Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant contracted Respondent to make a 21st birthday cake / Applicant provided details for the cake design including a request for marbled filling/ Cake was not marbled and Applicant was disappointed with cake provided  / Applicant was offered a refund but chose to take the cake / Whether Respondent iced the cake with reasonable care and skill in accordance with the agreement / Whether Applicant was entitled to a refund / Held: lack of marbling does not justify a refund nor does it devalue the cake / Cake was iced in accordance with instructions / Not satisfied that the Respondent breached her obligations under the contract or the CGA / Applicant deemed to have accepted the cake by taking possession of it after being offered a refund / No refund justified / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent in May 2021 /Applicant had finance agreement including breakdown insurance / Applicant had issues with vehicle in July 2021 and it broke down in August 2021 / Applicant completed insurance claim form after advising Respondent of issues with vehicle / Delay in getting vehicle inspected due to Covid Level 4 lockdown in September 2021 / Applicant requested full refund in November after further delays / Vehicle transmission fixed but other issues overlooked and carried out in February 2022 / Applicant seeks to reject the vehicle, cancel the contract and obtain amounts paid to date including refund for breakdown payments and costs for period without car / Was vehicle of acceptable quality, if not was any failure of the guarantee a failure of substantial character / What remedy is available to Applicant and does fact repairs completed affect that remedy / What is payable on the claim / Held: vehicle not as …

Contract / Contract and Commercial Law Act 2017 (CCLA) / Respondent is accommodation provider through various booking platforms / Applicant made accommodation booking for August 2021 direct with Respondent and paid 50% deposit / Prior to dates of booking Applicant paid balance of accommodation cost / New Zealand went into Level 4 lockdown and Applicant unable to travel / Applicant attempted to rebook accommodation but suitable dates not available / Respondent refunded 50% deposit but refused to refund remaining 50% / Applicant claims $980.00 / Whether Applicant entitled to refund or all money paid for accommodation as cancellation due to Covid-19 lockdown / Held: terms of booking platforms do not apply to contract between parties / Contract terms and conditions set out in text messages between parties / Messages include deposit non-refundable except for Covid lockdowns / Even if this not implied term, contract frustrated under CCLA / Respondent to pay $980.00 to Applicant / Claim grant…

Negligence / Respondent collided with Applicant’s taxi / Applicant received an insurance payment for the value of his taxi and other costs / Applicant seeks a further order that the Respondent is liable to pay $12,000 in other losses he claims resulted from the collision / Applicant also seeks repayment of the annual insurance premium he paid to make a claim from the second Respondent /  Held: Primary respondent breached duty of care when they collided with the Applicants taxi / Claim allowed / Respondents’ insurer to pay Applicant $4,797.90 / Claim against the second Respondent dismissed.

Consumer law / Sale of goods / Compensation for defects / Consumer Guarantees Act 1993 / Applicant bought defective car from Respondent / Applicant claims cost of repairing defects / Respondent claims they thoroughly checked car before sending to Applicant / Held: car was faulty at time of sale and was not of acceptable quality / Applicant did not cause any problem to damage the car / reasonable person would expect car to operate properly / Respondent ordered to pay Applicant $7,855.10 within 28 days for repair costs / Claim allowed.

Contract / Fair Trading Act 1986 / Respondent enquired about the advocacy services of Applicant / Respondent ceased communication with Applicant after discovering they were not a lawyer / Applicant claimed $948.75 from Respondent for his time / Respondent claims she was misled to believe it was a free consultation / Held: no contract for services were formed between the Applicant and Respondent / There was no clarity of terms around fees / Respondent does not need to pay invoiced amount / claim dismissed.

Bailment / Applicant’s dealership arranged for Respondent to repair car / Applicant failed to collect car when advised / When Applicant picked up the car it was damaged / Applicant claims $400 equitable to the insurance excess of fixing the damage / Held: Respondent took reasonable care of informing the Applicant the car was ready for collection / Claim dismissed.

Negligence / Tree maintenance / Tree fell onto Applicant’s car / Tree on a verge owned by Respondent / Applicant sought compensation from Respondent / Respondent denied lability / Respondent arborist checked tree eight months before event and found no external signs of concern / Whether Respondent breached duty of care owed to Applicant / If so, what remedy was Applicant entitled to / Held: not satisfied that Respondent failed to exercise reasonable care with respect to its checking and maintenance of tree / Tree was last checked eight months before untoward event, which was not unreasonable / Arborist had no reason to suspect there was problem with tree / Claim dismissed.

Misrepresentation / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicants purchased two flats under a cross-lease title in 2016 / Each flat had a garage allocated to it / Garages were not attached to the flats but were separately located in the section / Applicants tried to sell the property in 2018, however, their real estate agent discovered one of the garage’s encroached into the neighbouring land / Prospective purchasers, proved unwilling to purchase the land due to the title defect / Applicants remain the owner of the property / Applicants claimed damages to cover costs involved in a survey of the land, and appropriate legal and practical work that might be needed in establishing an easement or new, accurate, plans / Held: Respondent’s conduct was not misleading or deceptive as it was unknown at the time that the new garage also encroached in the same way as the old one / No wrongful conduct was established on the part of any of the Respondents / Respondents not liable…

Towing / Applicant parked car in area managed by Second Respondent / Applicant paid for parking via app / Applicant paid for wrong parking space / Applicant’s car towed by Respondent / Applicant claimed refund for amount charged by Respondent for towing vehicle / Whether Applicant breached terms and conditions of parking / If so, whether Respondent entitled to tow vehicle / Whether Applicant was entitled to a refund of tow fee / Held: terms and conditions of parking undisputed / Applicant required to pay parking fee / Applicant did not familiarise herself with parking app, paid for incorrect address / Applicant not entitled to refund of tow fee / Respondent entitled to retain fee / Claim dismissed

Contract / Consumer law / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Respondent serviced the Applicants' commercially operated machines / Respondent advised Applicants to buy new machines / New machines could not be used in required environment / Applicants claimed for a full refund and wanted to return the machines on the basis they were not fit for purpose / Held: Applicants not proven that the Respondent made any false or misleading representations about the machines / Not found that the Applicants relied on the Respondent's skill or judgment, other than the machine's main functionality / Definitive conclusion relating to actual performance of the machines not required / No remedies available / Claim dismissed.

Contract / Respondent contracted Applicant to stage house for sale / Goods supplied were stolen during staging / Applicant claimed $2500 insurance excess / Excess term was in contract / Respondent claimed that excess clause was hidden / Held: clause in contract not hidden and easily understood / No defence not to have read a term of a contract / Respondent to pay Applicant $2,500.00

Fencing Act 1978 / Parties are neighbours and share boundary fence / Applicant served fencing notice on Respondent stating fence not adequate, Respondent served a cross-notice objecting to notice / Applicant claims $10,372.50 for half of fence replacement / Respondents counterclaim costs of $1,433.26 / Held: current fence between properties adequate fence / Claim and counterclaim dismissed