Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 / Respondent repaired leak in Applicant’s hot water cylinder / Applicant paid original invoice in full / hot water cylinder leaking again one month later / Applicant seeks declaration of liability to be made / Held: no evidence first repair not carried out with reasonable care and skill / second leak in distinct area not connected with first leak’s repair / no evidence workmanship on first repair caused second leak / Respondent not responsible for leak / fee for second repair not unreasonable / claim dismissed / Applicant to pay second invoice of $290.95

Contract / Property Law Act 2007 / Contract and Commercial Law Act 2017 / Breach of covenant of quiet enjoyment / Damages / Respondent leased office space in upstairs of property owned by Applicants and sublet it to commercial tenants / Parties negotiated lease extension with discussions of renovations to the property / Renovation work began in March and took longer than anticipated / Respondent paid reduced rent for some of the renovation period / Applicants asked Respondent to pay full rent when renovations ended / Respondent did not pay full rent and gave notice that she wished to terminate the lease for breach / Applicants claimed unpaid rent / Held: overall impact of renovations amounted to substantial interference with Respondent’s ability to use the premises for the purposes permitted under the lease / Respondent not bound by waiver of contractual rights under the lease / Entitled to receive actual amount of lost rental income by way of damages, subject to a deduction for reduce…

Contract / Applicant wanted to build minor dwelling at back of house / Applicant and Respondent signed a construction contract  / Applicant paid a preliminary deposit / Delay in getting loan approval / Applicant claims refund of the preliminary deposit / Respondent counterclaims that it is not liable to refund the deposit and Applicant owes a second preliminary deposit / Held: Applicant under no obligation to renegotiate Agreement to turn it into a fixed price turn key contract / Applicant entitled to treat agreement as being terminated / Claim allowed / Respondent ordered to pay $9,342.50 to Applicant

Contract / Contract and Commercial Law Act 2017 / Carrier of goods / Contract for carriage at limited carrier’s risk / Applicant contracted Respondent’s moving service to move household contents to their new home / Applicant claims contents was damaged in move by Respondents handling of furniture / Respondent claims Applicant responsible for lack of protective wrapping / Held: Respondent has onus of proving lack of fault, failed to prove damage resulted without fault on their part / Respondent is liable to compensate Applicant for damaged items / Claim allowed, Respondent ordered to pay Applicant $3,158.00

Contract / passing of ownership / Contract and Commercial Law Act 2017 / Applicant advertised ice-cream machine on TradeMe / Respondent agreed to pay a non-refundable $500 deposit on machine and pay for transportation in order to inspect machine / parties agreed if machine passed inspection, Respondent would pay the remaining $6,500 for the machine / despite Applicant and Respondent’s agent damaged machine when loading it for inspection, machine taken to Respondent for inspection / due to damage, Respondent did not accept machine  / Applicant seeks remainder of purchase price and $180 for filing the claim with the Tribunal / Held: property in goods transfers on acceptance, per ss 144 and 146 of the Contracts and Commercial Law Act 2017 / parties agreed acceptance would occur if and when machine passed inspection /  / despite Respondent’s agent’s involvement in damage occurring to machine, risk passers with property, unless otherwise agreed, per s 148 / machine remained in Applicant’s r…

Contract / Consumer Guarantees Act 1993 / Applicant purchased battery for electric golf trundler from Respondent / Applicant wanted a deep cycle battery / Wrong information provided and it was not a deep cycle battery / Battery started to fail / Applicant claims for $265.00, representing a refund of battery together with $45.00 filing fee / Held: battery not durable and fit for purpose, and did not correspond with its description / Applicant has not lost the right to reject the battery / Battery was lost and owned by Respondent at this time, Respondent compensated $10.00 for loss of battery / Claim allowed, Respondent to pay Applicant $210.00

Negligence / Dog Control Act 1996 / Applicant was walking her dogs / Applicant and dogs were attacked by off lead dog causing injury / Applicant claims $779.10 in vet’s bills for treatment of dog / Respondent claimed he did not own attacking dog / Held: Respondent was the owner of the dog at the time of the attack / Definition of owner in Dog Control Act includes person who has dog in his possession, regardless of actual ownership / Respondent liable for damage caused by the dog / Liability of a dog owner is strict / Claim allowed / Respondent ordered to pay $779.10 to Applicant.

