Disputes Tribunal of New Zealand

Contract / Agreement to purchase caravan / Respondent paid deposit of $3000.00 / Respondent pulled out of deal before full purchase price paid / Applicant sought order from the Tribunal that he was not liable to repay the deposit / Held: contract was condictional on Respondent having finance approced / Finance not approved / Sale of caravan did not become unconditional / Nothing in writing to say deposit was non-refundable / No loss suffered by Applicant / Applicant not entitled to retain deposit / Claim dismissed, Applicant to pay Respondent $3000.00 deposit.

Contract / Consumer Guarantees Act 1993 / Respondent engaged Applicant to supply and install steel roof / Respondent paid 50% deposit followed by later 25% payment totalling $8,000.00 / Applicant installed incorrect roofing material /  Applicant contracted scaffolders who damaged Respondent’s carport roof / Applicant claims $2,600.00 from Respondent for unpaid balance / Respondent counter-claims $8,000.00 for failure to install correct roofing material / Held: Applicant to refund Respondent $8,000.00 / Roofing not completed to adequate standard /  Applicant failed to adequately remedy issue / Applicant’s claim dismissed

Consumer Guarantees Act 1993 / Guarantee of acceptable quality / Rejection of goods / Damages / Applicant purchased car from Respondent in January 2019 / Mechanical breakdown insurance was taken out in relation to the car with the Second Respondent / In March 2020 the car’s engine was replaced by the Third Respondent / Applicant states replacement engine has failed and claims refund of purchase price and repair costs / Held: Applicant not entitled to reject car and receive refund from Respondent / Lost right to reject goods as not done within reasonable time per s 20 CGA / Held: Applicant entitled to damages of $1844.12 from Respondent / Car not of acceptable quality per s 18 CGA / Claim allowed in part / Claim against Second and Third Respondents dismissed

Contract / Veterinarian services / Applicant presented dog to Second Respondent at the First Respondent’s vet clinic for treatment / Dog was seriously ill and its condition deteriorated / Applicant took dog to alternative veterinarian for treatment / Agreement made that Applicant would pay reduced amount to First Respondent / First Respondent later sent another invoice for $671.00 to Applicant / Applicant sought compensation of $9,357.98 for alternative veterinarian bill and other costs / Whether the Second Respondent was personally liable under the contract for treatment of the dog / Whether the treatment of the dog was carried out with reasonable care and skill / What loss had the Applicant suffered / Held: contract for care and treatment of the dog was with the First Respondent, not the Second Respondent personally / Evidence suggested that treatment of the dog was not carried out with reasonable care and skill, particularly treatment provided by the Second Respondent / Applicant sh…

Negligence / Consumer Guarantees Act 1993 / Guarantee / Reasonable care and skill / Applicant entered a building contract with Respondent / Respondent hired subcontractor to pour coloured concrete driveway and patio for Applicant / Applicant noticed cracks in patio surface and claims refund of cost of patio from Respondent / Whether Respondent failed to use reasonable care and skill, whether Respondent has failed to meet prescribed Building Code Standard within 6-8 hours after initial hardening and, if no cause proven, can inference be drawn from the fact that crack occurred / Held: no proven failure of competency or reasonable care and skill on part of Respondent / Held: timing of cuts meets the Building Code’s expectations, no breach of s 362I(1)(a)(i) / Held: standard allowing tolerance for cracks in concrete sufficient explanation as to why inference cannot be drawn that crack would not have occurred without negligence / Claim dismissed.

Negligence / Duty of care / Applicant’s car was parked near a hockey stadium / Ball from the turf damaged the applicant’s car / Applicant claimed $1475.00 for damage to his car / Whether the respondents owed a duty of care / What duty was breached / If so, whether the breach caused damage and was foreseeable / What was the reasonable costs of repairing the damage / Held: duty of care for the occupier of the turf to take reasonable care to prevent harm resulting from their activities on the turf/ Applicant was a hockey player and was accustomed to how the turf was used / Applicant failed to discharge onus of proof that there had been a breach of duty of care by the respondents / No breach of duty of care found / claim dismissed.

