Disputes Tribunal of New Zealand

Agency / Second Respondent was Applicant’s managing agent which was ordered to pay $1,500.00 as exemplary damages for breach of quiet enjoyment and harassment to tenants in a Tenancy Tribunal order / Second Respondent paid the tenants and deducted this sum from the rent collect for Applicant as landlord / Applicant claimed to recover funds paid by the Second Respondent to tenants / Held: agency contract was between Applicant and Second Respondent / liability only arose because of the fault of Second Respondent for reasons given by Tenancy Tribunal / property management authority contract could not excuse Second Respondent’s liability / indemnity clauses not applicable / agent has an obligation to act lawfully or in compliance with the Residential Tenancies Act / Second Respondent did not act properly, acted unlawfully and breached Act / claim allowed, Second Respondent ordered to pay Applicant $1,500.00.

Contract / Respondent entered into contract for Applicant to convert New Zealand dollars into Chinese currency / Applicant effected the exchange but Respondent failed to pay / Applicant reversed transaction and suffered loss / Applicant claimed for loss suffered / Held: Applicant was not in breach of previous foreign exchange contract / contract was formed over the telephone at the exchange rate offered and accepted on that day / Applicant was not limited to actual loss but entitled to damages on the basis of rate agreed by Respondent / interest awarded as Respondent kept Applicant out of money for no good reason / claim allowed, Respondent ordered to pay Applicant $1,135.64

Cancellation of contract / Contractual Remedies Act 1979 / Respondent developed a static website for Applicant’s gardening business / Applicant subsequently requested change and agreed to a dynamic database-driven website / Applicant paid with three cheques but after the first was banked he cancelled the second and third / Applicant claimed refund of the first cheque paid / Held: parties did verbally agree to alter the scope of contract at the new price / if Applicant had not agreed to the more expensive site he would not have written out the cheques / protection under s 31(1) Consumer Guarantees Act 1993 extends only to circumstances where price has not been discussed / parties had agreed on price / website was a database-driven site with reasonable functionality / Applicant’s cancellation of cheques and refusal to proceed amounted to repudiation / Respondent entitled to cancel and claim relief under ss 7(2) and 9(2)(b) Contractual Remedies Act 1979 / but Tribunal unable to award debt…

Contract / Sale of Goods Act 1908 / Applicant purchased chainsaw from Respondent on Trade Me / chainsaw would not start and so returned it for a replacement / Respondent repaired it, further damaging it / Applicant sought to reject chainsaw and obtain refund of purchase price / Applicant bought chainsaw on basis on Respondent’s description on Trade Me and did not have opportunity to inspect it before purchase / chainsaw did not appear to have been damaged in transit / held that chainsaw was not of merchantable quality under s 16(b) Sale of Goods Act 1908 / remedy for breach of a condition is cancellation on contract / Applicant entitled to cancel contract / Respondent ordered to refund the purchase price.

Fair Trading Act 1986 / false or misleading representations / Applicant, relying on certificate of analysis, purchased copper sulphate from Respondent / Applicant discovered that product contained additive which precipitated out and ruined end product / Applicant claimed compensation for consequential losses from rebottling affected product / Held: certificate provided by Respondent was a representation / Applicant relied on composition in certificate to determine suitability / certificate falsely represented composition and breached s 13(a) of Fair Trading Act 1986 / shipping label and two per cent impurities allowance not significant / Respondent’s terms and conditions does not exclude Fair Trading Act 1986 provisions / held in Smythe v Bayley’s Real Estate Limited (1993) 5 TCLR 454 that not possible to exclude the provisions of the FTA / Applicant entitled to compensation under s 43(2)(d) FTA as losses claimed were reasonable / claim allowed, Respondent ordered to pay Applicant $840…

Contract / Consumer Guarantees Act 1993 / guarantee that goods comply with description / Applicant purchased a second-hand engine from Respondent which required additional parts for it to be installed in his vehicle / Applicant paid his mechanics to install the engine and for additional parts then claimed the entire cost of fitting the new engine / Applicant claimed that Respondent breached Consumer Guarantees Act 1993, guarantee that goods comply with description / Held: engine supplied by Respondent did comply with description / Applicant would have had to incur labour cost even if specific missing components were present as they would have needed to be replaced / rest of the parts could not be considered part of the motor but items that would typically need replacing at the time of engine replacement / claim dismissed.

