Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased kitset wood fired hot tub from Respondent / Applicant unable to assemble it / Applicant engaged another party to assemble it but it leaked / Respondent argued Applicant allowed the wooden components to get wet and that was why it leaked / Whether tub was of acceptable quality and fit for purpose / What remedy was available to the Applicant / Held: tub was not of acceptable quality and not fit for purpose / Assembly instructions were poor / No warning on instructions about wood getting damp / Applicant entitled to consequential losses as a result of failure of the tub/ Claim allowed / Respondent ordered to pay Applicant $4,148.00

Negligence / Applicant was making a right turn when a collision occurred with a motorcycle being ridden by Respondent / Respondent was travelling along the flush median strip passing on the right of stationary traffic intending to rejoin once he was closer to a roundabout  / Applicant’s car was damaged as a result of the collision / Applicant claims $2,563.74 representing the loss of repairing his car / Held: Respondent caused the collision to occur and was therefore negligent / Applicant did not cause or contribute to the collision / Respondent is liable to pay the amount claimed / Claim allowed / Counter claim dismissed, Respondent to pay $2,563.74 to Applicant  

Contract / Respondents advised Applicant insurance company that a vehicle belonging to them had been stolen / Vehicle not recovered / Applicant paid out claim of $9570.15, met cost of rental car / Vehicle located at Respondents' property / Applicant claims $11,185.10 for amount paid out under claim, and costs of rental vehicle, towing, investigation / Held: claim for loss of vehicle fraudulent / Claim allowed, Respondents to pay Applicant $11,185.10

Contract / Contract and Commercial Law Act 2017 / Applicant purchased an advertised Rolex Submariner watch through Respondent / Watch sent to Rolex Australia for service and found to be non-genuine / Respondent purchased the watch from the original seller believing at the time of sale the watch was genuine /  Applicant claims refund of $14, 350.00 for the purchase price of watch from Respondent as had no contract with the original seller / Held: Relief granted under s28 of CCLA and dealt with as a contractual mistake / Held: Applicant entitled to refund / Respondent to pay Applicant sum of $14,350.00 / Watch to be returned by Applicant to Respondent / Costs incurred in the return of the watch to be covered by Applicant

Contract / Consumer Guarantees Act (CGA) 1993 / Applicant purchased sofa bed from Respondent / estimated delivery date January 2019 / delays in supply / Applicant cancelled contract and requested refund 11 July 2019 / Respondent delivered sofa bed 16 July 2019 / Respondent refused Applicant’s request to remove sofa / Applicant organised for sofa to be donated to Salvation Army / Applicant claims they were entitled to cancel contract and receive $999.00 refund / Applicant claims they were entitled to dispose of sofa / Held: Applicant entitled to cancel contract / s 5A CGA requires consumer receives goods in reasonable time / Held: Applicant not entitled to dispose of sofa / immediate disposal does not constitute reasonable care of goods / claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Respondent performed WOF inspection for Applicant / Applicant sold vehicle / Vehicle wheel bearing seized while Purchaser was driving causing crash / Applicant contends problem must have been evident during WOF / Did Respondent perform service with reasonable care and skill / Held: Respondent supplied service under CGA even though no contract between Respondent and Purchaser / Statutory guarantees contained in CGA apply / Held: Respondent did not perform service with reasonable care and skill / On balance problems would have been noticeable during WOF / Claim allowed / Respondent ordered to pay $1559.24 to Applicant.

Liability / Respondent lost control of vehicle and damaged council traffic light pole / Applicant claims cost to make damaged traffic light pole safe and replace it / Respondent claims suffering bipolar manic episode at time and therefore not liable / Held: Respondent liable for cost of damage / English and Australian cases show person must be completely incapacitated as result of disability to be absolved from liability / Respondent still able to carry out function of driving / Claim allowed, Respondent ordered to pay Applicant $5,976.93. 

Tort / Negligence / Duty of care / While cycling Respondent hit parked car owned by Applicant when he swerved to avoid a collision with another car / Applicant claims cost of repairs and uninsured losses / Held: unable to find Respondent’s evasive action was a breach of a duty of care / No duty to avoid damage to property at expense of serious and imminent danger to one’s own safety / Claim dismissed.

Tort / Detinue / Personal Property Securities Act 1999 / Applicant supplied vehicle to third party under a Vehicle Supply and Security Agreement / Third party failed to pay purchase price of Toyota Prius and subsequently went into liquidation / Vehicle in possesion of Respondent who has refused delivery of vehicle until storage fees paid / Applicants claim right to possession under the Security Agreement and PPSA / Respondent claims right to hold vehicle until storage charges paid and has lien over vehicle / Held: Applicant had sufficient interest in vehicle to claim in detinue / Applicant’s security interest in vehicle registered under PPSA and entitled to take possession under s 109 / Held: Respondent does not have lien over vehicle and is obliged to return vehicle to Applicant  

Contract / Contract and Commercial Law Act 2017 / Applicant engaged Respondent to provide packaging for natural sunscreen products / Applicant and Respondent agreed upon foil sealed plastic tubes / Applicant did not test samples / Applicant did not sign condition of sale acknowledgement of having received and tested samples /  foil seals did not hold once production began / Applicant claims Respondent responsible for failure of foils / Applicant claims $14,999.00 for losses associated with failed seals / Held: Respondent not responsible for failure of foils / condition of sale indicated Respondent would not take responsibility / claim dismissed.

Contract / Applicant parked in parking space in excess of time limit / Car was towed and towing fee charged / Applicant claimed refund of fee as she did not move car due to looking after sick child / Held: Tribunal’s role is to apply law impartially not reverse negative financial consequence of applicant not moving car, at expense of respondent / Claim dismissed

Contract / Applicant purchased property from respondent / Power cables laid by contractor of respondent were actually on neighbours property / Applicant claims the cost to purchase the piece of land from neighbour, boundary consultant fees, legal costs, land transfer and LINZ fees / Held: no breach of sale and purchase agreement / Electrical cabling not laid on the applicant’s property / No remedy available to applicant / Claim dismissed

Contract / s 24 Fencing Act 1978 / Applicant served a Fencing Notice on the Respondents relating to the erection of a fence on the boundary between their respective properties / Parties unable to reach agreement about height of fence / Held: fence to be constructed on boundary of parties properties / Last 9m to be no higher than 1.8m / Palings of remainder of fence to be placed on Applicant’s side of fence / Fence may deviate from boundary to protect tree / Respondent’s to pay 50% of their share of cost once fencing materials delivered / All parties to obtain individual construction quotes / Fence to comply with all provisions of the District Plan.