Disputes Tribunal of New Zealand

Contract / Misrepresentation / Applicant placed an order for booklets to be printed by the Respondent through its website / Statements made on the Respondent’s website and emails indicated the booklets would be received before Queens’ Birthday weekend in 2021 / Booklets arrived after Queen’s Birthday weekend / Applicant claimed the statements made by the Respondent were misleading /  Applicant sought $500 for losses incurred by the late booklets / Whether the Respondent made representations that were misleading as to when the booklets would be delivered / If so, whether the Applicant was entitled to all or any of the $500 claimed / Held: Applicant’s order was not an order contemplated by the Respondent’s website as qualifying for next day delivery or delivery with additional day as special finishing was needed / Applicant’s order was large / Respondent’s website was not misleading or likely to mislead / It was not reasonable that the Applicant was misled into the belief that turnover c…

Contract / Applicant contracted the Respondent to do earthworks at his property / Part of the contract included taking fill from other sites and delivering it to be used on the property / Applicant observed that some of the truck loads of fill were contaminated / Applicant discussed matter with the Respondent but it failed to be remedied / Applicant claimed for the cost of remedial work and completion of work / Did the Respondent breach the contract by providing contaminated fill / Did the Respondent repudiate the contract by refusing to complete the earthworks / What amount, if any, was the Applicant entitled to in damages / Held: Respondent breached the contract by providing contaminated fill / Through their communication and actions the Respondent made it clear it would not perform its remaining obligations under the contract / Respondent repudiated the contract and the Applicant was entitled to cancel it / Costs of removing contaminated fill and completing earthworks was in excess …

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased DIY electric gate motor from Respondent for $676 / Motor supplied pre-wired for battery power with installation instructions and manual showing two different power supply options / Applicant connected motor to AC power supply not battery / Gate did not move and motor smoked when checked / Applicant returned motor / Respondent did not find any problems with motor and returned it / Applicant hired electrician who found motor supplied without cable needed to connect to AC instead of battery / Applicant claims replacement motor, refund of $105 shipping fee and payment for $300 electrician fees / Held: motor supplied acceptable quality under CGA / problems were because it was connected to AC power when wired for battery power / Held: Respondent did not make false or misleading representations when advertising motor /  nothing untrue in the advertising / described as DIY product and came with thorough instructions / Claim di…

Contract / Applicant loaned Respondent $30,000 cash and is asking for loan to be repaid / Respondent claims cash not recieved or stolen / Respondent claims claim is out of time, s 11 Limitation Act 2010 / Applicant claims $30,000 plus interest / Held: Respondent received cash / email evidence of parties discussing cash / Held: claim not out of time / the act or omission is not the lending of the money but the failure to return it when asked / Held: Respondent to pay Applicant $30,000 / no contractual provision for interest and Applicant could have avoided loss of interest by filing claim earlier / Claim allowed.

Building contract / Consumer Guarantees Act 1993 / Applicants engaged Respondent to build deck at their property / When deck was finished a number of problems with the work identified / Applicants obtained report from another builder regarding repairs required / Applicants claimed $30,000 to repair deck / Has Respondent completed the work to required standard in terms of the guarantee in the Act / If not, can they be repaired and if so has Respondent failed or refused to do so / If not, what is Respondent required to pay the Applicants / Held: clear breach of the guarantee in the Act in respect of timber used, the screws used and the advice given / Applicants gave Respondent opportunity to repair breaches but he did not do so / Respondent required to pay $30,000 to Applicants / Claim allowed. 

Contract / Contractual duty / Money taken from Applicant's office during holiday lockdown / Respondent owned the building and appointed property managers to lock the building / Evidence indicated security system was not always operating / Which, if any, party owed a duty to Applicant / Whether the duty been breached / If so, had the Applicant proven its loss / Held: contractual duty owed to the Applicant for performance of security system / Contractual duty has been breached because the security system did not properly work / Applicant failed to provide sufficient evidence to support its loss / Claim dismissed.

