Disputes Tribunal of New Zealand

Tort / Negligence / Collision between Applicant and Respondent’s cars / Parties dispute whether Applicant had already turned left or was just turning left at the time of collision / Applicant claims $1846.44 for estimated cost of repairs to her car / Held: Respondent failed to give way to Applicant as she was required to do and is responsible for damage caused / Respondent liable in negligence for estimated cost of repairs / Claim allowed.

SR v GI [2016] NZDT 1070 (17 February 2016) Contract / two separate disputes / parties friends for many years first dispute / Respondent offered to take Applicant’s coffee machine panels along with the Respondent’s own panels to be polished / Applicant gave Respondent $450 in cash to cover both sets of panels, on understanding Respondent would pay back $200 / Respondent took panels to second company to polish after first company damaged one / second company charged $250 / Applicant claims Respondent kept the $450 / Respondent claims Applicant told to deduct coffee machine panel money from proceeds after Applicant sold generator on Respondent’s behalf / second dispute / Applicant gave used Suzuki RM250 2008 factory plastics to Respondent so Respondent could sell motorcycle / claims Respondent promised to replace plastics when second motorcycle returned from workshop / Respondent claims plastics were given in return for work done on Applicant’s motorcycle / Applicant claims $970 for bot…

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to hydro-seed lawn for $1,300 / grass was not growing well several weeks later / Applicant claims fence marked during spraying and claims full refund of $1,300 / Held: Applicant failed to establish evidence that Respondent’s service not carried out with reasonable care and skill / Respondent did not make undertakings to provide ongoing lawn maintenance and lawn’s ultimate health depends on its ongoing care and watering / Applicant’s evidence unable to prove claims / claim dismissed

Insurance / negligence / three-car collision / Applicant stopped behind third-party vehicle / Respondent drove into back of Applicant’s vehicle causing Applicant to collide with vehicle in front / Applicant claiming $15,000 for damage to front and back of vehicle / Respondent claimed Applicant had already crashed into rear of front vehicle before Respondent hit from behind / Respondent argues that full frontal damage attributable to first impact / Held: Respondent caused at least $15,000 worth of damage even if two separate impacts were not proven / Respondent to pay $15,000 / claim allowed

Contract / Consumer Guarantees Act 1993 (CGA) / Respondent performed renovation work on Applicant’s bathroom / several problems found with bathroom / Respondent performed remedial work / independent tile and waterproofing consultant advised applicant shower needed to be rebuilt / Applicant claims $1966.83 for remedial costs / Held: Respondent did not perform work with reasonable care and skill / finished product not of acceptable quality / Respondent handyman not tiler but still bound to meet statutory obligations towards customer under CGA / attempted remedies by Respondent unsuccessful / Applicant entitled to have work done by another supplier and recover costs from Respondent / Applicant also entitled to recover costs of independent inspection and report / claim allowed, Respondent ordered to pay Applicant remedial costs of $1966.83.

Consumer Guarantees Act 1993 (CGA) / Applicant purchased truck cab and chassis from first Respondent which included mechanical breakdown insurance (MBI) / first Respondent not authorised by second Respondent (insurer) to issue MBI for that type of vehicle / insurer cancelled insurance policy and refunded premium / ABS control unit failed and was replaced / Applicant previously brought a claim against first Respondent in Motor Vehicle Disputes Tribunal (MVDT) / Applicant claimed damages against first and second respondent  for breach of CGA and loss of cover / Held: matter should not be relitigated / issues in dispute in earlier proceedings between same parties cannot be the subject of proceedings in the Tribunal / issues raised in MVDT proceedings essentially the same / first Respondent had apparent authority to act on insurer’s behalf and approve insurance / first Respondent failed to take adequate care in supplying MBI services and provide MBI policy fit for Applicant’s purpose / ins…

Contracts Enforcement Act 1956 / Applicant a debt collection agency  which claimed Respondent signed a personal guarantee for debts owing to one of its companies / Applicant’s company in liquidation so debt assigned to Applicant / whether guarantee enforceable & if not, whether Tribunal can & should rectify it / Held: customer update form signed by Respondent unenforceable as it did not identify principal debtor, or only identified one that was no longer in existence / Tribunal has jurisdiction to rectify defective guarantee but Tribunal should not exercise discretion due to significant delay in filing claim / other factors preventing exercise of discretion included Applicant’s acceptance of assignment & failure to bring evidence of it & carelessness of using defective form / Tribunal declined to make order that guarantee be rectified / claim dismissed.

