Disputes Tribunal of New Zealand

Contract / Parties were involved in two family businesses / Applicant planned to pull out of one business and said Respondent agreed to return some of the money invested / Respondent made three payments but denied agreeing to pay more / Applicant claimed that Respondent promised to pay the remaining money / Held: there was an agreement as Respondent had made payments / but absence of written agreement and insufficient evidence to prove Respondent owed further money / concerns about independence and recall of witnesses / thus not enough tangible or reliable evidence as to what the terms of agreement were / claim dismissed.

Negligence / vicarious liability and breach of duty of care / Applicant’s lambs died from incorrect administration of capsules / Applicant’s director had contracted Respondent to administer drench capsules on a conveyor to approx 4,200 lambs / Applicant claims for loss (value of the lambs) plus additional costs / Respondent disputes liability for the loss on the grounds that it is not proved who did it and in the alternative that the director had contributed to the loss through intervening / held that Responsible liable to Applicant / the evidence establishes that it was probably CK, an employee of the Respondent, who administered the capsules / Respondent was vicariously liable for the acts of his employee and also owed a duty of care to Applicant to ensure the employee was trained to perform the job / claim allowed / Respondent liable to pay Applicant sum of $9,580.20 for loss suffered after taking into account director’s participation and less Respondent’s account for services.

Consumer Guarantees Act 1993 / reasonable care and skill in the supply of services / Applicants engaged Respondents to paint the exterior of their house / upon completion, the paint work began to deteriorate / issue of whether poor workmanship is the cause for the deterioration of the paint work / Respondent argued that it was not poor workmanship but environmental factors / Held: the Respondents breached ss 28 and 29 of the Consumer Guarantees Act 1993 / Respondents failed to take reasonable care and skill when painting Applicants’ house leading to its deterioration / Respondents to pay Applicants $7,357.50, being the original cost of the painting contract.

Contract / lease / Property Law Act 2007 / Respondent leased office space from Applicant / prior to this the Respondent took over the lease from previous lessee, which fell into arrears and was placed in liquidation, agreeing to cover its debt / Respondent continued to lease premises after lease expired then vacated / Applicant claimed rent, operating expenses, and interest / held that Respondent was obliged to give Applicant 20 working days’ notice to end tenancy / s 210 Property Law Act 2007 / rent and outgoings claimable until this date / agreement by Respondent to pay previous lessee’s indebtedness could not be offset against money owed on lease / interest owed on outstanding payments / claim allowed and Respondent ordered to pay Applicant $3605.81.

Contract / verbal contract / breach of contract / First Respondent completed work on engine cylinder head for Applicant / engine failed three days later during mine work / engine repairs cost $18,229.79 / Applicant claims First Respondent incorrectly fitted valve collet, which caused the failure / existence of contract undisputed / implied term in contract that First Respondent would carry out work properly / based on Applicant’s more reliable evidence, First Respondent found to have incorrectly fitted valve collet / incorrect fitting of valve collet caused engine failure / full cost of repairs fair / extra costs incurred because repairs urgent, travel and extra wage costs for mine site work / commercial rates for parts fair / would be able to charge same rate for similar work / First Respondent ordered to pay Applicant $18,229.79

Contract / Consumer Guarantees Act 1993 / guarantee as to reasonable care and skill / Respondent requested from Applicant valuation of his motel premises / exchange of emails clarified the type required and when it could be done by / Applicant conducted inspection and provided report / Respondent declined to pay fee alleging it was past deadline and that he did not like the valuation / Applicant claimed payment of fee / Held: Applicant delivered its report within agreed time frame with reasonable care and skill / emails made agreed time frame clear and Respondent said he was fine with this / Respondent continued with valuation after being made clear that Applicant considered the property was unlikely to be at certain figure / claim allowed, Respondent ordered to pay Applicant $862.50.

