Disputes Tribunal of New Zealand

Negligence / Applicant involved in car crash / applicant claimed crash caused by fuel spill & respondents responsible for not blocking road & cleaning it up promptly / alleged further damage caused to car when unloading it from respondent’s tow truck / applicant claimed damages  for damage to car, consequential losses & costs / whether respondents negligent, & if so , what sum payable / Held: respondents had a duty of care to take adequate precautions to prevent damage to other vehicles & respond promptly / no evidence respondent did not respond promptly / response time reasonable in the circumstances / resondents not lible for applicant’s crash / insufficient evidence respondent negligent in handling vehicle causing further damage / claim dismissed

Contract / misrepresentation / Contractual Remedies Act 1979, section 6 / Applicant purchased horse for granddaughter after seeing advertisement on Trade Me / private sale / granddaughter inspected horse and rode on him on three occasions over a two-month period / Applicant claimed that Respondent did not inform her of horse’s complications, behavioural problems and that horse is unsafe / Held: onus on Applicant to establish horse was misrepresented, that Applicant induced to enter contract based on misrepresentation and that Applicant suffered damage as a result / no persuasive evidence that Respondent misrepresented horse / claim dismissed

Negligence / Breach of duty of care / Applicant and Respondent were drivers in a motor vehicle collision / Respondent’s vehicle crossed the centre line, crashing into Applicant’s oncoming vehicle / Serious Crash Unit report found the collision was caused by the separation of the left rear wheel from the Applicant’s vehicle, leading to loss of control of the vehicle / Applicant changed the wheel 7 days before the crash, report suggested wheel was over-torqued causing its sudden separation / Applicant claims $13,444.10 for the damage to their vehicle / Held: Respondent entitled to expect the professional who repaired the tyre to check replacement tyre on vehicle / Separation of the wheel was not caused by a lack of care, Respondent not responsible for the collision / claim dismissed.

Contract / independent contractor / Applicant engaged as contract builder by Respondent through written contract / Respondent allocated 96 hours for job, which extended to 116 following issues arising in work / Respondent has paid Applicant for 122 hours / Applicant claims $2,978.50 for additional 74 unpaid hours / Held: Applicant was working on estimate rather than fixed price basis under the contract / Applicant required to invoice time that reflected assigned hours / standard industry practice allows 15% margin on estimates above allocated hours towards actual time on job / Applicant entitled to charge and be paid for 110.4 hours for original scope of work / unpredictable issues arose during job that required more time / Respondent did not allocate additional hours for this increase by mutual agreement with Applicant, as was required under contract / claim allowed, Respondent ordered to pay Applicant additional hours for estimate and issues that arose, totalling $1,465.10

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased type A factory bike from original owner / Respondent was the licensed importer / dirt found in the motorcycle’s airbox caused serious damage to the engine / Applicant repaired the bike himself and claimed for his losses / Held: motorbike not of acceptable quality / inadequate airbox filter system compromised bike’s durability / Respondent considered manufacturer / Applicant able to claim against manufacturer for losses relating to engine failure / Applicant not required by CGA to send bike to Respondent for examination  / Applicant unable to profit from engine failure / amount of losses not changed for betterment or loss of value / claim allowed, Respondent ordered to pay Applicant $8,318.08 and to arrange for collection of damaged engine from Applicant at own cost.

Contract / misrepresentation / Contractual Remedies Act 1979 / Applicant purchased used car from Respondent after seeing advertisement / Applicant purchased car after completing a test drive / Applicant claimed for necessary repairs and filing fee / Held: no misrepresentation / statements in advertisement were general and either true as far as anyone knew or statements of opinion / Applicant not induced into contract by advertisement having inspected the car and test drove it / advertisement merely induced Applicant to investigate further and do own checks on the car / an example of a “buyer beware” situation / claim dismissed

Jurisdiction / parties were in a de facto relationship for six years during which Respondent established a family trust that purchased leasehold property / parties lived together in the property as co-tenants / trust did not renew lease when leasehold expired, relationship broke up and both parties left the property / Applicant claimed $4,868.07 for money spent on improvements and maintenance / Held: all transactions between parties governed by the Property (Relationships) Act 1976 / Tribunal does not have jurisdiction under Property (Relationships) Act / even if Applicant’s claim treated as against Respondent in her capacity as trustee, relationship between Applicant and trust is that of tenant and landlord and transactions between them may raise relationship property issues / claim struck out.

