Disputes Tribunal of New Zealand

Contract / Building Act 2004 / Applicant bought new-build property from Respondent which had a Code Compliance Certificate / Applicant noticed overflow relief gully had not been installed as per plans and council sign off / Respondent claimed they can complete work but Applicant will not allow it / Applicant discovered drainlayer who completed drainage work was not licensed / Document signed by a separate plumber verified they had completed work according to plans despite lack of overflow relief gully and fact that he had not done the work / Council passed inspection of property based on certified documents from the plumber / Applicant claimed $10,000 for another plumbing company to carry out necessary work / Held: work not carried out nor completed in accordance with plans / Work also not done in accordance with legal requirements as a non-LBP tradesperson had completed work and person certifying they did the work had not actually done it / Respondent liable for non-complaint work / A…

Negligence / Fencing Act / Applicant sought monetary contributions from Respondents for remediation work to fence / Applicant claimed fence damage was result of negligent renovations by Respondents / Counterclaim for damage and interference / Held - damage to fence caused by natural degradation of stormwater system / Respondents have no duty of care to carry out work on their property to prevent loss to neighbours / Applicant did not comply with Fencing Act process so relief under that Act is unavailable / Lack of evidence as to loss caused to Respondents by Applicant's actions or interference / Claim dismissed / Counterclaim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased weatherboard product and engaged the Respondent to reclad their home / Weatherboard manufacturer recommended stainless steel nails be used with the weatherboard as they resist rust which was especially important given the proximity of the house to the sea / Respondent used hot galvanised nails instead which voided the weatherboard warranty as it breached the manufacturer's installation specifications / Applicant claimed $28,761.50, being a remedial repair cost required to fix their home / Respondent counter-claimed for $11,794.00, being a balance owing for the work / Held: specifications on the weatherboard product were clear / Respondent failed to exercise reasonable care and skill / Respondent ordered to pay the sum of $28,761.50 to Applicant / Claim allowed and counterclaim dismissed.

Contract / Applicant worked for Respondent as a sales agent / Applicant claimed she had not been paid her commission / Held: Applicant had a contractual entitlement to team share portion of any commission while current "team share" structure was in place / No persuasive evidence that sales team all agreed to the change in team structure or that Applicant's contract was varied with consent of both parties / Applicant entitled to receive commission / Respondent ordered to pay Applicant $3,084.00 / Claim allowed.

Tort / Nuisance / Applicant and Respondent own neighbouring properties / Applicant claimed Respondent's property were used in prostitution and selling drugs / Applicant experienced harassment and threatening behaviour / Applicant claimed costs of abating nuisance caused by tenants / Held: First and Second Respondent implicitly authorised creation or continuance of nuisance by tenants / Cross-lease relationship between two properties heightened landlord's responsibilities / First and Second Respondent responsible for ongoing nuisance created by tenant / Third Respondent as property manager does not have the same responsibility / First and Second Respondent ordered to pay Applicant $1,415.74 / Claim allowed in part.

Contract / Banking / Applicant provided mortgage broking services to Respondent / Respondent did not proceed with Applicant's service / Respondent did not pay Applicant's invoice / Applicant claimed payment for services / Held: not proven that Applicant promised or guaranteed Respondent would obtain home loan offer at 80% LVR or higher / Applicant contractually entitled to charge Respondent / Respondent ordered to pay Applicant $1,600.00 / Claim allowed.

Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Applicant discovered many faults with the vehicle / Respondent carried out some repair work / Applicant claims Respondent caused other problems during this repair work / Applicant claims WOF was fraudulent and vehicle's condition was misrepresented / Held: Respondent not at fault and had offered to refund the purchase price / Applicant took risk of buying vehicles without a prepurchase check / Claim dismissed.

Consumer / Consumer Guarantees Act / Applicant purchased two crystal lead batteries from Respondent for solar power / Batteries collapsed within a year and were replaced by applicant / Respondent told Applicant told adding additional batteries to solar system may cause battery deterioration / Applicant claimed for cost of replacement batteries sold to her by respondent on basis they were not fit for purpose / Held - No evidence that system was not fit for purpose and Applicant unable to show that respondents had breached guarantees in Consumer Guarantees Act / Claim dismissed.

Contract / Respondent contracted by Applicant to provide property management services / Applicant terminated contract and claimed costs for broken or missing items, loss of revenue, rubbish removal, sewage pump repairs, refund of cleaning fee relating to Applicant's own stay at property, plus partial refund of property management fees paid / Held: no contractual liability or binding agreement making Respondent liable for missing or damaged items / Contractual exclusion clauses apply to loss of Applicant's revenue / Insufficient evidence to show breach by Respondents / No evidence or information provided as basis for Respondent's liability to pay or contribute to sewage pump repairs / Insufficient evidence for Tribunal to determine claims relating to rubbish removal or cleaning fee / No basis for refund of property management fees given other claims failed / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a vehicle from Respondent / Applicant encountered gearbox issues after purchase / Applicant and Respondent were unable to reach agreement / Applicant sought $6,239.20 for diagnostic testing and replacement gearbox / Held: Applicant was induced to enter contract by misrepresentations made by Respondent about the gear box / Respondent to pay Applicant $6,239.20 / Claim allowed.

Negligence / Respondent engaged the Applicants to move furniture / Respondent’s puppy was killed in the course of the move / Respondent accepted Applicants’ work was done but considered that they were responsible for the death of his puppy / Applicants claimed $542.00 for cost of their labour and related costs / Held: Applicants were obliged to carry out their work with reasonable care so as not to cause damage to Respondent’s property / Applicants did not fail to use reasonable care / Respondent had obligation to maintain control of the puppy / Respondent took the risk of his puppy suffering injury by allowing her to run loose whilst the Applicants were moving heavy objects / Respondent did not warn Applicants that the puppy was running loose, particularly as they had previously observed the puppy being restrained / Applicants’ actions resulted in the puppy’s death, but their actions could not be regarded as negligent conduct / Respondent should have confined his puppy while heavy obj…

Consumer law / Consumer Guarantees Act 1993 / Applicant acquired Respondent's services to powder coat her door / Door was damaged when it was baked in oven causing internal plastic and rubber to melt / Applicant claimed compensation for damages / Held: First Respondent breached Consumer Guarantees Act / First Respondent could and should have been more careful when agreeing to carry out work by asking Applicant more questions about door, recording discussions in writing, and considering the decision more seriously / Value of damaged door less than amount claimed / First Respondent ordered to pay Applicant / Claim against Second and Third Respondents dismissed / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Protection of Personal and Property Rights Act 1988 / Respondent’s legal services were engaged for the execution of an Enduring Power of Attorney (EPA) for Applicant’s father / Applicant claimed Respondent failed to provide satisfactory advice to him about the EPA, resulting in Applicant’s expenditure from his father’s estate that the Family Court ordered him to refund / Applicant claimed $30,000 loss arising from Respondent’s incorrect advice / Held: Respondent failed to provide satisfactory EPA services, as EPA instrument was ineffective / Failure demonstrated a lack of reasonable care and skill and failure to provide services fit for purpose / However, money ordered to be repaid by the Family Court was not a consequential loss arising from Respondent’s inadequate EPA process, but a consequence of Applicant’s decision to spend his father’s money without a legal basis for doing so / That decision pre-dated the EPA instrument executed by Re…