Contract / terms of hire / Applicant hired a campervan from Respondent’s company / clutch on the van failed / Applicant had van repaired at a cost of $2,501.95 / Applicant sought repair cost, and petrol and alternative accommodation costs resulting from breakdown / Respondent made counterclaim seeking retention of the $2,000 bond / not sufficient evidence to establish that the Applicant failed to take reasonable care, or drove or behaved recklessly or wilfully, or falsely handled the vehicle / Applicant not liable to pay cost of repairing clutch / Applicant could not claim for additional costs as the terms and conditions of the hire did not permit recovery of additional expenses incurred if vehicle broke down / Respondent ordered to refund the hire fee, except for the one day for which the van was used / Applicant owed $26.50 for fuel, which was deducted from bond / Respondent to refund $1972.50

Contract / tort / negligence / driver of campervan reversed into Applicant’s car and caused damage to the car / while Respondent owns campervan, Respondent leases campervans to another company (HJ) who hires campervans out / Applicant and Applicant’s insurer claim repair costs from Respondent / claim in contract / driver hired campervan from HJ / therefore no contract between Applicant or Applicant’s insurer and respondent / claim in tort / respondent not responsible for driving and/or control of campervan / driver was not an agent of the respondent / Tribunal also finds Respondent not vicariously liable / claim dismissed.

Contract / Applicant submitted a quote to Respondent to lay 50 m² of timber / quote accepted / area was in fact 90 m² / Applicant advised Respondent’s project manager that the job would require additional labour and materials / advised to proceed and that the matter would be sorted out later / Applicant decided to not charge for additional glue as goodwill gesture / Applicant submitted invoices / accounts not paid / Applicant decided to charge for glue / claim for cost of glue, $1,265.00, and filing fee / held that it was Respondent’s mistake in thinking the area was only 50 m² and needed to make it clear to Applicant that it would not pay for additional labour and materials / failed to inform Applicant before he started work / Applicant went ahead with work with reasonable belief he would be paid / Applicant entitled to charge for additional glue as the goodwill gesture was contingent on prompt payment of accounts / Applicant entitled to charge for glue / Respondent to pay $1,265.00 t…

Contract / accord and satisfaction / Respondent provided accounting services to Applicant, another company and a trust / Applicant emailed Respondent asking whether it would charge less to which Respondent replied that it would charge maximum of $4,500.00 / sum of invoices then came to $4,500.00 plus GST / Applicant made payments totalling $5,000.00 / Respondent apportioned payments in a way that left a balance due for Applicant / Applicant claimed non-liability and refund of the GST paid / Held: if a sum of money is not stated to be GST inclusive or exclusive, the sum is deemed to be GST inclusive / principle of contra preferentum applies thus quoted maximum price of $4,500.00 was GST inclusive / payments were made without dispute and properly apportioned by Respondent / Applicant not liable to pay disputed account of $175.00 but unable to recover the $500.00 / claim allowed (in part), Applicant not liable to pay Respondent $175.00.

Contract / Consumer Guarantees Act 1993 / oral agreement between parties as to construction of driveway / Applicant formed the driveway and third party contractor sealed it / part of the driveway was not sealed on advice by Applicant, as the driveway would otherwise slump / dispute arose as to the cost of completing the formation of this section so that it could be sealed / Applicant claimed $463.63 as the alleged outstanding balance of the quoted price / held that Respondents had not made full and final payment and Applicant was entitled to outstanding monies / no accord and agreement in respect to earlier payment constituting full and final settlement / allegation of breach of s 28 of the CGA (guarantee that service will be provided with reasonable care and skill) not upheld / no breach of s 29 of the CGA (guarantee that the product of a service provided shall be fit for its purpose / Applicant’s claim upheld and Respondents to pay $463.63.

Contract / Consumer Guarantees Act 1993 (CGA) / Applicants purchased furniture sold by Respondent company / Applicants did not receive full furniture setting / Applicants claim that contract be cancelled as well as a refund of the purchase price / Held: not reasonable for owner to assume customers were aware that furniture pieces could be sold separately without specifically discussing it or marking it clearly on the price tag / owner of company failed to ensure that customers’ intentions were clear and that he would be able to provide them with the exact product ordered / Respondent breached guarantee under s 10 CGA (goods supplied by reference to a sample or demonstration model must correspond with sample or demonstration model) / Respondent failed to remedy defect with the sale and purchase of the furniture within a reasonable period of time / therefore, Applicants entitled to cancel the contract and obtain a full refund of the purchase price / strike out / respondent company is the…

Tort / Negligence / Respondent drove through give way sign / Respondent claims his brakes failed and that the Applicant was driving too fast / held that Respondent was negligent because he failed to give way / no evidence brakes failed / held that Applicant was not speeding and no contributory negligence on their part / repair costs and towing costs claimed deemed reasonable / Respondent to pay $4084.71 to the Applicant’s insurer for the costs of repairs and towing the car.