Disputes Tribunal of New Zealand

Negligence / Respondent shot Applicants' cat resulting in its death / Respondent believed it to be a feral cat / Whether Respondent exercised reasonable care / Held: Respondent should have taken more care in determining whether the cat was a feral cat or someone's pet / Claim for $2,500 for general damages for distress is dismissed / Dispute Tribunal does not have jurisdiction to make an award for damages for stress or emotional harm / Applicants awarded $200 compensation

Unjust enrichment / Consumer Guarantees Act 1993 / Applicants rented rooms in a residential house belonging to Respondent / Applicants arranged to install a kitchen in one room and in an outbuilding in exchange for an offset of rent / Over two months, the Applicants occupied the rooms no rent was paid to the Respondent / The Tenancy Tribunal deemed the property to be an unlawful dwelling and no rent was payable by the Applicants / The Applicants claim $7400.83 for the value of the kitchens / The Respondent counterclaims a $30,000.00 loss in rent due to the incompletion of the kitchens / Held: The Respondent was unjustly enriched / It is more likely that any loss of rental income suffered by the Respondent is due to the dwelling being unlawful / Claim allowed / Counterclaim dismissed / Respondent to pay Applicant $7400.83.

Sale and purchase of land / Applicant agreed to sell property to Respondent / Title not issued by deadline / Agreement extended several times before settlement / Purchasers later resold property / Applicant sought contribution for sealing costs for access road and survey costs / Held: no express or implied responsibility in the original agreement to allow claim to succeed / No inferred acceptance from text exchange / Risk not to secure agreement in writing and left to prove acceptance on appearances / Insufficient evidence to show acceptance of proposal / Claim dismissed.

Negligence / Trespass / Applicant got car out of his garage and collided with car parked by Respondent on driveway in blind spot / Car damaged / Respondent accepted responsibility but her insurer considers Applicant to have been at fault / Held: Respondent had trespassed on Applicant’s property / Cannot find Respondent liable for damage caused to Applicant’s car by actions of his own by virtue of Respondent having trespassed / Collision caused by Applicant taking insufficient care when reversing out of his garage / Respondent not liable to pay the amount claimed of $500 / Claim dismissed

Law of contract / Agreement to a boundary realignment between neighbours / Clause stated that if Applicants did not receive notice of new titles withing 300 days then Respondents to pay $10,0000 in liquidated damages / Applicants claim to have received notice 847 days after date of agreement / Applicants claiming $10,310.25 in liquidated damages plus interest / Whether clause is a penalty clause and therefore unenforceable / Held: on the balance of probabilities it was a penalty clause / No attempt to scale the consequences to the length of the delay / Clause did not take into account any unforeseen situations / Clause unenforceable / Claim dismissed

Contract / Applicant purchased a car in another city / Applicant engaged the services of the Respondent to transport the vehicle to her home town at a cost of $1,550.00 / Vehicle was stolen from the Respondent’s depot the night prior to delivery / Applicant claimed $5,5000.00, refund of delivery fee and insurance excess of $4,000.00 / Later Applicant increased claim to $20,500.00 to include the cost of the vehicle of $19,000.00 / Applicant’s insurer said the cost of the vehicle amount was derived from valuations from independent valuers / Whether the Respondent was liable for loss of the vehicle / If so, what compensation was the Applicant entitled to / Held: contract between the parties did not include reference to either a declared value risk or any declared terms / Parties do not have written contract that states the transport of the vehicle was at the owner’s risk / Contract of sale between the parties was one of limited carriers’ risk / Respondent’s responsibility only ended on de…

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased electric scooter from Respondent on TradeMe / Advertisement detailed scooter as included 60v motor / Once purchase was complete, Applicant found scooter held a 52v motor / Applicant claims $1650.00 for refund of purchase price and cost of installing 60v motor / Whether Respondent misrepresented scooter / Whether misrepresentation induced Respondent to purchase scooter / Held: Respondent advertised scooter under an innocent misstatement / Applicant induced to enter into contract by misrepresentation / Claim allowed, Respondent ordered to pay $495.00.

