Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent as property manager and agent for her rental property / problems developed with the tenant and a 90 days’ notice was issued but Respondent overlooked expiry of that notice and allowed the tenant to remain in the property / Applicant claimed $2,626.95 compensation / Held: do not accept it would protect Respondent if Applicant does not receive rent or property damage occurs by Respondent not performing its obligations under the contract / if Respondent had enforced the termination notice rental loss would not have been incurred / Respondent was not providing its services with reasonable care and skill causing additional loss to Applicant / additional costs claimed by Applicant would have been incurred by Applicant in any event and for her account / claim allowed, Respondent ordered to pay Applicant $436.19.

Contract / breach of contract / non-maintained operating lease / Contractual Remedies Act 1979 / Credit Contracts and Consumer Finance Act 2003 (CCCFA) / Credit (Repossession) Act 1997 (C(R)A) / Personal Property and Securities Act 1999 (PPSA) / Applicant and Respondent entered operating lease for car / Respondent would make weekly payments to Applicant and retain car at end of lease period / Applicant alleges Respondent in arrears / seeks $2,685 compensation for breach of contract including arrears, repossession cost and difference in assessed market value versus received wreck value / Respondent denies liability and claims she advised Applicant could no longer afford to proceed with agreement / issue of whether agreement is a consumer credit contract although it’s declared an operating lease in its text / Held: lease is a consumer lease under s 60(1) CCCFA but is qualified by s 60(2) / lease falls within s 16(1) meaning lease should be treated as a credit sale and consumer credit con…

Consumer / Credit (Repossession) Act 1997 / parties entered into loan agreement for Respondent’s purchase of car / Applicant claimed Respondent defaulted and issued pre-repossession notice / Respondent then returned car on the same day / Applicant claimed compensation for loss after having repaired car and sold it / Held: where car is returned without prior agreement because debtor is no longer able or willing to continue with the finance contract, the creditor is entitled to see this as repudiation by the debtor and as an instruction to sell the car / creates obligation to deduct proceeds of sale from amount owing under contract and reasonable cost incurred in respect of the sale / Applicant did not give post-possession notice as required by s 20 and deprived Respondent the opportunity to re-assess decision / unable to accept charge for repair costs / allowance for preparing car for resale appropriate / claim allowed (in part), Respondent ordered to pay Applicant $384.87.

Negligence / car collision / Applicant’s insurance company claimed against First Respondent for repairs / First Respondent counterclaimed against Second Respondent for necessary repairs, as driver of Applicant’s car / Held: while Tribunal placed little weight on First Respondent’s admission of liability, not persuaded that accident caused by Second Respondent / First Respondent failed to take sufficient care while driving / costs claimed were actual and reasonable / claim allowed, First Respondent ordered to pay insurance company $4,855.85 / First Respondent’s counterclaim dismissed

Contract / Consumer Guarantees Act 1993 (CGA), s 28 / Valuers Act 1948, s 11(2) /  reasonable care and skill / Respondent engaged Applicant to value two properties / Respondent used both reports to obtain finance / Respondent paid part of the valuation price for one property but not the other as had issues with the work done on both properties / Applicant claims $970, compromising unpaid $920 and debt collection costs of $50 / Held: Respondents complaints can be considered by way of set-off as the two valuations were arranged under one contract / Applicant failed to take reasonable care and skill over some minor detail and description of properties / Applicant breached high standards of professionalism expected under contract by not consulting with Respondent before telling real estate agent about inaccuracies concerning size of property on advertisement / failure to consult amounts to damages for injured feelings, which are generally regarded as too remote in breach of contract / no e…

Contract / Applicant provided refrigeration advice and services to the Respondents / Applicant and Respondents agreed the new evaporator was not working / Applicant agreed to re-install the old evaporator at no cost to the Respondents / Applicant kept the new evaporator / when it came time to pay the Applicant, the Respondents withheld $3,000 from the total amount charged, stating that this reflected the cost of the new evaporator retained by the Applicant / issue of whether Applicant’s fees should be reduced for the cost of the evaporator and any installation costs / Held: the Applicant failed to supply the evaporator, and retained ownership and possession of it, so is not entitled to the payment for the evaporator / cost of evaporator is to be deducted from the $3,000 / Applicant is entitled to the remainder payment of $1,462.05 for the pipe work.

