Disputes Tribunal of New Zealand

Tort / Towing of vehicle / Applicant parked at a plaza and had dinner there / parking only for customers / remained parked after the plaza closed / returned to car and it had been towed by the Respondent (a towing company) / no signage at entrance and no sign in front or behind the row of parking spaces in which the Applicant parked / Applicant seeks refund of release fee / law of trespass to goods / clamping a person’s car is an act of trespass to that person’s property unless it can be shown that the owner has consent to, or willingly assumed, the risk of the car being clamped / same logic applies to towing / distress damage feasant only applies where a person or object trespasses on to land and causes damage / held that the Respondent committed a trespass against goods when it towed the Applicant / notices were insufficient for purposes of warning the Applicant he may be towed / Respondent not entitled to rely on distress damage feasant as there was no damage / Respondent ordered to…

Contract / Applicant claims $506.93 in respect of plumbing services rendered by Respondent and additional administrative costs / Respondent claims its insurer should make the relevant payment / Respondent did not deny existence of contract or that services were rendered / issue of whether the Respondent’s insurer should pay is an issue between the Respondent and its insurer / Applicant is entitled to payment of services but not additional charges as lack of evidence that Respondent accepted the additional charges / Tribunal filing fee only recoverable in exceptional circumstances which do not apply / Respondent to pay Applicant $312.57.

Jurisdiction / Disputes Tribunal Act 1988 / Resource Management Act 1991 / Applicant claimed costs against the respondent for the moving of a water supply valve to comply with a resource consent condition / Applicant claims Tribunal has jurisdiction to hear the claim under the Fair Trading Act 1986 / Held: the parties’ relationship was created by the Respondent’s statutory authority under the Resource Management Act / Applicant’s claim is outside Tribunal’s jurisdiction / claim is to be struck out.

Tort / trespass / distress damage feasant / Applicant parked her car on a site for a small errand elsewhere and found her car clamped by Respondent and was only released after payment of $250 charge / Applicant claimed for refund of the amount charged / Held: wheel clamp was not justified in the circumstances / not been provided with any evidence relating to authority of wheel clamping / even assuming authority existed, signs containing conditions were insufficient and obscured and not reasonably sighted by Applicant / doubt whether charge of $250 reasonable / claim allowed, Respondent ordered to pay Applicant $250.

Contract / Misleading representation / Fair Trading Act 1986 / Applicant provided “garden quote” by email to Respondent for landscaping and garden work / Applicant then said he forgot to include GST in “garden quote” and increased total cost / work began and included additional work with no discussion as to price of new work / Respondent was told project was on budget but on final day was told it was little over budget / Respondent refused to pay as invoice exceeded agreed amount / Tribunal finds that “garden quote” was an estimate not quote as it lacked specificity / this estimate was GST exclusive as Respondent was put on notice and agreed to continue work / Applicant was entitled to exceed estimates in email but by no greater than 20 per cent / Applicant was entitled to charge no more than reasonable price for the additional work not included in estimate under s 31 Consumer Guarantees Act 1993 / Applicant’s assurance amounted to misleading representation and breached s 13(g) of Fair…

Jurisdiction / Disputes Tribunals Act 1988 / Respondent volunteered to give Applicant and a third party her opinion on a rule at their golf club / Applicant was not satisfied with the manner in which Respondent provided opinion / Applicant claimed that the arrangement was contractual and could be heard / Held: there was no contract between the parties / Respondent’s opinion was not provided on the basis of some consideration / it was overly artificial to attempt to create a contract out of a promise / claim does not fall within Tribunal’s jurisdiction / claim struck out.

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.

Contract / certainty of contract / Third Applicant owns property adjoining land which has a forest owned by Respondent / Respondent decided to log its forest and in return for using Third Applicant’s paddock for the harvesting, it would provide digger hours and grant access to hunt to Applicants on Respondent’s block after logging had finished / harvest operation ceased and Respondent advised Second Applicant that access would not be granted / Respondent subsequently finished logging without using Third Applicant’s paddock / Applicants claimed for the value they placed on the hunting rights / Held: lack of finite term of the contract did not prevent it coming into existence, the start date was to be when logging had finished although no end date was discussed / Respondent breached its agreement from refusing access / damages claimed reduced as it was unrealistic to expect hunting access would last indefinitely / claim allowed, Respondent ordered to pay Third Applicant $5,828.00.

Jurisdiction / Accident Compensation Act 2001 / Applicant suffered chemicals burns to her eyes at a beauty salon owned and managed by Respondents and claimed for the pain and suffering from this injury / Held: claim relates to personal injury / Tribunal’s jurisdiction barred by s 317(1) Accident Compensation Act 2001 / claim transferred to the District Court.

Contract / Sale of Goods Act 1908 / Applicant ordered two batches of Warrego bricks from Respondent to build a house / having put up significant portion of second batch, Applicant’s bricklayer advised difference in shades / Applicant claimed the cost to plaster over the bricks / Held: variations in shade is the nature of Warrego brick / no breaches of ss 15 or 16 Sale of Goods Act 1908 as Warrego bricks were supplied, fit for their purpose and of merchantable quality / Applicant accepted bricks supplied and could not reject / even if there had been breach, Applicant suffered no loss or damages / claim dismissed.

Contract / Applicant’s children parked his vehicle at Respondent’s car park and paid for parking until 8.00am the following morning/ returned to car later in the evening to find car park closed / unable to recover the vehicle until the following morning / returning the following morning, Applicant found that Respondent had given him a ticket for parking beyond the period that had been paid for / A argued that it was unreasonable for R to issue a Parking Breach Notice as he was prevented from recovering his vehicle as the car park had closed / Held: that signs displaying the car park closing time and the terms and conditions displayed adjacent to the ticket machine are incorporated into the parking contract between the parties / Applicant’s claim is dismissed / Applicant ordered to pay Respondent $93.33 pursuant to s 11(2)(b), Disputes Tribunal Act 1988.

Limitation / Limitation Act 1950 / Applicant purchased vehicle from Respondent in 1996 / he was unable to afford repayments so it was returned in 1997 / in 1998 Respondent notified Applicant more money was owed, which was paid off over a number of years / Applicant claimed he did not owe the money and it should be repaid / Held: Applicant’s cause of action arose in 1998 when Respondent sought further payment / Applicant precluded from bringing action after 2004 under s 4(1) Limitation Act 1950 / s 24(b) Limitation Act 1950 could not provide relief to Applicant as he was not affected by disability “on the date when any right of action accrued” which was 1998 / Applicant’s claim outside limitation period / claim struck out.

Contract / Fair Trading Act 1986 (FTA) / First Respondent hired a truck and excavator from First Applicant / truck collided with power pole while driving / First Applicant repaired the truck and claimed for the excess under terms and conditions / First Respondent counterclaimed that terms and conditions were misleading, excess and costs incurred / Held: First Applicant’s terms and conditions were clear that the hirer is responsible for any damage to hired equipment during term of hire / should the hirer pay “damage waiver”, hirer is then only liable for first $1,000.00 (plus GST) / First Applicant did not engage in misleading conduct under s 11 of FTA / First Respondent had opportunity to review terms and conditions and accepted / no suggestion made by First Applicant that “damage waiver” extended to third party damage / First Respondent formed mistaken impression of cover / claim allowed, counterclaim dismissed, First Respondent ordered to pay First Applicant $1,125.00.