Negligence / Dog Control Act 1996 / Dogs belonging to the parties were involved in an altercation / Applicant claimed $9,030.00 for her dog’s surgeries following the altercation / Which dog was responsible for causing the altercation / What was the cause of damage to the Applicant’s dog / Was the damage to the Applicant’s dog a foreseeable result of the fight between the dogs / If so, did the Applicant have a duty to minimise her losses / Whether the Respondent was responsible for the costs of both surgeries / Whether the costs claimed reasonable / Held: more likely than not that the Respondent’s dog caused the altercation / Evidence suggested that the damage to the Applicant’s dog was caused the Respondent’s dog /  Evidence suggested that the damage to the Applicant’s dog was a foreseeable result of the fight between the dogs  / Applicant did everything she could do minimise her losses / Respondent was not responsible for the cost of both surgeries / There were too many variables impa…

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased property from Respondents / Applicant had building inspection completed before purchase but did not receive report before offer went unconditional / Applicant received correspondence from building company regarding work needed on foundations / Applicant claims recovery of cost  to rectify uneven floors / Respondents claim Applicant had done due diligence and knew about settlement issue / Whether defect in property at time sold to Applicant / If so, should defect have been disclosed to prospective buyers / Whether Applicant aware of need for work on foundations before agreement to purchase property / Whether s 35 of CCLA applies / Whether any betterment in claim for $30,000.00 / Held: at time of sale and purchase there was a defect regarding the foundation of property / Held: requirement for Respondents to disclose foundation of house defective / Held: more likely than not Applicant not aware of defect before…

Contract / Applicant worked as contractor for Respondent / Applicant’s role was senior person and required approval from Civil Aviation Authority (CAA) / Applicant advised Respondent they were ending contract and sent invoice of $1,600.00 for work done / Respondent did not pay invoice / Applicant claims $1,600.00 for 20 hours of work done / Respondent counterclaims $7,711.11 for breach of agreement / Held: Respondent owes Applicant $1,600.00 for work done / Applicant carried out 20 hours of work and provided evidence / Held: Applicant did not breach agreement / Applicant entitled to terminate agreement as they did / no other matters raised by Respondent prove breach of agreement / Held: Respondent to pay Applicant $1,600.00 / Claim upheld

Contract / Applicants contracted with Respondent to assess and repair damage to plane engine including replacement of piston rings / During flight post repairs plane lost oil pressure, engine began to smoke and Applicant made emergency landing further damaging plane / Crash investigation found engine failed due to oil starvation and incorrect piston rings / Applicants’ insurer reached settlement with Applicants and seeks claim of $30,000 from Respondent / Whether Respondent breached implied term of contract or was negligent in not carrying out work in compentent manner / If yes, did that cause a loss to Applicants and their insurers / Did Applicants contribute to damage / Are Applicants entitled to compensation sought / Held: Respondent in breach of contract and negligent by not carrying out work in compentent manner / More likely than not that Respondent fitted incorrect piston rings on plane / Held: more likely than not incorrect piston rings caused emergency landing causing loss / H…

Fencing Act 1978 / Applicant removed and replaced fence on his property / Applicant claims from Respondent half the cost of the replacement fence on the boundary / Whether Applicant proceeded with replacement of fence in accordance with the Fencing Act / Held: Respondent was not served with a notice under s10 of the Act / No agreement or notice was served / Respondent not liable to contribute to costs / Claim dismissed.

Fair Trading Act 1986 (FTA) / Contract and Commerical Law Act 2017 (CCLA) / Misrepresentation / Applicants are trustees of trust which purchased house / Prior to settlement, Respondent provided builiding report including representations about earthquake repairs / Three years after purchase, house prepared for sale, earthquake damage outside MBIE guidelines found / Applicants claim Respondent mispresented extent of repairs or condition of house causing loss / What obligations were owed to Applicants about quality of property / Whether it was reasonable to rely on representations / Whether representations wrong / If wrong, what loss has that caused Applicants / If loss, whether it is too late to claim / Held: Respondent in trade, representations regarding repair work made under FTA / Held: more likely than not representation of property misleading under FTA / Held: reasonable for Applicants to rely on statements made about property based on Respondent’s representation, but not not reason…