Disputes Tribunal of New Zealand

Consumer law / Fair Trading Act 1986 (FTA) / Consumer Guarantees Act 1993 / Applicants purchased a vehicle in 2013 / In 2023, vehicle required around $10,700.00 of transmission work / Repairer informed Applicants transmission failed because all four tyres had not been changed at the same time during life of the vehicle, placing strain on the transmission system / Applicants were unaware of necessity of changing all four tyres at once / Applicants sought compensation from manufacturer (First Respondent) and tyre company (Second Respondent) / Held: First Respondent and its agent failed to inform Applicants about danger to the transmission from incorrect tyre replacement / First Respondent chose to remain quiet about this issue / This conduct breached the FTA requirement not to mislead the public as to characteristics and suitability for purpose of the vehicle / Insufficient evidence that Second Respondent failed to carry out tyre servicing with reasonable care and skill / Applicants enti…

Tort / Negligence / Vicarious liability / Land Transport Act 1998 / Applicant and Respondent involved in vehicular accident / Applicant riding motorcycle / Respondent driving work van / Applicant filed claim against the Respondent, Respondent's employer and insurer / Applicant claimed damages for loss of his motorbike, jacket, gloves, helmet, and stress and inconvenience / Held: Respondent breached duty of care to Applicant when he failed to ascertain way was clear before turning to another road / Defence of frolic and detour applies / Respondent's employer not vicariously liable / Respondent driving under suspended licence / Applicant entitled to damages / Second Respondent ordered to pay Applicant $4,730 / Claim against First Respondent and insurer dismissed / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Device was advertised as being water resistant to a maximum of 1.5m for up to 30 minutes / Device was accidentally submerged in water for less than a second to a depth of about 10cm / Device stopped working / Applicant reported failure to Respondent / Device was sent to a repairer for assessment / Respondent advised device had suffered liquid ingress which was not covered by warranty / Respondent claimed device had been misused / Applicant claimed refund of $1,095.00 / Held: apparent from repairer’s report the device failed due to a manufacturer’s fault / All reference to the fault were removed from the report Respondent submitted to the Tribunal / Clear evidence that device was not of acceptable quality / Applicant entitled to refund / Respondent ordered to pay $1,095.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicant bought second-hand vehicle from Respondent / Vehicle broke down a year later / Car was repaired and water pump needed replacing / Applicant claimed for reimbursement of $634.13 repair cost / Held: water pump failed more than a year after vehicle was purchased / Respondent dealer’s responsibilities under CGA had come to an end / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant entered into a contract to purchase a vehicle for $18,000.00 from Respondent / 14 days later the car stopped working / Applicant took the car to the mechanics and was told that it was likely the car had been damaged in a flood / Applicant claimed $9500.00 from the Respondent on grounds that the vehicle was misrepresented to her / Respondent denied any knowledge of the vehicle being involved in a flood / Held: both parties provided conflicting accounts of events / No objective evidence provided / Applicant could not prove they were induced into purchasing the car due to misrepresentations by Respondent / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant bought boat from First Respondent / Second Respondent claimed First Respondent had no right to sell / As a result of Second Respondent's actions, Applicant sought to return boat and have his money returned / Held: Second Respondent, by his actions as half owner, consented to the sale of the boat / Contract had no provision on cancellation / Applicant not entitled to cancel contract / Applicant entitled to full and uninterrupted possession of boat / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a puppy from Respondent for $2,500.00 / Puppy became ill, and was put down by her vet, within two weeks of purchase / Applicant sought a refund of purchase price plus $805.00 vet and other costs / Respondent stated there was insufficient proof that the puppy had a pre-existing condition, or that it could not have been nursed back to health / Held: breed of puppy was small and sensitive / Respondent supplied Applicant with material about particular health risks to the puppy / Not possible to make a finding that the puppy’s death was caused by a defect / Respondent had offered a refund when the Applicant had first advised that the vet had confirmed the puppy had a defect / However, Respondent had retracted that offer once the vet report was viewed, as it was then understood that no tests had confirmed a defect / In the circumstances, Respondent could not be held to the refund offer / Claim dismissed.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased a vehicle from Respondent for $9,700 after seeing it advertised online / Soon after purchase a dashboard light came on and multiple issues were found / Repairs were carried out for $6,900 / Applicant brought claim under CGA after discovering Respondent was the co-owner of a car dealership / Respondent explained this was a private sale on behalf of a friend and he was not acting in trade / Held: on evidence available, Respondent was selling car on behalf of his friend / Not proven Respondent was acting in trade / Consumer protections available under CGA do not apply to private sales / Only recourse for a buyer in a private sale is where there has been a misrepresentation / No misrepresentation appeared to have been made because advertisement did not state anything about vehicle’s mechanical condition or history / This was a situation where “buyer beware” applied / Claim dismissed.

