Disputes Tribunal of New Zealand

Trespass / trespass to goods / distress damage defence / Applicant’s car towed for being parked outside time limit / Applicant claimed he did not exceed time limit & sought refund of towing fee / Held: likely Applicant left premises in car before exceeding time limit / Respondent failed to prove car parked unlawfully so distress damage defence not applicable / Respondent ordered to pay Applicant $310.00 / claim allowed.

Consumer Guarantees Act 1993 / Respondent carpeted Applicant’s house / four years later, Applicant noticed worn area under stool and other bald patches / Applicant believed carpet defective / Respondent inspected site and sent carpet to be tested by New Zealand Wool Testing Authority / tests confirmed carpet twice as strong as NZ minimum standard / Respondent refused to replace carpet as damage caused by excessive wear and Applicant’s dog / Applicant argues a fault in ‘bonding delamination’ / claims full carpet replacement / Held: carpet of acceptable quality / damage caused by excessive use over four years and Applicant’s dog likely to have contributed to bald patches / no breach of guarantee of acceptable quality / claim dismissed

Contract / Contractual Remedies Act 1979 (CRA) / Cancellation of contract / Applicants signed up for gym memberships at Respondent’s gym / Applicants stopped paying monthly fees and sought to cancel contract / guidelines booklet stated membership could not be cancelled if arrears were on the account / Respondent suspended access and invoiced Applicants  for membership fees and late fees / Applicants sought a declaration that they were not liable for fees because contract had been cancelled / Held: Respondent gave applicants insufficient notice of onerous term in guidelines booklet / term never became part of contract due to insufficient notice / applicants entitled to terminate membership despite being in arrears / Respondent not entitled to suspend access / contract did not provide for suspension / Respondent in breach of contract / Applicants entitled to cancel under CRA / Applicants ordered to pay fees for 10 days until suspension and one late payment fee

Contract / Consumer Guarantees Act 1993 / Applicant purchased lounge suite from respondent / lounge suite sold “as is – no return available” at a discounted price / Applicant notified Respondent of a cracked beam / Respondent offered a “one-off frame repair, at no charge out of goodwill” / Applicant did not believe repair would remedy the issue /  Applicant claimed full refund / Held: lounge suite not of acceptable quality / cracked beam was a failure of substantial character / reasonable consumer fully acquainted with the nature of the failure would not have purchased the suite / Applicant entitled to reject goods and receive a full refund / claim allowed, Respondent ordered to pay Applicant $2,799 and Respondent to collect suite at its own expense.

Contract / Consumer Guarantees Act 1993 / Sale of Goods Act 1908 / Applicant purchased computer system and CCTV cameras from Respondent for its first shop / cameras in first shop did not work properly when reinstalled in Applicant’s second shop / Applicant examined system and purchased it for its second shop without raising any issues / Applicant claimed full refund on the basis that the functionality of the goods was not satisfactory and did not meet Applicant’s expectations / Held: insufficient evidence to prove goods were defective / no breach of guarantee under Consumer Guarantees Act 1993 / no breach of implied warranties under Sale of Goods Act 1908 / goods of merchantable quality and fit for the purpose it was intended / claim dismissed.

Negligence / Respondent’s truck and trailer unit was stationary at a wide single lane intersection to turn left onto road / Applicant saw some space to the left of respondent’s truck and trailer unit, and drove into this, with the intention of also turning left / but, unable to proceed as Respondent’s vehicle obscuring his view / Respondent indicating left during this time / when Respondent began left turn, his vehicle collided with Applicant’s vehicle / Applicant seeking $15,000 toward costs of repairs / duty of care / Road User Rules 2.5, 2.6 and 2.8 / no evidence Respondent further to right than practicably necessary for turn / Applicant not engaged in passing manoeuvre as unable to proceed due to position of Respondent’s vehicle / even if able to keep moving, manoeuvre not one that could be made safely or without impeding vehicle with right of way / Held: Applicant placed his vehicle in harm’s way in an unusual and unsafe manoeuvre / Applicant had not driven with the care expected …

