Disputes Tribunal of New Zealand

Contract / Overpayment / Applicant claimed against Respondent for two payments Applicant made to Respondent in error, totalling $18,205.79 / Respondent accepted payments had been made, but was not sure if money claimed related to Respondent's previous work / Held: more likely that the payments were made in error / Overpayments had been scrutinised by Applicant’s accounts department / Applicant had been trying to receive refund for a year and Respondent had earlier accepted it had been paid in error / If Respondent had a genuine view the payments were for work done it would have been able to furnish proof / Respondent had retained funds that did not belong to it, therefore must return those funds / Respondent ordered to pay Applicant $18,205.79 / Claim allowed.

Contract law / Applicant suffered a medical incident while travelling overseas / Applicant settled his claim with Respondent for his missed flights / Applicant claimed $12,544.65 from Respondent for his wife’s business class ticket for international flights under the travel insurance policy / Held: medical incident suffered was a serious illness and an unexpected event under the insurance policy / Applicant’s wife entitled to cover under the policy / Respondent ordered to pay Applicant $1,086.65 / Claim allowed.

Negligence / Applicants and Respondent shared a driveway / Respondent hit one of Applicants’ stud dogs while driving down driveway / Dog died shortly afterwards / Applicants claimed $30,000.00 compensation for loss of dog and her future earning potential / Held: Respondent did not cause the death of Applicants’ dog by driving in a careless manner / Respondent was driving very slowly at around 5kms per hour, which was a safe and cautious speed for a shared driveway / Dog ran under Respondent’s car when called / Respondent had no way of knowing dog was there, therefore had no warning she needed to stop / Respondent not liable to pay Applicants for any compensation / Claim dismissed.

Consumer law / Misrepresentation / Consumer Guarantees Act 1993 / Applicant’s daughter purchased a bee garden kit for $264.99 from Respondent for Applicant / Respondent’s website stated purchaser of kit would get a “thriving bee habitat” in their garden / Applicant claimed kit was faulty as the majority of the bee cocoons did not hatch / Applicant said he followed the instructions but the kit had not yielded promised result / Applicant sought a full refund / Held: item was not of acceptable quality only in so far as the representations made by Respondent did not eventuate / Applicant’s garden was not a thriving bee habitat / Failure was not of a substantial character to justify full refund / Partial refund was reasonable / 30 percent discount ordered / Respondent ordered to refund Applicant $80 / Claim allowed in part.

Contract / Respondent’s employee (a teacher) contacted the Applicant (a motel) enquiring about booking accommodation for a school trip / The Applicant claimed a contract for reservations were made, and as the Respondent failed to cancel the bookings and show up, the Respondent was liable for the cost of one night’s accommodation, ($776.00) / The Respondent claimed the employee did not have the authority to enter into a contract with the Applicant, and that, no contract was entered / Held: A contract was formed between the parties / The Respondent did not provide sufficient notice to cancel the contract / Respondent to pay Applicant $776.00 / Claim allowed.

Contract / Negligence / Insolvency Act 2006 / Companies Act 1993 / First Respondent agreed to store an artwork for Applicant in his storage unit / During administration of First Respondent’s bankruptcy, items in storage unit were sold or disposed of / Applicant claimed artwork had gone missing / Applicant claimed $16,400.00 / Held: storage of artwork was an informal arrangement between friends, did not create contractual obligations / Most likely First Respondent took reasonable care of the artwork while he had access to storage unit, was not negligent / First Respondent not liable to Applicant in contract or tort / No jurisdiction for Tribunal to hear claim against administrator of First Respondent’s bankruptcy / Claim dismissed.  

