Disputes Tribunal of New Zealand

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased a second hand grandfather clock for $1100.00 from Respondent / Applicants alleged the clock was not able to be repaired and they wished to return the clock and receive a refund / Held: Respondent was not a specialist seller / Respondent was a charity that ran a shop selling second hand items, which would be obvious to any consumer / Clock was most likely marked as “as is” / Applicants were aware the clock was being sold not working because they engaged a clockmaker to fix it shortly after purchase / Guarantee that the clock was of acceptable quality did not apply / Applicants accepted the clock was not working and had no assurance it would work and they accepted the risk the clock may not able to be made to work / Claim dismissed.

Negligence / Respondent engaged the Applicants to move furniture / Respondent’s puppy was killed in the course of the move / Respondent accepted Applicants’ work was done but considered that they were responsible for the death of his puppy / Applicants claimed $542.00 for cost of their labour and related costs / Held: Applicants were obliged to carry out their work with reasonable care so as not to cause damage to Respondent’s property / Applicants did not fail to use reasonable care / Respondent had obligation to maintain control of the puppy / Respondent took the risk of his puppy suffering injury by allowing her to run loose whilst the Applicants were moving heavy objects / Respondent did not warn Applicants that the puppy was running loose, particularly as they had previously observed the puppy being restrained / Applicants’ actions resulted in the puppy’s death, but their actions could not be regarded as negligent conduct / Respondent should have confined his puppy while heavy obj…

Contract / Respondent took its vehicle to Applicant and found a coolant leak / Respondent authorised Applicant to replace head gasket / Vehicle overheated and lost power / Pistons were cracked which was pressuring the cooling system / Applicant invoiced Respondent for replacement engine / Respondent believed Applicant damaged pistons during first repair and refused to pay invoice / Applicant claimed payment of invoice / Held: Applicant did not damage pistons when it replaced the head gasket / Cracked pistons would have eventually failed / Respondent barred by contract from making consequential losses / Respondent ordered to pay Applicant $30,000 / Counterclaim dismissed / Claim allowed.

Negligence / Applicant was involved in a minor vehicle collision with Respondent’s driver / Collision occurred after Applicant changed lanes and moved in front of Respondent’s vehicle / On basis that it was a “rear-end” collision, Applicant and his insurer claimed cost of repairs to Applicant’s vehicle, being $2437.32 / Respondent contended that Applicant caused the collision by “brake-checking” their vehicle behind / Respondent counterclaimed for cost of their repairs, being $1328.83 / Held: dashcam footage showed there was not much of a gap for Applicant’s vehicle to move into, and that he braked suddenly after changing lanes / Combination of evidence lead to conclusion Applicant was brake-checking / This practice is inherently dangerous and followed a tight lane change / Applicant was fully liable for causing the collision / Applicant ordered to pay Respondent $1328.83 / Claim dismissed / Counterclaim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant bought vehicle from Respondent / Vehicle failed WOF due to structural corrosion and required significant repairs / Applicant claimed compensation for reduction in value of vehicle and costs / Held: vehicle not of acceptable quality / Corrosion highly unlikely to have developed in a space of five months / Corrosion and rust faults are a failure of substantial character because they are so extensive and require more than minor repairs / Respondent ordered to pay Applicant $20,273.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant hired a campervan from Respondent / During course of hire Applicant had three different campervans, all of which Applicant experienced issues with / Applicant claimed $5,263.00, being refund of $169.78 daily rental for the 28 days she used the second campervan with issues, plus 3 days she had to take the third campervan for repair / Applicant had already received $2,075.00 compensation from Respondent / Held: goods supplied by Respondent were not of acceptable quality / Reasonable consumer would not have regarded campers as being fit for purpose due to number of issues Applicant experienced / Failure was of a substantial character / $2,075.00 was a reasonable amount for Applicant to receive in damages in compensation for reduction in value of hire of the camper / Applicant suffered loss of $60.00 for food that perished due to camper fridge not working / Respondent ordered to pay Applicant $60.00 / Claim allowed in part.

