Disputes Tribunal of New Zealand

Contract / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Parties entered into agreement for Respondent to make Applicant dentures / Applicant paid agreed cost of $17,500 and Respondent made dentures / Applicant claims Respondent misled them into thinking they were paying for porcelain not composite for upper denture / Applicant claims dentures not of acceptable quality or fit for purpose / Applicant claims refund / Held: Respondent did not make false or misleading representation / Respondent carefully explained each denture option / Held: dentures were of acceptable quality / Normal for adjustments to be required after patient has worn them and allowed them to settle in / Outcome: claim dismissed.

Consumer Guarantees Act 1993 / Applicant purchased car from Respondent / Respondent advised there was an issue with the starter / After purchase Applicant noticed additional problems including mileage that was over the advertised amount / Applicant wrote to Respondent listing faults with car / Respondent declined to take car back for a full refund / Held: Respondent “in trade” as supplier for purposes of the CGA / Statutory guarantees and remedies contained in CGA apply to the transaction / Held: nature and number of problems mean car was not free from minor defects even given age and mileage / Condition constitutes breach of acceptable quality under ss 6 and 7 CGA / Held: Applicant met requirement to notify seller of problems and Respondent did not remedy within reasonable time / Claim allowed / Respondent ordered to pay $3020.00 to Applicant

Negligence / Animals Law Reform Act 1989 / Applicant collided with a herd of cows when driving on a rural road / Second Respondent acknowledged that a farm gate was damaged / Applicant claimed he suffered loss because his vehicle carried finance over and above market value of vehicle / Whether Second Respondent acted with a standard of care expected of a reasonable farmer / Whether Applicant’s loss was foreseeable / Held: Second Respondent did not act with a standard of care expected of a reasonable farmer / Applicant suffered a loss caused by a breach by Second Respondent / Applicant entitled to damages to put him back to the position prior to collision / Ordinary person would not expect to pay for finance above the value of the vehicle / Applicant not proved that he suffered a loss in terms of finance / Applicant’s insurance considered losses/ If insurance had not covered losses than Second Respondent would be liable / Claim dismissed.

Fencing Act 1978 / Applicants own a property with a long driveway / Respondents share a boundary line with Applicants driveway / Fencing notices exchanged regarding removal of fence / Respondent removed post and wire fence near boundary despite matter being in dispute / Applicants object to removal of fence / Whether existing fence was adequate / Whether Respondents liable to reinstate fence / Whether Applicants entitled to costs / Held: Fence adequate but needs to repair to ensure it is fit for purpose / Respondents removed fence and are liable to reinstate / Applicants claim for costs dismissed

Contract / Contract and Commercial Law Act 2017 / Restraint of trade / Breach / Applicant owns escort agency / Respondent joined agency and signed an independent contractor agreement / Applicant claims Respondent breached agreement regarding exclusivity by working for another agency, exchanging contact details with clients and taking private bookings with clients / Applicant claims $5,000 for each breach of of the agreement / Whether restrictive covenants in clause 7 of agreement are reasonable restraints of trade, whether clause 9 regarding exclusivity is a reasonable restraint of trade and is payment for breaches enforceable / Held: restrictions in clause 7 of agreement beyond reasonable to protect agency’s interests / Held: even if clause 9 reasonable restraint, no damages payable / Claim dismissed

Contract / Respondent engaged Applicants to assess and report on damaged foundations of their house as part of joint site visit for insurance proceedings / Applicants claim $9,550.75 for work and interest / Applicant claims did not have contract with Respondents and counterclaims for $2,490.90 alleging Applicants did not complete work with reasonable care and skill / Held: Applicant has contract with Respondent / Genuine error in company name does not relieve obligation to pay / Held: comments included in report inappropriate and compensation owed to Respondent / Held: all work completed and travel costs incurred by Applicants were required to complete contract brief / Held: Applicants entitled to cancel contract / Respondent repudiated contract when expressed intention to perform obligations in substantially different way to that agreed / Held: Applicants entitled to claim interest and amount claimed reasonable / Outcome: Respondent to pay $8,637.50 to Applicants

Negligence / Applicant was making a right turn when a collision occurred with a motorcycle being ridden by Respondent / Respondent was travelling along the flush median strip passing on the right of stationary traffic intending to rejoin once he was closer to a roundabout  / Applicant’s car was damaged as a result of the collision / Applicant claims $2,563.74 representing the loss of repairing his car / Held: Respondent caused the collision to occur and was therefore negligent / Applicant did not cause or contribute to the collision / Respondent is liable to pay the amount claimed / Claim allowed / Counter claim dismissed, Respondent to pay $2,563.74 to Applicant  

Contract / Applicant took out insurance policy with Respondent for a holiday / Applicant made claim for loss of a watch and jewellery / Respondent denied claim / Whether Applicant suffered loss claimed / Held: unable to reach a finding on the balance of probabilities that Applicant suffered loss claimed / Inconsistent account from Applicant in combination with other factors in insurance investigator’s report raise uncertainty / Claim dismissed

Contract / Fair Trading Act 1986 / Deposit paid for cabin and shed installation / Company went into liquidation / Misleading conduct / Whether liable to refund / Held: Respondent personally liable for misleading conduct / Ordered to refund deposit of $12,800 / Claim upheld

Contract / Disputes Tribunal Act / Applicant purchased property from Respondent’s / Applicant considers work was carried out without obtaining the requisite consent / Applicant claims $3956.00 representing surveying costs and architectural draughting costs / Respondent counter claims for $2,304.50 against the Applicant in respect of legal costs incurred / Held: on balance of probabilities a building consent was obtained for the erection of the original deck / No consent was required for the deck upgrade/repair carried out / Respondent not in breach of warranty under sale and purchase agreement / Legal costs do not fall within the category of costs the Tribunal has jurisdiction to award / Claim dismissed, counter claim dismissed.  

Contract / Respondent agreed to update Applicant’s website / Applicant claimed work was not done in a timely manner and work done did not justify hours Respondent spent / Applicant cancelled contact and sought a refund of $15,000.00 / Applicant also claimed refund of $270.95 for e-commerce Theme which they paid for separately which was the wrong Theme / Whether Respondent breached contract entitling the Applicant to cancel / If so, whether Applicant was entitled to refund / Whether Respondent was entitled to refund for Theme / Held: not proven that Respondent was not doing work was contracted to do / Claim in relation to refund dismissed / Respondent confirmed that it ordered wrong Theme and Applicant paid for it / Respondent ordered to refund Applicant $270.95 / Claim dismissed.

Consumer Guarantees Act 1993 / Applicant bought a pony from Respondent for her daughter / Pony had a substantial bucking habit which was not able to be resolved / Applicant claimed refund of the purchase price and costs associated with transport and upkeep of pony / Respondent claimed that the Applicant waited too long after purchase to raise concerns, was advised of pony’s tendency to buck, had caused an escalation of issue by delaying remedial work, had not viewed the horse or explained purpose pony was sought / Held: pony was misdescribed in advertisement / Pony was not of acceptable quality per Consumer Guarantees Act 1993  / Applicant entitled to reject the pony and get a refund / Claim allowed / Respondent to pay Applicant $5,000.00 / Respondent to arrange collection of pony / Ownership of the pony re-vested in Respondent

Contract / Applicant provided incorrect labels for Respondent’s lubricant product that could impact Respondent’s business / Respondent refused the incorrect labels / Applicant claimed $1,434.05 compensation / Held: Respondent 40% responsible and liable for $456.78 / Applicant was primarily responsible / Respondent did let the label through its review process