Tort / Trespass / Nuisance / Fencing / Fencing Act 1978 / Applicant and Respondent owned neighbouring properties / Retaining wall and wooden fence leaning towards Applicant's property / Wall failing due to bamboo growing behind it and uncontrolled stormwater softening soil or adding pressure to wall / Applicant claimed costs to remove bamboo and replace retaining wall and fence / Held: no jurisdiction to hear claim under the Fencing Act as concrete block is not a fence / Wall predominantly on Respondent's land / Damage to wall is not damage to Applicant's property / Claim struck out.

Negligence / Applicant left his car with the Respondent to have new tyres fitted / Applicant paid $1000.00 for the tyres / Severe flooding affected location of Respondent’s workshop / Vehicles in the workshop were written off as a result of the flooding / Speed and severity of flooding took local council and emergency services by surprise / Held: Respondent could not have predicted or even suspected the flooding / Respondent had no reason to take any special precautions / Claim of negligence not established / Respondent had no legal liability to Applicant for the loss of his vehicle in the flood / Respondent negotiated a payout from its insurer based on part of its policy covering vehicles damaged while in the workshop / Respondent offered Applicant $14,000.00 as part of their insurance pay out / Respondent also agreed to refund the costs of the tyres, $1000.00 / Respondent agreed to pay Applicant $15,000.00 in total / Claim dismissed.

Contract / Misrepresentation / Applicant engaged Respondent to sell his property / Respondent gave Applicant documents to sign / Applicant stated his understanding was marketing costs would be covered by the proceeds to sale / Respondent claimed Applicant understood marketing costs needed to be paid even if property remained unsold / Applicant sought order that he was not liable for marketing costs / Held: Respondent did not mislead the Applicant / Applicant needed to understand document they were executing / Applicant liable to pay marketing costs / Applicant ordered to pay Respondent $2,445.00 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant sought Respondent's vehicle restoration services / Applicant claimed Respondent estimated job would cost $10,000 / Applicant paid $21,217 and job was only partially completed when he took vehicle away / Applicant also claimed Respondent caused damage to the vehicle / Held: Respondent's comment that the job was “doable” for $10,000 was inaccurate / Respondent failed to exercise reasonable care and skill in terms of costing / Applicant failed to prove Respondent caused damage to vehicle / Successful part of Applicant’s claim was that the cost of Respondent’s work was substantially beyond what Applicant expected he would have to pay / A reasonable consumer would not expect that the cost would be more than double what the skilled service provider said was doable / Applicant entitled to partial refund / Respondent ordered to pay Applicant $4,417 / Claim allowed in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant bought campervan from Respondent / Applicant claimed Respondent misrepresented capability of campervan to negotiate steep hills / Applicant sought to cancel contract, return campervan and have his $20,000 returned / Held: Applicant did not solely rely on Respondent's representation of vehicle but on his own experience of viewing and test driving the van when considering whether to purchase it / Applicant not induced to purchase by misrepresentation / Vehicle valued at price it sold for / Applicant not entitled to remedy / Claim dismissed.