Consumer law / Fair Trading Act 1986 / Applicants alleged Respondent engaged in unconscionable behaviour by closing their company credit account / Applicant claimed compensation of $27,000.00 being $7,000.00 for loss of income and $20,000.00 for humiliation / Held:  Respondent’s action in withdrawing the credit account was directed at the Applicant’s company and not him personally / First Applicant had to show personal loss for unconscionable conduct claim, which would exclude alleged loss of business income / No evidence to support allegation of racial discrimination / Claim by Second Applicant struck out / Claim by First Applicant dismissed.

Contract / Fair Trading Act 1986 / Applicant owned a property / Former neighbours built an outbuilding which encroached on Applicant’s property / Former neighbour passed away and property was sold to purchaser / Purchaser took Applicants to District Court to resolve encroachment issue / Applicants successfully defended District Court proceedings / Applicants claim legal costs from real estate agent who failed to inform purchaser of encroachment before purchase / Held: legal costs were too remote or not reasonably foreseeable as result of conduct or lack of conduct by Respondent / Claim dismissed.

Contract / Respondent was Applicant’s property manager / Applicant states that Respondent has breached contract / Tenancy agreement stated maximum of 4 tenants but one tenant also had their mother staying / Applicant claimed increase in rent to reflect additional tenant and costs when he cancelled contract / Held: Respondent had not breached contract by having more than four tenants / Respondent had breached contract by entering into settlement agreement / Respondent had not breached contract in terms of how they property managed the property / Respondent not liable for costs Applicant has incurred / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant entered verbal contract with Respondent that the Respondent's shop would sell items on behalf of Applicant / Items had been sold but Applicant had not received payment / Applicant claimed value of items and collection costs / Held: Applicant entitled to contract / Respondent refused to fulfil obligations by refusing to pay Applicant / Respondent ordered to pay Applicant $2,801 / Claim allowed.

Property / Limitation / Limitation Act 2010 / In 2017, Respondent was cutting trees on Applicant’s property when a large branch fell on roof of a silo belonging to Applicant / Applicant obtained quote of $18,236.93 to replace silo / Respondent’s insurer offered $6,382.93 to settle claim, estimated indemnity value of silo less depreciation / Applicant rejected offer, instead wanting replacement value or repair of silo / Applicant brought claim for $30,000 for cost to repair damaged silo / Respondent counterclaimed $6,595.25 for invoice for tree topping work ($1,863.00) plus interest / Held: both claims time-barred / Claims struck out.

Negligence /Applicant cyclist and Respondent motorcyclist collided in a road accident / Applicant provided CCTV footage that showed he entered into an intersection controlled by lights / Applicant was cycling slowly and was positioned at the centre of the intersection /  After two cars passed, Applicant started turning right / Respondent was driving his motorcycle through the intersection and said he was aware of the Applicant /  Respondent overtook Applicant just as Applicant was turning right, and both riders collided / Applicant claimed for cost of his replacement bike, helmet and bike carrier from his insurer / Applicant now claimed for his insurer to be compensated for the loss it incurred / Held: Respondent breached his duty of care by overtaking in an intersection without ensuring it was safe to do so / Applicant’s insurer entitled to be compensated for all reasonably foreseeable loss / Total foreseeable loss was $1,049.50 / Applicant’s insurer shown that it was entitled to be c…

Negligence / Applicant left his car with the Respondent to have new tyres fitted / Applicant paid $1000.00 for the tyres / Severe flooding affected location of Respondent’s workshop / Vehicles in the workshop were written off as a result of the flooding / Speed and severity of flooding took local council and emergency services by surprise / Held: Respondent could not have predicted or even suspected the flooding / Respondent had no reason to take any special precautions / Claim of negligence not established / Respondent had no legal liability to Applicant for the loss of his vehicle in the flood / Respondent negotiated a payout from its insurer based on part of its policy covering vehicles damaged while in the workshop / Respondent offered Applicant $14,000.00 as part of their insurance pay out / Respondent also agreed to refund the costs of the tyres, $1000.00 / Respondent agreed to pay Applicant $15,000.00 in total / Claim dismissed.