Disputes Tribunal of New Zealand

Negligence / Respondent collided with power pole owned by Applicant, forcing its replacement / Applicant sought compensation of $17,658.17 / Held: loss described by Applicant is reasonable in the circumstances / Applicant awarded its damages claim in full / claim allowed.

Contract / Contract and Commercial Law Act 2017 / Private sale of a second-hand car / After purchasing the vehicle the Applicant discovered the gear box needed replacing / Applicant claimed the Respondent made misrepresentations about the condition of the car / Applicant also claimed the Respondent made a mispresentation that the car ran well / Whether there was a misrepresentation by the Respondent that induced the Applicant into purchasing the car / If so, what remedy was appropriate / Held: Applicant was unable to show on the balance of probabilities that there were misrepresentations regarding the condition of the vehicle / Statement that the car ran well was a misrepresentation supported by evidence / The misrepresentation induced the Applicant into the contract and to buying the vehicle / Applicant purchased a second-hand vehicle and would have anticipated some ongoing service and maintenance /  $1,000.00 considered to represent a fair contribution to repairs by the Respondent / …

Contract / Applicants entered share milking contract with Respondents as trustees of ABC trust / Respondents terminated contract / Final milk contract payment made to trustees in place of Applicants / Applicants claimed $16,456.38 plus GST and interest in relation to final milk contract payment and filing fee / Held: contract stipulates that on termination Applicants receive Contract Payment for any unpaid milk contract payment without deduction or withholding any amount and Trustees have no right to set off in relation to payment / Applicants entitled to Contractor Payment which Respondents withheld / Trustees acted in breach of contract by not paying final Contractor Payment to the Applicants / Trustees not entitled to deduct costs claimed from the final Contractor Payment / Claim allowed / Respondents ordered to pay $17,336.99 to the Applicants

Consumer rights / Consumer Guarantees Act 1983 / Respondent purchased digital surveillance system from Applicant / Respondent has not paid for system / System sends false alerts / Intruder alerts unable to be turned on and off when camera system is turned on and off / Applicant claims payment for system / Respondent counterclaims seeking declaration that he is not liable and is entitled to reject system / Held: system not sufficiently free from defects / Respondent made functionality he sought clear and system not reasonably fit for this purpose / Applicant went to considerable lengths to rectify system / Respondent made clear he wanted to cancel arrangement in February 2020, purchase has been cancelled since then / Respondent has received little marginal benefit from use of system since cancellation / Respondent filed claim in timely manner / Little or no depreciation in hard drive from delay / Outcome: Respondent to keep cameras purchased with system to mitigate his loss / Respondent…

Contract / Contract and Commercial Law Act 2017 / Applicant had house built by Respondent / Applicant ordered grey bricks / Respondent provided brown bricks and said they would look different when laid / Applicant raised issue again halfway through / Respondent laid entire wall / Applicant claims Respondent misrepresented colour blend of bricks / Applicant claims Respondent failed to provide reasonable care and skill / Applicant claims $27,668.00 / Held: Respondent misrepresented colour blend of bricks / Held: Respondent failed to provide reasonable care and skill / Applicant could have stopped brick laying earlier / Respondent provided partial remedy by painting weatherboards of house to fit colour scheme / claim allowed, Respondent to pay Applicant $3,000.00.

Contract / Education and Training Act 2020 / Applicant signed up for course and subsequently cancelled / Applicant claimed that Respondent failed to notify him that no refund could be given if a cancellation was within 14 days of course commencement / s 354 and 357 Education and Training Act 2020 / Respondent unaware of its obligation under the Act / No evidence that cancellation caused any loss to Respondent / Held: Applicant entitled to full refund of $2,200

