Disputes Tribunal of New Zealand

Consumer Guarantees Act 1993 / Applicant’s vehicle broke down and was diagnosed as a leaking injector pump seal and repaired by Second Respondent, then broke down again and diagnosed as a computer fault and repaired, intermittent fault was then gone / Applicant claimed for cost of the first repair / Held: Applicant liable to pay for both repairs / more likely than not there were two faults with vehicle / Second Respondent acted with reasonable care and reasonable skill / claim dismissed, Applicant ordered to pay Second Respondent $703.69.

Negligence / standard of care / Applicant was driving in strong winds behind the Respondent / material flew out from the Respondent’s trailer and damaged Applicant’s car / issue of whether Respondent took reasonable care to ensure that his trailer load was secure / Respondent argued that damage was caused due to an extraordinary act of nature / Held: Respondent does not have a defence that the cause of damage was due to an extraordinary act of nature / Respondent was aware of the weather conditions and should have secured his trailer load accordingly / Respondent to pay $736.58 to the Applicants, being the costs of repair.

Contract / Carriage of Goods Act 1979 / First Applicant arranged with Second Applicant for broken trailer to be transported to First Respondent’s storage yard / trailer and various goods on the trailer were damaged / some of the goods on the trailer were owned by Second Applicant / Applicants claim that Respondents are liable for damage to trailer and goods as the contracting carrier / Tribunal finds that neither Respondents were the contracting carrier / Applicant contacted Second Applicant directly and made arrangements / therefore Second Applicant was the contracting carrier / any subsequent billing arrangements cannot change the contracting carrier for the purposes of the Carriage of Good Act / claim dismissed.

Jurisdiction / Tenancy Tribunal / Applicants owned a home in which Respondent rented a room / Respondent left without notice owing rent and outgoings / parties agreed the Residential Tenancies Act 1986 would apply / while tenancy may be excluded from the Act, that is for the Tenancy Tribunal to determine / Disputes Tribunal has no power to transfer proceedings to the Tenancy Tribunal / Applicants’ claim struck out.

Tort / negligence / Respondent’s car collided with Applicant’s car / Applicant and her insurer claimed for assessed cost of repairs / Respondent accepts liability for incident and respondent’s insurer accepts that repair costs fair / however before repairs undertaken, Applicant’s car involved in subsequent incident affecting the same area of the car to be repaired / a second tortfeasor will not be liable if their actions caused no further damage or merely duplicated existing damage / Performance Cars Ltd v Abraham [1962] 1 QB 33 / Tribunal finds that the two incidents were separate and distinct and that repair costs relating to the first damage were established via an assessment / the need for repairs due to the first incident already existed for which the respondent acknowledged responsibility and agreed to pay for repairs / claim allowed, Respondent ordered to pay Applicant’s insurer $1,307.26.

Negligence / Applicant’s couch was damaged when the First Respondent washed the house the Applicant lived in / Held: the Respondent breached its duty of care to the Applicant in failing to take reasonable care to ensure furniture was not damaged when cleaning the Applicant’s house / exclusion of liability where joinery was not weathertight as set out in the contract was no applicable as there was evidence to suggest the joinery was weathertight and it was due to deficient advice by the Respondent that the couch got wet / Respondent to pay $900, taking into account depreciation in value of the couch since purchased.

Contract / Contractual Remedies Act 1979 / Applicants signed Agreement for Sale and Purchase with Respondents (trustees of FT Family Trust) for property that was advertised as “architecturally designed” / before settlement, Applicants discovered this was not the case and after settlement, discovered other problems with the property / Applicants claimed for the premium they paid for an architecturally designed house and repair costs / Held: FT Family Trust had undertaken faulty wiring in breach of clause 6.2(5) of the Agreement / Applicants not induced to enter contract by misrepresentation as they became aware of mistake before confirming Agreement and did not raise the matter / Applicants unable to establish that agent ever made a promise or representation / FT Family Trust liable for faulty wiring / claim allowed (in part), Respondents ordered to pay Applicants $362.89.