Jurisdiction / survey marks and boundary fence / Cadastral Survey Act 2002 (CSA) / Disputes Tribunal Act 1988 (DTA) / Fencing Act 1978 (FA) / parties are neighbours / Applicant removed part of boundary fence to safely remove tree stumps / Applicant noticed two boundary pegs missing while reinstating fence / Applicant claims $1,0355 from Respondent for cost to survey and reinstate boundary pegs on grounds that Respondent removed or tar sealed them during previous driveway maintenance / Respondent counterclaims $1,889.75 in legal costs, stating Applicant verbally agreed to resurvey fence when finished with trees / Held: no jurisdiction to hear Applicant’s claim of interference with survey marks as under s 55, CSA / no jurisdiction over survey cost matters under FA, ss 24(p) and 24A(1) / no jurisdiction over claims involving survey pegs as they cannot qualify as “property” under s 10(1)(c), DTA / Respondent not awarded legal costs as Applicant had arguable case for claim and did not know …

Contract / misrepresentation / sale and purchase of land / Fair Trading Act 1986, sections 9, 14 and 43(3)(f) / Real Estate Agents Act 2008, sections 155 and 110(3) / Applicant claimed against Respondent real estate agent for misrepresentation, failing to disclose structural issues and pressure on her to buy property / Respondent claimed that Real Estate Agents Disciplinary Tribunal already determined this matter / HELD: while Respondent breached Fair Trading Act, Applicant did not rely on misrepresentation / building report identified issues with piles, but Applicant still proceeded with purchase / no longer any causal connection between Respondent’s misleading conduct and Applicant’s decision to proceed with purchase / claim dismissed

Jurisdiction / Disputes Tribunals Act 1988 / Applicant undertook development work and disputes arose regarding the legality of drainage work and cost of fencing on shared boundaries / Applicants sought declaration that drainage work was legal and claimed $3,800 for the cost of fencing and $4,128.50 in legal fees / Held: Tribunal does not have jurisdiction to make a declaration as sought by Applicant / cannot make a declaration in Respondents’ favour / no basis to make an order for cost of fencing against Respondents as Applicant had not served a Fencing Act notice and there was no agreement / no basis to make an order against Respondents for legal costs incurred by Applicants / claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased a bike online from Respondent which developed fault / stand-off between parties as to who should pay for freight to return bike to Respondent / Applicant eventually sent the bike to Respondent which discovered and repaired minor wiring fault / Applicant claimed $1,790.96 for refund of the bike, courier costs and compensation / Held: Applicant did not give Respondent opportunity to examine the bike and to repair and therefore did not have right to reject the bike / bike failed to meet guarantee of acceptable quality and Applicant is entitled to freight cost as it is cost reasonably foreseeable / Respondent liable for cost of freighting bike back to Applicant / Applicant’s claims for other consequential losses dismissed / supplier cannot contract out of Consumer Guarantees Act / claim allowed, Respondent ordered to freight bike back to Applicant and pay $90.

Contract / insurance / Applicant claimed $2,527.70 from his insurer, Respondent, for repairs to the deck at his home and maintains damage was caused by a sudden event and is covered by his house insurance policy / Held: can exclude the possibility of product failure and of a wide scale failure of the product generally / evidence suggests only other alternative is sudden damage to the deck causing damage to the waterproof membrane / fact Applicant cannot recall a specific event does not, of itself, exclude likelihood a specific event causing damage occurred / Applicant established on balance of probabilities that there had been a sudden event causing damage to the waterproofing and is therefore entitled to be covered for the damage / claim allowed, First Respondent ordered to pay Applicant $2,127.70.