Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 (CGA) / Applicant purchased type A factory bike from original owner / Respondent was the licensed importer / dirt found in the motorcycle’s airbox caused serious damage to the engine / Applicant repaired the bike himself and claimed for his losses / Held: motorbike not of acceptable quality / inadequate airbox filter system compromised bike’s durability / Respondent considered manufacturer / Applicant able to claim against manufacturer for losses relating to engine failure / Applicant not required by CGA to send bike to Respondent for examination  / Applicant unable to profit from engine failure / amount of losses not changed for betterment or loss of value / claim allowed, Respondent ordered to pay Applicant $8,318.08 and to arrange for collection of damaged engine from Applicant at own cost.

Contract / misrepresentation / Contractual Remedies Act 1979 / Applicant purchased used car from Respondent after seeing advertisement / Applicant purchased car after completing a test drive / Applicant claimed for necessary repairs and filing fee / Held: no misrepresentation / statements in advertisement were general and either true as far as anyone knew or statements of opinion / Applicant not induced into contract by advertisement having inspected the car and test drove it / advertisement merely induced Applicant to investigate further and do own checks on the car / an example of a “buyer beware” situation / claim dismissed

Jurisdiction / parties were in a de facto relationship for six years during which Respondent established a family trust that purchased leasehold property / parties lived together in the property as co-tenants / trust did not renew lease when leasehold expired, relationship broke up and both parties left the property / Applicant claimed $4,868.07 for money spent on improvements and maintenance / Held: all transactions between parties governed by the Property (Relationships) Act 1976 / Tribunal does not have jurisdiction under Property (Relationships) Act / even if Applicant’s claim treated as against Respondent in her capacity as trustee, relationship between Applicant and trust is that of tenant and landlord and transactions between them may raise relationship property issues / claim struck out.

Jurisdiction / survey marks and boundary fence / Cadastral Survey Act 2002 (CSA) / Disputes Tribunal Act 1988 (DTA) / Fencing Act 1978 (FA) / parties are neighbours / Applicant removed part of boundary fence to safely remove tree stumps / Applicant noticed two boundary pegs missing while reinstating fence / Applicant claims $1,0355 from Respondent for cost to survey and reinstate boundary pegs on grounds that Respondent removed or tar sealed them during previous driveway maintenance / Respondent counterclaims $1,889.75 in legal costs, stating Applicant verbally agreed to resurvey fence when finished with trees / Held: no jurisdiction to hear Applicant’s claim of interference with survey marks as under s 55, CSA / no jurisdiction over survey cost matters under FA, ss 24(p) and 24A(1) / no jurisdiction over claims involving survey pegs as they cannot qualify as “property” under s 10(1)(c), DTA / Respondent not awarded legal costs as Applicant had arguable case for claim and did not know …

Contract / misrepresentation / sale and purchase of land / Fair Trading Act 1986, sections 9, 14 and 43(3)(f) / Real Estate Agents Act 2008, sections 155 and 110(3) / Applicant claimed against Respondent real estate agent for misrepresentation, failing to disclose structural issues and pressure on her to buy property / Respondent claimed that Real Estate Agents Disciplinary Tribunal already determined this matter / HELD: while Respondent breached Fair Trading Act, Applicant did not rely on misrepresentation / building report identified issues with piles, but Applicant still proceeded with purchase / no longer any causal connection between Respondent’s misleading conduct and Applicant’s decision to proceed with purchase / claim dismissed

Jurisdiction / Disputes Tribunals Act 1988 / Applicant undertook development work and disputes arose regarding the legality of drainage work and cost of fencing on shared boundaries / Applicants sought declaration that drainage work was legal and claimed $3,800 for the cost of fencing and $4,128.50 in legal fees / Held: Tribunal does not have jurisdiction to make a declaration as sought by Applicant / cannot make a declaration in Respondents’ favour / no basis to make an order for cost of fencing against Respondents as Applicant had not served a Fencing Act notice and there was no agreement / no basis to make an order against Respondents for legal costs incurred by Applicants / claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased a bike online from Respondent which developed fault / stand-off between parties as to who should pay for freight to return bike to Respondent / Applicant eventually sent the bike to Respondent which discovered and repaired minor wiring fault / Applicant claimed $1,790.96 for refund of the bike, courier costs and compensation / Held: Applicant did not give Respondent opportunity to examine the bike and to repair and therefore did not have right to reject the bike / bike failed to meet guarantee of acceptable quality and Applicant is entitled to freight cost as it is cost reasonably foreseeable / Respondent liable for cost of freighting bike back to Applicant / Applicant’s claims for other consequential losses dismissed / supplier cannot contract out of Consumer Guarantees Act / claim allowed, Respondent ordered to freight bike back to Applicant and pay $90.