Contract / Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA) / after viewing a cast glass sculpture, Applicants agreed to purchase it from a gallery owned by First Respondent /  Applicants were surprised by different appearance of the piece on delivery / Applicants claimed cancellation of the contract / Held: the sculpture delivered to Applicants was the same one they saw in the gallery / light has significant effect on visual characteristics of glass sculpture / First Respondent did not display piece in misleading way thus no breach of s 10 of FTA / subjective disagreement as to whether bubbles in piece are a defect therefore not proven on objective basis that it was not of “acceptably quality” defined in s 7 of CGA/ no breach of s 28 of CGA as First Respondent could not be reasonably expected to know particular aesthetic concerns of customers / unreasonable burden to impose duty on seller to show a piece or explain how it may look in a range of different circumstance…

Fencing Act 1978 / Applicants’ property adjoins property owned by First Respondent / Applicants issued a Fencing Notice which was delivered to the registered office of First Respondent but addressed to Second Respondent / Second Respondent received the notice but chose not to respond / Applicants proceeded to build the fence as they did not receive a cross notice / Applicants claimed for a half share of the cost of the fence / Held: First and Second Respondents are separate legal entities but notice fulfilled the purpose of service / mistake was immaterial / Applicants issued valid notice and as First Respondent did not issue a cross notice, it was deemed to have accepted the proposals and liable to pay the half share / s 11(3) Fencing Act 1978 / issue of fencing being over-height dealt with by Applicants / fence boundary line in accordance with s 22 Fencing Act 1978 / claim allowed, First Respondent is ordered to pay Applicants $1,600.00.

Negligence / vicarious liability / Land Transport (Road User) Rule 2004 / Applicants claim Respondent’s road sweeper showered stones and gravel onto their car, causing damage / Applicants claim for the cost of damage due to Respondent’s negligence / issue of whether Respondent was negligent in the operation of the road sweeper / Held: Respondent was not negligent / Respondent operated the road sweeper in accordance with industry standards / Respondent’s duty of care to other road users was not breached / Applicants’ claim is dismissed.

Jurisdiction / Overseas parties / Applicant is an overseas company based in Australia / Respondent is a New Zealand company based in Christchurch with Australian clients / agreement between parties that Respondent would service some of the Applicant’s Australian-based clients / no written terms to the agreement / Respondent paid the Applicant in Australian dollars / Applicant sought to recover a number of outstanding invoices / the Disputes Tribunals Act 1988 and Disputes Tribunals Rules 1989 entitled any person to commence proceedings in the Tribunal in the prescribed form / no issue of enforcement when Applicant resides overseas / District Court has held that the Tribunal has jurisdiction to hear a claim by an overseas applicant / according to principles of conflict of laws, claim should be heard in accordance with Australian law / Disputes Tribunal not able to apply Australian law / claim struck out for lack of jurisdiction. 

Jurisdiction / tort / pure economic loss / Applicant manufactured an additive to grapes / Respondent was contracted by a winemakers association to prepare a “spray schedule” for circulation to the members of the association / Respondent was of the opinion that the Applicant’s product should be on the schedule and accompanied by a statement saying that it may affect the flavour of the wine / Applicant argued that it has suffered loss as a result of the publication of this view / Tribunal’s jurisdiction to hear claims in tort is limited to claims in tort in respect of any damage or injury to property / property refers to tangible property such as chattels and does not encompass alleged harm to pure economic interests, such as loss of a sale / claim outside the Tribunal’s jurisdiction / claim struck out.

Jurisdiction / quasi-contract / Respondent a former employee of Applicant / Applicant overpaid Respondent $380.98 in his final pay / Respondent claims he can retain the overpayment pursuant to the Wages Protection Act 1983 / Applicant claims $380.98 plus filing fee from the Respondent / issue as to jurisdiction / Tribunal has jurisdiction under quasi-contract to hear claim / Employment Relations Authority does not have exclusive jurisdiction to determine matters of overpayment to an employee after employment terminated / claim not founded in contract and Respondent has not breached a contract / quasi-contract / person liable to make restitution when unduly enriched / Respondent received money he was not entitled to through Applicant’s error / no legal reason justifying non-repayment / WPA does not apply as Applicant not seeking to deduct overpayment from future wages / Respondent not entitled to the money and has been unduly enriched by Applicant’s error / unjust for Respondent to reta…