Contract / Consumer Guarantees Act 1993 / Applicant purchased a hover mower from Respondent / mower ran unevenly and was difficult to start so Applicant returned it for repairs / after receiving it back it ran no better and was returned again / 6-8 weeks later when Respondent attempted to return the mower Applicant rejected it and requested a full refund / Applicant claimed for repairs to their old mower, purchase price of the hover mower and the filing fee / Held: mower is not of acceptable quality / ongoing problems with starting and running that are intermittent / supported by evidence from a lawnmower shop owner who inspected the mower / issues and length of time they occurred mean the failures are of a substantial character / Applicant entitled to reject the mower under the Consumer Guarantees Act 1993 and entitled to full refund but not repair costs (of old mower) or filing fee / claim allowed, Respondent ordered to pay Applicant $988.

Nuisance / Disputes Tribunal Act 1988 / counter claim for costs under s 43 / Applicants claim Respondent is responsible for excess water flows on their property which have caused damage / Respondent counterclaimed for costs that he has unnecessarily incurred in defending claim / Held: Occupiers of land must accept water flowing naturally on to their land from higher ground / Respondent has not gone beyond what is deemed natural water run-off / Applicants’ claim is frivolous due to limitation period and is dismissed / Respondent’s counterclaim is granted / Applicants are to pay Respondent $793.50.

Contract / Cancellation / Respondent purchased the Applicants’ property at auction / failed to pay the deposit / Applicants cancelled the agreement and re-sold the property / Applicants claim for the financial loss they suffered as a result of the Respondent not going ahead with the sale / Held: Respondent liable to pay the Applicants $8,534.00.

Contract / Applicant withdrew $6,300 from his bank account with Respondent but says he wanted to withdraw $3,300 and trusted Respondent so he did not check the amount before giving it to a builder / Applicant claimed $3,000 Respondent gave him in error / Held: on the balance of probabilities Respondent believed Applicant had asked to withdraw $6,300 from his account / Applicant received $6,300 / having received the money Applicant was in a position to confirm the amount before handing it to the builder / Applicant failed to prove that Respondent was negligent in handing more money than Applicant believed he had asked for and in not checking the amount while in his possession Applicant has been the cause of any loss suffered / claim dismissed.

Negligence / Respondent’s 13 year old daughter drove her 22 year old sister’s car into the Applicant’s wooden wall / Respondent agreed he was responsible and paid $500 towards the repair costs / Respondent was made redundant so could not pay any more money towards the repair costs / Applicant claimed remaining repair costs of $2994.40 / Held: parents may have a duty to control a child known to have a reckless disposition / Respondent could not have foreseen his daughter driving in a carpark and causing damage / actions of Respondent’s daughter were uncharacteristic of her and she was in the care of another adult at the time / no reason for Respondent to take particular precautionary measures to prevent his daughter’s behaviour / Respondent not negligent and not liable to pay the costs claimed / claim dismissed.

Consumer Guarantees Act / guarantee as to fitness for purpose / Applicants purchased from the Respondent a powder-covered fence to install around their swimming pool / within 18 months the powder coating started to deteriorate with swelling on the fence / Respondent had failed to tell Applicant that the warranty for powder-coated galvanised products did not apply when product used in “high corrosion” areas, such as around a salt water pool / Held: the brochure the Respondent gave the Applicants failed to state the conditions of the warranty / by knowing the warranty would not apply, and failing to pass this on to the Applicants, the Respondent had failed to carry out their services with reasonable skill and care / Applicants gave Respondent the opportunity to remedy and it did not do so / Applicants entitled to obtain all reasonable costs associated with the remedy / Respondent to pay Applicants $3,120.00, being the cheaper of the two quotes to have the powder coating stripped from the…