Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 / Applicant purchased avocado seedlings from Respondent / 240 trees died the following season / Respondent offered to replace half of the trees / Applicant did not accept this offer / Applicant seeking compensation for the 240 affected trees / Held: Consumer Guarantees Act applies / Respondent was a supplier and avocado seedlings are goods / Insufficient evidence to show that the trees were had some sort of inherent fault or weakness / More likely that the trees were reasonably healthy and fit for purpose when they were supplied / Claim dismissed

Contract / Contract and Commercial Law Act 2017 / Applicants booked cycle tour through Respondents / Country became restricted due to COVID-19 pandemic / Respondent offered three options: transfer booking, continue tour or cancel and receive 50% refund / Applicant claims contract was frustrated / Applicant claims $14,066.91 for refund plus legal costs / Held: contract was not intended to cover event in question / Held: contract frustrated due to events outside control of both parties / Applicants therefore entitled to refund of money paid for tour / Held: Respondent entitled to retain $9,340 being reasonable overhead and business expenses / Held: claim for legal costs dismissed as not agreed to in contract or fitting in specific circumstances / Outcome: Respondent ordered to refund balance of $4,613.91.

Contract / Breach of contract / Applicant enrolled in Personal Trainer course with Respondent / Course shifted to online delivery due to lockdown / Applicant unable to participate in course due to child care commitments / Applicant requested to defer course or receive refund and Respondent declined / Applicant claimed Respondent breached contract by failing to provide course / Applicant claimed $4,495.00 refund / Respondent counterclaimed the sum of $4,495.00 / Whether Applicant withdrew from the course / Whether the Respondent breached the contract by failing to provide the course / What amount, if any, either party was entitled to / Held: Applicant did not withdraw from course and was only offered access to the introductory class /  Respondent breached contract by failing to provide course / Respondent to pay Applicant $4,495.00 / counter-claim dismissed / claim allowed.

Consumer Guarantees Act 1993 / Applicant hired marquee from Respondent / Applicant claims damages caused by ballooning of marquee, water pooling and compensation for early lowering during a wedding reception / Held: water pooling on the marquee indication marquee had not been erected with reasonable care and skill / Held: Applicant followed instructions of Respondent attempting to lower and adjust marquee poles to fix flat areas where water was pooling / Held: wind speed not a significant factor to problems which arose / Held: Respondent failed to provide marquee hire and installation with reasonable care and skill, Applicant entitled to remedy under the Consumer Guarantees Act / Claim allowed / Respondent ordered to pay Applicant $3078.88

Consumer Guarantees Act 1993 / Applicants purchased bathroomware from Respondents / After six months the products showed wear / Applicants sent photo to Respondents advising of issue / Respondent claimed issue was due to wear and tear / Applicant claims costs for product refund, retiling and plumbing costs / Held: there is a failure of guarantee of acceptable quality as the goods are not durable / Held: Applicant’s have right to reject the goods and claim a refund and other foreseeable losses resulting from the failure / Claim allowed: Respondent ordered to pay $1694.00 to Applicants.

Consumer Guarantees Act 1983 / Applicant purchased racehorse from Respondent via an online auction / Horse was found to be lame after delivery to Applicant and took time to recover / Although Applicant took a chance purchasing an older racehorse he could reasonably expect that the horse would have feet in rideable condition / Extent of issues with the horse must have related to a pre-existing condition at the time of sale / Applicant claimed refund costs plus remedial costs or, alternatively, remedial costs plus training fees to bring horse back into work / Held: Consumer Guarantees Act 1983 applies to sales by auction / The horse recovered and is of acceptable quality / The applicant was not in trade and the Respondent could not contract out of the Consumer Guarantees Act 1983 therefore it covers the state of lameness on arrival of the horse / Claim allowed / Respondent ordered to pay applicant $742.00.

Contract / Consumer Guarantees Act 1993 / Applicant entered into a contract with Respondent for employment advocacy services after Respondent was made redundant from part-time job / Applicant claims $4,338.13 in total for termination fee, debt collection and filing fee / Held: Applicant has not proven Respondent terminated the contract / Applicant not entitled to charge termination fees / Contract cancelled due to Applicant's repudiation / Respondent not liable to pay any fees to Applicant / Claim dismissed.