Negligence / Dog Control Act 1996 / dog under Respondent’s care jumped out open car window,  attacked Applicant’s dog / Applicant’s dog injured and treated by vet / Applicant claims cost of vet treatment / Held: Respondent owner of dog for purposes of DCA even if only taking care of dog for day / strict liability / DCA, s 63 / claim allowed / Respondent to pay $779.10 for vet fee incurred by Applicant

Contract and Commercial Law Act 2017 / transfer of title / Applicant purchased motorbike from Respondent / bike had been stolen from its original owner and was sold to the Respondent / Police advised Applicant to return bike to its original owner/ Applicant claimed return of the purchase price, plus transport costs and filing fee / Held: bike stolen property / seller cannot pass on title to a good that he or she does not have / implied condition which entitles buyer to a refund and costs if seller does not have title / exceptions to rule did not apply / absence of conviction and  fact that Respondent had possession of goods did not affect the true owner’s rights / Respondent liable to refund purchase price of bike and cost of transporting it back to original owner, but not filing fee / Respondent ordered to pay Applicant $6,850.00

Contract / Applicant hired campervan from Respondent / Applicant paid for collision damage waiver / waiver meant excess could be waived under certain conditions / conditions required applicant to exercise reasonable care / Applicant drove campervan under beam that was lower than its height, causing damage / Respondent deducted excess / Applicant claimed waiver covered damage / Held:  Applicant failed to take reasonable care in driving vehicle / Applicant failed to notice clearance signs / Applicant lost right to be indemnified through terms and conditions of contract / claim dismissed

Contract and Commercial Law Act 2017 / sale of goods / Respondent supplied grapevine rootstocks to Applicant / Applicant examined rootstocks after delivery during processing period/ Applicant rejected a number of rootstocks and invoiced Respondent for that amount / Respondent disputed timeframe for rejection / Applicant claimed invoiced amount, legal fees and interest / Respondent claimed rootstocks were not rejected within a reasonable time / Held: goods rejected within a reasonable time / reasonable timeframe for examining goods determined as processing period / given nature of goods and quantity supplied, reasonable for Applicant to examine goods over processing period  / no particular loss to Respondent as a result of being notified after delivery / no provision in contract for payment of legal fees / Respondent liable to pay part of invoiced amount as at date of notification, plus interest / Respondent ordered to pay $999.81 to applicant.

Contract / Property Law Act 2006 / Limitation Act 2010 / Applicants owned farm with easement granted to Respondents for telecommunications facility / No licence agreement reached on paying annual rental for occupation rights / Respondents said they could pay and Applicants sent invoices for annual rent / Applicants claim unpaid invoices of $5,750 / Respondents counterclaim for $13,065.08 saying they paid by mistake / Held: no enforceable contract for payment of annual rent / No further consideration supplied by Applicants for Respondent's promise to pay as already bound by easements / Held: previous payments made by mistake / Held: money not recoverable / Inequitable to require Applicants to repay money paid by mistake as received in good faith / Outcome: claim dismissed

Consumer Guarantees Act 1993 / Breach of duty of care / Applicant hired Respondent to transport house lot to England / Contract was for one 20 foot container / Goods required extra space resulting in an additional charge of $2471.00 / Applicant claimed for a refund of additional charges based on quote of set fee for the transportation of all goods / Held: quoted price in contact for one 20 foot container only / Contract price based on volume of goods limited to fit inside 20 foot container / Respondent provided service under Consumer Guarantees Act / Held: Respondent in breach of responsibilities under ss 28 and 29 of the CGA for misinformation of volume required to transport goods and that price did not include all goods / Applicant did not cancel contract until after event / Loss limited to incorrect advise, inconvenience and unexpected extra payment / Claim allowed / Respondent ordered to pay $815.43 to Applicant.