Disputes Tribunal of New Zealand

Tort / Private nuisance / Trespass / Applicant hired contractor to trim neighbouring Respondent’s trees to prevent “ongoing damage” caused by overgrown debris / Applicant claims $3,092.50 in private nuisance for damage caused to iron fence by overgrown trees / Respondent counter-claims $999.99 in trespass for damage caused to trees and plants by contractors / Held: Respondent’s overgrown trees caused unreasonable interference and damage to Applicant’s fence / However, Applicant caused damage to Respondent’s trees and plants by allowing contractors to trespass trimming trees / Applicant entitled to $3,047.50 in damages / Respondent entitled to $350.00 for damage to trees and plants / Respondent to pay Applicant $2,697.50 / Claim and counter-claim partially allowed.

Construction law / Applicant engaged Respondents to do extensive renovation work on its commercial property / Both parties agree further external waterproofing required / Windows leaked before exterior waterproofing completed / Another company completed waterproofing and remediation work / Applicant claimed $14,950 of amount charged because Respondent failed to adequately waterproof installed windows / Held: windows were leaking / Applicants made aware of the need to complete sealing before watertightness could be achieved / Respondent ordered to pay Applicant $3,358 / Claim allowed in part.

Contract / Consumer Guarantees Act 1993 / Construction Contracts Act 2002 / Respondent engaged Applicant for building work / Issues arose as work progressed / Respondent withheld payment of final invoice due to alleged defects in Applicant’s work / Applicant claimed $12,095.63 for unpaid invoice / Respondent counter-claimed $29,249.56 damages for defective work, lost rental income, interest, and legal fees / Held: Respondent in breach of contract for non-payment / Applicant liable for some issues claimed by Respondent, being damage to sewage pipe and failing to meet consenting requirements in installation of paths around house / Respondent failed to prove other counter-claims / Respondent ordered to pay Applicant $5675.18 / Claim and counter-claim both allowed in part.

Contract / Disputes Tribunal Act 1988 / Respondent engaged to collect and install a television for Applicant / Dispute over whether work was completed / Applicant claimed $209.37 for time and travel for work / Respondent claimed $260.00 for collection and installation, though confirmed claim was for $195.50 invoice / Held: Applicant’s claim did not fall within limited jurisdiction of Tribunal to award claims for costs / Risk of disappointment in all consumer transactions and time and stress of dealing with that disappointment not usually recoverable / Respondent did collect and attach television to wall / Applicant ordered to pay $195.50 for invoice/ Claim dismissed and Counterclaim allowed.

Contract / Misrepresentation / Property / Applicant purchased house from Respondent / Applicant discovered Respondent made false statement / Textured walls contained asbestos / Applicant claimed $21,485.93 to remove remaining wallboards with asbestos / Held: Respondent misrepresented property to Applicant / Applicant induced to purchase house because of misrepresentation / Applicant entitled to damages / Respondent ordered to pay Applicant $21,494.93 / Claim allowed.

Contract / Applicant entered agreement to build custom vanity for Respondent / After installation, vanity top drawer would not close / Applicant fixed and reinstalled drawer, invoiced Respondent for additional work / Respondent disputed charge as additional work due to Applicant’s error / Applicant claimed $624.08 for unpaid invoice / Held: Applicant made error in constructing drawer / Change to drawer was not variation to contract, therefore Respondent not liable to pay for it / Claim dismissed.

Procedure / Applicant claimed $4,500 to be paid / Respondent avoided communication with Tribunal / Held: Respondent had opportunity to attend hearing and provide his side of story / Respondent agreed to pay Applicant and adjournment was to give Respondent 2 weeks to arrange a loan to pay Applicant in full / Respondent ordered to pay Applicant $4,500 / Applicant will make vehicle available for Respondent to uplift when full sum $4,500 has been paid / Claim allowed.

Contract / Heritage New Zealand Pouhere Taonga Act 2014 / Applicant supplied heritage services for a commercial property on behalf of then property owner / Archaeological remains discovered / Property then sold to Respondent / Applicant continued to work on property due to transfer of authority arrangement /  Number of Applicant’s invoices sent to Respondent were unpaid / Applicant sent interim report on findings / Respondent criticised report and contended work done was unnecessary and of limited value / Applicant claimed for unpaid invoices, $19,429.26 / Held: no evidence Respondent cancelled or purported to cancel the contract with Applicant / Respondent liable to pay Applicant’s charges for all work carried out / Applicant’s $1540.00 legal fees should be excluded from claim amount / Respondent ordered to pay $18,000.00 / Claim allowed.

Warranty / Consumer Guarantees Act 1993 / Building Act 2004 / Applicants bought a retractable roof pergola from the Respondents / Applicants are concerned that the way the pergola has been attached to their home is structurally unsound / Applicants also concerned that the height of the pergola at one end does not meet their specifications / Applicants bring a claim against Respondents for a refund of their deposit, costs of removing the pergola and a declaration of non-liability for the balance owed / Held: Pergola not fit for purpose / Defect is of a substantial character / Applicants entitled to consequential losses / Claim allowed, Respondent ordered to pay Applicant $18,422.44.

Contract / Building Act 2004 / Respondent sold property to Applicant / Flood water runs off the property into the neighbouring property instead of the front of property / Applicant claimed $29,704.50 to remedy flooding / Held: work completed did not restore ground contour / Pooling not caused by lack of lawn maintenance / Top soil and hydroseeding and lawn maintenance alone could not fix problem / Approximate cost to remedy could be the done with three catchpits connected to the stormwater connection / Cost could be in or around the suggestion made by Respondent / Respondent ordered to pay Applicant $8,000 / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a sewing machine / Sewing machine was damaged when received by Applicant / Respondent admitted liability for damage / Respondent slow to respond but provided replacement value / Applicant claimed $532.30, $468.90 for replacement cost of sewing machine and $63.40 Tribunal filing claim and preparation cost / Held: Respondent liable for replacement value of sewing machine /  Respondent’s response was slow but by a narrow margin did not meet definition of costs for unnecessarily prolonged delays in proceedings / Claim for costs dismissed / Respondent ordered to pay $468.90 / Claim allowed in part.

Contract / Applicant contracted Respondent to supply aluminium joinery for the conversion of building structures / Applicant requested an electronic lock on one of the doors / Electronic lock was installed onto wrong door / Respondent offered to install lock on correct door / Applicant rejected this and seeks $2500 for third party to remove and correctly install lock / Respondent claims unpaid $649.37 / Held: Applicant had read and accepted quotation / Applicant has not been able to prove Respondent was responsible to double check quotation / Applicant ordered to pay $649.37 to Respondent.

Consumer law / Contract / Fair Trading Act 1986 / Applicant engaged Respondent moving company to move household to new town / Respondent’s website promised same-day or next-day delivery / On week of move, Respondent advised delivery would be 2 days after pick up / Applicant requested compensation for accommodation between pick up and delivery / Respondent offered $97 compensation / Applicant cancelled contract / Applicant claimed $997 deposit, $2,065.87 cost of alternative moving arrangements, $300 cost of storage, and $285 for fuel / Held: Applicant was not entitled to cancel contract, as Respondent had not cancelled or threatened to cancel service / Respondent did misrepresent its services, liable for some compensation / Respondent ordered to pay Applicant $300 / Claim allowed in part.