Limitation / Limitation Act 1950 / in 2003 Applicant provided legal services to Respondent and issued a number of invoices / Respondent paid invoices except for the final two which were revised by the Auckland District Law Society / Applicant issued revised statement in 2005 which was then paid by Respondent / Applicant claimed that it was entitled to appropriate Respondent’s payment in 2005 to the oldest invoice, that outstanding invoices was single debt thus part-payment extended limitation period to 2011 / Held: Respondent made no express appropriation at time of payment but it could be implied that it was intended to be appropriated against the last two invoices / Applicant was not entitled to appropriate Respondent’s payment to the oldest invoice / invoices in this claim comprised separate debts and each had a separate and distinct cause of action / Applicant’s claim time barred pursuant to s 4(1) Limitation Act 1950 / claim dismissed.

Dog Control Act 1996 / damages under s 63(1) / claim for costs incurred as a result of attack by Respondent’s dogs on Applicants’ stock/ costs relate to sheep killed, veterinary bills and related expenses / dog owner liable under DCA, s 63(1) for damage caused by dogs / on balance of probabilities, dogs that attacked sheep likely to be Respondent’s dogs / Applicants’ neighbour made convincing identification that dogs caught by Applicants were the same dogs he saw the previous day running from Applicants’ property / First Applicant saw same dogs worrying sheep before she caught the dogs / Respondent identified as owner of the dogs / Respondent ordered to pay $2,789.90.

Fencing Act 1978 / Applicant claims boundary fence needs replacing / Respondents disagree, state fence only needs repairing / Applicant claims Respondents liable for half the cost of replacing the fence under the Act / Respondents counterclaim that fence only needs repairs / relevant law: ss 9, 22 and 24(a) of Fencing Act 1978 / adjoining occupiers of land not divided by adequate fence liable to contribute in equal proportions to cost of work on fence / Applicant’s reports show fence not adequate and repairs would not make it adequate / cheapest quote for replacing fence is $5,068.74 / Respondent liable under s 9 to contribute half the cost of replacing fence / given position of Applicant’s driveway, fence is to be built as close as practicable to the boundary line / Applicant’s claim allowed, Respondents to pay Applicant $2,534.37 within 21 days / Respondents’ counter-claim dismissed.

Jurisdiction / Companies Act 1993 / Applicant claimed refund for couch purchased from Respondent / Respondent company in liquidation / Held: proceedings cannot be commenced without agreement of liquidator or order of High Court / s 248(1)(c) Companies Act 1993 / Applicant offered and accepted store credit from Respondent’s new business /  claim dismissed.

Consumer Guarantees Act 1993 / guarantees as to acceptable quality and fitness for purpose / Applicant purchased a pair of basketball shoes made by a major shoe manufacturer / claimed the pull tab on the shoe had agitated his ankle and caused bleeding / sought refund on the basis that the shoes were not reasonably fit for the purpose for which the supplier represented they would be fit under s 8(1)(b) / Applicant made his own shoe selection and did not rely on the Respondent’s staff’s expertise / Respondent produced evidence showing this and a similar style of shoe had been sold in New Zealand without complaint / evidence from podiatrist suggesting Applicant was not wearing correct socks for his foot size / held that the Applicant’s injury was likely to be a case of needing to “wear in the shoes” and blisters are not uncommon with new shoes / claim dismissed.

Contract / insurance policy / Applicants purchased insurance policy for their property underwritten by Respondent / two claims were made under the policy (2006 and 2009) / for 2006 claim, Respondent only paid out on one item claimed as it took the view that an excess applied to each item and only one item was recoverable / for 2009 claim, Respondent deducted a landlord excess rather than an owner occupied excess / Applicants claimed for the items not paid out in the claims / Held: policy enabled Applicants to aggregate their claims entitling Respondent to only deduct one excess / policy could be read as enabling aggregation of related claims to avoid multiple excesses / damage from Applicant’s tenancy to be considered as a “series” of events from one original source / Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 / Pacific Dunlop Ltd v Swinbank (1999) 10 ANZ Insurance Cases 61-439 / distinguished QBE Insurance Ltd v MGM Plumbing Pty Limited [2003] …