Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 (CGA) / Applicant ordered vinyl planks with woodgrain effect from Respondent based on sample plank / After floor laid Applicant noticed ‘cross-marks’ which she believed were a fault / Applicant raised issue with Respondent who contacted supplier / Respondent confirmed with supplier that ‘cross-marks’ not a flaw and declined liability / Applicant claims $750.00 as reduction in value / Held: vinyl planks supplied did not correspond with sample in quality / Held: claimed amount of 50% reduction in value reasonable compensation for failure / Section 18(3) of CGA gives consumer right to reject goods and obtain compensation for reduction in value / Claim allowed / Respondent ordered to pay $750 to Applicant

Fencing Act 1978 / Parties share an adjoining property boundary / Applicants wanted hedge between properties removed and wood paling fence erected instead / Respondents did not agree / Applicant removed tree on boundary and sprayed herbicide on stump / Herbicide was sprayed on section of boundary hedge which then died / Parties have agreed new fence is necessary / Whether Applicant’s poisoning of part of fence affects or displaces normal rule requiring neighbours to contribute equally to cost of adequate boundary fence / Held: hedge was not adequate fence even before poisoning / Poisoning not cause of need to erect new fence / Respondent should not be relieved of obligation to contribute to new fence / Respondent ordered to pay $1373.10 to Applicant / Respondent also ordered to pay $615.00 as ordered after previous hearing / Claim allowed

Contract / Flight tickets / Applicant was entitled to be reimbursed for expenses for employment related education during his employment / Reimbursement could be used to cover the cost of conferences and travel / Applicant booked flights for an overseas conference through the respondent / Conference and flights cancelled / Applicant asked the respondent to hold his airfares as credit / Airline issued refunds which the respondent credited back to the Applicant’s employer travelcard / Applicant was only made aware of the refund when he was no longer able to use the money for the original purpose / Applicant claimed $6,425.00 for airfares / Who did the respondent contract with for the flights / Whether the applicant was entitled to any remedy for the respondent’s failure to keep a credit or to inform him of the refund / Held: contract for travel was between the respondent and the applicant’s employer / Applicant was not a party to the contract / No breach of contract in relation to the ref…

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased caravan from Respondent / Applicant did not inspect caravan before purchase / After purchase Applicant did not consider overall quality of caravan as good as advertisement presented / Applicant claimed misrepresentation regarding new wall and roof installation and refrigerator and sought damages of $14,500.00 / Held: factually incorrect information provided in relation to wall installation in caravan / Incorrect information not provided about refrigerator / Claim regarding misrepresentation of refrigerator must fail / Statement about new wall installation was of a nature that would induce an average objective person in the circumstances to enter the contract to purchase the caravan / Applicant has proven inducement and actionable misrepresentation by Respondent / Respondent ordered to pay $10,722.60 to Applicant / Claim allowed

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased boat engine from Respondent after told motor perfect / After purchase Applicant discovered engine had defect and would not turn over / Applicant claims $1,269 from Respondent for sum paid and cost of mechanical assessment / Whether there was a misrepresentation in the sale of the motor / Whether Applicant entitled to sum claimed / Held: not true that motor was perfect at time statement was made / Language would have included a normal person to buy motor / Misrepresentation in sale of motor / Held: Applicant entitled to sum paid and expense of assessment / Claim allowed / Respondent ordered to pay $1,269 to Applicant

Negligence / Consumer Guarantees Act 1993 (CGA) / Remedy / Applicant purchased horse from Respondent and Second Respondent / Applicant engaged Third Respondent to provide pre purchase examination which did not record any concerns / after purchase horse diagnosed with several issues and given poor prognosis for athletic performance and long term pleasure riding / Applicant euthanised horse and claims full reimbursement of purchase price of $28,750.00 from Respondents / Held: Third Respondent was not negligent in exercising duty of care when carrying out pre purchase exam of horse / Held: Respondent and Second Respondent acted “in trade” when sold horse to Applicant / Guarantees in CGA apply to sale / Held: horse did not comply with guarantees of acceptable quality and fitness for purpose per ss 7 and 8 of CGA / Held: failure of substantial character per s 21 of CGA / Applicant entitled to compensation of $19,165.00 / Claim allowed