Liquidation / Contract / Companies Act 1993 / Contractual Remedies Act 1979 / Fair Trading Act 1986 / Respondent placed into liquidation and tenders invited for purchase of assets / Applicant expressed interest and sought further information from Second Respondent liquidator / Second Respondent sent Applicant confidentiality agreement and tender terms and conditions / After confidentiality agreement signed Second Respondent provided further information / Applicant submitted tender / Second Respondent discovered information not correct / Applicant claims $10,000 for difference in what they would have tendered if knew true situation / Applicant claims misconduct and misleading and deceptive conduct by Second Respondent / Held: Tribunal has jurisdiction / Applicant’s claims do not come within s 248 or 284 Companies Act / Held: Applicant cannot claim under Contractual Remedies Act / Claim must be brought against other party to contract not Respondent or Second Respondent / Held: Informatio…

Negligence / Applicant had a car accident in which they lost control and damaged the front wheel, Applicant claimed an earlier fuel spill on the road caused crash / Applicant claims the Council and Transport did not take necessary precautions to block the road and clean the fuel spill immediately /  Applicant believes further damage was cause to their car by towing company when car was unloaded / Held: Transports duties are performed on behalf of Council and both have a duty of care to take adequate precautions / No evidence found to suggest Transport did not in reasonable promptness clean up fuel spill / Inconclusive if further damage to car was caused by towing company or a result of moving the damaged vehicle / Claim dismissed 

Contract / Consumer Guarantees Act 1993 / Applicant purchased a Jeep second hand which was covered by the balance of a 3-year manufacturer’s warranty / Respondent was the local authorised service repair centre for Jeep and performed 27 warranty claims for Applicant without cost to Applicant / Applicant claimed $10,887.51 from Respondent because Applicant was unhappy with the repairs / Held: no evidence to establish that the repairs performed by the Respondent failed / no evidence that wear and tear items should have been covered by a warranty claim / no failures established so nothing was recoverable / claim dismissed.

Contract / Applicant purchased concert tickets via Trade Me from a seller who identified as the Respondent / concert was cancelled / Ticketmaster issued refunds to ticket purchasers / Applicant did not receive a refund from Respondent / Applicant claimed $1260 for refund received from Ticketmaster / Held: no contract between Applicant and Respondent / Respondent a victim of identity theft / Respondent not the seller / Respondent did not receive a refund / Respondent did not owe applicant any money / claim dismissed

Contract / sale and purchase of property / Contractual Remedies Act 1979, s 6 / Fair Trading Act 1986 (FTA), ss 43 and 9 / applicant bought respondent’s property that was listed with second respondent / applicant unhappy about water that lies on driveway and footpath after heavy rain / claims $6,000 from respondents / Held: evidence does not prove property was misrepresented by respondents / second respondent did not engage in conduct that was misleading or deceptive or was likely to mislead or deceive required under FTA / claim dismissed

Contract / negligence / Applicant sought half the cost for arborist and tree work undertaken / Respondent counterclaimed for damage to his property from tree work and rent when contractors used his property as a workplace and car park / HELD: Respondent obtained resource consent to cut down tree years earlier / Applicant engaged arborist before consulting with Respondent / therefore Respondent only liable to pay half the cost of tree felling / claim partially allowed, Applicant ordered to pay Respondent $1,322.50 for tree work / Respondent did not prove on balance of probabilities that Applicant caused damage, nor can he charge rent without agreement between the parties / counterclaim dismissed