned right from a driveway on applicant’s left, and there was a queue of stationary vehicles between them / Cars of both parties sustained damage / Applicant claims $5885.75 / Respondent and respondent insurer counter-claim $6080.00 / Held: No breach of duty of care for future actions, therefore Applicant did not breach their duty of care, Respondent fully liable for the collision / Claim allowed, Respondent ordered to pay $5885.75

Contract / Respondent contracted Applicant to construct a horse arena / Respondent made two progress payments but refused to pay balance owing as unhappy with standard of work / Applicant claims balance owing of $11,500 / Respondent counterclaims $15,000 in damages / Whether the capping layer constructed to an acceptable standard and what sum, if any, payable between parties / Held: implied term of verbal contract that work would be done to reasonable professional standard and area would be fit for purpose / Held: capping layer not constructed to acceptable standard and result is not fit for purpose / Counter claim allowed / Applicant ordered to pay $14,794.50 to Respondent