Contract / Breach of contract / Consumer Guarantees Act 1993 / Applicant paid $885.54 for two tickets to an Elton John concert / Applicant attended concert / Performer had walking pneumonia so could only play 14 of his 24 playlist / Respondent was promoter of concert / Applicant claimed partial refund of $440.00 for the concert tickets / Whether there was a breach of contract / Whether Applicant was entitled to a remedy / Held: Respondent knew before concert that Elton John was unwell / Concert should have cancelled or postponed / Respondent chose to proceed so had to guarantee that the concert was reasonably fit for purpose and of a reasonable nature and quality / Respondent has breached guarantee and therefore contract / Highly unlikely reasonable person acquainted with Elton John’s condition would have purchased tickets to the concert / Applicant entitled to claimed amount / Respondent ordered to pay $440.00 to Applicant / Claim allowed

Contract / Applicant engaged Second Respondent to provide platform for streaming services / Problems with platform / Applicant claimed for service costs and costs for getting platform operational / Second Respondent counterclaimed for outstanding service charges / Second Respondent contended that the platform was operational and instructions not followed correctly / Whether there was a breach of contract / Whether remedies were available / Held: issues related to slow internet connection and instructions incorrectly followed / No breach of contract by Second Respondent / Applicant breached contract by not making payments / Claim dismissed / Counter-claim granted / Applicant to pay Second Respondent $5,459.63 for outstanding invoices.

Contract / Applicant supplied and maintained doors to a supermarket / Contract was originally with one company then interest transferred to Respondent / Contract ended and doors were removed by Applicant per contract / Costs for removal of doors in dispute / Applicant claimed Respondent responsible for costs of removal of doors under contract / Respondent claimed no proof of terms regarding removal in contract / Held: contract required Respondent to pay for removal of doors only where contract terminated due to breach by Respondent / Removal costs not recoverable as contract came to end when fixed term ended / Claim dismissed

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicants purchased a used car from the Respondents for $1800.00 / Respondents made misleading statements about condition of car in Facebook ad / Car could not obtain Warrant of Fitness without significant structural work / Estimated wreck value of car is $350.00 / Applicants claim a refund of the purchase price of the car / Respondents claim the car was sold “as is where is” / Held: Respondents misrepresented the car / Contract and Commercial Law Act 2017 provides some protection for purchasers of goods in private sales / Applicants have suffered a loss / Claim allowed, Respondents ordered to pay Applicants $1450.00.

Contract / Context of sublease between Applicant and Respondent / Applicant was head lessee of shopping centre which included a shop leased by Respondent / Applicant claims for shortfall in rent payments, cleaning costs and electricity charges / Applicant’s total claim amounts to $28,473.74 / Respondent counterclaims for a rent refund and cost of the air-conditioning unit and water cylinder / Respondent’s counterclaim amounts to $16,009.67 / Held: Amount of rent owed by Respondent was $952.78 / Respondent must pay $2,817.50 for remedial costs / Respondent fails in claim relating to air-conditioning unit and water cylinder / Claim allowed, Respondent to pay Applicant $3,770.28

Contract / Quasi-contract / Respondent engaged to work on property occupied by Applicant / Respondent asked Applicant if it could take water from their property / Applicant consented / Applicant asked Respondent to spray land to get rid of gorse / Respondent agreed / Respondent sent invoice to Applicant of $552 / Applicant said it was under no obligation to pay as spraying was in exchange for water / Applicant sent invoice for use of water / Applicant claimed not required to pay invoice from Respondent and sought declaration of non-liability / Held: no contract was formed / A person cannot accept an offer they do not know about / Unique circumstances and benefit received by Applicant meant an amount should be paid / Some compensation for costs of doing job was reasonable / Requiring a payment of $300 was fair in the circumstances / Applicant ordered to pay $300 to Respondent / claim dismissed.