Contract / Trespass / Conversion / Respondent cut back trees and shrubs on Applicants’ property / Applicants claimed Respondent cut trees and shrubs back without permission / Respondent claimed there was an agreement trees and plants could be cut back to their current height / Applicant claimed trespass and conversion / Applicants claimed $8,073.00 for replacement trees / Applicants claimed $4,442.00 in legal fees / Respondent claimed Applicants agreed to pay for their time cutting back trees / Respondent claimed $815.00 / Held: no agreement for trees and shrubs to be cut back to their current height / Respondent committed trespass / Respondent wrongly interfered with Applicants’ property / Respondent committed conversion / Cutting back plants was inconsistent with Applicants’ rights to say how much plants should be cut back / Respondent to pay Applicants $6,060.50 for replacement of trees and shrubs / Reduced amount claimed as quote was for greater number of trees than were cut down /…

Contract / Applicant lodged claim with Respondent following damage to TV / Respondent offered replacement on a similar model TV with similar features as model Applicant had no longer available / Applicant wanted different model but Respondent claimed replacement reasonable / Applicant accepted offer and paid difference to upgrade to preferred model / Applicant claims difference / Held: Respondent complied with policy in providing replacement model TV with equivalent features / No evidence Applicant disadvantaged by accepting replacement TV / Claim dismissed

Property / Misrepresentation / Consumer Guarantees Act 1993 / Applicant made an offer on Respondent’s property in October 2021 which was accepted the same day / Settlement took place in December 2021 /  During removal of vinyl planks from the garage floor applicants’ builder noticed wide cracks determined by a structural engineer to be the result of compromised structural foundation capacity due to soil settlement / Applicants claimed $22,000.00 in damages to cover remedial repairs and rent due to delayed moving / Held: Consumer Guarantees Act does not apply to the sale of whole properties /  Something that is visually obscured or covered does not amount to a misrepresentation / Purchasers have a duty to carry out their own inspections and satisfy themselves as to the condition of the property prior to making an unconditional offer / No misrepresentation and therefore no remedy is available to the Applicants / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased working dog from Respondent for $2,000 / Dog suffered prolapse within a few months and Applicant had it put down / Applicant claims refund of $2,000 purchase price / Held: Applicant does not satisfy requirements of CGA / Working dogs are not ordinarily purchased for domestic needs / Insufficient evidence to prove dog sold with defect / Claim dismissed.

Tort / Negligence / Respondent suffered blown tyre and collided with Applicant’s fence / Applicant claims Respondent breached duty of care / Applicant claims there was damage to property / Applicant claims $3,144.56 in costs / Held: Respondent did not breach duty of care / car in road worthy condition / Applicant drove in manner expected of a reasonably prudent driver / Claim dismissed

Negligence / Trees / Applicants and Respondent owned neighbouring properties / Respondent made arrangement with another neighbour to cut down trees on the boundary of their properties / Trees were cut down on Applicants’ property instead, fence damaged / Applicants marketing property at the time / Applicants claimed that gap left by felled trees put off potential buyers / Applicants sold property but said sale price was diminished due to loss of privacy / Applicants claimed $4,999 from Respondent in relation to felled trees and damaged fence / Whether Respondent liable for felled trees and fence damage / Whether Applicants entitled to sum claimed / Held: evidence indicated that another neighbour cut down trees / Respondent did not cut down trees / Respondent did not have any connection with incident, other than giving authorisation to cut down trees on her property / Respondent cannot be liable to Applicants for damage to trees or fence / Claim dismissed.

Tort / Fencing Act 1978 / Applicants purchased a house neighbouring the Respondents’ property / Applicants removed trees, vegetation and a fence from the Respondents’ property / Respondents claimed for cost of damage to their land and fence / Whether the Applicants owed a duty of care to the Respondents / Held: Applicants owed a duty of care not to damage the Respondents’ property /  Applicants failed to comply with Fencing Act / Applicants were liable for the cost of making good the damage they caused to the fence / Fence was a structure on land privately owned by the Respondents / Respondents proved that the damage caused by the Applicants to their fence and land exceeded the monetary jurisdiction of the Tribunal / Applicants ordered to pay $30,000 to the Respondents / Claim granted.