Contract / Tort / Flatting agreements / Two separate flatmate agreements between the applicant property owner and the respondents / Dispute over flood damage, furniture damage and rent arears / Applicant claimed $2,055.00 from Respondents for compensation and rent arears / Tenancy Tribunal had earlier determined that the Residential Tenancies Act 1986 did not apply in this claim / Whether any or all of the respondents breached their duty of care not to damage the property / If so, what foreseeable loss flowed from the breach / Question of when the tenancy ended and whether rent had been paid to that date / Held: respondents owed a duty of care not to damage the applicant’s property / evidence established some of the respondents were responsible for damage to the sofa / evidence relating to flood damage unclear / not satisfied the applicant has proven the claim on the balance of probabilities / rent claim not proven on the evidence / two of the respondents responsible for small amount o…

Contract / Payment / Applicants entered into contract with company to do plumbing work for First Respondent / Work halted as First Respondent could not pay invoices / After Applicant met with Second Respondent work continued / Two further invoices issued and not paid / Applicant claims Second Respondent said he would personally pay for work / Applicant claims $6,002.99 from Second Respondent / Second Respondent claims he was facilitator and payments he made were paid as loan to First Respondent / Held: Second Respondent had personally paid company for previous work and said he would pay for work to finish job / Second Respondent did not say he was acting as agent for First Respondent / Second Respondent liable for payments on basis he promised to personally pay / Claim allowed except for costs and claimed interest / Discretionary interest granted, calculated in accordance with Interest on Money Claims Act 2016 / Second Respondent ordered to pay Applicant $5,193.51.

Contract / Contract and Commercial Law Act 2017 (CCLA) / Applicant bought boat from Respondent which was found to have corrosion in hull and issue with motor / Applicant claims damages of $4,999.00 for cost of repairs / Held: boat represented as good boat with no issues is incorrect and a misrepresentation / Held: Applicant induced to purchase boat by Respondent’s misrepresentation and is entitled to damages per s 35(1)(a) CCLA / Claim allowed / Respondent ordered to pay damages of $4,000.00 to Applicant

Contract / Consumer Guarantees Act 1993 (CGA) / Promissory Estoppel / Fair Trading Act 1986 (FTA) / Applicant booked 3 tickets on a spectator boat during the America’s Cup for 13 March / Applicant arrived after check in time and missed departure of vessel / Applicant claims refund of ticket costs, accommodation costs, filing fee and legal costs/damages / Respondent does not agree to refunding ticket price as purchase honoured by providing Applicant alternative trip / Held: Respondent did not breach contract as Applicant did not adhere to conditions of agreement / Held: promissory estoppel does not apply in these circumstances as no detriment to Applicant, he has not suffered any loss as alternative trip offered / Held: Applicant complied with terms and conditions, did not breach FTA / Claim dismissed

Contract / Breach / Remedy / Applicants incurred engagement expenses and claim Respondents agreed to pay half / Respondents dispute agreement was made / Whether there was binding and enforceable agreement between parties, whether Respondents breached agreement, what remedy is available to Applicants / Held: no valid and enforceable contract between parties / No need to consider issue of breach or remedy / Claim dismissed

Fencing Act 1978 (FA) / Parties were neighbours and shared a boundary fence between their adjoining properties / Applicant claimed Respondent has damaged fence by attaching old doors to add height to fence / Applicant claimed cost of replacing fence pailings as attachments are causing damage to fence / Whether Respondent was responsible for damage to fence / If so, was Applicant entitled to costs or any other sum / Held: additions to fence were damage to the fence and must be removed / Not sufficient degree of damage to fence to justify replacement of pailings / Claim for compensation not granted / Respondent ordered to remove attachments to fence / If Respondent fails to remove Applicant can arrange contractor to remove and Respondent will be liable to pay $300.00 to Applicant / Claim allowed in part.

Property / Parties are neighbours and share adjoining property boundary / Applicant to replace septic tank and seeks order for removal of trees on Respondent’s property / Whether Tribunal has jurisdiction to make an order for removal of trees / Whether roots have grown from Respondent’s property and caused damage / Whether roots from Respondent’s property need to be removed to install septic system / Whether debris from Respondent’s trees blocked drain and caused damage / Whether Applicant entitled to compesation / Whether Tribunal able to make award for Tribunal Filing fee / Held: Tribunal does not have jurisdiction to order removal of trees / Removal of trees not within Tribunal’s jurisdiction per s 10(1) of the Disputes Tribunal Act / Root damage claims dismissed because no evidence of damage to property / Debris damage claim struck out as it relates to request to remove trees / Claim for compensation dismissed / Tribunal has limited ability to make award of costs per s 43 Disputes …