Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / reasonable care and skill / Applicant is an architect and was engaged by Respondents to complete two jobs on a piece of land, including drawing plans and applying for resource and building consents / second job had no written contract / Applicant claims for two unpaid invoices, totalling $6,182.40 / Respondent counter-claims that Applicant’s services not performed with reasonable care and skill, resulting in additional building costs and time delays / Respondents claim $50,000 which was reduced to $15,000 to fall within Tribunal jurisdiction / Held: the two sets of building consent plans were two separate contracts / first job was completed and paid for before second job was requested and at no time was a complaint made about first job / second job took same form as first despite having no written contract / amount charged by Applicant is reasonable for the nature of the work undertaken / insufficient evidence to prove that Applicant’s plans an…

Contract / Applicant’s manager signed a “three year agreement” with Respondent and a service agreement form recording a new address when Applicant moved premises / Applicant claimed it only intended to enter into a month by month agreement, was misled and document was misleading / Held: by signing the document Applicant entered into a binding contract, not proven there was any misleading conduct and second contract cancelled / Applicant’s manager did not read the document, even reading the front page would have told her the agreement was for a three year term and she was the manager of the store not a junior staff member / Applicant only wished to record change of address / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Respondent entered into a sole agency agreement with Applicant and authorised up to $2,500 to be spent on marketing / proposed auction was cancelled, conditional sale fell through and Respondent attempted to cancel the contract / Applicant claimed $2,500 for marketing expenses invoiced / Held: additional marketing costs distinct and not recoverable as there was no sale / pro-rata deduction of costs claimed warranted as all marketing ceased after Respondent attempted to cancel contract / no basis for auctioneer’s fee and pre-auction meeting as service was not provided / minor issues with marketing breach of guarantee to provide services with reasonable care and skill / claim allowed (in part), Respondent ordered to pay Applicant $1,103.23.

Negligence / car collision / actual cost of repairs to Applicant’s car $22,566.21 / Applicant claimed maximum amount claimable in Tribunal / Held: Respondent caused collision by failing to give way / duty of care on all drivers to drive to the standard of a reasonable and prudent driver / Land Transport (Road User) Rule 2004 / Tribunal unable to find on the evidence that Applicant contributed to collision or extent of damage by driving too fast for conditions / undisputed costs claimed by Applicant were reasonable / claim allowed, Respondent ordered to pay Applicant’s insurer $15,000

Land Transport Act 1998 / Police seized and impounded car driven by Applicant’s son and three days later Applicant registered the car in her own name / Respondent stored the car for over 28 days then it was onsold and crushed / Applicant claimed Respondent unlawfully sold the car / Held: Respondent did not act unlawfully in selling the car / Section 97(2A) of Land Transport Act 1998 defines “owner” as the registered person in respect of the vehicle at the time it is impounded and Respondent entitled to rely on information provided by Police / Respondent not legally obliged to wait a further 10 days under s 98(4) / claim dismissed.

Contract / insurance policy / Applicant was referred to an eye specialist to be tested and it was noted that he did have ocular hypertension / Applicant after joining Respondent returned to the optometrist for new glasses and further testing but was declined prior-approval on the basis that the interocular hypertension was a pre-existing condition and excluded from Applicant’s policy / Applicant claimed $1,535 being the costs related to testing and treatment / Held: based on the definition of “pre-existing condition” in Applicant’s contract of insurance, Respondent is entitled to exclude costs of treatment of interocular hypertension from cover / Applicant ought to have been aware that the specialist regarded him as having ocular hypertension / word “condition” broader than “disease” and encompasses something like ocular hypertension even if it is merely a statistical classification / claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased a second-hand windscreen from Respondent and engaged a third party to install it who discovered a crack / Applicant claimed for refund of the screen plus the installer’s fee and filing fee / Held: insufficient evidence to establish that the crack was already existing when it was sold to Applicant / impossible to tell when the crack occurred / guarantee of durability in Consumer Guarantees Act 1993 cannot be stretched to mean item made of glass will not crack or break / claim dismissed.

Tort / nuisance / Respondent is developing a large section to construct a retirement village next to Applicant’s property / Applicant claimed $15,000 compensation for cracks appearing in his property / Held: Respondent created a situation which interfered with Applicant’s use and enjoyment of land by causing frequent vibrations / clear Respondent anticipated potential impact of excavation and compacting on neighbouring sections / Respondent should have been well aware of the potential impact of the work on Applicant’s property / beyond doubt loss suffered by Applicant was foreseeable / multitude of cracks, cornices and tiles establish that impact on Applicant’s property amounts to a substantial interference with the use and enjoyment of his land / quote relied upon by Applicant excessive / amounts reduced and deduction applied for betterment / claim allowed, Respondent ordered to pay Applicant $10,400 and repoint all cracks in exterior walls of Applicant’s property.

Contract / Applicant claimed $3,588 on an unpaid invoice for website development / Respondent said the work undertaken by Applicant of its website was never completed within the agreed deadlines and was cancelled / Held: do not accept that it was expressly agreed Applicant could take as long as it liked to do the work / reasonable time element implied into contract / contract was breached almost immediately as Applicant did not begin work / Respondent entitled to cancel contract / work Applicant did up to cancellation was of absolutely no value to Respondent / claimed dismissed, Applicant ordered to pay Respondent $966.

Contract / Consumer Guarantees Act 1993 / Respondents engaged Applicant to prepare a preliminary design for a new house but the plans produced were not accepted by Respondents / Respondents claimed refund of the money already paid / Held: more likely than not that figure communicated by Respondents was their total project budget and was an essential term of the contract / Applicant failed to prove any of its designs could be built for the budget / service was not provided with reasonable care and skill and not fit for purpose / failure cannot be remedied / Respondents cannot use designs therefore reduction in value is the price paid/due in its entirety / claim dismissed, Applicant ordered to pay Respondents $8,212.15.

Jurisdiction / quasi-contract / unhappy dispute between family members over the father’s home care and burial after his death / Applicant claimed for legal costs incurred and reimbursement for care she provided to the father / Held: claim for legal costs cannot be established or proven / claim for reimbursement also not established / legal costs were Applicant’s choice to incur / no jurisdiction to award general damages for stress / no evidence of payments other than medical costs and clear Applicant did not expect reimbursement / claim dismissed.

Contract / Sale of Goods Act 1908 / Applicant purchased a car from Respondent which was then repossessed under an undisclosed security interest / Applicant claimed refund of purchase price / Held: Consumer Guarantees Act 1993 does not apply as transaction involves two individuals not in trade / person who sells a good cannot transfer a better title / neither can the seller deprive a person who has a prior registered security over the car that right by selling the car / s 14 Sale of Goods Act protects the buyer in this situation and entitles him to rescind the contract for breach of an implied condition that rights transferred should be unencumbered / claim allowed, Respondent ordered to pay Applicant $2,800.