Contract / Applicant was a delivery driver, having entered into a driver partner agreement with Respondent / Respondent terminated  agreement as someone signed into Applicant's delivery account from a new phone and submitted a selfie to prove their identity / Respondent claimed that was a breach of its community guidelines and they were entitled to cancel contract / Respondent stated logging into the Applicant's account indicated fraud and they followed the agreement guidelines / Applicant claimed his phone was hacked and photo submitted was photo of a selfie / Applicant claimed damages of $1,999.00 / Held: agreement gave the Respondent the discretion to terminate an agreement for breach of Community Guidelines / Evidence presented demonstrated process followed by Respondent was consistent with guidelines / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged Respondent to apply film to some windows in her home / Applicant later complained about smearing and dust between film and windows, scratches and bubbles / Parties agreed to have work inspected by industry body / After inspection, Applicant arranged for stripping of the film by another contractor / Respondent covered cost of stripping and refunded Applicant’s deposit, but refused to pay cost of replacing scratched windows / Applicant claimed $2,974.48 for replacing scratched panes and $2,000.00 in general damages and costs / Respondent counter-claimed $2,000.00 for refunded deposit, reimbursed cost of stripping and general damages / Held: more likely than not that scratches were caused by Respondent / Respondent liable for cost of replacing scratched panes / General damages not available / Respondent ordered to pay $2,974.48 / Claim allowed in part, counter-claim dismissed.

Contract / Penalty clause / Contract and Commercial Law Act 2017 / Applicant contracted Respondent to provide him with carpet laying services / Contract did not proceed and applicant claimed $2,000 deposit paid / Held: Contract agreement clause is a penalty clause and therefore unenforceable / Applicant cancelled contract / Respondent can be compensated for time it spent prior to contract being cancelled / Respondent ordered to pay Applicant $1,712.50 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged Respondent to work on her bathroom renovation / Applicant claimed work was of poor quality / Applicant claimed $3700.00 refund, $1000.00 for remedial work, $72.08 for rubbish disposal, and $24.90 Tribunal costs / Held: three independent contractors gave damning statements about standard of Respondent’s work / There were failures of consumer guarantees of reasonable care and skill and of fitness for purpose by Respondent, and failures were of substantial character / No value in Respondent’s work, so Applicant entitled to refund of money paid / Applicant entitled to refund of payments totaling $3400.00, but insufficient evidence to support additional $300.00 / Applicant entitled to consequential losses of $1000 for stripping back job and $72.08 rubbish removal / Costs unable to be awarded / Respondent ordered to pay $4472.08 / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 (CCLA) / Applicants engaged Respondent to do work on a deck at their property / $23,571.00 estimate was given / Design changes and other factors resulted in price increase / Final amount invoiced was $39,376.19 / Applicants paid $24,618.06 / Applicants sought order that they did not have to pay outstanding $14,758.13 / Respondent counterclaimed for payment of outstanding sum / Held: Respondent breached building rules by not informing Applicants of price increase due to design variation / $7,069.00 cost of variation was significant / If Applicants had known cost of variation, they would not have proceeded with changed design / Reasonable consumer would expect to pay reasonable price for variation, assessed as half actual cost, $3,534.50 / This figure along with other accepted costs and a 10% reasonable estimate overrun resulted in final figure of $32,863.04 / Applicants had paid $24,618.06, therefore must pay further $8,244.98 / Contract w…

Contract / Consumer Guarantees Act 1993 / Applicants entered into a contract with Respondent to rent a storage unit at their storage facility / Storage unit was used to store Applicants’ furniture /  Applicants claimed that some of their furniture was damaged and soiled by mice while it was being stored as the unit was not secure / Applicants sought $19,825 for replacement of damaged items / Held: contract terms were very clear that Respondent had no liability for damage caused by vermin / Evidence indicated that Respondent supplied services with reasonable care and skill and that the storage unit was secure / Entry of mice in a unit alone did not mean the facility was not secure / Claim that there was a misrepresentation of the security of the unit was not established / Claim dismissed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant bought vehicle from Respondent / After purchase, Applicant noticed front tyres were not same as rear tyres / Applicant asked Respondent for photos from online listing, and noticed front tyres on car were not same as front tyres in the photos / Applicant had front tyres replaced with same brand as rear tyres / Applicant claimed $2,020 to cover tyre replacement cost / Held: no misrepresentation by Respondent / The front tyres were new as stated in the advert / Advert did not state brand of tyres / In private sales, onus on buyer to carry out due diligence and make sure they are getting what they believe they have bargained for / Tyres were visible at all times to Applicant during test drive and when he picked up the car, Applicant had ample opportunity to inspect them and did not do so / Photographs did not induce Applicant to buy vehicle / Claim dismissed.