Disputes Tribunal of New Zealand

Negligence / Dog Control Act 1996 / Dogs belonging to the parties were involved in an altercation / Applicant claimed $9,030.00 for her dog’s surgeries following the altercation / Which dog was responsible for causing the altercation / What was the cause of damage to the Applicant’s dog / Was the damage to the Applicant’s dog a foreseeable result of the fight between the dogs / If so, did the Applicant have a duty to minimise her losses / Whether the Respondent was responsible for the costs of both surgeries / Whether the costs claimed reasonable / Held: more likely than not that the Respondent’s dog caused the altercation / Evidence suggested that the damage to the Applicant’s dog was caused the Respondent’s dog /  Evidence suggested that the damage to the Applicant’s dog was a foreseeable result of the fight between the dogs  / Applicant did everything she could do minimise her losses / Respondent was not responsible for the cost of both surgeries / There were too many variables impa…

Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased property from Respondents / Applicant had building inspection completed before purchase but did not receive report before offer went unconditional / Applicant received correspondence from building company regarding work needed on foundations / Applicant claims recovery of cost  to rectify uneven floors / Respondents claim Applicant had done due diligence and knew about settlement issue / Whether defect in property at time sold to Applicant / If so, should defect have been disclosed to prospective buyers / Whether Applicant aware of need for work on foundations before agreement to purchase property / Whether s 35 of CCLA applies / Whether any betterment in claim for $30,000.00 / Held: at time of sale and purchase there was a defect regarding the foundation of property / Held: requirement for Respondents to disclose foundation of house defective / Held: more likely than not Applicant not aware of defect before…

Contract / Applicant worked as contractor for Respondent / Applicant’s role was senior person and required approval from Civil Aviation Authority (CAA) / Applicant advised Respondent they were ending contract and sent invoice of $1,600.00 for work done / Respondent did not pay invoice / Applicant claims $1,600.00 for 20 hours of work done / Respondent counterclaims $7,711.11 for breach of agreement / Held: Respondent owes Applicant $1,600.00 for work done / Applicant carried out 20 hours of work and provided evidence / Held: Applicant did not breach agreement / Applicant entitled to terminate agreement as they did / no other matters raised by Respondent prove breach of agreement / Held: Respondent to pay Applicant $1,600.00 / Claim upheld

Contract / Applicants contracted with Respondent to assess and repair damage to plane engine including replacement of piston rings / During flight post repairs plane lost oil pressure, engine began to smoke and Applicant made emergency landing further damaging plane / Crash investigation found engine failed due to oil starvation and incorrect piston rings / Applicants’ insurer reached settlement with Applicants and seeks claim of $30,000 from Respondent / Whether Respondent breached implied term of contract or was negligent in not carrying out work in compentent manner / If yes, did that cause a loss to Applicants and their insurers / Did Applicants contribute to damage / Are Applicants entitled to compensation sought / Held: Respondent in breach of contract and negligent by not carrying out work in compentent manner / More likely than not that Respondent fitted incorrect piston rings on plane / Held: more likely than not incorrect piston rings caused emergency landing causing loss / H…

Fencing Act 1978 / Applicant removed and replaced fence on his property / Applicant claims from Respondent half the cost of the replacement fence on the boundary / Whether Applicant proceeded with replacement of fence in accordance with the Fencing Act / Held: Respondent was not served with a notice under s10 of the Act / No agreement or notice was served / Respondent not liable to contribute to costs / Claim dismissed.

Fair Trading Act 1986 (FTA) / Contract and Commerical Law Act 2017 (CCLA) / Misrepresentation / Applicants are trustees of trust which purchased house / Prior to settlement, Respondent provided builiding report including representations about earthquake repairs / Three years after purchase, house prepared for sale, earthquake damage outside MBIE guidelines found / Applicants claim Respondent mispresented extent of repairs or condition of house causing loss / What obligations were owed to Applicants about quality of property / Whether it was reasonable to rely on representations / Whether representations wrong / If wrong, what loss has that caused Applicants / If loss, whether it is too late to claim / Held: Respondent in trade, representations regarding repair work made under FTA / Held: more likely than not representation of property misleading under FTA / Held: reasonable for Applicants to rely on statements made about property based on Respondent’s representation, but not not reason…

Gift / Contract / Parties were in relationship which ended in 2018 / Applicant states Respondent agreed to be in a relationship again if he could have Applicant’s car / Respondent left with car and Applicant has not seen it again / Applicant claim she is entitled to her car back / Held: Disputes Tribunal has jurisdiction to hear claim as relationship was of short duration, less than three years / Was there a valid gift of car? / Held: not valid gift / Applicant did not have intention to make gift of car / Was there a valid conract for transfer of car? / Held: arrangment falls short of forming legal contract / Applicant did not have intention to create legal relationship and form legal contract / No consideration by Respondent / Held: Applicant paid $3000 for car and that sum represents amount lost when Respondent took car / Claim allowed / Respondent ordered to return car, if not returned Respondent ordered to pay $3000 to Applicant.

