Disputes Tribunal of New Zealand

Negligence / Animal Law Reform Act 1989 / Respondent’s cattlebeast escaped on the road / collided with Applicant’s car causing extensive damage / car written off / issues are whether respondent failed to take reasonable care if third party had left gate open and whether storage costs while Applicant’s wreck was being sold are established / held that Respondent failed to take reasonable care to ensure stock did not stray on to road – either by leaving gate open himself or allowing third party to do so / storage period of 52 days not foreseeable and is therefore reduced to 14 days / sum awarded reduced accordingly by $218.50 / Respondent ordered to pay $6,901.26 / Respondent to pay the money to Applicant’s insurer.

Contract / Consumer Guarantees Act 1993 / guarantee as to acceptable quality / Applicant claimed outstanding invoice from Respondent for sale of goods / Respondent counterclaimed for different goods supplied earlier and alleged these were deficient once installed / Applicant denied these were deficient and claimed he was not responsible for installation deficiencies / Held: disputed goods were supplied as ordered, accepted on delivery and installed by a third party contractor / Applicant complied with his side of contract and was not responsible for installation / Applicant entitled to payment for outstanding invoice / claim allowed, Respondent ordered to pay applicant $7,039.83.

Tort / Trespass to land / Applicant and Respondent neighbours / Applicant claims that the Respondent threw dog faeces on her roof / evidence from Applicant’s builder that he’d found dog faeces on the Applicant’s roof / to succeed in a claim of trespass to land, necessary to show that the trespass arose from the actions of a specific person, not just the property / although the faeces most likely did originate from the Respondent’s property, Applicant failed to establish on the balance of probabilities that it was the Respondent, specifically, who threw the dog faeces onto the roof / claim dismissed

Contract / Money owing on a debt / Respondent given notice in writing and via email / question of the Respondent’s liability for collection costs and interest after notice / Terms of Hire were clear as to interest on debts / terms did not specify whether the interest accrued on existing overdue amounts / interest not charged prior to notice as this would have been to apply interest retrospectively / a retrospective application of the clause would amount to a harsh exercise of its enforcement powers for the purpose of s 19(e) of the Disputes Tribunals Act / Respondent to pay debt collection fees and a reduced amount of interest from that claimed.

Jurisdiction / quasi-contract / copyright infringement / Respondent re-published certain photographs on its website taken from Applicant’s website without Applicant’s permission / therefore, Applicant argues that Respondent obtained undue advantage and thereby Applicant entitled to be compensated in quasi-contract / Tribunal finds copyright falls within definition of ‘intellectual property’ under s 11 of the Disputes Tribunals Act 1988 / Tribunal does not have jurisdiction to deal with intellectual property under section 11(5)(c)(iv) / claim struck out for lack of jurisdiction / claim dismissed.

Negligence / Land Transport (Road User) Rule 2004 / Respondent opened his car door and hit Applicant as she drove past, damaging the front side of her car / Held: Respondent created a hazard by opening his door in the path of ongoing traffic, breaching r 7.2(1) of the LTR 2004 and his duty of care / the Applicant was not driving too close to the Respondent / Respondent to pay reasonable costs to compensate Applicant, being $2,490.85.

Contract / breach of contract / agency / Applicant acted as rental property manager in respect of the Respondents’ tenanted property / contract provided Applicant full authority as Respondents’ agent in respect of the property / included taking emergency measures at Respondents’ cost / sewage drain blocked at property / work commissioned by Applicant in consultation with Respondents / Respondents rejected second bill for works and terminated agency contract / Applicant claims $1,188.57 outstanding from second bill / Applicant entitled to be compensated for liabilities incurred on behalf of Respondents / Applicant had full authority to act in response to emergency situation / no evidence Applicant breached contract by failing to exercise due care, skill and competency in providing its services / Applicant consulted with, and received consent from, Respondents about instructing contractors / rent issue / Applicant entitled under agency contract to continue receiving rent from tenants unt…

Agency / Second Respondent was Applicant’s managing agent which was ordered to pay $1,500.00 as exemplary damages for breach of quiet enjoyment and harassment to tenants in a Tenancy Tribunal order / Second Respondent paid the tenants and deducted this sum from the rent collect for Applicant as landlord / Applicant claimed to recover funds paid by the Second Respondent to tenants / Held: agency contract was between Applicant and Second Respondent / liability only arose because of the fault of Second Respondent for reasons given by Tenancy Tribunal / property management authority contract could not excuse Second Respondent’s liability / indemnity clauses not applicable / agent has an obligation to act lawfully or in compliance with the Residential Tenancies Act / Second Respondent did not act properly, acted unlawfully and breached Act / claim allowed, Second Respondent ordered to pay Applicant $1,500.00.

