Disputes Tribunal of New Zealand

Negligence / Applicant & Respondent neighbours / Applicant claimed Respondent’s son damaged his vehicle while son  was left unsupervised / Held: parent not responsible for torts committed by child unless parent negligently failed to properly supervise child / negligence a high standard / Applicant’s evidence fell short of standard / Applicant failed to prove Respondent negligently failed to properly supervise son / claim dismissed

Tort / Negligence / Respondent was getting into her car when a gust of wind blew her car door into the door of a vehicle owned by Applicant, causing damage / Applicant and its insurer claim the cost of repairs to the vehicle of $4,923.07, including uninsured losses of $500 / Held: no contributory negligence in parking next to Respondent’s vehicle / Applicant entitled to recover the actual cost of the repairs / Claim allowed, Respondent ordered to pay Applicant $4,923.07.

Guarantee / Consumer Guarantees Act 1993 / Applicant enrolled in course of study and paid fees to Respondent institution / Applicant withdrew from course 11 days after its commencement / Applicant claimed he could not understand lecturer and lecturer’s teaching style was poor / enrolment form provided for a refund of fees if withdrawal was within 8 days of course commencing or there were exceptional circumstances / Applicant claimed reason for withdrawing was exceptional and Respondent failed its guarantee as to service provided / Applicant claimed refund of fees / Held: no failure of guarantee / inadequate evidence to prove failure / Respondent provided service with reasonable care and skill and service was fit for purpose / circumstances not exceptional / claim dismissed

Consumer Guarantees Act 1993 / respondent installed security system for applicant / applicant claimed detector not working & monitoring company did not respond / respondent changed alarm settings & engaged another monitoring company / applicant refused to pay for new monitoring service &  sought refund / respondent cancelled agreement & claimed money owing as well as cost of changing monitoring companies / whether security system of acceptable quality / whether monitoring service provided with reasonable skill & care / Held:  service provided by first monitoring company not provided with reasonable skill & care / respondent met obligations & remedied failure promptly / applicant entitled to refund of payments to first monitoring company but not entitled to cancel agreement with respondent / agreement provided for decommissioning fee & balance of term to be paid for cancellation / refund offset against money owing / applicant ordered to pay respondent $1321.58.

Tort / Conversion / Applicant sublet a space from Respondent for eleven months / Applicant left two sculptures in the space with Respondent’s agreement / Over a year later Applicant contacted Respondent to pick up sculptures / Respondent informed Applicant that sculptures had been thrown out / Applicant claimed $12,000.00 in damages for loss of sculptures / Whether sculptures were abandoned / What communications there was between the parties before disposal / Whether sculptures were wrongfully dumped / Where there was any contributory negligence / What was the value of the sculptures / Held: insufficient evidence to conclude Applicant had abandoned her rights to possession of sculptures / Conflicting evidence regarding whether Respondent gave adequate warning of his intention to dispose of sculptures / Applicant exhibited a degree of nonchalance towards her property and was negligent in leaving her sculptures beyond agreed time frame / Either party could have avoided what happened with…

Contract / Consumer Guarantees Act 1993 / Applicant delivered vehicle to the first Respondent for repair / first Respondent repaired vehicle and issued invoice to Applicant / Applicant paid part of invoice amount / first Respondent asked second Respondent to look at vehicle due to a further problem / second Respondent gave preliminary diagnosis but received no further instructions from first Respondent / vehicle delivered back to Applicant after some months / Applicant claimed original issue not resolved, vehicle not driveable and had cosmetic issues / Applicant claimed refund of amount paid, declaration of non-liability for balance of amount invoiced and compensation for tow, registration, insurance and repair costs / Held: Applicant did not have a contractual relationship with second Respondent / second Respondent not contractually liable to Applicant / first Respondent did not perform service with reasonable care and skill / first Respondent had Applicant’s car in their possession f…

Contract / Respondent booked appointment for Applicant to service his appliance / Respondent did not cancel appointment / when Applicant arrived, Respondent informed him he no longer required his services / Applicant claimed call out and mileage fee / Held: Respondent breached contract by failing to cancel service / Respondent liable to pay applicant call out and mileage fee / claim allowed, Respondent ordered to pay Applicant $230.23.