Contract / Breach of contract / Applicant arranged to sell all of its paintings  through the Respondent / Applicants arranged for unsold paintings to be uplifted from Respondent’s premises to a gallery / Applicants claimed one of the paintings went missing / Applicants claimed for original price of the painting / Whether the painting was delivered to the Respondent / Whether there was a contract that the painting would be insured by the Respondent on its premises / Whether the Respondent has breached its responsibility as a bailee to take reasonable care of the painting / Whether Applicants were entitled to compensation for the painting / Held: applicants did not prove it was more likely than not that the painting was delivered to the Respondent / Honest belief something was done not the same thing as whether it was actually done / Claim dismissed

Contract / Quasi-contract / Applicant acted for Respondent seeking improved compensation from EQC for damage to Respondent’s property / Respondent obtained further compensation of $120,000 from EQC / Applicant claimed $3,200 as legal costs / Applicant claimed it was implied term of contract with Respondent that Respondent would pay legal costs / Held: Legal costs not implied term of contract between parties / Applicant does not have a contractual right to the $3,200 claimed based on express statements to Respondent that litigation costs would be met by Applicant / Tribunal examined whether it would be unjust for Respondent to retain benefit of compensation at Respondent’s expense / Applicant claimed legal costs were included in compensation but were unable to provide express explanation or breakdown of compensation from EQC showing costs included in compensation /  Held: Applicant not entitled to amount sought in absence of express explanation or breakdown from EQC regarding costs / Cl…

Contract / Payment / Applicant entered into a contract with Respondent to complete an online personal training course / Respondent was liquidated and company sold to a third party / Third party seeks outstanding fees from Applicant, Applicant claims no money is owned to third party / Held: Insufficient evidence to show intention on part of Applicant and original Respondent to consent to the novation of the rights and obligation under the contract to a third party / Purported novation requires consent of Applicant which was not contained in terms of contract nor obtained from Applicant / No contract between Applicant and Respondent / Respondents counterclaim dismissed / Applicant not liable to pay $1, 846.39

Nuisance / Applicant and Respondent own adjoining properties / On three occasions trees on Respondent’s property fell and caused damage to Applicant’s property / Logs piled on Respondent’s property rolled and caused damage to a wall of Applicant’s house / Applicant claimed $3964.42 from Respondent / Held: trees were kept in a dangerous state, after two trees fell this state was known to Respondent and the potential for a further tree to fall was reasonably foreseeable / Respondent had no knowledge of work resulting in the logs being piled and cannot be said to have had any control them / Claim relating to falling trees allowed, respondent ordered to pay Applicant $2,066.59 / Claim relating to rolling logs dismissed.

Duty of care / Animal Law Reform Act 1989 / Dog Control Act 1996 / Respondent's dogs attacked and killed six of Applicant's sheep / Applicant claims value of the lost sheep and treatment costs associated with injuries / Held: as owner Respondent has a duty of care to ensure dogs are under proper control and do not roam / Respondent has breached this duty of care by not ensuring their dogs remained chained up when unattended / Successful claim.

Consumer law / Consumer Guarantees Act 1993 / Applicant took car to Respondent to have rust around windscreen of his vehicle repaired / Some months later Applicant was advised windscreen needed repairing again / Applicant claimed $1,787.20 for second rust repair costs as well as lost earnings / Whether rust repair was carried out with reasonable care and skill / Whether Applicant was entitled to remedies / Held: evidence indicated repair was carried out with reasonable care and skill / claim dismissed.

Contract / Applicant was subcontractor for First Respondent / Applicant carried out cleaning services for Second Respondent, according to contracting arrangements between the three parties / Second Respondent unhappy with cleaning service, issued thirty days’ notice to terminate cleaning contract with First Respondent / Held: Second Respondent not entitled to terminate contract / Second Respondent did not provide Applicant with seven days’ written notice to remedy the failure / Agreement between Applicant and First Respondent included an implied term that First Respondent would take reasonable steps to hold Second Respondent to contract / First Respondent’s acceptance of invalid termination breach of implied term / Claim allowed / First Respondent ordered to pay Applicant $7,200.00