Contract / insurance / Applicant claimed $2,527.70 from his insurer, Respondent, for repairs to the deck at his home and maintains damage was caused by a sudden event and is covered by his house insurance policy / Held: can exclude the possibility of product failure and of a wide scale failure of the product generally / evidence suggests only other alternative is sudden damage to the deck causing damage to the waterproof membrane / fact Applicant cannot recall a specific event does not, of itself, exclude likelihood a specific event causing damage occurred / Applicant established on balance of probabilities that there had been a sudden event causing damage to the waterproofing and is therefore entitled to be covered for the damage / claim allowed, First Respondent ordered to pay Applicant $2,127.70.

Contract / Applicant and Respondent were in a relationship and entered a tenancy agreement / Relationship ended and Applicant left property / Applicant negotiated settlement with landlord in Tenancy Tribunal / Applicant claims $1550.00 from Respondent by way of contribution to the settlement / Held: Respondent not liable to pay any money to Applicant / No contract between the parties for Respondent to contribute to the settlement.

Contract / Contractual Mistakes Act 1977 / Applicant placed four live bets online on an international football match but stated she made a mistake by betting on first half goal scores / Applicant claimed $3,300 in refund / Held: do not accept Applicant made a unilateral mistake known to Respondent / with online betting Respondent does not have opportunity to engage with the other party to their contract prior to betting so cannot understand bettor’s intentions / Applicant had properly been informed of terms and conditions of online and live betting on website / rules necessary in fairness to all punters so they can rely on integrity of the betting system / claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased a wall-hung basin from Respondent after speaking to one of the salespeople / when the basin was removed from its box it was not able to be wall-hung / Applicant was told 20% would be deducted from the refund per Respondent’s terms and conditions / Applicant claimed the balance / Held: Respondent has not complied with guarantee as to fitness for purpose / Applicant made it known expressly that she wanted a wall-hung basin / Respondent is not entitled to make any deduction from refund amount / not lawful to contract out of Consumer Guarantees Act 1993 and terms and conditions can only apply where there has been no breach of statutory guarantee / Applicant entitled to receive full refund / claim allowed, Respondent ordered to pay Applicant $29.48.

Contract / Sale of Goods Act 1908 /  Applicant ordered two consignments of timber from Respondent worth $10,666.55 / Applicant rang to collect timber and was advised by Respondent timber had been picked by Applicant’s company / Applicant denies collecting timber and seeks remedy for loss of timber / Held: On balance of probabilities the Applicant did not collect timber / Respondent had a duty of care to Applicant and failed to take all reasonable precautions to prevent the loss of the timber to a third party / Claim allowed, Respondent to bear responsibility for loss of timber and refund Applicant cost paid for timber  

Contract / Agency / farm manager for Respondent employed applicant to rock pick paddocks / Applicant gave invoice for $9,948.08 / farm manager took first invoice to farm owner for approval and employed Applicant for further work / Applicant provided second invoice for $4,083.65 / Applicant claims for both invoices, totalling $14,031.17 / Held: farm manager had no apparent authority to employ a contractor / farm owner ratified farm manager’s authority retrospectively by agreeing to first invoice and saying Applicant could do further three hour’s work / if agent purports to act on behalf of principal without actual authority, absence of assent can be given retrospectively by principal through ratification / Applicant and farm manager say second work was not limited / second lot of work found on balance of probabilities to be limited to three hours / claim allowed in part, Respondent to pay first invoice and three hours for second invoice, totalling $10,862.33