Disputes Tribunal of New Zealand

Damages / Dispute about rental car costs Applicant incurred when his car was damaged / Applicant’s car unusable for two months / Applicant used a courtesy car for some of that time but had to rent a car to travel between cities for work, at cost of $971.75 / Respondent’s insurer offered to pay $694.60 / Insurer’s position was that savings were made when renting a car instead of using your own car, such as road user charges and wear and tear, which should be deducted from rent costs / Insurer claimed lesser amount satisfied insured’s legal liability / Held: Applicant did everything in his control to reduce cost expecting to be fully reimbursed / Full rental cost should be paid / Respondent ordered to pay Applicant $971.75 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant engaged Respondent to repair leak in his rental property / Respondent stated there was no obvious source of the leak, but re-screwed a section of the roof and repaired dented sheets, which as best it could assess were a likely source of the leak / Respondent invoiced $2,668.29 for work, which Applicant paid / Applicant brought claim for refund of the $2,669.29, claiming Respondent did not repair the leak / Held: unable to find Respondent carried out “wrong” repair / No evidence to support that it was more likely than not that Respondent carried out its assessment and repair without reasonable care and skill / Reasonable practice for roofer to make a best estimate of likely cause of leak based on its experience / Roof was leak free for some months after repair, lending support to Respondent’s work having been successful / Respondent’s work did not fail / Claim dismissed.

Jurisdiction / Property / Applicants claimed their neighbours, the Respondents, erected unattractive screens on their property near the parties’ joint fence / Applicants also objected that Respondents hung washing close to shared fence which was visible from their property / Applicants sought an order that these items be removed / Claim had no monetary value / Held: Tribunal did not have jurisdiction to hear the claim / Applicants’ claim related to aesthetic considerations, and did not involve any damage or injury to their own property / Claim struck out.

Contract / Applicants’ rental property was managed by Respondent / Issues arose after discovery of asbestos in the house / Respondent terminated property management agreement without notice “due to irreconcilable differences” / Applicants were dissatisfied with service received during contract, and believed Respondent terminated the contract wrongfully / Applicants claimed $9,000.00 in damages / Parties agreed Respondent would refund Applicants $598.00 for initial asbestos test / Held: claims regarding tree and garage door repairs not proven / Applicants not liable for HRV servicing charge, therefore Respondent to refund $196.85 charge / Respondent not responsible for damage to property during tenancy, as not proven that Respondent’s inspections were deficient or that Respondent should have recovered more money from tenants in Tenancy Tribunal / Respondent breached contract by terminating without notice, Applicants entitled to $613.53 compensation / Respondent ordered to pay $1,408.38 …

Consumer law / Consumer Guarantees Act 1993 / Applicant’s uninsured car was parked in a car parking building operated by Respondent / Applicant’s car window was smashed and property was stolen / Applicant submitted Respondent should have done more, such as having security guards patrol the building / Applicant claimed $3,000.00 in damages from Respondent / Held: balance to be reached between security measures and cost / Terms and conditions as well as common sense would alert consumers that the car park operator did not provide insurance for their cars, and may have limited security measures in place / Consumers can also take their own measures such as alarming their cars, not leaving valuables in plain sight and taking out insurance / Signs in carpark warning people to take their valuables with them / Applicant failed to prove that Respondent fell short of reasonable expectations for security / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a vehicle for $30,500.00 from Respondent / Applicant wanted to return the vehicle / Applicant sought a refund of $30,000.00 as he claimed he was not advised it was a ‘mild hybrid’ vehicle /  Held: vehicle did comply with the description ‘hybrid’ / ‘Hybrid’ was a generic name for a class of vehicle that uses two or more distinct types of power / That was how the vehicle in question was powered / Fuel performance of vehicle was clearly outlined to Applicant as it was displayed on the vehicle / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a waterproof cargo bag from Respondent for $159.00 plus $19.99 shipping / Bag designed to be carried on a car roof / Applicant attached bag to roof of vehicle for a long journey / Applicant noticed two tears in the fabric near fastening straps during course of journey / Respondent considered damage was caused by overtightening fastening straps / Applicant claimed $223.99, purchase price plus shipping cost and $45 filing fee / Held: cargo bag was not of acceptable quality / Bag was not fit for purpose it was described by supplier as being suitable for and was not durable / Applicant entitled to reject goods and receive refund, $159.00 / Applicant also entitled to shipping cost of $19.99 as a loss directly arising from the failure / Respondent required to collect the goods at own cost / Filing fee unable to be awarded in the circumstances / Respondent ordered to pay $178.99 / Claim allowed in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased house from Respondent / After moving in, Applicant discovered black mould under the stairwell / Applicant was aware prior to purchase that stairwell had been relined after a leak had caused damage / Applicant undertook further investigation and was advised it appeared leak had been present for years / Applicant paid $11,800.00 to have leak repaired / Applicant then discovered further mould in a bedroom, also caused by a leak / Applicant claimed $11,800.00 for cost of initial repair and $7,935.00 estimated cost of bedroom repair, alleging Respondent failed to disclose the leaks and black mould / Held: no failure to disclose issues, as Respondent was not aware of them / Agent’s statement that historic leak above stairwell had been repaired was a misrepresentation, as further permanent repairs were necessary / Misrepresentation was innocent / Applicant obtained a building report before purchase which…