Consumer Guarantees Act 1993 / Kitchen cabinetry / Applicant claimed $7,976.00 in connection to supply and installation of kitchen cabinetry / Applicant claimed a worker for respondent damaged dining table during installation, which would cost $782 to fix / Applicant also claimed the cabinetry supplied breached the warranties as it did not meet the description and it was not reasonably free of defects / Whether it was more likely than not that the respondent’s worker damaged applicant’s table / Whether cabinetry fell short of guarantees under Consumer Guarantees Act 1993 / Held: on the balance of probabilities, more likely than not the table was damaged by respondent’s worker / Respondent must therefore pay cost of getting table fixed / not accepted there was any significant defect in the product that meant it will not be acceptable to an average consumer / Respondent ordered to pay $782 to the applicant / claim granted in part.

Contract / Scaffolding hiring charge / Respondent entered into a contract with Applicant for reroofing and guttering of a property for $674,500.00 / Quoted cost included cost of installing and dismantling scaffolding / Respondent paid $232,702.50 as a deposit / Applicant claimed $30,000 for scaffolding hire charges not paid by Applicant in accordance with the contract / What were the terms of the contract / Whether there had been a breach of contract / If so, what remedy was available / Held: Respondent breached contract / Term of contract required Respondent to pay for weekly rental cost of scaffolding / Respondent had the benefit of the scaffolding for entire reroof process / Remedy was damages to put the innocent party back in the position, they would have been in but for the breach / Respondent ordered to pay Applicant $30,000 / claim allowed

Contract / Applicant contracted by Respondents to quote for renovation of property through Respondent's son / Applicant advised Respondent’s son 2% charge of sum of work quoted to be paid as deposit, absorbed in cost if quote accepted, payable if not accepted / Asbestos testing required at property for quote / Applicant contracted third party to complete asbestos testing / Respondents were present during testing / Quote provided by Applicant was rejected by Respondents as double the agreed budget / Applicant claims 2% sum of quote and cost of asbestos testing / Whether Respondents liable to pay 2% sum for quote / Whether Respondents liable to pay for asbestos testing / Held: Respondents not liable to pay 2% sum as Respondents did not authorise son to act on their behalf to agree to this charge / Quote provided was well outside of budget / Both parties jointly liable to pay third party costs for asbestos testing / Claim allowed / Respondent ordered to pay Applicant $2,167.75

Fencing Act 1978 / Parties live at properties which share a boundary / Applicants served Respondent with notice under the Fencing Act / Respondent served an objection to that notice / Applicants seek an order enabling them to construct a fence between the two properties and order Respondent liable for half the cost / Held: not adequate fence between two properties at present / Held: adequate fence between properties a closed boarded fence approximately 1.8 meters height at highest point / Held: quote of $3,535.00 reasonable cost to build adequate fence / Claim allowed / Respondent liable to pay $1,767.50 being half the cost

Consumer Guarantees Act 1993 / Applicant engaged Respondent to design, supply and install central heating system and replace plumbing system / Applicant claims heating system not installed correctly / Claiming damages from Respondent / Respondent counterclaims that if Applicant succeeds wants to remove pipes and fittings to make claims against its suppliers / Held: heating system not working as it should / Incorrect and non-recommended fittings were used / Replacement of pipework and fittings at Respondent's cost only fair outcome / Damages of $3,837.68 for costs to date / Damages of $6,197.56 for cost of replacing pipework and fittings / Damages of $4,000.00 for building work / Damages of $9,050.32 for cost of re-gibbing and repainting / Damages of $600.00 to cover cost of re-tiling / Total damages of $23,685.56 / Applicant to provide Respondent pipes and fittings removed from Property within four weeks of their removal / Claim allowed

Consumer Guarantees Act 1993 / Applicant engaged Respondent to carry out mechanical work on boat engine / New oil pump required / Applicant collected boat understanding it was fully repaired / Engine seized when used as oil pump had not been reconnected / Damage the result of a miscommunication from Respondent / Whether Respondent had legal liability for miscommunication / Held: Respondent failed to exercise reasonable care and skill in communication of the repair work he had done / Held: Applicant entitled to $2,000 for value of engine and cost of labour for replacing engine under s 32(c) of the Consumer Guarantees Act

Contract / Applicant sold property to Respondents / Sale and purchase agreement conditional on toxicology report obtained by Respondents / On settlment the parties agreed $40,000 would be held back pending rectification and redecoration works to be completed by Applicant by set date / Rectification and redecoration works not completed by set date / Retention sum paid to Respondents / Applicant claims repayment of retention sum less estimated cost to install carpet / Held: Applicant does not have any grounds to seek refund of retention sum / Claim dismissed