Consumer Guarantees Act 1993 (CGA) / Applicants purchased cooker from Respondent / Applicants’ had issues with cooker, no replacement parts available and have replaced cooker / Applicants’ claim damages of $9,097.87 from Respondent for costs of refund and replacement of cooker / Is cooker not of acceptable quality and/or not fit for purpose? / Is Respondent Manufacturer of Cooker; if so, did Respondent faile to take reasonable action to ensure facilities for repair of cooker and supply parts were available? / Did Respondent engage in conduct misleading or deceptive? / If so, are Applicants entitled to remedy and is remedy claimed proved and reasonable? / Held: cooker not of acceptable quality or reasonably fit for purpose / Evidence shows issue with cooker and no evidence that Applicants’ did not care appropriately for the cooker / Held: Respondent manufacturer of cooker under s 12 of CGA / Held: Respondent in capacity of manufacturer of cooker failed to comply with s 12 of CGA / Appli…

Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Applicant had issue playing certain game on phone / Manufacturer stated issue with touch panel to be adjusted in firmware update / Applicant claims refund of cost of phone and delivery charge / Whether phone of acceptable quality / If not, whether Applicant is entitled to a refund of purchase price and/or cost of delivery / Held: phone not acceptable quality / Phone sold as gaming phone but not fit for purpose of playing popular game / Held: Applicant entitled to reject goods, cancel contract and receive a refund / Applicant also entitled to recover delivery cost / Respondent ordered to pay $1,711.08 to Applicant / Applicant to return phone to Respondent at own cost / Claim allowed.

Contract / Contract and Commercial Law Act 2017 / Parties signed Agreement to Purchase / Agreement set out action steps for Applicant to acquire interest in company / Applicant to pay $100,000 in instalments / Deposit of $20,000 payable as soon as Applicant could establish a Trust / Second instalment of $30,000 payable once shareholder’s agreement agreed / Applicant paid $10,000 immediately and then $20,000 / Applicant never given shareholder’s agreement to sign and Trust never created / Company incorporated but Applicant never given shares / Applicant claims $30,000 refund / Whether Respondent party to contract / Held: Respondent was a party to the contract and Applicant entitled to claim against him personally regardless of whether Respondent signed contract personally or as trustee / Whether contract breached / Held: Respondent breached contract by not giving Applicant the shareholder’s agreement or taking any steps to give Applicant an equity interest in the joint venture / Held: a…

Nuisance / Property Law Act 2007 / Applicant wanted Respondents to pay for repairs to their driveway / Applicant claimed damage was caused by tree roots on Respondents’ neighbouring property / Applicant sought $29,00.00 for repairs / Whether there was a nuisance or there was a defence that the Applicant came to the nuisance / Whether the roots have caused damage or the deformations were inevitable consequence of the way it was constructed / Whether the value of the damage should be a repair costs, as opposed to a change in value / Whether the Applicant had suffered loss / Held: driveway appeared to have damage in the form of corrugations / Evidence suggested damage caused by tree roots / Found to be a nuisance and no defence that the Applicant had come to it / Applicant entitled to receive payment forrepair work to driveway / Respondents can only be responsible for restoring surface to its original state, not better / Respondents ordered to pay Applicant $13,800.00 / Claim granted.

Insurance / Applicant owned rental property insured by Respondent / Insurance policy included accidental and malicious damage by tenants / When tenants moved out Applicant discovered damage to many areas of property / Applicant made insurance claim, accepted by Respondent / Respondent applied multiple excesses on the basis that damage was result of multiple events / Applicant argued damage should be treated as a single event, only one excess should be applied / Applicant claimed sum of $4,031,31 for cost of repairing damage, less the sum of one excess / Whether damage should be treated as a single event or multiple events under the policy / Held: damage was varied, found to have been caused by multiple events / Respondent entitled to charge multiple excesses / Respondent charged excesses on a room by room basis / Respondent’s calculations accepted / Respondent ordered to pay the Applicant $2,111.79 / Claim granted in part.

Land Transport (Road User) Rules / Car collision / Applicant claimed costs to repair vehicle /  Whether Respondent caused the collision / Whether Applicant contributed to the collision / Whether Respondent's employer vicariously liable / Held: Respondent caused the collision / Respondent drove in 50km/h zone at around 80km/h / Should not have attempted to pass if he could not do so safely / Applicant contributed to collision by speeding up when Respondent began to pass / Respondent has 65% liability and Applicant 35% / Respondent's employer vicariously liable as Respondent was driving to carry out work at a job site / Respondent and Respondent's employer to pay 65% of the claimed $4,732.25 which is $3,075.96 / Claim granted.