Consumer law / Applicant purchased a car from Respondents via a private sale / Applicant paid $4200.00 / Respondents stated that the car “runs and drives beautiful” / Applicant noticed the coolant level was low when he inspected the car but purchased it regardless / Low coolant level turned out to be a crack in the radiator that required repairs / Held: Respondents’ statement regarding the car’s condition did not amount to a misleading statement / In the absence of independent mechanical evidence, the car may have been “running well” in lay terms / Not established that the statement induced the Applicant to buy the car / Misrepresentation not established / Claim dismissed.

Tort / Negligence / Respondent undertook resealing work on portion of a state highway / Seal began to fail within 5 days / Respondent advised seal was failing and emergency remedial work required / Applicant claimed Respondent was negligent by taking too long to close the road and had inadequate signage / Applicant claimed negligence caused damage to his vehicle / Held: Respondent owed Applicant a duty of care / Applicant failed to provide evidence that Respondent was negligent in its original sealing work / Time Respondent took to arrive on site was not unreasonable / Damage claimed by Applicant not due to alleged breach / Claim dismissed.

Procedural law / Disputes Tribunal Act 1988 / Hearing for original matter heard in February 2020 / Respondent missed initial hearing and rehearing / Respondent applied for second rehearing but did not attend due to family tragedy / Respondent now seeks a third rehearing three years later / Held: lack of urgency in applying for third rehearing / Applicant would be prejudiced if a rehearing were allowed / Claim dismissed, rehearing not allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicants booked flights via travel agent to fly with Respondent / Tickets were converted to flight credits due to Covid / Applicants requested a refund /  Respondent advised they had no record of their refund request and recommended that they rebooked using the credit / Applicants booked return international flights / When the Applicants arrived at the airport, they were told that Applicant’s mother’s ticket was invalid as the refund had been issued to her travel agent / Family purchased a new fare for $1327.03  / Applicant claimed $2327.03, $1327.03 cost of replacement ticket and $1000.00 for emotional distress / Held:  Respondents failed to exercise  reasonable care and skill / Appropriate award was the difference in the fares of $828.72 / Situation did not meet the high threshold for an emotional damages award / Respondent must pay $874.54, difference in fare and interest amount of $45.82 / Claim partially allowed.  

Negligence / Parties were involved in vehicle collision / Applicant was in his van on median strip, planning to turn right / Respondent turned right onto road / Respondent moved onto median strip to turn right and the two cars collided / Held: more likely that Respondent was responsible for damage to Applicant’s van / Applicant was entitled to be on median strip, and was there to be seen if Respondent had looked more carefully / No exceptions to rule that cars turning right must give way to all traffic not turning / Costs of repairs reasonable and consistent with damage done / Respondent ordered to pay Applicant’s insurer $11,984.02 / Claim allowed.