Disputes Tribunal of New Zealand

Misrepresentation / Contract and Commercial Law Act 2017 / Consumer Guarantees Act 1993 / Applicant bought a motorsailer boat being sold by Third Respondent on behalf of Second Respondents / Respondent prepared a report on the condition of the boat for the Second Respondents which was also viewed by the Applicant / After purchase the Applicant discovered damage to the timbers on the boat and was advised the deteriorated steering made the boat unseaworthy / Applicant considered the boat was misrepresented and was neither fit for purpose nor of acceptable quality / Applicant claimed compensation of $15,000.00 and contribution towards repair costs / Respondents claimed that the report identified visible faults and was prepared for the Second Respondents not Applicant / Respondents also claimed Applicant signed a contract putting risk of faults on him and the boat was not subject to any warranties / Held: contents of report did not create an actionable misrepresentation under s 35 of the C…

Contract / Consumer Guarantees Act 1993 / Alleged breach of “live foal guarantee” in breeding contract / Contract was ambiguous / Held: “Live foal free return” referred to attempt to get a live foal, not a guarantee of one / Required to provide free returns into the second season / Held: Broodmare not as described / Mare not proved to be pregnant, therefore not of acceptable quality / Applicant awarded $1,805.36 as contribution to the costs associated with purchase.

Contract / Quasi-contract / Mistake / Respondent and his former partner instructed Applicant to act on their behalf in relation to sale of a jointly owned property / Respondent’s share of net sale proceeds was $6,157,23 / Applicant mistakenly transferred Respondent’s sum into his bank account twice / Respondent promptly notified Applicant / Applicant initially denied anything was wrong / Respondent failed to pay back entire overpayment / Applicant contacted collection agency / Respondent disputed debt / Applicant claimed $4,122.23, balance of outstanding amount and costs / Whether Respondent was obliged to return balance of mistaken payment / Whether any other costs or fees were payable / Held: Applicant had a quasi-contractual claim against Respondent for return of money / Evidence suggested Applicant mistakenly made a second payment / Respondent must return extra money / Applicant cannot recover collection costs or service fee / Respondent invested extra money and cost involved in re…

Contract / applicant purchased property from respondent & discovered road was being constructed on its boundary / applicant not notified of works or consent given by vendors / property used for grazing horses & AirBnB business / applicant claimed she would not have purchased property or would have negotiated a lower price if notified of works / Held: vendors had a duty under vendor warranty to advise applicant of consent / property directly affected by works due to noise & activity / applicant suffered loss & entitled to compensation / no direct financial loss to business or value of property but indirect loss of what was contracted for or loss of the bargain / failure to notify took away applicant’s right to negotiate on different terms / other losses included distress & disappointment from reduced outlook from property, loss of peace of surroundings & physical inconvenience & nuisance from dust, traffic & noise / claim allowed / vendors ordered to pay applicant $15,000 in damages

Contract / Fair Trading Act 1986 / Applicant purchased robot vacuum from Respondent / Applicant tried to return vacuum because could not connect to app and it got stuck / Respondent refused to accept return because Applicant refused assistance to set up vacuum and was considered not to be a serious buyer / Applicant claimed refund / Held: Respondent obliged to accept return and provide refund / Respondent’s suspicions of Applicant’s motive to buy vacuum were not substantiated by sufficient objective evidence / Respondent’s claims were misleading but no need for remedy under the Act / Respondent contractually obligated to accept return / Respondent ordered to pay $1,999.00 to Applicant / Applicant ordered to return vacuum to Respondent / Claim allowed.

Contract / Contract agreement / Applicant provided contract farming services to Respondents / Contract between the parties was terminated prematurely / Respondents withheld monies payable from Company to Applicant / Respondents claims breach of agreement / Applicants claims for unpaid milk, power and legal fees / Whether Respondents entitled to withhold monies / Whether Applicant entitled to legal fees and amount claimed / Held: Lack of water provided by Respondents being the cause of penalty for the milk grade / No fault of Applicant / Respondents not proven damage to gates, rails and clearlite was cause by negligence of Applicant / Applicant not entitled to legal fees / Claim allowed for unpaid milk and power / Respondent ordered to pay Applicant $8560.22

Negligence / Respondent turned right out of carpark and collided with vehicle owned by applicant / Applicant and Applicant’s insurer claim for losses resulting from collision / Held: respondent breached duty to give way to traffic / Minor contributory negligence on part of applicant / Respondent to pay 80% of losses suffered / Claim allowed

Consumer Guarantees Act 1993 / Applicant purchased mower from Respondent / Mower had issues with brakes, deck belt and gear box / Applicant advised Respondent of multiple defects with mower / Respondent claims Applicant did not comply with Owner’s manual and actions contributed to failures / Applicant exercised right to reject it and requested a refund from Respondent / Respondent claims mower was fit for purpose  / Applicant seeks refund of $15,000 for mower for failures and defects / Held: mower not of acceptable quality or fit for purpose; failures of mower integral to nature, operation and control of machine and of a substantial nature; Applicant rejected mower within a reasonable time and is entitled to a refund / Claim allowed / Respondent ordered to pay Applicant refund of $14,872.00

Contract / Consumer Guarantees Act 1993 / Guarantee that goods comply with description /  Failure of substantial character / Respondent engaged Applicant to supply and install kitchen benchtop / Respondent refused to pay balance of contract because no hole for tap in benchtop and it did not correspond with description / Applicant claims $1,750 from Respondent / Applicant claims no room to put hold in benchtop for tap and plan was draft / Held: plan contained description of what to be supplied / Respondent did not approve changes and benchtop did not correspond with description / Failure to match description is of substantial character per s 21(b) CGA as benchtop departs in significant respect from description / Respondent entitled to remedy per s 18 CGA / Held: Respondent entitled to set off of $1,750 against balance of his account / Applicant not entitled to further payment / Claim dismissed.

Contract / Applicant provided labour and machinery to respondent for a job at his property / Respondent refused to pay invoice as he believes he did not enter a contract with Applicant / Applicant claims the amount of $4740.40, being the amount of the unpaid invoice / Held: not satisfied on the evidence there was a mutual intention to create legal relations / Unable to find a verbal agreement existed / No enforceable contract between Applicant and Respondent as essential elements not present / Claim dismissed

Claim for repair costs / Land Transport (Road User) Rule 2004 / Respondent struck door of parked car while driving / Insurer seeking cost of repair for Applicant's car / Issue whether Respondent opened car door in a manner which created a hazard / Issue whether Applicant contributed by failing to keep a proper lookout or driving too close to parked cars / Found that Respondent did open door with oncoming traffic / Unable to make finding that Applicant contributed due to limited evidence / Respondent to pay $3,191.22

Construction law / ss 40, 362I, 362N and 362O Building Act 2004 / Applicant engaged Respondent to carry out work underpinning the foundations of their house / Respondent did not obtain building consent before completing work / Applicant claims $5,389.63, including refund of $2,000.00 payment and cost of follow-up assessment / Held: Underpinning work required building consent / Respondent breached warranty that building work will comply with all laws and legal requirements / Breach substantial, Applicant entitled to compensation for diminution in value and reasonably foreseeable consequential losses / Claim allowed / Respondent ordered to pay Applicant $5,389.63