Misrepresentation / Fair Trading Act 1986 / Applicant purchased forklift from  Respondent / forklift advertised as a demo model with low hours / Applicant claimed battery needed replacing / age of forklift represented as near new when it was a 2004 model / Applicant claimed refund of purchase price / Held: silence can constitute misleading conduct / description gave rise to a duty to clarify forklift was not near new / failure to clarify constituted misleading conduct / forklift’s worth significantly less than price paid / claim allowed / Applicant entitled to cancel contract and get full refund / Respondent ordered to pay $9,200 to applicant and collect forklift at own cost

Contract / Civil Aviation Act 1990, s.91Z / Applicants booked return flights with Second Respondent and second flight was cancelled / Applicants booked a replacement flight with different airline / Second Respondent refunded fare of $343 / Applicants seek compensation of $1,999.99 for undue stress and extra costs incurred due to the cancellation and necessity to book another flight at a later date / Held: a carrier is liable for damages caused by delay unless delay made necessary by force majeure (unforeseeable circumstances) / mechanical breakdown is a foreseeable event / carrier not liable if they take all necessary steps to avoid damage or it is not possible to take those steps / Respondent delayed decision to cancel flight to a point where passengers would struggled to get alternative flights or accommodation / Respondent only operated one aeroplane and had no replacement / Respondent bears this as a business risk / Terms and Conditions purporting to limit Respondent’s liability ha…

Negligence / Applicants purchased house / Respondent painted house before it was sold to the Applicants / paint work deteriorated / Applicants repainted house / Applicants claimed cost of repainting house from Respondent / Held: Respondent did not owe Applicants a duty of care / Building Act 2004 does not cover painting / no physical damage or safety concerns / only original recipient of a service can enforce guarantee under the Consumer Guarantees Act 1993 / insufficient proximity between painter and subsequent homeowners / claim dismissed

Issue estoppel / Negligence / Damages / Applicant engaged Respondent to build driveway fence on boundary with neighbours / Build encroached on neighbours land and they brought a separate action against Applicant and Respondent / Respondent ordered to move fence or neighbour entitled to completed work by another contract and Applicant and Respondent liable for costs / Respondent failed to move fence by deadline / Applicant claims reimbursement for other contractor / Respondent estopped in current proceedings from arguing not negligent in positioning fence /  Held: Respondent owed Applicant duty of care when positioning boundary fence / Respondent negligent in positioning fence; liable to Applicant for foreseeable loss / Claim allowed / Respondent must pay $1,463.75 to applicant

Contract / Minor Contract Act 1969 (MCA) / Respondent bid and won a car auction for $2515.00 on Trade Me / Applicant and Trade Me unable to contact Respondent about the purchase / Applicant relisted the car a month later and it sold for $1670.00 / Respondent was a 17-year-old high school student and was in breach of Trade Me’s terms and conditions that users must be 18 years old / Applicant claims damages for the price difference and other costs incurred for second auction / Held: the contract was not part of a considered, negotiated bargain / Respondent did not think she would win the auction as there had been strong competition before she placed her bid / Applicant expected Respondent to be an adult / Respondent failed to communicate her age in a timely manner / placing bids in an online auction is the sort of contract the MCA is designed to protect minors against / contract cannot be enforced / an award of the full amount of damage not appropriate / loss component not included in th…

Contract / Credit Contracts and Consumer Finance Act 2003 / Credit (Repossession) Act 1997 (C(R)A) / Respondent took out loan from Applicant of $8598 to purchase motor vehicle / loan secured against motor vehicle / Respondent was to pay $108.53 under consumer credit agreement / Respondent stopped making payments / Applicant repossessed and sold vehicle / Applicant claims $6,936.70 for shortfall following vehicle sale / Held: consumer credit agreement valid, can be enforced and was breached by Respondent / Applicant used all reasonable efforts to obtain best price for vehicle as required under C(R)A / claim allowed, Respondent ordered to pay Applicant $6,649.20