Contract / Respondent entered into contract for Applicant to convert New Zealand dollars into Chinese currency / Applicant effected the exchange but Respondent failed to pay / Applicant reversed transaction and suffered loss / Applicant claimed for loss suffered / Held: Applicant was not in breach of previous foreign exchange contract / contract was formed over the telephone at the exchange rate offered and accepted on that day / Applicant was not limited to actual loss but entitled to damages on the basis of rate agreed by Respondent / interest awarded as Respondent kept Applicant out of money for no good reason / claim allowed, Respondent ordered to pay Applicant $1,135.64

Cancellation of contract / Contractual Remedies Act 1979 / Respondent developed a static website for Applicant’s gardening business / Applicant subsequently requested change and agreed to a dynamic database-driven website / Applicant paid with three cheques but after the first was banked he cancelled the second and third / Applicant claimed refund of the first cheque paid / Held: parties did verbally agree to alter the scope of contract at the new price / if Applicant had not agreed to the more expensive site he would not have written out the cheques / protection under s 31(1) Consumer Guarantees Act 1993 extends only to circumstances where price has not been discussed / parties had agreed on price / website was a database-driven site with reasonable functionality / Applicant’s cancellation of cheques and refusal to proceed amounted to repudiation / Respondent entitled to cancel and claim relief under ss 7(2) and 9(2)(b) Contractual Remedies Act 1979 / but Tribunal unable to award debt…

Contract / Sale of Goods Act 1908 / Applicant purchased chainsaw from Respondent on Trade Me / chainsaw would not start and so returned it for a replacement / Respondent repaired it, further damaging it / Applicant sought to reject chainsaw and obtain refund of purchase price / Applicant bought chainsaw on basis on Respondent’s description on Trade Me and did not have opportunity to inspect it before purchase / chainsaw did not appear to have been damaged in transit / held that chainsaw was not of merchantable quality under s 16(b) Sale of Goods Act 1908 / remedy for breach of a condition is cancellation on contract / Applicant entitled to cancel contract / Respondent ordered to refund the purchase price.

Fair Trading Act 1986 / false or misleading representations / Applicant, relying on certificate of analysis, purchased copper sulphate from Respondent / Applicant discovered that product contained additive which precipitated out and ruined end product / Applicant claimed compensation for consequential losses from rebottling affected product / Held: certificate provided by Respondent was a representation / Applicant relied on composition in certificate to determine suitability / certificate falsely represented composition and breached s 13(a) of Fair Trading Act 1986 / shipping label and two per cent impurities allowance not significant / Respondent’s terms and conditions does not exclude Fair Trading Act 1986 provisions / held in Smythe v Bayley’s Real Estate Limited (1993) 5 TCLR 454 that not possible to exclude the provisions of the FTA / Applicant entitled to compensation under s 43(2)(d) FTA as losses claimed were reasonable / claim allowed, Respondent ordered to pay Applicant $840…

Contract / Consumer Guarantees Act 1993 / guarantee that goods comply with description / Applicant purchased a second-hand engine from Respondent which required additional parts for it to be installed in his vehicle / Applicant paid his mechanics to install the engine and for additional parts then claimed the entire cost of fitting the new engine / Applicant claimed that Respondent breached Consumer Guarantees Act 1993, guarantee that goods comply with description / Held: engine supplied by Respondent did comply with description / Applicant would have had to incur labour cost even if specific missing components were present as they would have needed to be replaced / rest of the parts could not be considered part of the motor but items that would typically need replacing at the time of engine replacement / claim dismissed.