Fencing / Fencing Act 1978 / Fence between Applicant and Respondent properties falling down / Respondent claims Applicant responsible for damaging part of fence / Applicant claims existing fence is not adequate and must be replaced / Applicant and Respondent dispute type of fence to be built  / Applicant claims Respondent liable to pay towards repair or replacement / Held: Applicant not responsible for damaging part of fence / fence had already fallen over / Held: existing fence is not adequate / existing fence leaning, bowed, discoloured and has rotting posts / Held: entire fence must be replaced / Held: 1.8 m closed boarded wooden fence to be built / Held: fence line to remain the same / Held: Respondent to pay $1,495.00 including GST to Applicant / liable for half reasonable cost of replacement / claim upheld

Contract / authority to purchase / Second Respondent worked for First Respondent / Second Respondent purchased personal items from Applicant using First Respondent’s business account / First Respondent only paid for items he had authorised / Applicant wants money owed on the account from Second Respondent’s purchases / Applicant had not ascertained Second Respondent was authorised to make those purchases / Held: no actual or apparent authority which bound the First Respondent to pay for Second Respondent’s debt incurred / Applicant has no contractual right to recover from First Respondent / Second Respondent to pay Applicant for items purchased in personal capacity / claim against First Appellant dismissed

Negligence / Applicant & Respondent neighbours / Applicant claimed Respondent’s son damaged his vehicle while son  was left unsupervised / Held: parent not responsible for torts committed by child unless parent negligently failed to properly supervise child / negligence a high standard / Applicant’s evidence fell short of standard / Applicant failed to prove Respondent negligently failed to properly supervise son / claim dismissed

Tort / Negligence / Respondent was getting into her car when a gust of wind blew her car door into the door of a vehicle owned by Applicant, causing damage / Applicant and its insurer claim the cost of repairs to the vehicle of $4,923.07, including uninsured losses of $500 / Held: no contributory negligence in parking next to Respondent’s vehicle / Applicant entitled to recover the actual cost of the repairs / Claim allowed, Respondent ordered to pay Applicant $4,923.07.

Guarantee / Consumer Guarantees Act 1993 / Applicant enrolled in course of study and paid fees to Respondent institution / Applicant withdrew from course 11 days after its commencement / Applicant claimed he could not understand lecturer and lecturer’s teaching style was poor / enrolment form provided for a refund of fees if withdrawal was within 8 days of course commencing or there were exceptional circumstances / Applicant claimed reason for withdrawing was exceptional and Respondent failed its guarantee as to service provided / Applicant claimed refund of fees / Held: no failure of guarantee / inadequate evidence to prove failure / Respondent provided service with reasonable care and skill and service was fit for purpose / circumstances not exceptional / claim dismissed

Consumer Guarantees Act 1993 / respondent installed security system for applicant / applicant claimed detector not working & monitoring company did not respond / respondent changed alarm settings & engaged another monitoring company / applicant refused to pay for new monitoring service &  sought refund / respondent cancelled agreement & claimed money owing as well as cost of changing monitoring companies / whether security system of acceptable quality / whether monitoring service provided with reasonable skill & care / Held:  service provided by first monitoring company not provided with reasonable skill & care / respondent met obligations & remedied failure promptly / applicant entitled to refund of payments to first monitoring company but not entitled to cancel agreement with respondent / agreement provided for decommissioning fee & balance of term to be paid for cancellation / refund offset against money owing / applicant ordered to pay respondent $1321.58.

Tort / Conversion / Applicant sublet a space from Respondent for eleven months / Applicant left two sculptures in the space with Respondent’s agreement / Over a year later Applicant contacted Respondent to pick up sculptures / Respondent informed Applicant that sculptures had been thrown out / Applicant claimed $12,000.00 in damages for loss of sculptures / Whether sculptures were abandoned / What communications there was between the parties before disposal / Whether sculptures were wrongfully dumped / Where there was any contributory negligence / What was the value of the sculptures / Held: insufficient evidence to conclude Applicant had abandoned her rights to possession of sculptures / Conflicting evidence regarding whether Respondent gave adequate warning of his intention to dispose of sculptures / Applicant exhibited a degree of nonchalance towards her property and was negligent in leaving her sculptures beyond agreed time frame / Either party could have avoided what happened with…