Disputes Tribunal of New Zealand

Negligence / Tree maintenance / Tree fell onto Applicant’s car / Tree on a verge owned by Respondent / Applicant sought compensation from Respondent / Respondent denied lability / Respondent arborist checked tree eight months before event and found no external signs of concern / Whether Respondent breached duty of care owed to Applicant / If so, what remedy was Applicant entitled to / Held: not satisfied that Respondent failed to exercise reasonable care with respect to its checking and maintenance of tree / Tree was last checked eight months before untoward event, which was not unreasonable / Arborist had no reason to suspect there was problem with tree / Claim dismissed.

Misrepresentation / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicants purchased two flats under a cross-lease title in 2016 / Each flat had a garage allocated to it / Garages were not attached to the flats but were separately located in the section / Applicants tried to sell the property in 2018, however, their real estate agent discovered one of the garage’s encroached into the neighbouring land / Prospective purchasers, proved unwilling to purchase the land due to the title defect / Applicants remain the owner of the property / Applicants claimed damages to cover costs involved in a survey of the land, and appropriate legal and practical work that might be needed in establishing an easement or new, accurate, plans / Held: Respondent’s conduct was not misleading or deceptive as it was unknown at the time that the new garage also encroached in the same way as the old one / No wrongful conduct was established on the part of any of the Respondents / Respondents not liable…

Towing / Applicant parked car in area managed by Second Respondent / Applicant paid for parking via app / Applicant paid for wrong parking space / Applicant’s car towed by Respondent / Applicant claimed refund for amount charged by Respondent for towing vehicle / Whether Applicant breached terms and conditions of parking / If so, whether Respondent entitled to tow vehicle / Whether Applicant was entitled to a refund of tow fee / Held: terms and conditions of parking undisputed / Applicant required to pay parking fee / Applicant did not familiarise herself with parking app, paid for incorrect address / Applicant not entitled to refund of tow fee / Respondent entitled to retain fee / Claim dismissed

Contract / Consumer law / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Respondent serviced the Applicants' commercially operated machines / Respondent advised Applicants to buy new machines / New machines could not be used in required environment / Applicants claimed for a full refund and wanted to return the machines on the basis they were not fit for purpose / Held: Applicants not proven that the Respondent made any false or misleading representations about the machines / Not found that the Applicants relied on the Respondent's skill or judgment, other than the machine's main functionality / Definitive conclusion relating to actual performance of the machines not required / No remedies available / Claim dismissed.

Contract / Respondent contracted Applicant to stage house for sale / Goods supplied were stolen during staging / Applicant claimed $2500 insurance excess / Excess term was in contract / Respondent claimed that excess clause was hidden / Held: clause in contract not hidden and easily understood / No defence not to have read a term of a contract / Respondent to pay Applicant $2,500.00

Fencing Act 1978 / Parties are neighbours and share boundary fence / Applicant served fencing notice on Respondent stating fence not adequate, Respondent served a cross-notice objecting to notice / Applicant claims $10,372.50 for half of fence replacement / Respondents counterclaim costs of $1,433.26 / Held: current fence between properties adequate fence / Claim and counterclaim dismissed

Contract / Consumer Guarantees Act 1993 / Applicants engaged Respondent to perform pre-purchase inspection report on a property / Applicants became aware of issues with windows and water egress after purchasing property / Applicants claim cost to replace windows, less deduction for double glazing benefit and including filing fee / What are the relevant terms of contract / Held: contract states report is visual inspection, to be used as guide, and a reasonable attempt to identify faults on the day of the inspection / Applicants informed inspection limited to visual inspection / Whether inspection been carried out with reasonable care and skill, if not what is remedy / Held: insufficient evidence to establish Respondnt failed to use reasonable care and skill in producing report or conductin the inspection / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant booked swimming lessons for daughters / Due to a Covid-19 lockdown Respondent cancelled the lessons / Respondent offered the Applicant credit, but they declined this / Applicant claimed refund under CGA / Held: Respondent had no option but to cancel lessons following the Covid-19 pandemic lockdown / Cancellation reason was completely outside the control of the parties / Where there is a failure to comply with guarantees under CGA as a result of events outside the control of the supplier, the consumer has no right of redress against the supplier / Evidence did not establish a breach of guarantees under the CGA/ Claim dismissed.

Contract / Insurance / Applicant owns property and Respondent is insurer / Applicant contacted Respondent for cover for losses after tenant moved out / Respondent determined cover only for some of amount claimed / Applicant disputes Respondent’s application of contract and has requested determination from the Tribunal / Areas of dispute include application of excesses to claims, loss of rent and post tenancy cleaning / Held: reasonable to conclude that intentional damage, carried out at one time, should be viewed as event and one excess applied / application of excesses to various rooms or various items is unreasonable / Held: condition of premises uninhabitable / claim for loss of rent covered by policy and reasonable / Held: sufficient evidence not provided by Respondent to determine cleaning excluding from loss caused by intentional damage / Claim allowed / Respondent ordered to pay $9,850.66 to Applicant.

Contract/ Tort / Duty of care / Applicant and Respondent were socialising at the Applicant’s house /  Applicant and Respondent had an argument and the Respondent was told to leave / Respondent banged on a sliding door after leaving and broke the glass in the door / Whether the Respondent agreed to pay for the cost to replace the glass / If so, was the Respondent liable to pay $462.30 / Held: evidence establishes that the Respondent agreed to pay for the cost to repair the sliding door / Respondent owed a duty of care to take reasonable care when she banged on the glass in the sliding door / Satisfied that the glass broke as a result of the Respondent’s actions / Satisfied that $462.50 was the amount that the Respondent owed to repair the door / Respondent ordered to pay $462.30 to the Applicant / Claim granted

Contract / Respondent purchased car from Applicant / Respondent returned car to Applicant due to defects / Applicant refunded Respondent purchase price of car / Applicant claims car returned in damaged condition / Applicant claims $25,367.74 as refund of amount paid to respondent, or $17,593.75 for cost of repair / Held: damage more likely than not occured after purchase / Held: Respondent was not aware of damage when returning car / claim dismissed.

Contract / Transport / Consumer Guarantees Act 1993 (CGA) /  Applicant travelled on long distance bus service / Applicant unhappy on grounds that service was late, poor driving, and lack of air-conditioning / Applicant claimed refund of $66 ticket price / Whether Respondent carried out services with reasonable care and skill / What sum, if any, Respondent must pay to Applicant / Held: bus delay outside Respondent's control / Applicant did not suffer loss due to 10 minute delay / Insufficient evidence that Respondent’s driver failed to exercise reasonable care and skill / Reasonable to expect air conditioning to be working on a long trip / Air conditioning issue a failure under s 28 of the CGA / Applicant chose to remain on bus rather than cancelling contract due to lack of air conditioning / Applicant still received value from trip since main purpose was to get to his intended destination / If a consumer purchased a ticket knowing the air conditioning was not working they might expect …

Contract / Applicants booked band through Respondents for April 2020 wedding / Applicants cancelled band and requested refund in March 2020 after border restrictions announced due to Covid-19 / Respondents refunded Applicants $2872.13 / Applicants claim $2962.13 for the balance of money paid and tribunal fee / What were the terms of the contract and was contract frustrated; if so, what is the remedy and can the filing fee be recovered / Held: terms of contract included no refund for cancellation within 30 days; cancellation terms do not prevail in this case / Held: contract was frustrated / Held: Applicants entitled to refund of $2722.13 / filing fee not recoverable / Claim allowed.